§ Order for Second Reading read
§ 7.3 pm
§ The Attorney-General (Sir Michael Havers)
I beg to move, That the Bill be now read a Second time.
I do not know whether it is through the lack of sex appeal of the Bill or because tomorrow there are to be certain elections, but, with the exception of the right hon. and learned Member for Warley, West (Mr. Archer), whom I welcome, the Opposition Benches are deserted. If it is the latter, perhaps we could have local elections more often to speed up the dispatch of the business of the House.
The primary purpose of the Bill is to consolidate the existing statutory provisions governing the constitution, jurisdiction and practice of the Supreme Court, that is, the Court of Appeal, the High Court and, since 1971, the Crown court. It also contains a number of amendments to the existing law, where necessary to improve on that law in the light of current conditions. So it is not a Bill which could be passed through the House under the normal procedure for consolidation Bills, of which the House will be agog to hear there are two to be considered later this evening.
A consolidation measure in the technical sense would not have been satisfactory, for two reasons. In the first place, many of the principal provisions relating to the Supreme Court date back to the 1870s, when that court was first created by the Supreme Court of Judicature Act 1873. Although those two Acts were consolidated with the subsequent Acts and other cognate provisions in the Supreme Court of Judicature (Consolidation) Act 1925, that Act was a pure consolidation, so that most of its provisions still in effect date back to the 1870s. Not only is a good deal of the language somewhat outdated, therefore, by comparison with more modern provisions relating to the Supreme Court, such as those in the Administration of Justice Act 1970 and the Courts Act 1971, but it contains many provisions which are now, after more than 100 years, no longer needed. It has, accordingly, become desirable to restate this body of law in shorter and more modern form.
The second reason why consolidation alone would not have sufficed is that, in addition to restating existing statutory provisions, it is desirable to make a number of changes in the substance of the law. Before I describe the more important changes it might be helpful to the House if I outlined briefly the history of this important body of legislation providing, as it does, for the administration of justice at first instance and on appeal in all the more important cases, both civil and criminal, falling to be dealt with by the courts in England and Wales.
Before the 1873 Act there were seven superior courts, each administering civil justice, with their jurisdictions overlapping and sometimes conflicting. It had been so for centuries, but the Royal Commission presided over by Lord Cairns which reported in 1869 proposed that the separate courts of Queen's Bench, Common Pleas, Exchequer, Chancery, Probate, Divorce, and Admiralty should all be consolidated into one Supreme Court, and this is what was achieved by the 1873 Act.
That Act provided for the Supreme Court to consist of the High Court, to deal with matters at first instance previously dealt with in the seven old courts, and for the 200 Court of Appeal to hear appeals from the High Court and exercise several earlier appellate jurisdictions. The Act also provided for the abolition of appeals to the House of Lords. The latter provision was, however, deleted from the 1873 Act by the Act of 1875, passed before the earlier Act was brought into force and, in 1876, the Appellate Jurisdiction Act made fresh provision for appeals to the House of Lords. By then the modern edifice as we know it had been created. There was one Supreme Court consisting of the High Court and the Court of Appeal. The business of the High Court was allocated, for convenience, to five separate divisions, reduced to three in 1881.
Since the 1925 Act, major institutional changes have been the creation of the criminal division of the Court of Appeal, replacing the old Court of Criminal Appeal, which was done by the Criminal Appeal Act 1966. It may be of interest to the House, although it is totally irrelevant to the Bill, to know that there were 35 attempts in Parliament to create a Court of Criminal Appeal before it was established.
The major reorganisation of jurisdiction under the Administration of Justice Act 1970, which established the family division, created the post of vice-chancellor in the Chancery division and set up the Admiralty Court and the Commercial Court within the Queen's Bench Division and the Crown court as part of the Supreme Court.
This last change was, of course, the result of the work of the Royal Commission on quarter sessions and assizes under the chairmanship of Lord Beeching, which perhaps bears some comparison with that of the commission under Lord Cairns which reported exactly 100 years before. The Beeching report, published in 1969, was radical in its analysis and practical in its recommendations, although those have not been altogether accepted by everyone connected with the law. Within well under two years of the report's being signed, the Courts Act 1971, establishing the Crown Court in place of court of assize and quarter sessions, had received the Royal Assent. More recently, the Patents Court was established as part of the High Court by the Patents Act 1977.
In a Bill of this nature some degree of choice requires to be exercised over what should be included and what should be left out. There are two main classes of exclusions, as indicated in the second paragraph of the explanatory and financial memorandum to the Bill, which I am sure all hon. and right hon. Members will have read avidly and with the greatest care. These are matters that conveniently form a separate code of their own—for example, the existing provisions about funds in court in the Administation of Justice Act 1965 and the provisions for criminal appeals in the Criminal Appeal Act 1968. The memorandum draws attention to all the changes of any importance that are made by the Bill. I shall not take up the time of the House by rehearsing every one, but there are certain to which I feel I should refer. My hon. and learned Friend the Solicitor-General may refer to others when he deals with points raised during the debate.
Perhaps the most important group of changes, which I welcome particularly, are those designed to facilitate the dispatch of business in the Court of Appeal in both its civil and criminal jurisdiction. The present pressure of business in the Court of Appeal, especially in the civil division, is very heavy. The waiting time between the setting down of a final appeal and the hearing is about eight or nine months. This is partly due to two other factors. First, restrictions on access to the Court of Appeal have not been 201 kept up to date. Secondly, there is no system whereby routine preliminary matters can be dealt with other than by the judges themselves.
In December 1978 a working party under Lord Scarman recommended certain changes to help in these matters.
The most important change recommended by the working party and implemented by the Bill is the creation of a new office of registrar of civil appeals. This appears in paragraph 9 of part II of schedule 2 and the provision in clause 58(1) whereby rules of court can give single judges and the registrar jurisdiction to deal with preliminary and incidental matters.
The House will be surprised to hear that, at present, the Court of Appeal has no staff of its own except the clerks to the Master of the Rolls and the individual lords justices. Nor does it have any judicial officer apart from the Master of the Rolls and the lords justices who can deal with interlocutory questions and see that cases are properly prepared for presentation and made ready for the court to hear. The three divisions of the High Court all find it necessary to have judicial officers to deal with interlocutory matters. In addition, the criminal division of the Court of Appeal finds it essential to have appellate cases properly prepared. In this, the criminal division is well served by the registrar of criminal appeals and his staff. I pay a particular tribute to the registrar and his staff. I am convinced that the great deal of work that they perform is instrumental in speeding up the passage of criminal appeals.
The new arrangement for the civil division will relieve the lords justices of work that does not require to be dealt with by them. I hope that the new arrangement will therefore make a contribution towards expediting civil appeals.
Other changes in the civil division will be that applications for leave to appeal can be finally determined by a single judge under clause 54(6) and the Lord Chancellor will have power by order made with the concurrence of the Master of the Rolls and therefore subject to parliamentary control to extend the classes of case that can be determined by a two-judge court rather than a court composed of three judges. The types of appeal to be prescribed might include certain county court cases.
Finally, in connection with the civil division of the Court of Appeal, schedule 3(10) enables the Lord Chancellor to prescribe by order classes of proceedings in which appeals from county courts to the Court of Appeal will require the leave of either the county court judge or the Court of Appeal. Appeals from county courts currently make up a third of final appeals outstanding. I was astounded to discover that the present limit on such appeals have not only stood a long time, but that the present limit is £20 on appeals on questions of law. One is not surprised to learn that this situation dates from the nineteenth century. The £200 limit on questions of fact dates from 1938. This power will again be subject to parliamentary control by negative resolution. It is the intention of my noble Friend the Lord Chancellor to bring forward an order under the new power to come into force with the Bill.
In the criminal division of the Court of Appeal, waiting times for the hearings of appeals are far too long. For sentence appeals the average is 20 weeks, while for appeal against conviction it is 40 weeks. One is aware of the tremendous amount of work done by the judges in the criminal division of the Court of Appeal in trying to make 202 up the backlog. They have had substantial success. I would also like to pay tribute to the success of the Divisional Court in making startling improvements to the waiting time in that court.
§ Mr. Ivan Lawrence: (Burton)
Is my right hon. and learned Friend aware of the enormous pressure put on the shoulders of the criminal judges, who often have to consider the subject matter of appeals in the late afternoon and evening, sometimes stretching into the night, after their daily work is done? That is not a desirable state of affairs. There may now be too much pressure on some judges in the Court of Appeal criminal division. I wonder whether my right hon. and learned Friend will examine the matter, to see whether the pressure can be relieved.
§ The Attorney-General
My hon. Friend is right. When possible, as he will know, the Court of Appeal criminal division tries to arrange what is called a reading day, when the judges do not sit in order to enable them to catch up. It still means, however, that they have to sit, often at home, late into the night, reading. The burden on the single judge dealing with applications for leave is often impossible. My hon. Friend will notice that the Bill increases the number of High Court judges. I hope that this will enable more rotation and so avoid leaving judges with an excessive amount of work for an unnecessarily long period. The burden on a High Court judge, whether sitting in the court that we have been discussing or in a Crown Court, is far greater than ever before. This reflects the increase in crime and the increased time taken by so many trials. I would like to pay tribute to all those concerned with the administration of justice, who are doing so well against the odds.
I was saying that the waiting time for appeals against conviction in the criminal division of the Court of Appeal is 40 weeks. One cause of delay is the need to wait for a transcript. This element of delay has been reduced by a third in the past year. There is a simple explanation. If a shorthand writer is in court all day, and will be in court again every day of that week, he has to try to produce the transcript when he gets home. It may be some distance between the court and his home. In the past, shorthand writers would not have been in court every day. They would have been allowed time off to prepare transcripts. The demand on shorthand writers has been great but they have responded magnificently and the delay has been reduced.
If sentencing appeals could be dealt with by a court consisting of two rather than three judges, this would make a substantial contribution to reducing generally the delay in hearing appeals. Clause 55(4) accordingly extends the jurisdiction of two-judge courts to enable them to deal with appeals against sentence only. Such appeals are generally less weighty than appeals against conviction, but the Lord Chief Justice will retain the discretion to direct the use of a three-judge court for such cases as appear to be weighty enough to warrant it. It will continue to be mandatory for appeals against conviction to be heard by a court of not less than three judges. If there is any anxiety about what will happen when there are two judges who take differing views, the Bill provides that the appeal is heard by a full court of three.
Another important change made by the Bill relates to the transfer of civil proceedings between the High Court and the county courts. Schedule 3(7) inserts two new 203 sections into the County Courts Act 1959 which both codify the existing miscellaneous powers to order transfer of cases from the High Court to a county court, and vice versa, and extend the power so that in future the court will have power to make such an order of its own motion instead of on the application of the parties as at present. The purpose is to ensure that, as far as possible, cases are tried in the forum appropriate to the amount in dispute or the degree of complexity of the issues. It is hoped, therefore, that there will be less reliance on the use of deputy judges in the Queen's Bench division.
The Lord Chancellor is the president of the Chancery division, reflecting the historical fact that for many centuries the Lord Chancellor and the Chancery Court were practically one and the same. That position will be retained. However, nowadays the day-to-day administration is conducted by the vice-chancellor, who is a simple Chancery judge. That is perhaps an impolite way of expressing myself. He is nominated from among the Chancery judges by the Lord Chancellor. For all practical purposes the vice-chancellor is one of the heads of divisions, as are the Lord Chief Justice, the president of the family division and others. The Bill provides for him to be recognised as such. Thus, he will be appointed by the Queen and will be an ex-officio judge.
The existing rights to trial by jury in civil actions in the Queen's Bench division, are reproduced in clause 69, with one signifcant change. That change clearly does not meet with total approval. At present, if a party to one of the types of proceedings in which a jury trial might currently be ordered—cases of fraud, libel, slander, malicious prosecution or false imprisonment—applies for jury trial, such a trial must be ordered unless it requires prolonged examination of documents or accounts or a scientific and local investigation that cannot conveniently be made with a jury. Responding to a recent trial and to feelings expressed for a number of years, the Bill adds a second ground. The court may refuse jury trial if it is satisfied that the probable length of the trial makes the action one that cannot conveniently be tried by jury. It will be within the discretion of the judge to whom the application is made.
The change was made by an amendment in another place tabled by three members of the judiciary and accepted by the Government. They were prompted by the action brought against the Daily Mail by the Unification Church. Originally it was estimated that that trial would last for three days. It ran from early October to the end of March—nearly six months.
The jury discharged its duty with great dedication, but it made representations to the judge that no future jury should have to suffer such a lengthy term of duty. It is intolerable that ordinary citizens should have their lives disrupted for such a long time for the purpose of determining a private dispute. Therefore, clause 69(1) gives the court a discretion to refuse a jury if the case is likely to take an exceptionally long time.
The Bill contains a number of other detailed changes with which I shall not weary the House. If any cause anxiety, they will be dealt with later. The Bill was welcomed in the other place. I commend it to the House. It provides a coherent and economical restatement of an important body of constitutional legislation and contains some useful amendments to existing provisions.
§ Mr. Peter Archer (Warley, West)
I thank the Attorney-General for his kind references to me. He noted that the Opposition Benches were not exactly packed to suffocation. If he looks round he will see that his colleagues are not exactly in danger of suffering from claustrophobia.
In the debate on the Supreme Court of Judicature Act 1873, Mr. Matthews, who was the hon. Member for Dungarven, made a speech. I quote from the 3rd Series, Vol. 216, c. 676 of Parliamentary Debates. In accordance with practice, reported speech was used.Mr. Matthews said, the fact of the debate having been carried on in a very thin House was not encouraging to the friends of Law Reform, for though the Bill was one which vitally affected the interest of every subject of the Queen who had to go into a Court of Law, the debate upon it had been addressed to only 12 or 20 hon. Members.I referred to that passage on 14 January in the debate on the Courts Act 1971. I said that they had beaten our score. That is also the case tonight.
I regret that not more of our lay colleagues are taking part in the debate. I wish that we could induce them to participate because they are concerned with the ways in which our legal system can better serve their constituents. They can bring their experience to bear on where the shoe pinches. The law is too important to leave to the lawyers. It is no great relief to lawyers that their lay colleagues write them a blank cheque.
In a debate last week I criticised Government policy. This Bill offers less opportunity for controversy. It is an attempt to make the administration of justice as smooth, expeditious and fair as possible. We can approve of much of the Bill. Much of it is consolidation. Consolidation measures do not change the course of history or even provide the standard topic of conversation. They facilitate the task of busy people who have to administer the law. We shall not seek to discourage the Government from introducing consolidation measures.
We read with pleasure some of the Bill's contents. The Attorney-General referred to the office of Vice-Chancellor being given statutory recognition among the heads of divisions in clause 4. In clause 10 the position is recognised as a royal appointment and it is included with ex-officio Court of Appeal status, in clause 2. That means that the work of Sir Robert Megarry, who has occupied that office with great distinction for some years, will now be recognised. That is right.
We are also pleased that the Government have given thought to the problems of the Court of Appeal. They are only part of the wider problem of staying abreast of the volume of work which is always breathing down our necks and outdistancing the running which we have to do to stay in the same place, with a consequent lengthening of the time before cases are heard.
One aspect has been much discussed recently and was referred to by the Lord Chancellor—the length of time occupied by some jury proceedings. I should be out of order if I embarked on a discussion about whether we should remove the right of jury trial, for example in criminal trials for fraud. The House will have other opportunities to debate how we reconcile the need to expedite cases with such important safeguards for individual liberty as the right to jury trial. I accept that if a jury is to consist of a typical cross-section of the 205 community there must be a limit to how long we can ask 12 people, chosen at random, to devote each working day to something other than their normal occupation.
In relation to the right to jury trial in certain civil proceedings, the Bill proposes an important change in the law. At present, each party has a right to jury trial in certain cases, particularly fraud and defamation. By the amendment in the other place to which the Attorney-General referred, that right is replaced by a discretion. I understand the reason for sparing jurors long periods of absence from their normal business, but the Bill removes, almost by a side wind, what has been considered an important constitutional right, and one which has proved itself in practice to be an effective institution worthy of the confidence that it has won from the community.
The Attorney-General confirmed that it was a reaction to one case. We should like to be assured that it is not an over-reaction. We shall return to this matter. I hope that we shall be told, if the principal criterion is likely to be the length of the trial that a case is estimated to take, what, broadly, would be regarded as an unacceptable period. If other factors are to be taken into account, what will those other factors be?
§ Mr. David Mellor (Putney)
I support what the right hon. and learned Gentleman says. I draw his attention to the terms of the amendment that was proposed in the other place, which appeared to suggest that durations of four, six or eight weeks were excessive. Is that not rather disturbing?
§ Mr. Archer
I agree with the hon. Member for Putney (Mr. Mellor). It would make what appears to be a serious inroad into a person's right to trial by jury.
One other matter that puzzles me as a matter of logic is that the case referred to by the Attorney-General, and by the Lord Chancellor in another place, was one in which what went wrong was the failure to estimate the probable length of the case. The new provision can operate only if the probable length of a case is estimated accurately. When the length of a case is known with reasonable accuracy, potential jurors can be warned beforehand, and provision can be made for any problems that may arise. I do not see how the Bill will solve the problem of inaccurate estimates. We shall return to the matter later.
I come back to the Court of Appeal. It has been an open secret for many years that the lords justices are among the most overworked officials in the country. They may be called upon to pass judgment in issues arising from any part of the law of England and Wales. Of course, the whole point of a court of appeal is that the legal system should develop as a whole, so that the reasoning in an issue of criminal law shall not be inconsistent with the reasoning in an issue of Revenue law or Admiralty law. The United Kingdom has deliberately chosen as a matter of policy to have a single Court of Appeal whereas, as Lord Wilberforce said in another place, many continental systems deliberately choose a multiplicity of courts of appeal.
It follows that lords justices should be familiar with recent decisions across the whole field of law. That, as we all know, is a time-consuming exercise. But that is not all that we expect of them. Our judges should be men of the broadest learning, to ensure that the law does not develop in isolation from other disciplines—the natural and social sciences, literature, the arts, psychology, technology and all the other branches of learning.
206 Then there is the matter of keeping abreast of current news. In Standing Committee A, as the Attorney-General knows—at the cost of demands on his time—the Contempt of Court Bill is being considered. We are discussing whether our appellate judges should be protected from public discussion, even in specific cases which they may have to consider, or whether they may be positively helped to know how the current of public opinion is running. We say cheerfully that judges are spokesmen for the public in expressing condemnation of certain activities and the need to protect others. If that is true, it is vital that they should not be insulated from public opinion. But how can they remain abreast of opinion if no waking moment is available to them, when they have time to read current newspapers and journals?
In another place, Lord Scarman recollected that his working party, which reported in December 1978, recommended that lords justices should be afforded one working day each week when they were free to write their judgments and prepare for forthcoming cases. That contrasted sadly with what was said by Lord Roskill, that lords justices work a seven-day week, 14 hours a day. How can we ask them to remain abreast of what is happening in the outside world when those are their working conditions?
One possible solution is to adopt a procedure to admit of more expensive written submissions. That would effect a substantial saving of time in court—the long time that is spent, after opening the case, going through all the papers. I recollect spending a happy morning in the New York Court of Appeals, when they disposed in that one morning of three appeals, each of which in this country would have taken one-and-a-half to two days. Of course, that entailed a lot of paper work—written briefs, and many hours of work in chambers, but it achieved an overall saving in judicial time.
We may not need to swing so far as that towards reliance on paper work and away from oral argument, but if we keep judges in court for the whole of each working day, we cannot expect that quiet reflection which should form part of their job. The standard of our Court of Appeal, compared with most other countries, is extremely high, but that should not mislead us into believing that our system is beyond improvement.
§ The Attorney-General
One matter in the right hon. and learned Member's speech particularly interests me, as always happens with his speeches. On the matter of written briefs, does he have in mind the sort of arguments that one commits to paper—the outlines of one's case—as in a case in the House of Lords? Is that what the right hon. and learned Gentleman has in mind?
§ Mr. Archer
That is exactly the sort of analogy that had occurred to me—not the detailed briefs that American jurisdictions are used to, but the kind of thing that happens here in the House of Lords.
Among those who have directed their minds to the problem of judicial time in the Court of Appeal is a distinguished former lord justice, who presided over one division for many years, Sir John Megaw. In another place, my noble Friend Lord Elwyn-Jones mentioned the results of his analysis. He seemed to say, in essence—I had an opportunity to discuss the matter with him—that there are three ways of reducing the burden and speeding the hearing of appeal: we may reduce the rights of appeal; 207 we may increase the numbers of lords justices; or we may reduce the amount of judicial time spent on each appeal. None of those methods is particularly attractive, as Sir John Megaw readily recognised, and no one would recommend a drastic or dramatic attack on the problem at any of those points.
I accept that the second solution is not likely in any event in the present financial climate, apart from the danger of diluting the standard of appointments or of denuding the present High Court bench and the legal profession. However, there is room for imagination in the other two respects. There are ways of reducing the amount of judicial time spent on appeals. One is to channel the interlocutory work, or much of the interlocutory work, elsewhere. As the Attorney-General reminded us, Lord Scarman's report included a recommendation for the appointment of a registrar of civil appeals. I echo what the Attorney-General said. It is incredible that at present the Court of Appeal has no staff other than the clerks to the judges. The Bill provides for a registrar. I hope that that will relieve the lords justices of much of their present interlocutory work and ensure that cases are listed when, and only when, they are ready for hearing. Perhaps an analogy will be the kind of role played with such distinction and success on the criminal side by Master Thompson and his staff. So that provision will be welcomed by Labour Members.
What puzzles us is why it was necessary to make such a secret of the provision, when one would expect the Government to blazon it abroad. To find the provision, it is necessary to turn to clause 88, then to find paragraph 9 of part II of schedule 2. There, unobtrusively, stands the simple description of an office "Registrar of civil appeals". It transpires that he must be abarrister or solicitor of not less than 10 years' standing".So, clearly, he is to be a person of some calibre. However, as Lord Scarman said, the Bill does not say what his powers or duties will be, or whether he will be provided with a staff, and, if so, how many No guidance is given as to any changes in the rules that are likely to follow. If the Solicitor-General can give us some information on the matter, we shall be most grateful.
One other provision relating to the amount of judicial time spent on hearing each appeal is contained in clause 54(4), which sets out the circumstances in which a hearing may be by a court of two judges. The other provisions in that subsection are what we expected to find. However, there a power will be invested in the Lord Chancellor, with the concurrence of the Master of the Rolls, to prescribe certain descriptions of appeal which may be heard by a court of two judges.
One factor that has led to the building up of the confidence now enjoyed by the Court of Appeal is that, in the first instance, the decisions of one judge are then considered by a court of three judges. We know in practice how the quality of the argument and the judgments is enhanced by the interplay of three minds. We hope that inroads will not be made lightly into that standard. We accept that the pressures have to be met and savings in judicial time have to be made. I hope that we may hear subsequently from the Attorney-General about the circumstances the Lord Chancellor has in mind when he will avail himself of that power.
208 One other question, to which the Attorney-General helpfully supplied the answer, is what will happen if the two judges disagree. It is a relief to know that there will not be a danger that rules of law will be established at Court of Appeal level which rest simply on a disagreement between two judges. That will be achieved by a rehearing of the case concerned before three judges. Although that may not happen frequently, some of the time saved will be lost by a duplication of hearings. So much for reducing the amount of judicial time spent on each appeal.
On the question of reducing the number of appeals, we note that clause 145 and schedule 3 provide for certain amendments to the County Courts Act, 1959, as set out in paragraph 10, which states:The Lord Chancellor may by order prescribe classes of proceedings in which there is to be no right of appeal … without the leave either of the judge of the County Court or of the Court of Appeal.We accept that the limits have not kept pace with inflation.
There was some discussion in another place, based on the anxieties of people such as Lord Elwyn-Jones, about what would be the relevant criteria in deciding which classes of proceedings should be prescribed. I imagine that the House will wish to discuss each specific proposal when it appears in the form of a draft order. It follows that the orders should be subject to an affirmative resolution. We know the difficulties of negative resolutions, with the best of good will of all concerned. Of course, hon. Members may set down a prayer, but whether time is found to debate it is a Government decision. We understand that sometimes the Government consider that other pressures must take priority.
§ Sir Graham Page (Crosby)
The right hon. and learned Gentleman referred to a draft order. We shall not see that. It is simply an annulment procedure in the House.
§ Mr. Archer
I am grateful to the right hon. Gentleman for correcting me. That is a further anxiety. Without wishing to prolong the length of my speech, while we are discussing the county court, I wish to seize the opportunity to tell the Government that some of us are profoundly disturbed by the proposal substantially to increase the jurisdiction of the county court across the board by reference to the amount claimed and without distinguishing the nature of the claim, and especially to increase substantially the limits to the costs sanction. I know that that proposal does not arise within the Bill, and if I embark upon a major discussion I shall be out of order. However, it forms part of the context of the Bill.
As the Government know, there are those who are troubled about the proposal to extend the costs sanction to £3,000 in one jump in personal injury claims, especially industrial injuries. Issues are likely to arise in that class of case which are as difficult in a small claim as they are in a large claim—for example, the nature of the expert evidence, perhaps by an engineer, will be exactly the same. Therefore, the cost incurred would be the same. It is often easier for an engineer to attend the HighCourt—and cheaper for him to do so—than to go to a county court.
I do not propose to embark upon a detailed discussion of that matter. The Attorney-General is no doubt aware of the anxieties of some trade unions and the correspondence between the Lord Chancellor's Department and Mr. Brian Thompson. He may be aware of the anxiety, for different reasons, of the Shrievalty Association about enforcement 209 procedures. We discussed that matter briefly during Question Time on 9 March. We are a little unhappy that those representations appear to have been totally ignored. There was no question of some compromise. The limit for the costs sanction increased from £1,200 to £3,000—an increase of 150 per cent. at one jump.
I wish to raise two other topics. The Bill is similar to one which, in another context, the Lord Chancellor described as a collection of Committee points. During recent years the courts have developed a number of remedies to prevent dishonest defendants from avoiding their obligations. Two examples of that are the Mareva injunction and the Anton Piller order. For the benefit of our lay colleagues, the Mareva injunction prevents defendants against whom a claim for damages may be made from removing their assets from the jurisdiction so that, if a judgment is given against them, the successful plaintiff may find that there are no assets within the jurisdiction. That order can be served on a bank to ensure that money standing to a potential defendant's credit in a bank account will not be removed.
That remedy is valuable. It shows the flexibility of our commercial jurisdiction because it developed without any assistance from legislation. In the process, certain problems arose. It might impose expense on people who were not parties to the proceedings and who were innocent of any offence. For example, the bank might have difficulty in identifying the bank account because the defendanct might have accounts at a number of different branches. That would entail expense. The solution was again developed by the courts themselves. It is exemplified in the decision of Mr. Justice Goff in the case of Searose Limited against Seatrade (United Kingdom) Limited. He made it a condition of the granting of a Mareva injunction that the plaintiff should undertake to meet consequential expenses. That demonstrates how such remedies are at an early stage of their development. They are essentially flexible, and illustrate the flexibility of the courts. They need further flexibility to tailor them exactly to the needs of litigants.
In another place Lord Wilberforce expressed the anxiety that it may be premature to embody that procedure in a statute. However, we find it in clause 37. Admittedly, it is in wide terms, but it may transpire that, rather than assisting the courts, it will circumscribe their powers. But in this legislation we may need to deal with specific difficulties, where the courts have found a specific obstacle in their path. There is an example in the Anton Piller order. Once again, for the benefit of our lay colleagues, I shall explain that it is an order in proceedings for infringement of copyright authorising the search of defendants' premises before they have an opportunity to remove the evidence, and requiring them to answer questions. That order promised to prevent injustices in many cases, of a sort that are unhappily all too frequent in these days of the piracy of music, where it is difficult for the plaintiff to obtain evidence of piracy in any other way.
In the recent case of the Rank Film Distributors Limited and Video Information Centre, another place held that that order offended against the right to protection against self-incrimination. That right is part of a body of law on which, historically, our freedoms are founded. Those freedoms are precious and we must ensure that they are protected as far as possible. Where they are abused, and perhaps even more especially where they are trivialised, they may bring 210 the rule itself into disrepute. I doubt whether they add to the total of the freedom of the community. Legislation to ensure that the rules are used for their intended purpose, and not as an unworthy bolthole for the dishonest, may benefit the cause of freedom.
I accept that there are reasons in law for that decision, but the reasons are not binding on the legislature. We may wish to discuss possible amendments to the Bill in Committee to deal with that problem, bearing in mind the need to keep a proper balance of the interests involved.
§ The Attorney-General
The decision of the House of Lords in Rank Film Distributors has been most earnestly and urgently considered by my noble Friend. I can assure the right hon. and learned Gentleman that it is under active consideration to ascertain whether an amendment to cover it should be dealt with in Committee. The issue has not been overlooked.
§ Mr. Archer
I am most grateful for that indication that I might be pushing at an open door. I shall take up no more time of the House on that issue. I gather that the right hon. and learned Gentleman has issued an invitation to return to it in Committee.
There is a matter that has become, perhaps, the subject of an unhappy dispute between the two branches of the legal profession. It may be that this is not the time for me to comment on it. My hon. and learned Friend the Member for Abertillery (Mr. Thomas) will have something to say about it at the end of the debate. We all accept that there are certain tasks that should be carried out by those who are qualified by the nature of their training and experience. For example, no one may practise as a general medical practitioner except after certain training and experience in hospital wards. No one would normally be a craftsman except after obtaining certain qualifications and serving an apprenticeship.
That should not be made a pretext for introducing unnecessary restrictive practices. However, it would be unfortunate if, in our anxiety to avoid restrictive practices, we overlooked the qualifications and experience that are necessary for a particular job. I shall refrain from further comment, but we may have to discuss the issue at a later stage.
The Opposition will not seek to delay the Bill unnecessarily. On the contrary, we welcome it. We do not wish to discourage the Government from introducing measures of law reform, but there are a number of matters on which opinions may differ and where the weight to be given to one consideration as against another is a matter of judgment. I doubt whether any lobby on these issues is likely to occasion a major problem for the police in Parliament Square, but it behoves us as lawyers to sharpen the tools of our trade in a workmanlike, if sometimes an undramatic way. It is not lawyers who benefit from law reform but their clients, the general public.
§ Sir Graham Page (Crosby)
It is a disappointment to me that in declaring an interest I shall not have the advertisement of full Benches. I declare an interest as a solicitor. The Bill's short title is the Supreme Court Bill. In the opening paragraph of the explanatory and financial memorandum we are told what the Supreme Court is. It is the Court of Appeal, the High Court and the Crown 211 court. The Bill deals with amendments to the law relating to those courts and the county courts. In the long title we are told that it seeks to amend that jurisdiction.
We have to get as far as clause 146 before we discover what the Bill does about the county courts, and then we are referred to a schedule. When talking about facilitating the dispatch of business in the Supreme Court, I have the suspicion that the intention is to move a great deal of the present delay in justice in the Supreme Court to the county court, where there is already considerable delay, understaffing and overwork. I hope that that is not the intention. Unless the Bill—or another measure—amends the procedures in the county courts, we shall merely transfer delays in justice from the High Court to the county court. Delay in justice is a denial of justice in many instances.
It appears from a consultative document that the Lord Chancellor wishes the jurisdiction of the county court to be increased to £5,000. In 1974 it was £2,000. In my days of practising in the county courts it was £100. At that stage I was in the county courts almost every day, and £100 was quite a substantial sum. It was £500 for Chancery matters, which was very important. The schedule gives the Lord Chancellor the opportunity by order to transfer cases from the High Court to the county court or from the county court to the High Court. The Lord Chancellor's intentions have not been hidden, because we all know what is contained in the consultative document.
It is no good saying that in future the county court shall deal with cases up to £5,000, unless there is a procedure in the county court of equal efficiency to that in the High Court. There is no procedure in the county court for judgment by default or the order 14 procedure. In the county courts the clerks prepare the applications, the summonses and the notices, whereas in the High Court the solicitor for the party prepares his own and they may be issued on the same day.
There is sometimes as much as a week's delay in some of the county courts in issuing summonses. The procedure for enforcement of county court judgments by the bailiffs is in disrepute. For that very reason there are many solicitors who would advise their clients to take proceedings in the High Court when they could be taken in the county court and to succumb to the no-cost order—to lose the costs because it is so much more efficient to have a sheriff's officer enforce the judgment than to leave it to the bailiffs. The procedure in the county courts needs reform in the same way as we are trying to reform procedure in the Supreme Court. It is no good pushing the business over to the county court in the present situation.
There will be considerable resistance to the increase in the jurisdiction of the county court. It will be seen as an attempt to transfer matters from the High Court to the county court and to transfer the burden of work now in the High Court to the county court. There are many defects in the county court procedure, one of which was mentioned in another place. Promises were made by the Lord Chancellor to introduce an amendment in this place. I refer to interest on county court judgments. If those judgments are to be increased to as much as £5,000, and if the successful litigant can get no order for interest on the 212 judgment, he will take his action in the High Court. If he loses his costs, he will gain by getting interest on his judgment.
It is extraordinary that the interest on judgments in the High Court dates back to an Act of 1838. The county courts came into existence in 1846, so they missed the bus on interest. We must ensure that there is an amendment to the Bill to put that right, as was promised in another place. There are several defects in the county court procedure which oblige the litigant to take his action in the High Court.
I fear that if the Lord Chancellor is to decide by order the line of demarcation of jurisdiction between the High Court and the county court, the matter is being taken out of the hands of Parliament. If we are to have such orders merely under the negative procedure, it is stretching interpretation when my right hon. and learned Friend the Attorney-General says that the matter will be kept within the hands of Parliament, as he said on the question of the order that the Lord Chancellor can make about appeals om the county court. That is a fundamental issue.
Up to the present, Parliament has decided when appeals should be allowed from the county court to the High Court, to the Court of Appeal. It is true that the figures may be out of date, but I am not happy about them being put into an order that is just subject to annulment in the House. We know that a Back-Bench Member on the Government side has not a hope in hell of having a prayer debated. That is arranged through the usual channels. Unless the usual channels on both Front Benches want a prayer, no Back-Bench Member will be able to have it heard. Therefore, it is ludicrous to say that the matter will be kept in the hands of Parliament. The Bill goes too far in giving the Lord Chancellor those powers by order.
I appreciate that many matters in the Bill are intended to facilitate the business of the courts. That is necessary now, even if it is only to facilitate the criminal business undertaken by the civil judges. The number of prisoners awaiting trial is becoming something of a scandal. We must improve the business of the criminal and civil courts so that the judges are used in the best possible way, or appoint more judges.
I think that the right hon. and learned Member for Warley, West (Mr. Archer) mentioned the appointment of solicitors as judges. His argument that one must have certain skills to become a judge sounds more like an argument from the continental courts, where a judgeship is a career, and where one is trained to be a judge from one's earliest introduction to the law. One does not go through advocacy. Thank heaven that we do in this country. We go through the training of advocacy in the courts. I remind the right hon. and learned Gentleman that many solicitors in provincial towns spend their whole days in advocacy, either in the county court or in the police courts. They acquire the same skill in advocacy as does the ordinary counsel in court.
§ Mr. Archer
I do not propose to engage in debate at this stage. One of the matters that was in my mind was that the Official Solicitor is probably better as a solicitor than as a barrister.
§ Sir Graham Page
I agree. I would join the right hon. and learned Gentleman in putting down an amendment saying that a barrister or a solicitor should be qualified to become the Official Solicitor. I am not suggesting that the 213 Solicitor-General should be a solicitor. By statute, a solicitor is not allowed to be the Solicitor-General. The Official Solicitor carries out his work extremely efficiently and is always a solicitor. However, I see no reason why he should not be a barrister. I would give the alternatives throughout those qualifications for office that are set out in the Bill.
Clause 10(3)(c) says that a puisne judge must bea barrister of at least ten years standing.Since 1970 solicitors have been appointed recorders. As recorders, they are entitled to sit as circuit judges. My right hon. and learned Friend can correct me if my figures are wrong. I believe that there are now 19 solicitors acting as circuit judges. I have never heard any complaint about the fact that they are acting as judges. There is no reason why a solicitor, who must have had 10 years standing before he is appointed as a circuit judge, should not thereby qualify to be a puisne judge of the High Court.
If we are to facilitate the business of the court, more judges will have to be appointed. Therefore, it is reasonable that we should widen the choice of the Lord Chancellor in appointing judges. That choice is not being widened far. We have proved that the person who is qualified as a solicitor, who has been appointed as a recorder and who has sat as a circuit judge, is sufficiently efficient at the job to qualify to become a High Court judge. The argument is difficult. There is a desire in some quarters to keep the two branches of the profession separate. However, when it comes to facilitating the business of the court and giving the Lord Chancellor a wider choice from which to draw judges, the House should assist in that way.
There are many Committee points in the Bill. Most have been taken in another place, but we still have more to debate here. Apart from those Committee points, the principle of the Bill is right: that we must improve the business of the courts. I wish the measure well.
§ 8.8 pm
§ Sir Walter Clegg (North Fylde)
My right hon. Friend the Member for Crosby (Sir G. Page) has declared an interest and I shall declare a similar interest. He made my task easier by making more eloquently than I could have several points that I was going to make.
There are one or two points of particular interest to my profession. One is to right an injustice to that profession. In a case in 1974 a solicitor who had costs ordered against him by a circuit judge in respect of an adjournment appealed to the Court of Appeal. The Court of Appeal found that the circuit judge had not listened to what the solicitor had to say and that the solicitor had no responsibility for the adjournment. The Court of Appeal said that the solicitor had not received natural justice because of the failure of the circuit judge to hear him Nevertheless, the Court of Appeal could not order the circuit judge to reverse his order and destroy the order for costs against the solicitor. That was manifestly unjust. I understand that in the other place it was considered that an amendment should be brought forward in this House to remedy that state of affairs. Will my right hon. and learned Friend the Attorney-General confirm that the necessary amendment will be forthcoming to prevent that injustice from happening again?
Another problem affects many creditors who are seeking to enforce judgments. If the debtor has a deposit or current account with a bank, those accounts can be 214 garnisheed. However, if the accounts are with a building society or a trustee savings bank, no such procedure is available, or it is more difficult to obtain it. Since the last alterations in the law, the business of building societies and the trustee savings bank has changed greatly. They are now acting much more like High Street banks, and are used by the public as such. The trustee savings bank has, in effect, become a commercial bank. In the other place, the Lord Chancellor said that he would have discussions to bring forward an amendment to enable building society and trustee savings bank accounts to be garnisheed, which would help creditors seeking to recover judgment debts.
My right hon. Friend the Member for Crosby made a valid point about interest on county court judgments. It would be unfair if no interest were paid, certainly on the increased amounts available in the High Court.
Many litigants are vexed when a judge dies before he can deliver judgment and the case has to be reheard. Recently, a judge died before givng judgment, and the case was heard by another judge, who fell ill during the trial and later died. The litigants had to pay three sets of costs. The Lord Chancellor would not make a contribution from public funds to the litigants, who suffered through no fault of their own. It has been suggested that a suitors' fund be set up to deal with such eventualities, but the Lord Chancellor objects because that would increase public spending. However, the Law Society considers that the fund would be covered by a modest increase in the fees paid by all litigants, and perhaps in Committee we can reexamine the matter. People are enraged by having to pay lawyers' fees at any time, but it is a bit much if they have to pay two or three times through no fault of their own.
§ Mr. Mellor
It is the habit in county courts to list two days' business in one on the basis that half the business will collapse. Lawyers attend court with brief fees and cannot be heard. As it is the court's fault that no forum is available, there should also be compensation for that.
§ Sir Walter Clegg
I agree. There should be a fund to cover instances where the court is at fault. If courts realise that a financial penalty has to be paid from public funds, it may sharpen their administration.
Many people inside and outside the legal profession are worried about the procedures in the coroner's court. The office of coroner is an ancient one, and his duty to inquire into deaths is a necessary safeguard, His powers are adequate in the vast majority of cases, but a certain range of cases casts grave doubts on whether the coroner's court is the correct tribunal to investigate the cause of death—for example, of people held in custody or where death occurs through a major accident or fire or where it is surrounded by great controversy. I do not believe that in such cases the coroner has the necessary powers for justice to be seen to be done. We have reports in the press of witnesses being hissed and booed or cheered, which brings the court into disrepute.
At the discretion of the Attorney-General, certain categories of case should be taken away from the coroner's court and heard in the High Court. A High Court judge has not only greater powers but greater experience to investigate the circumstances surrounding death. Unles we establish a system that is universally respected—and the present system is not—the law will fall into disrepute. It would be a major undertaking to introduce such a reform in the Bill, but it would not be impossible under the long title.
§ Sir Graham Page
If the coroner's court were made a court of record, so that the coroner had power to commit for contempt, that would help.
§ Sir Walter Clegg
That is true, but I still believe that some cases require the skills of a High Court judge who is used to dealing with complicated matters that may last for weeks. It may also cut out the time spent on a further inquiry after the inquest. If the public were satisfied that there had been a thorough investigation by a High Court judge, there may be less demand for a further public inquiry.
I hope that my hon. and learned Friend will consider the idea. If no immediate action can be taken on my suggestion, perhaps he will consider that of my right hon. Friend the Member for Crosby.
I welcome the Bill, although I shall raise further points in Committee.
§ Mr. J. Enoch Powell (Down, South)
I wish to raise a single point, of which I have given notice to the Solicitor-General. It relates to clause 36, which deals with the power of the High Court to issue a subpoena to run throughout the United Kingdom. Subsection (3)(b) provides for the service of such a subpoena in Northern Ireland. I should like to be assured that there is adequate reciprocity between the High Court with which the Bill deals and the High Court of Northern Ireland. It is a matter of much satisfaction to Ulster Unionists to know that the Attorney-General is also the Attorney-General of Northern Ireland. We appreciate the care and attention that he and his hon. and learned Friend give to matters in the Province.
It will be obvious, as a matter of natural probability, that such a provision will be even more useful in the reverse direction, since, on balance, it is more likely that persons required in a court in Northern Ireland will be found in another part of the United Kingdom than vice-versa. I believe that I am correct in saying that inconvenience which would be met by this provision has, in fact, arisen in the High Court in Northern Ireland, particularly in matrimonial cases. I hope, therefore, that in his concluding remarks the learned Solicitor-General will be able to include an observation to confirm that there are reciprocal powers in this respect, or if not, to indicate that it is intended to provide them.
§ Mr. Iain Mills (Meriden)
It is with some trepidation that I rise amid such distinguished and learned company as a mere humble industrialist. As the Attorney-General corrected his statement about judges, perhaps I should correct mine by saying that I am "merely a humble industrialist".
I should inform the House that I advise the National Tyre Distributors Association, although I do not intend to reflect very much upon tyres.
I draw to the attention of the House the opportunities—already mentioned by the right hon. and learned Member for Warley, West (Mr. Archer) who led for the Opposition, and responded to so ably by my right hon. and learned Friend the Attorney-General—offered by clause 37 to restore to British companies some of the rights that they appear to have lost as a result of the decison in another place on the Anton Pillar orders. I shall not detain the House long, but I wish to put on record some 216 of the most important points in this matter, which is the reason for an industrialist participating in a more learned debate than is his normal wont.
It is perhaps inevitable, in a world in which international competition is increasing in scope, skill and complexity, that the counterfeiting of all types of product, packaging, trade marks and other assets should rapidly become a multi-million-pound industry. We believe that this concerns not only the obvious developing countries such as Taiwan, Korea and Hong Kong, but even some of our partners in the EEC, as evidenced by the recent action by Hoover against Italian manufacturers of counterfeit Hoover washing machine spares.
The Minister for Trade in a speech not long ago gave great reassurance to me and to the many companies involved not only in automotive parts and retailing but in many other British product manufacturing and distribution companies, when he commented:My Government is backing international action to outlaw the counterfeiters. We are pressing for the widest possible acceptance of a GATT agreement on counterfeiting which will come into operation this year, and which would allow for the seizure of goods. We are encouraging manufacturers to obtain patent and trademark protection and we are taking up specific cases bilaterally.The achievement of those measures will therefore give considerable protection.
The basis for proof of such counterfeiting, however, has been greatly undermined by the House of Lords decision on the Anton Piller order. It was therefore my view and that of others with industrial interests that it was vital to communicate to the House in more detail the concern that we and large parts of industry, particularly the automotive industry and the automotive component industry, feel about that decision.
I have been informed by the Society of Motor Manufacturers and Traders as well as by others that that decision will allow defendants to plead that disclosure would render them liable to prosecution for conspiracy to defraud and under the previous privilege against self-incrimination disclosure would not be granted. I am informed that as the defendants are then defined as criminals, suitable civil action cannot be taken. Such action would, of course, involve the seizure of documents and the request for disclosure of the suppliers in order to investigate an act through the distribution chain of supply.
This is a serious matter. It has not so far taken either the media or the public by the throat as a matter of great and passionate concern, but to companies which have unusual assets in products and trademarks and the great names of British industry, it is a most serious matter.
I quote a comment made to me by the Society of Motor Manufacturers and Traders, because I think that it brings home just how seriously such a body in industry—not a commercial concern which might have a particular row to hoe—regards this matter. The SMMT comments:In the eyes of all those companies involved in the fight against counterfeiting, this case is an unmitigated disaster. The 'Anton Piller' order which has been developed recently as a form of civilian search warrant was the most useful weapon in our armoury against the pirates and one of the main reasons … why in the motor industry at least, penetration of counterfeits onto the home market has been limited. As soon as a case was discovered we could, in the past, seize documents and ask for disclosure of the suppliers and 'take out' the entire chain of supply.Now, because of this case, in every instance virtually, the defendants will be able to say that disclosure would render them liable to prosecution for conspiracy to defraud and so disclosure 217 will not be granted under the old privilege against self-incrimination. Thus, because they are criminals, we cannot touch them.The right hon. and learned Member for Warley, West put this very clearly. Although the decision ensured rights in law, it has the necessary consequence, as the noble Lords discussed in finding for the defendants, of creating enormous and widespread difficulties for British companies.
For the sake of brevity I merely quote from The Times Law Reports the words of the noble Lord, Lord Russell, who said thatinasmuch as the application of the privilege in question could go a long way in the present and other analagous fields to deprive the owner of his just rights to the protection of his property his Lordship would welcome legislation somewhat on the lines of section 31 of the Theft Act".Prior to that, the noble Lord, Lord Fraser, said:Anton Piller orders, which had tended gradually to increase in stringency, had been found effective and had been made in England, New Zealand, South Africa, Australia and elsewhere. Now, for the first time, the defendants had objected to making discovery and to answering the interrogatories on the ground that by so doing they might incriminate themselves. If the objection was well founded, the usefulness of the Anton Piller type of order would be much reduced if not practically destroyed.A number of hon. Members, including my hon. Friends the Members for Rochester and Chatham (Mrs. Fenner) and Chorley (Mr. Dover) and myself, tabled a series of questions, initially to the Secretary of State for Trade but which were transferred and answered most ably by my hon. and learned Friend the Solicitor-General, whose reply reassured us, as did his reply tonight, that the Government are cognisant of the seriousness of the situation and are considering what steps might be taken to correct it.
I shall briefly suggest some possible steps that might be taken to restore the valuable nature of the Anton Piller order and to confirm that the matter is urgent. Consideration of legislation in a future parliamentary session would allow, in the intervening months or years, unacceptable losses to the British economy and to British companies. I therefore urge on behalf of myself and others that the Government take on board the need to give statutory force to the use of the Anton Piller type of order and to find some mechanism to grant a general exemption from self-incrimination in cases where such an order is granted.
It has been suggested to me that this could be done in clause 37 by replacing all that lies after subsection (1) by a new provision. This would not substantially affect subsections (2), (3) and (4), which would be transferred later. I shall read this to the House, as I believe that it is important. I also put it to my right hon. and learned Friend that, if he feels that our suggestions go too far to be accepted as possible Committee amendments to the Bill, I would understand that the matter might need further discussion. But perhaps he will give an answer on the question of principle, on the need for urgency and on the use of the Bill as a vehicle to correct the problems created by the recent decisions.
The suggestion is that clause 37 should be amended to include the following subsections:(2) The High Court shall have the power at any stage in any proceedings to order the inspection, photographing, transcribing, recording preservation, custody, detention, taking of samples or carrying out of any experiment on or with any thing or process which is or may be the subject of such proceedings or which is or may be relevant to any issue arising or likely to arise in those proceedings or which includes or contains or may include or contain any such relevant thing.218(3) The High Court shall have the power at any stage in any proceedings to order any party to such proceedings to answer any question or interrogatory or to produce any document or other article which is or may be relevant to any issue arising or likely to arise in those proceedings.(4) A person shall not be excused, by reason that to do so may incriminate (that person or the wife or husband of that person) (any person) from complying with any order of the High Court but no statement or admission made by a person in compliance with any such order shall be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the wife or husband of that person in any criminal proceedings [without the leave of the court which made that order].(5) For the avoidance of doubt proceedings for contempt of court or perjury shall not be treated as criminal proceedings for the purposes of subsection (4) above.Subsections (2), (3) and (4) would then become subsections (6), (7) and (8).
I am no lawyer. I have not explored in sufficient detail the consequences of many of those suggestions. I shall fully understand if I am advised by my hon. and learned Friend that in some respects they do not meet the mechanisms that I have requested. I put those suggestions forward on that basis. However, they have been formulated by learned gentlemen in the motor industry, and, therefore, have that credibility and substance to them.
This is an important matter for a number of British industries at a time when industries are beginning to turn up. Industrial resurgence will take place not only as a result of the activities undertaken by the Government but also through the ability of those industries to retain the intensely valuable nature of British product design, trade marks and names. The mere fact that our competitors in the developing countries see these as intensely valuable assets makes the point for me. I ask my hon. and learned Friend to act on that either in the Bill or as a matter of urgency hereafter.
§ Mr. David Mellor (Putney)
The Bill, which is of some importance in law reform, comes before a House comprised almost entirely of lawyers. I join those hon. Members who have said that it is unfortunate that a Bill that deals with one of the fundamental institutions of the State should be seen as fit only for those of us who at some point in our lives have practised the law.
At best the Bill is a tidying up measure that brings up to date some of the language of the 1925 Act and its predecessor the 1873 Act. Some useful changes are also thrown in. In no sense is it what Lord Scarman said was necessary—a long look at the mechanics of our system of courts with a view to bringing the whole thing up to date. He suggested, and I agree, that we should take a fresh look at this question rather than base what we do now on what previously existed. I hope that the day is not too far away when either the Law Commission or a special commission looks at the mechanics of justice and produces a report that properly brings our judicial system up to date.
I welcome a great deal in the Bill, particularly some of the new ideas which, although not necessarily revolutionary, will assist and commend themselves to most of us who practise in the courts. In particular, I commend what has been done to the Court of Appeal. I think that I am right in saying that ours is the only advanced legal system that has a centralised Court of Appeal. The penalty that we pay is an excessive work load on the judges and excessive delays in waiting for one's case to come before the courts. 219 Although the steps forward on the Bill are modest, they will be useful, particularly in relation to criminal appeals, which is an area that concerns many of us.
I listened with great interest to what the right hon. and learned Member for Warley, West (Mr. Archer) said about the proposal that only two judges should sit on appeals against sentence. I accept his point that one does not want to water down the strength of the court that often has to deal with difficult issues. As the proposal is limited to appeals against sentence, I cannot see that that is an objection. I cannot understand why two judges cannot make as good a job as three judges of assessing the validity of a sentence.
I do not know whether it is intended that the Court of Appeal—even when sitting with two members—should consist of a lord justice of appeal and a puisne judge instead of a lord justice of appeal and two puisne judges, as at present. There is no reason—particularly when an appeal is from a circuit judge—why we should not have two High Court judges sitting together as a two-member court. That would at least release a lord justice of appeal to do other work. I welcome that change.
I also warmly welcome the decision to appoint a registrar of civil appeals, with the apparent implication that he will construct an office that is broadly similar to that run by the registrar of criminal appeals. For some years my wife has worked in the criminal appeals department so I know at first hand the work that it does. Judging from what has been said in the House and in the other place, I am glad to say that its work is appreciated. Trained lawyers can go through the papers and produce a brief or resumé of the relevant points in the files that have come up from the lower courts. They are of inestimable use to judges in enabling them to process the considerable volume of work that goes through the Court of Appeal criminal division day by day.
It is extraordinary that for so long the Court of Appeal civil division has gone without such a system. The right hon. and learned Member for Warley, West raised a point about what is meant by appointing a registrar of civil appeals. Like him, I hope that it means that the registrar will be able to take on qualified lawyers who can work with the court and assist it in its tremendous task.
One matter which is not covered by the Bill but has been canvassed is the qualifications for appointment as a High Court judge. There is a danger that the profession will become polarised on this issue. I run the risk of being a renegade from my profession when I say that I see no earthly reason why a solicitor, who has served with distinction on the circuit bench, should not go on to the High Court bench if his service is regarded as suitably distinguished.
I read carefully the report of the debate in the other place, and I have listened with care to what has been said in this Chamber. It is argued that because a barrister practises in the High Court he is the only category of person suited to be a High Court judge. That argument is wide of the mark. It should be borne in mind that a circuit judge will soon be able to deal with matters that have a value of up to £5,000. If a circuit judge proves himself in that work and deals with the type of heavy criminal work with which such judges deal, there is no reason why he should be debarred from becoming a High Court judge. It would be cruel to tell an individual that he was an excellent 220 circuit judge and that if only he had been in practice as a barrister he would have been made a High Court judge. It would be cruel to say, "Unfortunately, you are for ever tarred with the brush of having been a solicitor, and therefore you must remain on the circuit bench." That cannot be right.
The idea that somehow the distinction between the circuit bench and the High Court bench is one of the complexities of the issues involved does not bear a moment's examination. Sometimes it is purely a matter of chance whether the precise legal circumstances lead to a major or a small loss. If someone is outstanding on the circuit bench, there is no reason why he should not also be outstanding on the High Court bench.
I profoundly disagree with one part of the Bill. I refer to clause 69 and the proposal for jury trials in civil cases. I invite my hon. and learned Friend the Solicitor-General to assist me on the precise extent of the discretion that is being left in the hands of a judge when he is asked to decide whether it is appropriate for a jury to be empanelled to hear a case, whether it involves libel or an allegation of fraud.
It has been suggested by both Front Benches that it is a wide discretion, but that is not how I read the subsection, which says thatthe action shall be tried with a jury, unless the court is of opinion … that the probable length of the trial makes the action one which cannot conveniently be tried with a jury".That does not give the judge an unfettered discretion to say that it is a matter of such importance that the case is one that a jury should try, or, for other reasons, that it is correct for a jury to try it. Convenience linked to time appears to be the only criterion. However, I do not think that that is a wide discretion as I understand judicial discretion. It is a fettered discretion.
I am concerned about some of the things that were said in the other place when it was not realised that it would take the Moonies trial six months to wend its weary way to a conclusion. At that time four, six and eight weeks were mentioned, which is an altogether different kettle of fish. It is important that we should know what we are talking about when we speak about duration.
It is significant that when the matter was debated in the other place the most senior and distinguished judges, not those sitting in the first instance, advocated the change. The only two practitioners who spoke were against it. The House of Commons—being more representative of practitioners than is the other place—might take a harder look at the change than did the other place.
If someone is unlucky enough to be empanelled on a jury that takes a long time to try a case, that is unfortunate. There is a cast-iron case for saying that we should not put those people to inconvenience and trouble and not bother with a jury. However, I wonder whether we do any service to all the trouble and effort that it took to establish our democracy and our system of courts if we consider this further diminution in the role of the jury and public participation in our judicial process, merely in terms of convenience.
Should we not take a rather more robust view? There are millions, probably tens of millions, of people round the globe who would be glad of the opportunity to serve on a jury in a free judicial system in a free country. Have we reached such a stage of apathy or of taking our privilege and rights so much for granted that we cannot put up with the inconvenience that may occur once in a lifetime, and 221 only to a few people, of having to sit on a jury for rather longer than was expected? Should we not recognise that that is one of the duties and obligations on citizens in a free society? I wonder whether we make a great mistake, if we allow ourselves to concentrate too much on small issues of convenience rather than on the overall significance of our system that involves ordinary people in the administration of justice.
There are practical reasons why the change should be resisted. An allegation of fraud or a libel action deals with a serious accusation which reduces someone's alleged standing in the community. Who are the best people to judge whether certain words have the effect of reducing someone's standing in the community? As has been decided in criminal actions for centuries, the man and woman in the street, who are representative of the community as a whole, can decide in a way that, with the best will in the world, the High Court judge cannot. I wonder whether there are not a number of puisne judges who would rather avoid having to make decisions such as had to be made in the notorious Moonies' case.
I have an interest in industrial relations law. It has often been said that judges should not be politicised and drawn into having to make decisions on contentious political matters. Some judges have said that. But what are we asking a judge to do if we put him firmly in the centre of the arena, as a judge of fact, in a libel case of any duration? He is being asked to make perhaps a political judgment of a sort that he may not relish.
We have to ask ourselves the question that Lord Rawlinson posed with great eloquence in another place. Hard cases make bad law, and are we not being stampeded into making a change because of an isolated case? I hope that there will not be another case like that of the Moonies for some time. Indeed, one hopes that the case will have deterred such groups from taking action against the press when it is merely doing its duty in a free society.
Is there such a major problem that we are justified in making a major change in the way that we have ordered things for a long time? In addition, should such a major change be made in such a piecemeal way?
The Faulks committee reported five years ago on juries in such cases. It reached conclusions with which many of us did not agree and it took the view that, on the whole, juries should not be empanelled in such cases. It may be thought that that is the right approach, but should we not be considering such a change, if at all, in the context of a full-scale look at the way in which we deal with defamation jurisdiction, rather than attaching it at the last moment to a Bill that does not purport to deal with the whole range of issues that cause concern in defamation cases?
I do not believe that we are proceeding in the right way. I am not satisfied that the debates in another place covered all the issues that concern us and I hope that the matter will be carefully considered in Committee. We should not trench any further on the jury system unless we are satisfied that it is overwhelmingly to the public benefit to do so. By public benefit I mean the benefit of society, in the context of the history of the development of our society and societies elsewhere, and not that someone may prefer to spend a few more weeks of his life in his normal job than to serve on a jury. I make no apology for repeating that that is one of the prices that one has to pay, and should be glad to pay, for living in a free society.
§ Mr. Edward Lyons (Bradford, West)
The essence of the jury system is that a jury should be chosen at random, be representative of the community, provide a fair trial and ensure that defendants are not in the hands of a single judge who might be prejudiced.
However, it is unfair to pretend that there are random juries, in the traditional sense, in long trials. The first thing that the judge does in a trial that is expected to last a long time is to ask which members of the jury will be inconvenienced by sitting on the jury for a long time.
Before the oath is taken various jurors explain why they are not able easily to sit on the jury without loss or inconvenience or both. The result is that most of those who are accustomed to responsible jobs leave the jury because they cannot be spared from their executive positions for months—in some cases even weeks—on end.
Therefore, the jury in long trials is not the random jury that sits in cases that are scheduled to last for only two or three days, but a jury from which every person capable of understanding, for example, complicated accounts in a fraud case has been removed. Sad to say, most of the people who have a high level of literacy may have departed. There is then the curious situation on average that the longer and the more complex the case the poorer is the quality of the jury. That is not satisfactory. I am a great supporter of the jury system.
§ Mr. Jeffrey Thomas (Abertillery)
Is the hon. and learned Gentleman advocating that what is proposed in the Bill for civil cases should apply also to criminal trials?
§ Mr. Lyons
The hon. and learned Gentleman is precipitate. If I may develop my argument, first, we should maintain the jury system wherever possible but we should address ourselves to the problem of how to achieve for long and complicated cases a jury at least as competent as is achieved for shorter cases. It cannot be said that juries for long cases are satisfactory. I do not know what thought has gone into the question of how to induce people who are called for jury service and who find themselves on this sort of case to remain. The financial reward may have to be increased or a less sympathetic view may have to be taken and the person told that whatever the loss he has to do his public duty. Those may be ways of dealing with the problem.
A third solution would be to dispense with the jury and not to leave it to a single judge but to provide assessors to sit with him. They might be paid and would have an appropriate level of expertise in a case involving accounts, for example. That is one alternative. I would be unwilling to see that happen in criminal cases but we are shutting our eyes to the reduction in quality of juries in long trials. I do not want to labour that further. No doubt we shall consider the proposal again in Committee.
A different point concerns the age of retirement of High Court judges. In clause 11 the age of retirement is fixed at 75, as it has been for many years. I have never understood how one justifies a retirement age of 75 for a High Court judge, 72 for a circuit judge, although with an option to go on to 75, a maximum age of 72 for a recorder and lower ages for stipendiaries and the lower magistracy.
There seems to be a curious assessment that when a barrister is picked from the throng and made a High Court judge his process of mental degeneration is somehow retarded so that he is fit to go on until 75, but the circuit 223 judge begins to lose his sway so that by the age of 72 he should surrender the seals of office. A recorder, who is in a lower position than either of the others, must become totally incompetent because he has no option to go on beyond 72. The irony is that the recorder is dealing with less serious cases than is the High Court judge. The more serious the case the older the judge may be. Should not we introduce an element of rationality into the question of the judicial retirement age?
To make matters worse, the pension provisions for judges are so arranged as to penalise a judge who, because he feels tired or feels not as competent as he used to be, wishes to retire. If he has been a judge for less than 15 years and feels that he is below his best, although not seriously ill, he will lose his entire pension rights because he has not served for 15 years and his health is not so bad as to bring him within the provisions for ill-health and incapacity. Judges who feel that they should retire should have no impediment placed in their way.
Is there not a case for bringing down the maximum age of the High Court judge to the age for the circuit judge, and providing the same option for additional service as is open to the circuit judge by which the Lord Chancellor has the discretion to raise that age to 75?
§ Mr. Frank Dobson (Holborn and St. Pancras, South)
Speaking as a non-lawyer I should like to ask the hon. and learned Member for Bradford, West (Mr. Lyons) whether he is talking about the Supreme Court Bill or the Judicial Pensions Bill, which we are to consider later.
§ Mr. Lyons
I am talking about the Supreme Court Bill. The two are tied together in this respect.
The Bill contains several useful provisions. Those who will have the duty and responsibility of dealing with those provisions in Committee will have the opportunity to make a useful contribution towards the body of our law.
There has been a continual increase in the number of High Court judges. That is inevitable and it is appropriate because we do not want a diminution in standards. With the larger number of judges at all levels, it is important that there should be in the, principal positions persons who are able to keep up high judicial standards, and that serious cases should have the attention of High Court judges. Recently, because of the inadequacy of numbers, there has been a tendency gradually to transfer serious cases to Crown Court judges or recorders.
Sad as it is to see the increased cost to the Treasury, it is right that extra judges should be appointed. That is only one part of an assault on the backlog of trials. The other part—in the Bill—is to enable two High Court judges to deal with appeals against sentence. That is an inevitable course nowadays, having regard to the pressure of work. The Lord Chief Justice, since taking office, has managed to make considerable inroads in the Divisional Court. I hope that the provisions in the Bill will enable that improvement to continue, as to delay justice is in itself a great injustice.
§ Mr. Ivan Lawrence (Burton)
Whenever I hear that there is to be a major Bill of court reform I reach for my civil liberties. There is a danger in this sophisticated and complex time that administrative convenience occasioned 224 by pressure of time, delays and volume of work will become the touchstone of the development of our system instead of the freedom of the individual.
Judged by that test, the Bill comes as a great relief. Only in one sphere is danger of the kind I have mentioned hinted at, and that is the hint of a restriction of jury trials. The right to jury trial in civil proceedings is to be limited by clause 69 on occasions when the probable length of trial means that the action cannot conveniently be tried with a jury. The test of convenience must fill all hon. Members with horror. I hope that the reassurance given by my right hon. and learned Friend the Attorney-General will hold in practice.
It is always stated that the problem with jury trials is their length. As the right hon. and learned Member for Warley, West (Mr. Archer) said, it is the wrong estimate of length that is the problem. The estimate is always wrong. This produces a reaction from the judiciary that something should be done as a matter of convenience to reform the whole system. That is the wrong approach to the matter. If convenience replaces what are the traditional safeguards of the liberty of the individual, the matter must be viewed with the greatest care by the House.
One hears increasingly from judges, according to reports in the newspapers, the desire to restrict jury trials in fraud cases. I hope that the day will never come when jury trial is removed in fraud cases. That would be contrary to Magna Carta, of which hon. Members are the guardians. It is for this reason that our debates on these matters should include contributions from those who are not lawyers. When the lawyers reach high judicial office, they begin to talk about convenience. If too much reliance is placed on high-ranking lawyers, we shall lose some of the safeguards of our liberty.
I have read repeatedly in the proceedings on the Bill in the other place such statements as that advanced by Lord Roskill when he said:To my mind, the road to a solution lies along two routes. The first is to restrict the right of appeal in certain classes of case, however reluctant any appellate judge may be to see that happen."—[Official Report, House of Lords, 18 December 1980; Vol. 415, col. 1219.]The tendency to restrict rights for the sake of convenience has to be watched. I congratulate the Government on their resistance to the temptation to restrict appeals or even to restrict jury trials to a greater extent than that hinted at by the Bill.
The Government have also successfully resisted the tendency to make bureaucratic the delicate development of our existing system of law. Enough has already been done in procedural ways to make criminal legal proceedings bureaucratic. I learn that it is now the habit of judges in the Court of Appeal criminal division to have the summaries of their cases compiled for them by civil servants and not, as was traditionally the case, prepared by practising members of the Bar who understood more accurately and sensitively the points that ought to be dealt with, and would be dealt with, in the appellate procedure.
There has also been the attempt, fortunately resisted, to extend the right of solicitors to become High Court judges via the circuit bench. The claim, when solicitors became circuit judges, that this would be the thin end of the wedge, was denied.
225 The circuit bench does not provide the same disciplines as the Bar. That discipline enables banisters to become more effective judges in the Court of Appeal, in the Divisional Court and in the House of Lords.
There are reasons why it is desirable under our system to maintain the separateness of the two professions. One has a close relationship with the lay client. The other has a more aloof relationship with the lay client and is less subject to the complaint of over-close association with clients. The solicitors' branch of the profession is honourable. Nothing should take away from the wonderful service that solicitors provide in our courts and as circuit judges. However, there is a strong argument for resisting the temptation to widen the wedge so that solicitors, who are closer to bureaucracy, become judges in the higher courts.
§ Sir Graham Page
At least six judges started life as solicitors and switched comparatively recently to the Bar.
§ Mr. Lawrence
That is the way that it should be done. There is a simple process by which solicitors can convert to the Bar and avail themselves of the wide experience of advocacy which will ensure that they become superb judges in the higher courts.
§ Mr. Lawrence
Judgeship in the circuit courts does not guarantee the ability necessary for the wider role in the Divisional Court, the House of Lords or the Court of Appeal. I do not wish to be sidetracked, because I do not want to delay the Bill by discussing a proposal which was resisted by the Government. I commend the Government for not giving way to the temptation, however siren the voices.
We must examine the scandal of delay, particularly in the criminal division of the Court of Appeal, and the scandal of the overwork of our judges. The solution is not to restrict appeal or to narrow jury trial. The solution is to have more appellate judges. Perhaps other action could be taken to speed up the process and to reduce the overwork.
For example, perhaps the House of Lords should not shy away from deciding points of law which would more or less permanently decide the contentious issues which often arise and which, because they are not established by a House of Lords ruling, repeatedly are contended in the Court of Appeal. Perhaps if there were more authoritative rulings from the House of Lords fewer cases of appeal would go to the Court of Appeal. Perhaps if the single judge in the criminal division of the Court of Appeal gave reasons for refusing appeals that would reduce the number of appeals. There are many ways in which the heavy traffic could be restricted.
Lest I am thought to be reactionary I repeat the radical change which I believe would do more than any other to reduce the delays in our courts. We should reform criminal trials by modifying the presumption of innocence which comes from silence and by introducing tape-recorded interviews. That would do more than anything to reduce the pressure on the criminal courts.
Finally, may I ask, as this is a Supreme Court Bill, why on earth we keep calling the High Court the Supreme Court, when everyone knows that the House of Lords is the Supreme Court and that the nomenclature "Supreme Court" was given at a time when it was intended that the 226 appellate jurisdiction of the House of Lords would be abolished? I believe that it was Mr. Gladstone who stopped that happening. It was probably the last time that the Liberals did anything sensible in this place.
As a member of the Joint Committee on Consolidation Bills, may I say how important the job of that Committee is, and how much a contribution consolidation makes to the common sense of our law in this Bill? With more useful, sensible and moderate Bills of this nature—save only in the one matter about which I have some hesitation—this place would yield a greater respect in the land than it may have won for some of the Bills that we have passed.
§ Mr. Frank Dobson (Holborn and St. Pancras, South)
I do not apologise for speaking in the debate, even if I am the only non-lawyer to do so. Just as war is too important a matter to be left to generals, so the law is far too important a matter to be left to lawyers. It is on that principle that I oppose the Bill.
The Bill proposes a further erosion of the intervention of ordinary people in the judicial system by imposing a further restriction on the involvement of juries in our judicial system. In my view, lawyers are not to be trusted, nor have they ever been worthy of trust. Judges are not to be trusted with our judicial system, nor have they ever been worthy of being trusted with it entirely. They will do their job only if they are properly restrained by statute law and by the effectiveness of the jury's intervention in most forms of trial on important matters.
In the circumstances, it is thoroughly reprehensible that anyone should propose, for reasons of administrative convenience only—that is what we are talking about—getting rid of juries in any forms of trial where they are used at present. That is the basis of my argument, and that it all that I want to say.
I shall oppose the measure at every stage, just as I shall oppose at every stage any measure which proposes in any way to curtail the effectiveness of jury service. Jury service is more important to the preservation of individual liberty and-the preservation of our judicial system than all the scurvy race of lawyers put together.
§ Mr. John Wells (Maidstone)
I apologise for having missed much of the debate. I am not a lawyer, but there is a small point about which I have already written to my right hon. and learned Friend the Attorney-General. Because I am not a lawyer I may stumble on the intricacies of the Bill, and I hope that my colleagues will forgive me if I make a lawyer's hash of the simple thoughts that I wish to put to the House.
I understand that solicitors in this country are called solicitors of the Supreme Court. This Bill is intituled the Supreme Court Bill. I shall therefore say a brief word about solicitors.
I wish to bring to the attention of the House the habit of in-house solicitors who are employees of large companies, nationalised bodies or quangos, of serving summonses on members of the public. I understand that, under the court rules, if I am in arrears with my gas bill and the fellow who signs the summons to hale me off to court to pay the bill is a solicitor of the Supreme Court, the gas board is entitled to draw £12, because the chap who scribbled his name on the bottom of a piece of paper is a 227 qualified solicitor. However, if he were just a nice guy who was the deputy under sub-clerk of the gas board, and who scribbled his name on an identical piece of paper, the gas board would be entitled to £4. That may be a misrepresentation of the facts, and I apologise if that is the case.
I name the gas board only as a notional body. It employs charming people who never send anyone summonses, and who would never do anything like that. But the villian and rascal about whom I am speaking tonight is the Southern water authority, which has treated my constituents and the constituents of every right hon. and hon. Member in the southern part of our island in the most disgraceful manner. It has sent out summonses to the old and the stupid, and even to those more stupid than I—and I am pretty stupid when it comes to paying bills. They have been served by a solicitor of the Supreme Court, and the Southern water authority receives £12 for that. It has not happened to me, however, because I paid my bill.
I wrote to my right hon. and learned Friend the Attorney-General about the matter. I hope that my hon. and learned Friend the Solicitor-General, who lives not so far away from me and may also smart under the Southern water authority, will have listened sympathetically to my remarks. I hope that they will look into the matter.
§ Mr. Jeffrey Thomas (Abertillery)
This has been a short but highly interesting debate. I venture the hope that I shall be brief, but I cannot promise to be interesting. That does not mean that the Bill is not an interesting and important measure. Some of us would go further and say that it is a measure of great importance and is far from being what the Lord Chancellor described as a Bill without political interest or contentious issue.
In some regards it is a measure of great contention. I shall come later to the contentious issues that have been touched on already by, among others, the hon. and learned Member for Burton (Mr. Lawrence)—I take this opportunity to congratulate him on his appointment—and the hon. Member for Putney (Mr. Mellor). I refer to the attempt in another place to restrict the right of both plaintiffs and defendants in civil cases to trial by jury. The Opposition consider that to be a matter of signal importance. The matter was touched upon also by my hon. Friend the Member for Holborn and St. Pancras, South (Mr. Dobson). His point was important.
Apart from any constitutional issue, and apart from depriving citizens of their rights and liberties, the amendment that is now part of the Bill—although it came in by a side wind in Committee in the other place—deprives the public of the opportunity of participating in proceedings in which they should take part. They should be proud to take part in them as citizens, because they buttress the rights of others, and may buttress their rights at some time in the future.
The right hon. Member for Down, South (Mr. Powell) referred to clause 36 and queried whether the same rules for subpoenas applied in Northern Ireland. The hon. Member for Meriden (Mr. Mills) referred in an interesting speech to the difficulties concerning Anton Piller orders, and we were reassured to hear what the Attorney-General had to say on the subject.
228 My hon. Friend the Member for Holborn and St. Pancras, South and the hon. Member for Meriden tended to apologise for being present in the chamber, as if they were intruding on the privacy of lawyers in venturing to make their speeches. I am profoundly sorry that there are not more non-lawyers present to discuss the Bill. Unhappily, Bills of this sort are so often referred to pejoratively as lawyers' Bills or practitioners' Bills. Lawyers' Bills, as in this instance, often deal with matters that go to the heart of human liberties and of the liberties of the subject. I regret that there are not more right hon. and hon. Members present.
The hon. Member for Putney (Mr. Mellor) referred to solicitors who happen to have been appointed to the circuit bench becoming High Court judges. That was dealt with, too, by the right hon. Member for Crosby (Sir G. Page). I shall not say too much about the issue. It was canvassed at some length in another place. I have no doubt that it will be canvassed at length by hon. Members on both sides of the House, who will be briefed up to the hilt by the Law Society. It will be debated at length in Committee, and this is not the time for me to go into the issue in great detail.
It is probable that all general practitioners of medicine would like to become consultant surgeons. The problem is one of experience. Experience of the lower courts, however great it may be, and however able the practitioner may be in the lower courts, is no real training for the High Court bench. It may be that a solicitor circuit judge, if I may use that clumsy phrase, is a first-class circuit judge. We all know solicitor circuit judges who are, with respect, first-class judges. However, the mere fact that one has been a first-class circuit judge is no proper experience for a High Court appointment. The solicitor concerned will have had no experience of the weighty case that is shared by members of the Bar who practise in the High Court. Whether we like it or not, we are a divided profession.
Fusion was discussed quite recently and at great length by the Royal Commission under Lord Benson. It decided that, with all its faults and warts, the present system of separation of two great professions was in the public interest. The hon. and learned Member for Burton said that there was a simple way round the problem, if there is a problem. I suspect that it is not much of a problem. That way was for solicitors to become members of the Bar. In recent years, as a result of meetings between the Senate of the Bar and the Law Society, measures have been taken to facilitate the change from one profession to the other. It may be of interest to the House to know that in the last 12 months alone about 90 solicitors have taken advantage of that easy system. That is the way through.
§ Mr. Mellor
The issue is not whether a solicitor in practice should be translated to the High Court bench, but whether someone who has proved himself on the circuit bench should be inhibited from going on to the High Court bench, when otherwise that would be an appropriate step, merely because in a previous incarnation he had been a solicitor. With the greatest respect, I am unconvinced by what the hon. and learned Gentleman says about the experience of a High Court judge who has been a barrister. For example, we know of the distinguished High Court judge who did well in the employment appeal tribunal and who had been a circuit judge sitting exclusively on criminal trials at the Old Bailey. We know of people who have had a Chancery practice, and have gone to the family division. We know of exclusively criminal practioners 229 who were expected to play their full part in the civil work of the Queen's Bench division. I do not want to speak at length, but I believe that the hon. and learned Gentleman understands what I mean. How is that any different from a man who has proven himself on the circuit bench?
§ Mr. Thomas
I mean no disrespect to the circuit bench, but, in a sentence, it is the difference between Woolworths and Harrods.
I hope that I can pass on from that contentious matter to consider the Bill not in detail, but generally. I promised to be brief, and I hope that I can keep that pledge. Our civil procedure has remained mainly unchanged since the days of Queen Victoria. There is no doubt that there is a compelling case for changes to be made. On the whole, the Bill meets those changes.
However, one wonders whether there is now a case for an inquiry into the reorganisation of our civil court structure, which might explore, for example, the possible need for an integrated system comprising the High Court and the county court. One also wonders whether the Bill will do much to remedy some of the greatest mischiefs, such as the enormous and horrendous cost of litigation today and, equally important, the law's delays. Justice delayed is justice denied.
Both sides of the House can agree about a serious flaw in the present system. I understand that a civil appeal now takes twice as long to come on as it did about 18 months ago. Therefore, the situation is serious.
We very much welcome the appointment of a registrar of civil appeals. We hope that that will go at least some way towards remedying the present state of affairs. I join in the tributes that have been paid to Master Thompson. He and his colleagues in the Court of Appeal criminal division have done a magnificent job during the last few years. One only hopes that someone who is of equal calibre to Master Thompson will be found to fill that post. That is not to say that there is not a great deal of anxiety over delay in the criminal division. The Attorney-General told us that the average waiting time for appeals against sentence is 40 weeks and against conviction 20 weeks, which is unacceptable.
Costs are equally important, and the Bill will not make a great deal of difference to the cost of litigation. We must always consider what a Bill does for the public. Will the Bill help litigants, or potential litigants, with costs? Will it deter people from pursuing proper litigation? Litigation is always difficult and uncertain, and the situation is aggravated by enormous costs. Even with the help of legal aid, ordinary people will soon be in jeopardy of not getting justice.
We are concerned about the size of the judiciary, and we welcome the fact that the Lord Chancellor is increasing the number of puisne judges to cope with the enormous civil and criminal work load in the Court of Appeal. I regret that the amendment proposed in another place by Lord Foot concerning legal aid for appeals against refusal of bail by magistrates courts was not passed, and I hope that we can discuss the matter in Committee.
I am troubled by what the Attorney-General said about the two judges in the Court of Appeal, criminal division. Perhaps the Solicitor-General will comment on the suggestion that, if there are to be only two judges, at least one should be a lord justice of appeal—preferably the Lord Chief Justice. It has been said that no two equals should sit together because it causes great difficulties. It would 230 be much more advisable when two High Court judges are dealing with appeals against sentence for at least one to be a lord justice of appeal, and that safeguard should he built into the Bill.
§ Mr. Edward Lyons
As there will be only two judges, is it not more advisable for them normally to be equal. so that one is not overawed by the other?
§ Mr. Thomas
They are dealing with the liberty of the subject. The men and women concerned may have been in custody for many months awaiting the determination of their appeal or application for leave to appeal against sentence. It would be a greater safeguard, and would save time in some instances, if we were to avoid the procedure of going to the full court of three, to have a lord justice of appeal sitting with a High Court judge.
The crowning glory of our judicial system is the jury system, but we see the thin end of the wedge in the Bill. I would be horrified if our jury system, which has stood for centuries, were eroded in any way at all, and certainly if juries were to be withdrawn from fraud cases tried in criminal courts as opposed to the civil courts.
When our liberties are taken away, the methods employed are neither instant nor dramatic. They are slowly eroded. It is done by stealth and by thieves in the night. I use that last expression in an objective manner. I profoundly believe that this is a great mistake. As I said earlier, men and women should welcome the opportunity to sit on juries. Although there are inconveniences from time to time, the Moonies case, which lasted a long time, was the exception that proves the rule. As has often been said in the past, hard cases make bad law. It would be wrong if any lesson were to be drawn from that case, but, as The Times pointed out on 2 April, the length of that case caused an amendment to be inserted in the Bill.
The article went on to say:It is argued that no jury should be required to sit for months on what was essentially (unlike a criminal trial) a private dispute. But there are good reasons why jury trials for libel should continue to be available when wanted.The very essence of a libel action is the issue of public repute. Has or has not the plaintiff's reputation been affected in the eyes of his fellow men and women? That is precisely the kind of question which should be answered by his peers. Who better than representatives of the public to decide whether his public esteem has been lowered? That argument is not affected by the length of the trial. The principle remains the same. In one respect, however, the functions of a libel jury should be changed. A jury is the right panel for deciding questions of public repute, but it is not a competent body to decide the damages to be awarded. That should be done by the judge, with the jury restricted to indicating how serious it considered the libel to be.I see the hon. Member for Putney nodding assent. The need to re-state the law in more coherent and modern language is necessary. To a large extent the Bill succeeds in doing so, and on the whole we welcome it. We would have preferred a measure that streamlined the system rather more, but, with the reservations that we have expressed, we wish it a fair wind.
§ The Solicitor-General (Sir Ian Percival)
I am grateful to those hon. Members who have contributed to the debate for the welcome that they have given the Bill and for the constructive approach which almost all of them adopted. I am grateful to the right hon. and learned Member for Warley, West (Mr. Archer) for setting the tone of the debate and for putting forward some useful 231 suggestions. He knows that they will receive the most careful consideration. I am grateful to the hon. and learned Member for Abertillery (Mr. Thomas) for winding up in the same tone.
Many points of great interest have been raised, and it is my desire to cover as many as I can. However, hon. Members will realise that I shall not be able to cover them all. Therefore, I shall have to be slightly selective.
There are two specific points on which I can give the assurances for which I have been asked.
My right hon. Friend for Crosby (Sir G. Page) asked for an assurance on the question of interest in the county court. I can assure him that an amendment will be introduced. The right hon. Member for Down, South (Mr. Powell) asked me a specific question. I am happy to give him the assurance that he sought—that these arrangements are reciprocal. The relevant provisions that ensure reciprocity are found in section 67 of the Judicature (Northern Ireland) Act 1978. In addition, I thank him for his courtesy in writing to me and for his most courteous observations about my right hon. and learned Friend the Attorney-General and me. I hope that he, his colleagues and all in the Province know that we value our association with those in the Province. It is gratifying to know that the association is also valued by those in the Province.
I echo what has been said by others and I am pleased that some laymen have taken part in the debate. Not enough laymen have taken part and they have not directed their remarks sufficiently to the substance of the matter. However, at least some took part. Indeed, one contribution was very much directed to an important point. It is clear that we shall have an interesting Committee stage, Four subjects have cropped up time and again. Because of their general interest, I shall say a word on each of them.
Clause 69 introduces a new provision which gives a discretion to the court to dispense with a jury in certain circumstances. The right hon. and learned Member for Warley, West and my hon. Friend the Member for Putney (Mr. Mellor) and my hon. and learned Friend the Member for Burton (Mr. Lawrence)—I also congratulate him on his appointment and on becoming learned in this House—the hon. and learned Member for Bradford, West (Mr. Lyons), the hon. Member for Holborn and St. Pancras, South (Mr. Dobson) and the hon. and learned Member for Abertillery made contributions on this point.
The hon. Member for Holborn and St. Pancras, South was not the only one to refer to administrative convenience. I assure hon. Members that the word "convenience" has nothing to do with administrative convenience. We have in mind the convenience of jurors. It never crossed my mind that the measure was being introduced for the convenience of judges, administrators or anyone else. Those summoned for jury service can be greatly inconvenienced. Indeed, that is a mild description of what they suffer. Therefore, the provision has nothing to do with putting administrative convenience above the rights of the subject to have a jury.
Several points were made on this provision and they will no doubt be dealt with in Committee. The right hon. and learned Member for Warley, West spoke of the difficulty of estimating the length of a trial. Of course it is difficult. However, as he knows, the courts are usually more practical in their approach to these problems than laymen give them credit for. The discretion will lie with 232 the judge until the start of the trial. It is not something that has to be decided at the summons for directions stage. It can be left until the last moment, when at least the best possible estimate can be made.
I was asked whether we were thinking about four weeks or six weeks. I can only refer hon. Members to the wording. The only two elements that enter into the discretion are the probable length of time and the convenience, which I believe means the convenience of jurors. We have had great experience of four- and six-week trials, for which juries can be empanelled without great inconvenience to them. It would be surprising if it were argued that such a length of time automatically created inconvenience, so as to rule out jury trial. Those are points which we must explore in Committee.
My hon. Friend the Member for Putney (Mr. Mellor) made a number of points about dispensing with a jury in certain cases. I remind him, and all others who spoke about inroads into one of our fundamental liberties, that we are talking of only a small number of cases—none the less important for that—in which the questions that will be introduced if the provision stands in the Bill can be considered with the greatest care by judge and counsel. These are High Court actions and everyone will have a chance to have his say before such an order is made. I do not belittle the importance of what we are doing but it is not anything dramatic about which we need to be alarmist although we need to be careful.
The next subject referred to by many hon. Members relates to the burdens which rest on members of various divisions of the Court of Appeal. We are aware of those and I am sure that we shall discuss that further in Committee. We should remember that it is not only in the Bill that remedies are to be sought. For instance, the courts are constantly experimenting with ways of dispatching their business with greater speed and efficiency. Speed is not everything, however. One must not sacrifice the quality of justice for the sake of speed. One should do everything one can to speed up the business while maintaining its quality.
Some hon. and learned Gentlemen will be aware that the Court of Appeal is experimenting on such matters as the reading day, to which my hon. and learned Friend referred in opening. The Master of the Rolls has agreed to mount an experiment for one term involving one division of the Court of Appeal sitting for only four days a week. That experiment will be closely monitored and, if successful, will be extended.
In that context, I was asked a number of questions about the appointment and duties of the registrar. The idea is clear. It is to transfer to him all the duties that are carried out by the masters and registrars—where they exist. But there is no-one in the Court of Appeal. The duties will be defined by rules of court and the broad principle is as I have stated. However, the scope for experimenting within that framework is great.
I am advised that, although the Bill does not require it, the appointment of a registrar of civil appeals, and the powers in clause 58 on incidental jurisdiction, would make the filing of written briefs possible, if that were generally desired. Once the enabling provisions are in force, the scope that that will give to those concerned for experimenting will be at our disposal for the first time. Nothing is permanent; there will be opportunities for 233 experimenting in all the ways to which right hon. and hon. and learned Gentlemen referred. That is why it is so important that those steps are taken.
The next matter which attracted the attention of more than one speaker is the Anton Piller order. I am especially glad that my hon. Friend the Member for Meriden (Mr. Mills) contributed to that. He has acquired in a short time a good understanding of what an Anton Piller order is and does.
It is important that courts should be able to assist those who are suffering wrongs, and unless they have the necessary instruments at hand they are apt to be brought into disrepute. The courts developed a practice that was given the name of the Anton Piller order, which enabled a person who had been severely wronged by pirating to protect himself.
The court required a high degree of prima facie evidence that pirating was going on, because the powers of entry, search and so on given by the order are powers against which, on the whole, we set our face, for the same reason that we want to keep jurors. They are part of our protection of the rights and liberties of the subject, which, in the view of most of us, in the first object of the law.
However, subject to certain safeguards and convincing proof that pirating was going on, the courts would use that means of assisting plaintiffs. It was proving effective, but it has come up against another principle that is as old as Magna Carta—that a person shall not be obliged to incriminate himself.
A particularly unattractive aspect of the situation is that the more likely it is that a defendant is committing a serious offence the more likely it is that he will avail himself of that defence. In Rank Film Distributors Ltd. v Video Information Centre, it was held that, if answering a question disclosed certain minor infringements that would render a person liable, under the Act in question, to a penalty of £50, the principle would not be available to a person to enable him to refuse to answer questions. On the evidence in that case, conspiracy to defraud was being suggested and, unattractive as it is, that fact made it more likely that a person would avail himself of that defence.
I hope that I have said enough to convince my hon. Friend the Member for Meriden that the importance and urgency of the matter are understood and I hope that he will appreciate that one cannot come to an answer as quickly as one can decide what one would like to do.
Difficult considerations are involved and it would not be right for me to undertake that we shall be able to devise amendments in time for inclusion in the Bill. However, I assure my hon. Friend that the problem is well known within the machine and will be given urgent consideration. All those who wish to make representations should make them soon because the matter is being treated as one of urgency. However, that is the limit of the undertaking that I can give.
The fourth subject that attracted attention from more than one hon. Member was the possibility of an amendment to make solicitors who had served as county court judges eligible for appointment to the High Court. We shall deal with that question if an amendment is tabled, but hon. Members who are solicitors know that I have never adopted the attitude that there are two halves of the profession and that we have our rights and will stick to them to grim death and that solicitors should stick to their rights.
234 Indeed, during proceedings on the Courts Bill I said that the time had come to reconsider the rights of audience, the rights of eligibility to be a recorder and so on. I start from that bus stop. I have never sought to hold to rigid lines. It is not a question of anybody being inhibited or being debarred from doing anything.
The number of those who have been eligible to be appointed to the High Court bench has always been very small. The question now is whether it should be enlarged. Surely, therefore, we must have a close look at the qualifications. It is not just a question of skill as an advocate. We have to consider—I hope that all of us will consider it together in as helpful a spirit as we can—whether there is not something very special about High Court practice and about the relationship between bench and Bar or advocate and judge.
Many who have had the experience of practising in the High Court would say that there is something special and important there for the administration of justice. These are the sort of things we must discuss if and when we have this amendment. I hope hon. Members will not take too rigid a position at this stage. Let us not allow it to develop into a polarised battle between the two halves of the profession. Far too many of us have been working too hard for years to try to get rid of that kind of difference to want to see any sort of niggle reversing all the good that has been done. I hope that we shall approach the matter in that spirit.
There are many detailed matters about which I should have liked to say more. The right hon. and learned Member for Warley, West (Mr. Archer) asked about cost sanctions in the county court. We shall deal with that in Committee.
My right hon. Friend the Member for Crosby (Sir G. Page) raised two important questions about delay. Delays in the county court happily are not long. I am told that eight to 10 weeks to bring a case to trial, if the parties are ready, is the availability of justice in the county court. Laymen do not realise that the reason why a case does riot come to trial in the county court for a year is often that the parties are not ready and are constantly asking for an adjournment.
My right hon. Friend also referred to the enforcement of county court judgments. Here I have great sympathy. All of us are concerned that the process which leads up to the obtaining of a judgment must be complemented by an effective means of enforcing it otherwise it is a nonsense.
I was asked about solicitors' costs by my hon. Friend the Member for North Fylde (Sir W. Clegg). The matter that he raised with me is currently under discussion between the Department of my noble Friend the Lord Chancellor and the Law Society. He also asked about extending garnishee proceedings to building society deposits. That too, is under active consideration and discussion with the bodies who would be affected by it.
I regret that because of the shortage of time I have had rather to gabble through a large number of important points. I felt that at least something ought to be said on the points that I have dealt with. I look forward to developing all those points and any others that right hon. and learned and hon. and learned Members have in Committee. For the present I commend the Bill to the House and invite the House to give it a Second Reading.
§ Question put and agreed to.
§ Bill accordingly read a second time.235
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).