§ 4.34 p.m.
§ Second Reading debate resumed.
§ LORD PARKER OF WADDINGTON
My Lords, I rise to welcome this Bill. In doing so, I must declare a twofold interest. In the first place, it was as long ago as 1964 when I pressed for some inquiry to be undertaken into what is truly the archaic system of quarter sessions and assizes in this country, in the hope that something could be laid down which would ensure the proper and expeditious use of judge power in the future. Happily, the noble and learned Lord, Lord Gardiner, set the wheels in motion, with the result that we have had this truly admirable Report and now, today, this Bill to implement its recommendations. Secondly, I confess that I have a real interest in being relieved of the day-to-day, if not the hour-to-hour, impossibilities of endeavouring to see that 100 judge days of work are somehow done in 50 days, and that without any burden on or prejudice to those concerned, whether litigants, accused, witnesses or the judges themselves.
If I had to express in one word what I feel is the virtue of the Report which this Bill seeks to implement, it is in the word "flexibility". In order to explain what I mean, I refer to the wholly inflexible system under which we operate to-day. In the first instance, it must be borne in mind that the towns which are visited and the periods for which they are visited by Her Majesty's judges have to be determined nine to eighteen months in advance—in other words, they have to be settled in Easter of one year for the whole of the next ensuing calendar year. Unfortunately, that is necessary because otherwise quarter sessions, and indeed magistrates, could not arrange their own sittings. One has only to state that to realise that it is quite impossible to determine nine to eighteen months ahead what the work will be at any particular place. It changes enormously. One year one may find that 50 judge days is sufficient to enable the work to be disposed of at the assize town, and the very next year one finds that it requires 100 judge days. There is no flexibility. If a judge happens to be at a place where work is slack and where he has one or two days 1272 in hand, he cannot go on to the next place because the jurisdiction of that next place depends upon the reading of a commission.
This dependence of jurisdiction upon commissions again causes grave loss of judge power. The commission is read, and has to be read, on the day before the first sitting, the reason being that the circuit staff have to get to the town and have literally to undo their typewriters and hampers and set up office. It is not until the next day that sitting can take place. Commission day is usually on a Monday. Again, in order that the staff can get there on the Monday from the previous assize town and open up the office, the work on the Friday at that previous assize town has to be arranged in such a way that it is bound to finish in good time. In the result, there is the loss of the commission day and of at least half a day on the Friday at 65 assize towns visited three times a year—an appalling waste of judge time.
Another illustration of this waste of time occurs with the multiplicity of assize towns, particularly the small ones. In regard to the smaller assize towns of Wales, for instance, experience has shown that some period, say two, three or four days, must be allowed at each. Yet when the judge gets there, almost inevitably one of three things happens: either there is no work to do and the two days or three days are wasted; or quarter sessions have deliberately retained a case for the assize judge to deal with—another waste of time; or else the judge finds that there is a six-day case which he cannot start because he is due at the next assize town before it could finish. In all these ways the present system is wholly inflexible. Under this Bill there will be no commission days; there will be continuity of sessions; courts will sit day in, day out, except for certain brief vacations, and when a Circuit Judge or a High Court Judge goes out to a particular place he can, and will, stay there until the work is completed, and will not have to rush away to some other place.
I should like to mention one other point in regard to what can be achieved under this Bill; namely, a separation of criminal and civil work. It is a matter which has given me grave concern, because with the increase in crime and again the increase in the number of cases fought—many accused now, with legal aid, plead 1273 not guilty—the civil work falls into arrear. Crime has to take priority, particularly if they are custody cases, and most unfortunately grave distress is caused to-day, and has been for some time, when civil cases are sometimes not dealt with at all, or dealt with only two or three at a time at perhaps one, two or three assizes. The only course then is to have a special assize, to get somebody to go down specially and, as it were, clear off the arrears. Although we have managed to do that, more or less, over the last five years, it is most unsatisfactory. It is what one might call a "Stop/Go" policy. Under this Bill it should be possible for criminal work and civil work to run concurrently. It should run smoothly, there should be no "Stop/Go", and it will have the added advantage that it should be possible to do what everybody wants; namely, and certainly in some cases, to give fixed days, so as to cause no undue hardship.
The third matter I should like to mention is the one to which the noble and learned Lord, Lord Gardiner, referred, and that is the departure in this Bill from one of the recommendations, or perhaps the absence of recommendation, in the Royal Commission's Report concerning justices. The inference to be gathered from the Report is that the members did not think that the presence of justices was necessary in what was to-day the ordinary quarter sessions work. The passage dealing with this subject gave the impression that if justices were to sit at all, then so be it: but let them be only assessors. I profoundly disagree with that suggestion, and I am indeed happy that that is the view of Her Majesty's Government to-day.
I have always been anxious that those concerned with the administration of justice, whether they be High Court Judges, chairmen of quarter sessions, recorders or magistrates, should develop a team spirit. There is nothing worse for the reputation of the law and the Judiciary than for there to be quarrels between any of them. When a court of quarter sessions holds up one of the local benches to ridicule, attracting enormous publicity, it brings the law into disrepute. People lose confidence in the law. Therefore for years now I have been trying, by meetings, by discussions, and by sentencing conferences, to develop a team spirit be- 1274 tween all sections of those concerned with the administration of criminal justice. Of course, a considerable development in team spirit has been achieved, particularly between magistrates and county quarter sessions. Quarter sessions there are the focal points of the magistrates; the chairman and the deputy chairman are their friends and people to whom they can turn for advice. When they meet they have lunch together, hold discussions, and so on. It is imperative that this team spirit should be encouraged, and so I believe it will be, under this Bill. Magistrates will be able, as before, to sit on appeals with the Circuit Judge, or whoever is presiding; they will be able to sit on committals for sentence; and they will be able to sit on what I may call the lesser indictable offences.
Nobody desires to bring magistrates considerable distances to sit on a five or seven day fraud case. I envisage the noble and learned Lord the Lord Chancellor giving directions here that the cases, indictable trials, attended by magistrates, should be limited in some way, not only by reference to the subject matter but by the estimated length of time. Magistrates are very public-spirited to-day; they are anxious to do everything they can; but to suggest that they should give up still more of their time merely to come as assessors is clearly wrong. Fundamentally, of course, magistrates get tremendous experience from sitting at quarter sessions to-day. It is experience which is—and I am not decrying training schemes for magistrates—more beneficial than any amount of training, particularly in the difficult matter of sentencing. Conversely, I have yet to meet a chairman of quarter sessions who has not appreciated the assistance he gets by having magistrates sit with him. I have many times heard recorders with whom magistrates do not sit express the view that they wished that they could sit with them, and as full members of the court. Of course, this departure enabling magistrates to sit in the Crown Courts with which I agree so much, may require that a new look is taken at administrative matters.
The recommendations of the Report were for concentrating the work into fewer and fewer centres and sub-centres. Now that the magistrates are to sit, I think we ought to have a new look at the matter, and make certain that there 1275 are sufficient centres and sub-centres suitably situated to enable a magistrate, without undue hardship, to attend. If these centres are going to be placed at such distances that magistrates cannot reach them at their ease, then it is a waste of time making provision in the Bill for magistrates to sit. However, that is, as are so many other matters here, a matter of administration within the framework of this Bill.
I do not want to anticipate anything that the noble and learned Lord on the Woolsack will say in answer to the noble and learned Lord, Lord Gardiner, but there are two matters to which he has referred and to which I should like to advert. One of them was the perhaps rather curious phraseology of Clause 4(2), which says that what might be called the allocation of work, and who is to try a particular case, is to be in accordancewith directions given by or on behalf of the Lord Chief Justice with the concurrence of the Lord Chancellor.I have always taken the view, and still do, that those decisions must be made on the spot at the time. As I, or any Lord Chief Justice, cannot be in each place all the time, it has been arranged that a presiding judge should be appointed in regard to each circuit. In fact, there are two judges and they share the work, but I refer to them just as "the presiding judge". As I understand it—and the noble and learned Lord on the Woolsack will correct me if I am wrong—it will be for the presiding judge, under the general directions of the Lord Chief Justice, or after no doubt consulting him on the telephone, to take the decision; but as the noble and learned Lord the Lord Chancellor is responsible to Parliament in regard to all these matters, it must be done with his concurrence. In fact, however, as I understand it, it will be the decision of the presiding judge on the spot.
The other matter to which the noble Lord referred was the position in regard to the rehearing of cases before magistrates at quarter sessions and now in the Crown Court. As your Lordships know, the prosecution has to start afresh and all the evidence has to be called afresh. It is not an appeal in the 1276 ordinary sense of the word; it is a new hearing, a new trial. For my part, I should welcome any possibility of its being a true appeal, but I recognise the almost insuperable practical difficulties when there is, anyhow, a shortage of shorthand writers, because unless there is a transcript or a full note of the evidence given it will be quite impossible for the quarter sessions and now the Crown Court to treat it as an appeal.
May I end where I began, by praising the flexibility introduced by this Bill? I think it produces a workable solution for the future—it is hoped, at any rate, for a very long time in the future. It seems to me that it goes as far as it can without defeating the principle, with which we all agree, that so far as possible the law must be brought to the people and not the people to the law. Indeed, under this Bill, where it was necessary the Crown Court could sit in any place in the country. My Lords, I welcome this Bill.
§ 4.52 p.m.
§ LORD FLETCHER
My Lords, in rising to address your Lordships for the first time, I hope with all due deference and diffidence, I am sure that you will extend to me the indulgence which is customary on these occasions. I understand that it is a tradition in your Lordships' House that a maiden speech should be both brief and uncontroversial. I can certainly promise to be brief, and I hope I shall be relatively uncontroversial.
My excuse for addressing your Lordships on this occasion is that I have been engaged for the whole of my working life in the practice of the law, and I also had the advantage, between 1964 and 1966, of playing some modest part in another place in assisting my noble and learned friend Lord Gardiner in introducing a number of measures of law reform with which his name will always be associated. On this occasion, I am sure it is right to recognise, as I think the noble and learned Lord, Lord Parker of Waddington, the Lord Chief Justice, did, that it was due to the initiative and inspiration of Lord Gardiner and his colleagues in the Labour Government of 1964 that, first of all, the Beeching Commission was set up and, secondly, that we now have this Bill before us implementing the recommendations of that Commission.
1277 It was obvious to all of us who considered the administration of the law a few years ago that radical and far-reaching changes were necessary in the construction and management of the courts and in the organisation of the criminal law, and it is most satisfactory to know that the recommendations of the Beeching Commission have been received with such widespread enthusiasm by the Bench, by the Bar, by the legal profession and by the Press. Obviously, widespread reforms of this kind cannot be undertaken without the preliminary work undertaken by the Royal Commission, and it must be very gratifying to the noble Lord, Lord Beeching, and his colleagues to know that their work has received so many encomiums. Credit is also due to the noble and learned Lord the Lord Chancellor and his colleagues, for the speed with which they have introduced this Bill giving effect, in the main, to the recommendations of the Royal Commission.
In view of the detailed explanation of the contents of the Bill given by the noble and learned Lord on the Woolsack, and in view of the penetrating analysis by my noble and learned friend Lord Gardiner of some of the details which will require examination in Committee, I feel that it would be wrong for me to do more than draw attention to two or three major points. Everybody who has studied this subject is aware that not only has there been a considerable waste of judge power, as the noble and learned Lord, the Lord Chief Justice, said, arising from the antiquated system by which the criminal law is administered; there has also been very great hardship and inconvenience to litigants, to practitioners and to the public arising from the existing system. I doubt whether those who are not familiar with the matter are fully aware of the chaotic conditions which exist in a great many court buildings at the present time, due to the confused state of responsibility for the provision of court accommodation.
In drastic language, the Report deals with this subject in paragraph 109, and states:… in many … of the large towns, the court buildings are a disgrace to the bodies which own and maintain them.They give particulars of a very startling nature to those who are not familiar with those conditions. Therefore, I am very 1278 glad that one of the central provisions of the Bill, as recommended by the Royal Commission, is that there should now be, for the first time, a unified centralised responsibility for the provision and maintenance of all buildings in which the administration of justice is conducted. It is clearly right that this should be the responsibility of the Central Government, and that there should be one Minister of the Crown responsible for the discharge of this task. It may well be arguable whether the right Department is that of the Lord Chancellor, as I think the Royal Commission suggested, or whether it should be the Secretary of State. I should prefer the former. But the important fact is that this antiquated system which has grown up should now be swept away, and there should be one centralised authority.
As the noble and learned Lord on the Woolsack said, the second most significant feature of the Bill is the fact that the assizes and quarter sessions are swept away. The provisions of this Bill are bold and imaginative, but I am satisfied, as I think is, everybody else who has studied this subject, that they are justified and necessary. It is only in this way that we shall be able to remove the rigidity which has grown up in the administration of the criminal law. While one must appreciate that a number of people in various cities, which with a due measure of civic pride have enjoyed a measure of judicial privilege over the centuries, will resent the disappearance of historic privileges, I am quite sure that those considerations must give way to the overriding public need for the maximum flexibility in the geographical distribution of the courts, and in the arrangements made for administering justice.
I shall not detain your Lordships by asking a number of questions about the detailed provisions of the Bill, many of which are no doubt suitable for consideration in Committee. Perhaps I may say how glad I was to hear the noble and learned Lord on the Woolsack say that it is his intention to exercise his powers under Clause 12, which deals with the right of audience for solicitors, and that it is his intention to give immediate directions, as the Bill will enable him to do, that those solicitors who have had rights of audience heretofore in certain courts 1279 of quarter sessions shall continue to have those rights.
My Lords, it would be wrong for me, I think, not to say a word about what is perhaps the most controversial aspect of this Bill, which my noble and learned friend Lord Gardiner referred to at the end of his speech in saying that he was sure that there was no danger of its being overlooked. I am afraid your Lordships must face the fact that the provision in Clause 15 in regard to the appointment of Circuit judges, providing in terms that:No person shall be qualified to be appointed a Circuit judge unless he is a barrister of at least ten years' standing",is a provision which, without using exaggerated language, has caused great consternation at the Law Society and among solicitors generally. Your Lordships should know that very great indignation is felt on this subject, and in some quarters this provision is regarded as being a flagrant insult to the profession to which I belong.
That feeling is very largely reinforced by the fact that it goes contrary to the recommendations of the Royal Commission. I grant at once that there was no emphatic recommendation by the Beeching Commission on the subject, but bearing in mind that the Commission consisted both of lawyers and of laymen it is significant that the majority thoughtit would be wrong to restrict the appointment of men whose knowledge and experience may qualify them for appointment to the Circuit bench … and … incline to the view that solicitors should be eligible for such appointments.I would remind your Lordships that whereas courts of assize and quarter sessions are now being abolished and replaced by these Crown Courts, the present position is that solicitors are eligible for appointment as chairmen and deputy chairmen of quarter sessions, and in fact sit as such, with very great satisfaction.
My Lords, this is a matter which I am quite sure that this House, when in Committee, will have to ventilate in greater detail than is possible now, but I would venture to hope that your Lordships will preserve an open mind on the subject until all the views on one side or the other are canvassed. For my part, I would not put the case for making 1280 solicitors eligible as Circuit judges on the ground that their non-eligibility is resented by the solicitor members of the legal profession. I would put the argument on the ground that the public interest requires that they should be so eligible; and in support of that argument I would draw attention to the fact that this Bill will involve a very considerable extension in the number of judicial appointments. The number of practising barristers is limited, whereas, on the other hand, there are a very large number of solicitors some of whom must be, to put it at its lowest, at least as well qualified for appointment as Circuit judges as some of those who are now sitting or who will be appointed.
My Lords, I am bound to say that I think it would be misconstrued by the public at large if there were thought to be in the legal profession, or in any other profession, a demarcation dispute that worked against the public interest. A demarcation issue in the professions could be just as serious as a demarcation issue in the shipyards, and perhaps much less easy to justify. Therefore, without proceeding further on this subject, I would again remind your Lordships that this is a matter which will require very close examination at the Committee stage. I conclude by saying that I have endeavoured to be commendably brief, and I hope that I have not been unduly controversial.
§ 5.7 p.m.
§ VISCOUNT DILHORNE
My Lords, it gives me great pleasure to follow the noble Lord, Lord Fletcher, and to convey to him, on your Lordships' behalf, my congratulations on the way in which he surmounted what always is an ordeal—addressing a new Assembly such as this for the first time. He fully complied with the traditions of this House. He was brief and, although he touched on what was clearly a controversial subject, I do not think it could be said that he was controversial. The noble Lord and I were Members of another place for many years. I do not think it would be right to say that in those days he enjoyed a reputation either for brevity or for being non-controversial, but to-day he has certainly complied with all the traditions.
My Lords, if I may just say something about the main topic of his speech—namely, the limitation of qualification for 1281 appointment as a Circuit Judge to barristers of ten years' standing—that may be, and no doubt will be, a subject on which there will be considerable controversy. I agree with him that the sole test must be, not the ambitions of solicitors or the desires of barristers but the public interest. I hope he is wrong in thinking that, because the Government have for the moment come to the conclusion that the Bill should be drawn as it is, that really was intended to be, or should be interpreted as being, anything like a flagrant insult to members of a most distinguished profession. But the position is that solicitors as a whole and barristers as a whole lead very different lives. Barristers spend most of their time engaged in litigation in the courts, in advocacy. Solicitors far outnumber barristers, but there are not so very many solicitors who themslves engage in advocacy and litigation in the higher courts.
I do not doubt for one moment that there are many solicitors who would make good judges: there are many laymen too, who would make good judges. But some regard must be had to training and experience. I am not myself by any means satisfied at the moment that shortage of numbers requires a change to be made. I am not going to say any more on that subject to-day: no doubt we shall debate it later, in Committee. That is one reason. Another reason is that I do not want to trail my coat too much for the noble Lord, Lord Goodman, to tread upon on this particular subject, bearing in mind that one has had the advantage of a preview of his speech in The Times to-day.
The noble and learned Lord the Lord Chancellor gave a very clear exposition, and an excellent exposition, of this Bill and the reasons for its introduction. It has been generally welcomed by all who have spoken, and certainly it is not least welcomed by me. The case for a fundamental change in our legal system has been fully made out. It is no use tinkering with our present system, which is on the verge of breakdown. But, my Lords, while saying that, I am not entirely happy about some of the proposals in the Bill; and, like the noble and learned Lord, Lord Gardiner, I think it might serve a useful purpose to draw attention to some features of it—not that I expect the noble and learned Lord the Lord Chancellor, 1282 who already has so many questions to answer (and I hesitate to add to them) to reply to-night, though I hope that he will give further consideration to these matters.
Great responsibilities are being cast under this Bill on the Lord Chancellor. He has to give directions as to where courts should sit, as to what kind of work they will take and as to the kind of cases in which justices shall sit. I am rather intrigued to know in what form those directions will be made. They will not be, as I read the Bill, in Statutory Instruments—though I may have got that wrong. But if there are to be directions on these important matters, as I regard them, I think it desirable that they should be printed in a form readily available. I am not at all sure that in matters which can be of such great importance to members of the public, they really ought not (at least some of them) to be embodied in Statutory Instruments against which it would be possible on occasion to lodge a Prayer; because some of the Lord Chancellor's decisions on matters such as this may raise issues about which there is considerable public anxiety. People may want to make sure, through their representatives in Parliament, that factors which they regard as important have not been overlooked. It may be to the advantage of the Lord Chancellor, should a Prayer be lodged, to have the opportunity of making his case for his decision. I should like to ask the noble and learned Lord the Lord Chancellor to look at that point. It is really no sufficient answer to say that this will be done administratively and free of all Parliamentary control. If I read the Bill correctly, it is free of Parliamentary control at the present time; and I think that the Bill might be improved if it were not.
I think that the great advantage of this Bill is, as the noble and learned Lord, Lord Parker of Waddington, has said, its flexibility. I do not know and the Bill does not reveal (and this is something to which the noble and learned Lord. Lord Gardiner, referred) to what extent the Lord Chancellor intends to implement the recommendations of the Royal Commission as to the locations of courts. I hope that he will not feel bound to implement them just as they stand and that he will consider them carefully; because I must say that in one or two 1283 respects I think the process of centralisation may have gone a little too far. There is a map on page 92 of the Report which shows the short-term and long-term proposals. Clause 7 of the Bill requires magistrates, when committing a person for trial tohave regard to … the convenience of the defence, the prosecution and the witnesses.That is right. But if the Royal Commission recommendations are implemented as they stand it will sometimes, I fear, be the case that the parties to litigation and the witnesses will inevitably suffer much more inconvenience than they do at present.
If I may, I will give as an example, Devizes. That is to be a Crown Court for a Circuit Judge. Presumably cases from all parts of Wiltshire will be committed there. I doubt if that will be very convenient, because Lord Beaching, in another guise, has cut off all passenger trains from Devizes. At the present time, quarter sessions sometimes sit at Salisbury: there is a court there. There is a great shortage of courts, as the noble and learned Lord the Lord Chancellor said, throughout the country. I would ask him to consider whether it might not be to the convenience of the public and the litigants, and would not interfere with the speeding up of the administration of justice, if on occasion the circuit court should sit not only at Devizes but also at Salisbury. It might in winter save some people a tiresome journey over Salisbury Plain. I give that as an instance, because I hope that the proposed location of these circuit courts will be carefully looked at. I am inclined to think that it might facilitate the administration of justice a great deal if there were just a few more of them. I recognise that one must strike a balance; and that a great deal of the value of the Royal Commission will be destroyed if there is too great a proliferation of courts.
Again, I welcome what the Royal Commission have said about civil actions, but I hope that the noble and learned Lord the Lord Chancellor will look at this point again. There is one big area of the country, stretching from the Fens down to Oxford, which is getting a vast increase of population. It is a part of the country that I know very well. There has been a great growth at Peterborough 1284 —so much so that when I was Lord Chancellor, now six years ago, I was giving serious consideration as to whether or not it was necessary to make Peterborough an assize town. You have a very big population in Leicester and in Leicestershire. You have the belt through Kettering, Wellingborough and Northampton. Northampton is to double in size. You have the New Town of Milton Keynes, and big developments in Buckinghamshire and Oxfordshire. And in none of those places are there any facilities for the trial of civil actions. They all have to go elsewhere. Cases from Northamptonshire will have to go cither to Birmingham or London—or possibly Warwick; and it is not easy to get from Northampton to Warwick by public transport. Similarly, cases from Oxford will have to be taken a considerable distance away.
I should like the noble and learned Lord the Lord Chancellor to consider (and this is not special pleading on my part for I have no particular interest in a court being sited there) whether it would not be to the advantage of all if enlarged facilities for trial of civil actions were provided at a centre like Northampton, which is more or less in the middle of that belt and to which access is pretty easy. If that is not done I fear that the litigants in these civil actions will have to balance the more speedy trial of their actions against an increased liability for costs; and I think that the costs which will be involved may be very substantial indeed. I would ask the noble and learned Lord the Lord Chancellor to look at that again.
When the noble and learned Lord the Lord Chancellor comes to reply, I hope that perhaps he may be able to explain to me something that I find very puzzling. It is paragraph 10 of the Explanatory Memorandum of this Bill, which says:The new court service will include the existing Supreme Court and county court staffs, together with those court staff employed by local authorities on a full-time or part-time basis who transfer to the new service. There are at present some 2,700 staff so employed, who will be replaced by approximately 1,000 additional staff in the central government service.My Lords, if you are replacing 2,700 staff by 1,000 staff, I do not quite know where the word "additional" comes in. Be that as it may, I do not know, either. 1285 whether the 2,700 staff includes the Supreme Court and county court staff, or is confined only to the staff employed by local authorities on a full-time or part-time basis.
I welcome what the noble and learned Lord the Lord Chancellor said about those who are to be offered employment in the new service being offered fair and equitable treatment. I think there is an omission from the Bill. There is no statutory provision for their treatment. We have provision made, as the Royal Corn-mission recommended, for the existing judges. In paragraph 268 of their Report the Royal Commission said:It would be unjust for any of the judges whom we recommend should become members of the Circuit bench to suffer financial loss as a result. We recommend, therefore, that in any case where a judge's salary and pension, or other terminal benefits, are more favourable to him than those of the Circuit bench, he should be entitled to retain them on a personal basis.I suggest, my Lords, that the same provision should be made for those in whole-time employment in the courts at the present moment, if they are to be taken on into the new service. I can see no justification in drawing a distinction between the judges, for whom provision is made in the Bill in accordance with the Royal Commission's Report, and the permanent officials.
Take, for example, the officers and servants of the Central Criminal Court. There are nearly 100 of them. Their salaries are now paid by the G.L.C., as the noble and learned Lord, Lord Gardiner, pointed out. They participate in a superannuation fund. Why should not they be dealt with in the same way as the judges? I am sure that they will be offered fair and equitable treatment, but that is not quite the same, I suggest, as making statutory provision for them. There are precedents for doing so in the London Government Act 1963, where, in Section 85, it is provided:Any order under section 6 or 84 of this Act may contain provisions as to the transfer of any person who is, on such date as may be specified in relation to him in the order, the holder of any place, situation or employment who is affected by any provision of, or of any instrument made under, this Act. and shall contain provisions for the protection of the interests of such persons.It goes on in subsection (3) to provide that: 1286so long as he continues in the employment of that other authority by virtue of the transfer and until he is served with a statement in writing of new terms and conditions of employment, he enjoys terms and conditions of employment not less favourable than those he enjoyed immediately before the date of transfer.Then the section says that the new terms and conditions, if offered, must bereasonably comparable to those in which he was engaged immediately before the date of transfer,and that the scale of salary or remuneration and other conditions of his employment must not beless favourable than those he enjoyed immediately before the date of the transfer.Also my, Lords, if his employment is terminated, there is provision in another Act, the Local Authorities Social Services Act 1970, by Section 9(2), to make provision for compensation for loss of employment or loss or diminution of emoluments. I should have thought it desirable that this Bill should contain some provisions of that sort, just as it does in relation to the judges.
I feel some regret at the abolition of quarter sessions. I am one of those who sat for some time as a deputy chairman and upon whom the Beeching axe now falls. But I should like to endorse and support everything the Lord Chief Justice has said about the advantage of sitting with lay magistrates. I have always found that most helpful—I think that they may perhaps have done so too—and I am very glad indeed that the Bill makes provision for the participation of lay magistrates in the work of the Circuit courts. I hope it will be possible to secure their participation to as great an extent as it is now at quarter sessions. I am a little doubtful whether that will prove easy because of the greater distances that so many of the lay magistrates would have to travel. But I still hope that that will be carried on.
I am a little puzzled by Clause 6(4), which refers to:the practice by which, on any one indictment, the taking of pleas, the trial by jury and the pronouncement of judgment may respectively be by or before different judges.My Lords, I must admit that I am ignorant of any such practice, and if there is a practice of one judge trying a case and another judge passing sentence, I think it is to be deprecated; certainly 1287 not encouraged, although where difficulties arise there might be power for that to happen. But the Bill refers to "the practice".
If I may, I will follow the example of the noble and learned Lord, Lord Gardiner, and draw attention to one or two other points which strike me as a little odd. The noble and learned Lord drew attention to a clause at the end of the Bill which apparently sought or attempted to bind what might subsequently be done in other Acts of Parliament. I think that Clause 8 is somewhat unusual. I cannot recollect ever having seen a clause which simply says that a Schedule to an Act of Parliament "shall have effect". I should have thought the right thing to do, if there is any doubt, would be to put the Schedule, which is extremely short, in place of what is now Clause 8.
My Lords, I am very glad to see that Clause 9 enables the Crown Court to vary sentences passed by magistrates, not only by reducing but also by increasing them, and that it enables the Court to do so whether the appeal is against conviction, or against sentence, or whether or not the appeal is against the whole of the decision. While recognising that that is right, surely it is anomalous that the Court of Appeal Criminal Division should not have a similar power. I have urged this in the past and I remain of the view that even if the power to increase a sentence is seldom used it is a power which is well worth having. It has been suggested that something should be done about the hearing of appeals from magistrates' courts. I see great difficulties in that. Most of the cases tried in magistrates' courts do not involve questions of law at all: they are matters of evidence. In my experience, most of the appeals to quarter sessions from decisions of magistrates' courts do not involve any question of law. They are appeals because the parties in the case before the magistrates are dissatisfied with the magistrates' conclusions on the evidence which the magistrates have heard. I should be sorry to see that practice interfered with, although I know that it places a considerable burden on the courts from time to time.
One other clause in the Bill which surprised me was Clause 16, dealing with 1288 Circuit judges. Subsection (6) reads as follows:So long as he holds office as such, no Circuit judge shall practise as a barrister, or act for any remuneration to himself as arbitrator or referee, or be directly or indirectly concerned as a conveyancer, notary public or solicitor.I should not have thought that it was necessary to make any statutory provision of that kind. I should have thought that everyone knew that if one became a judge, one could not practise as a barrister or do any work of that kind. If there is to be such a clause inserted in the Bill, should it be limited to, "so long as he holds office as such"? Surely it cannot be contemplated that a Circuit judge, after he has ceased to be a judge, can return to the Bar or act as a solicitor. Yet the clause, being prefaced by the words "so long as he holds office as such", may lead some to infer that that bar was removed when he gave up his office. If there has to be such a clause, does it go far enough?
When I read it, I thought that in view of recent events it might be desirable to insert a provision enabling the Lord Chancellor to require an undertaking that a person appointed a judge should not retire from that office and go into business. Speaking for myself, I do not think it is a good thing for a Lord Chancellor who has retired from that office, maybe due to circumstances wholly beyond his control, to go into the City, though there are, I know, some precedents for that. What I think is unprecedented, and I myself think inexcusable, is that someone who has accepted the appointment by Her Majesty as a judge should thereafter relinquish that appointment and take one in business. It should be clear, surely, to everyone at the Bar that if one accepts a judicial appointment, there are obligations attached to it; that one cannot return to the Bar and practise as a barrister and that, having embarked on a judicial career, one is under a moral obligation to do the job and not to give it up in favour of one that appears more attractive.
I shall not put down any Amendment to this clause to deal with this point, because on reflection I have come to the conclusion that it would be somewhat derogatory of the high office of a judge to insert a provision enabling the Lord Chancellor to extract such an undertaking. But if it is necessary to stipulate that a Circuit 1289 judge should not engage in certain activities while he is a judge, I would ask the Lord Chancellor to consider whether it is not equally desirable that it should be made clear that he cannot do so after he has ceased to be one.
Attention has been drawn to a number of points. I do not intend to refer to any other points to-night, except that in conclusion I should like to comment on one point made by the noble and learned Lord, Lord Gardiner. I do not believe that the delays in the Central Criminal Court are in any way due to the division of responsibility for the administration of that court. That court has grown tremendously in recent years. Many more courts are there than were there only ten years ago. The City really has done a great deal in trying to make provisions for the demands that are made upon it. It is not the division of responsibility that is causing the delays there. It is the congestion of work. There has been so much criminal work sent for trial to the Central Criminal Court that these delays have become inevitable, though I am sure that all the judges and all the staff there have done their best to overcome them. I deplore such delays. I deplore them wherever they may occur, and I trust and hope that, with the flexible system that this Bill contemplates, they may be materially reduced.
§ 5.35 p.m.
§ LORD GOODMAN
My Lords, may I first say how grateful I am to the speakers who should have followed me for their courtesy in allowing me to speak now, otherwise, perhaps to no great loss to your Lordships, I should have been precluded from speaking at all. May I also add my congratulations on the maiden speech made by the noble Lord, Lord Fletcher. He is a speaker of such accomplishment and experience that it is a little otiose to compliment him. He is from my point of view a particularly welcome addition to your Lordships' House, because he is a walking demonstration of the obvious eligibility of solicitors for almost every kind of appointment.
I do not wish to speak on this Bill exclusively from the parochial point of view of the interests of solicitors or even on the important question of whether the range of appointments to Her Majesty's Judiciary should be extended. I have some comments to make on these subjects 1290 and if I speak in some little detail where your Lordships may consider the matter would be more appropriately dealt with on Committee stage, it is because I still entertain the hope, though slight, that the ears to which I am addressing these observations are not totally incapable of assimilating them and it may perhaps not be necessary to divide the House on an issue of public interest, on which I believe most people who judge the matter objectively would arrive at the conclusion that there should not be controversy. There should be general agreement as to the persons who are eligible as judges. Therefore, I make the plea that careful attention may be paid to this matter, whatever conclusions may be reached at the end on whether or not my arguments have sufficient validity to carry this relatively unimportant point.
May I join in congratulating the noble Lord, Lord Beeching, who, obviously to avoid embarrassment, has departed, on this remarkable Report. He and his colleagues have done a splendid job. I wonder whether I may especially refer to Mr. Cannon for his participation in view of the unhappy intimation the other day of his ill-health, and express the hope that he may be restored very shortly to the indispensable career of public service for which he is rightly reputed. The Beeching Report demonstrates something I have always believed—perhaps it is easier for a lawyer to say it than for anyone else—that no effective reform of our legal system would come except from laymen. I do not believe that we should have achieved these remarkable recommendations if a strong contingent of sensible laymen, who were not inhibited by traditions and considerations of loyalty, had not been furnished with the opportunity of considering the whole subject and arriving at a conclusion on pure common sense.
I believe, as the noble and learned Lord the Lord Chancellor rightly said in his most interesting introduction of the Bill, that these are memorable recommendations. They are historic changes. To what extent we shall be able to congratulate ourselves upon them depends not upon their present structure but on what use we make of these recommendations. We are given a new framework. It is for us to etch within that framework a suitable and sensible legal system. We 1291 are given an opportunity of solving many problems. The inaccessibility of justice is now to be solved. The expense of justice may be partially solved. Many of the things in the great system of law we enjoy as one of the great heritages of this country, at the moment not available to a great many people, may now be rectified, and it may be that, for the first time in our history, this magnificent system of law will be available to all.
Hence I join with other lawyers and some who are not lawyers in welcoming the Bill introduced this afternoon. There are various matters on which I wish to comment. One is to urge the noble and learned Lord the Lord Chancellor on in his meritorious campaign to secure that proper buildings are available for the administration of justice. Nothing is more awful than to see a case being tried under some of the physical conditions which now attend—Nissen huts in which gentlemen distinguished for their eminence in learning, replete in their magnificent robes, are seeking to carry out justice in insufficient light, with no means of writing a note, nowhere to consult with clients or instructing solicitors or anyone else concerned in the case, making it almost impossible—not impossible to carry out justice, because the circumstances in which justice has been effectively carried out under such conditions is a remarkable tribute to the practitioners concerned. But it makes it very difficult for the persons concerned to feel that justice has in fact been carried out. If a little money has to be spent on this matter it will, if I may say so, be as wisely spent as any public expenditure that we can envisage. It is absolutely right that new buildings should be provided.
Another matter on which I should like to comment—and I think the noble and learned Lord, Lord Gardiner, made an observation on this—is the absence of any provision in the Bill to carry out the recommendations for the enlargement of county courts' jurisdiction. I believe that such enlargement is most necessary and wise. I myself, judging it only on my own experience, should have been very willing to see that jurisdiction substantially enlarged beyond even the £1,000 recommended in the Beeching Report. There is no reason why, if we are now 1292 to have judges who are considered to be competent to carry out the most important criminal duties, they should not be able to discharge a civil responsibility of a very responsible character.
§ THE LORD CHANCELLOR
Perhaps I can save time on this. The Bill does not contain it, but further increases are already possible by Order under the Administration of Justice Act 1969, Section 10. Therefore it was not necessary to put it in the Bill.
§ LORD GOODMAN
I am obliged to the noble and learned Lord. One earnestly hopes that consideration will be given to extending that jurisdiction rapidly, because it achieves great saving. both of money and time, for the litigants. I believe that now that we are thinking in terms of territorial courts, which are on the whole designed to have fairly equal jurisdiction, this is a progressive move, consistent with the whole rationale of the Beeching Report.
Another matter on which I think it is appropriate to touch is the question of majority verdicts of juries. Until recently I had serious misgivings about this, but I think that on the whole the recommendation is a wise one. It should, however, be the subject of consideration: it should not pass through unnoticed: because it is an important change in many of our legal conceptions. But on the whole, the notion of a litigant being involved in a case which may go on for days, and cost great sums of money, finding himself frustrated from a verdict because of the obstinacy of a single juror, is. I believe, an overwhelming argument in favour of this recommendation.
I recently heard of a case—and I have no reason to disbelieve the circumstances—where 11 jurors in a libel action were unanimously agreed that the verdict should be given for the plaintiff. The twelfth juror turned out to be an Irishman, and he expressed the view that he was not going to participate in any judgment in favour of anyone in this country. As a result, the entire proceedings, which had lasted for many weeks, were rendered a futility and a total waste of money. If in fact that did occur—and there seems to be valid reason for believing that it did—it is an invincible argument in favour of this change. I think that, much 1293 as we may regret the fact, the unanimity of jurors, which is a splendid principle and conception, has to be compromised in this way; it is desirable in a modern society.
That brings me to another consideration of no less importance: whether we are not a little too sentimental over this notion of the total egalitarianism of most jurors. I think it is an injustice to a litigant that he now has the situation where he has to have his case tried by a jury of completely indeterminate qualifications. I do not believe that it is in any way undemocratic to ensure that a man who is going to try a complicated case is tested as to his qualifications to try that case. It must be an absurdity that a man, for instance, who can neither read nor write, or who has the most deficient understanding of complicated matters, finds himself engaged in determining issues that require a rather sophisticated, and at least cultivated, approach and a general adequacy of intelligence. I think we have reached the stage where we need not fear for our democratic conditions, and we ought to have a good hard look at this again to see whether people should have visited upon them jurors who are entirely unqualified for the task they are called upon to perform. As I say, I do not think there is any question of democracy involved in this; it is simply a question of efficiency and common sense.
I should like to make one observation on some words that fell from the noble and learned Viscount, Lord Dilhorne, on which I had not intended to comment, because I had not noticed the point in the Bill. He made some reference to the situation of a judge who retires during the course of his appointment. I certainly should not wish to make any comment that relates to a particular case. I am wondering whether the noble and learned Viscount is not, in one sense, a little over-severe (and one can understand why a lawyer who has added such distinction to the profession should feel as he does in this matter), and whether it is not on the whole wiser that a man who, after all, finds he has not got a calling, as he thought, and feels it is not appropriate that he should continue in his position, should be given or should take to himself, the opportunity of retiring. If the 1294 noble Viscount's suggestions were adopted, such a man might find that economic factors required him to remain on the Bench unless it was possible for him to find other employment. I wonder whether the conclusion that the noble and learned Viscount arrived at is not a little too harsh, and whether, in the end, the decision arrived at may not be in the public interest. I venture that observation because it seemed to me that the remarks might pass unnoticed, and that elementary justice required that perhaps some contrary point of view should be put.
Having said that, I should like to come to the major point with which I am concerned, and that is the ever-green question of solicitors and the Bar, and their appointment to the Judiciary. I would start by saying that I wholly agree with the noble; Lord, Lord Fletcher, when he says that this issue should be determined solely on the question of public interest. It is not a question of whether further available employment is extended to solicitors or whether the Bar retains its monopoly. I believe (and I am anxious to give the noble and learned Lord the Lord Chancellor this point) that the Bar is wholly honest in this matter. I believe that they do, with total integrity, consider that it would be contrary to public interest if the extension for which we seek were granted.
In this matter I am very much reminded of a novel that most of your Lordships will know by Jane Austen, where a delightful conversation takes place between the husband and wife who are considering what bounty they should bestow upon their sister-in-law, recently bereaved, whose inheritance they have in fact, through the law then operating, themselves inherited. They start off by considering that it would on the whole be desirable if they gave her a small annual annuity. Then they think that this perhaps might be a little too much—in her own interests, I may say—and that they should give her slightly less. They end up by deciding that, in her own interests and for her own welfare, it would be entirely wrong to do more than send her an occasional pot of home-made jam. I see that as exactly the attitude of the Bar in this matter. They have mesmerised themselves into the belief that it is entirely in the interests of the 1295 public and of solicitors that this bounty should not be extended.
I should like to examine the extraordinary range of arguments that have been deployed on this matter by the Bar, and only the Bar, because, so far as I can see, this is an issue between the Bar and the rest of the civilised world. I have not yet met any layman who would do otherwise than occasionally mouth one of the Bar's arguments, and hastily repudiate it when the true facts were explained to him. The arguments that have been deployed by the Bar in this matter are various, colourful and, one might even say, occasionally wet. The first is the one that was advanced by the noble and learned Lord, Lord Gardiner, when he was in the position of the present Lord Chancellor. I may say, I hope without any tinge of reproach, that Lord Gardiner was no better on this matter than his successor. Of course, he is a member of the Bar. So far as the Bar are concerned, that Free Masonry will not be altered by any considerations from any other part of the world. Lord Gardiner's argument was that the Bar would be discouraged from taking employment if it was thought that judicial appointments were made available to solicitors. My only answer to that is this. Would Lord Gardiner or the present Lord Chancellor have been remotely discouraged from embarking on the career in which they became such distinguished ornaments by the knowledge that a group of miserable solicitors were likely to be competing with them for some junior judicial employment some thirty years hence? If I may say so, the idea is totally fanciful.
The second argument used appeared in The Times this morning and came from Sir Peter Rawlinson in another place. He said that solicitors are always immured in their offices: they never come out to meet the world; they would not know anything about the Judiciary; they would not know how to conduct cases. There are two answers to that. One is that solicitors are not always immured in their offices—there is a respectable sprinkling of them here this evening. Secondly, solicitors are frequently engaged in litigation and advocacy, and have a great experience in learning of these matters. But if they are, the answer to this sugges- 1296 tion is contained in the Beeching Report itself. If your Lordships will look at page 141 you will see there is an interesting and totally valid recommendation which reads:… judges should not sit continuously in one place and ought not to be restricted to work of substantially the same kind without change".What in effect that is saying is that if you get a man of reasonable intelligence, a man who has had a wide education, adaptability is an ordinary feature of his behaviour. It is nonsense to suggest that a man who knows the law and has practised the law in one field cannot adapt himself to the small changes required to practise the law in another field. That argument seems to be as untenable as the rest.
Then we come to three other interesting arguments. These were discovered by the present noble and learned Lord the Lord Chancellor. One was that solicitors do not want the jobs; that they are too prosperous; that they are doing so well in these offices in which they are immured that they would not for one moment consider taking them. There are three answers to that. First, if this were true, there could be no harm in offering the jobs to them; the Bar would then have the satisfaction of seeing them all refused, and better conditions would prevail than prevail at the moment. Secondly, I do not for one moment believe it to be true that they do not want the jobs—they are not as prosperous as is suggested. Thirdly, solicitors have an excellent record of public service, and if they think that there is public service to be done they will make the necessary financial sacrifices to enable themselves to do it. So that argument holds no water of any kind.
The next point was even better. It was that if you were to add 22,000 possible candidates to the existing list of 2,000, or whatever the nominal roll of the Bar is at the moment, it would be impossible for the noble and learned Lord the Lord Chancellor to know everyone concerned, and he would not be able to make the choice as he does now. I can only say, as I said in an article that I wrote on the subject this morning, that it is perhaps kinder not to deal with that argument. I will merely answer it by saying that if one has to choose between 1297 a method of choice where a single individual has to range over the qualifications of 22,000 people who otherwise would be regarded as eligible, or devising some other system of selecting the Judiciary, there are strong and powerful arguments for finding another system for selecting the Judiciary and not depriving the public of an opportunity of a much wider range of choice.
One other matter was brought to my notice (I am not sure that it should have been) and that is that the noble and learned Lord the Lord Chancellor is apparently seized of a forbidding technical point that is going to demolish my case completely. I do not know what it is going to be, and I shall not, alas!, have the opportunity of being here to hear him expound it, because I have to absent myself; but in advance of hearing the technical point I will only say that it will have to be a very remarkable one indeed if the sovereign power of Parliament cannot put it right.
There is a nominal roll of 2,000 barristers. If you deduct from that number those who, for a variety of reasons, must be ineligible for judicial appointment, because they are too young, too foolish, too clever, too rich, or because they do not want to take an appointment in Warrington or Cullompton; if you deduct the high specialists who could not take the job because they are not general practitioners, there is a tiny handful left to fill what amounts to something like 900 judicial appointments which are at the moment exclusively reserved for barristers. The arithmetic is overwhelming. The public interest cannot be served by continuing restrictive practices of this character.
At this stage, my Lords, I have said enough. There is much more to be said, but I will reserve it for the Committee stage, although I earnestly hope that there will not be need for a Committee stage on this matter. May I conclude on quite a different note? We should not allow the important proceedings in your Lordships' House to-day to be entirely occupied with this consideration. We should not forget that we are engaged in an important and very memorable stage in the development of English law and its practice, and we should not on 1298 that account cease to welcome this most important Bill.
§ 5.55 p.m.
§ LORD CAWLEY
My Lords, as a practising member of the Bar I am not going to be provoked by the noble Lord, Lord Goodman. I am going to talk about the only clause which the noble and learned Lord said had nothing to do with Beeching. This concerns the patent law. So far as I can see, there is considerable doubt as to whether it falls within the Long Title of the Bill. That does not stir me at all because I am totally in favour of these provisions. We are a great industrial country, and our patent system is of very considerable importance to us. I think it is only fitting that somebody should tell the House in more detail what this clause achieves.
The Patents Appeal Tribunal originated in the Patents Designs Act 1932. Prior to this Act. appeals from the Comptroller-General of Patents, who heard the proceedings as opposition proceedings, went to the Solicitor General. This was all very well at the end of the last century, when they were few and the subject matter was simple. But during the 'twenties and 'thirties, the complication of the matters became such that it was rumoured that one Solicitor General's early demise was definitely hastened by the fact that he had to take appeals from the Comptroller-General of Patents, although when Sir Stafford Cripps was Solicitor General there was no difficulty. So in 1932 the Patents Appeal Tribunal was set up. Solicitors and patent agents had a right of audience before the Solicitor General and when the Appeal Tribunal was set up they continued, under the Act of 1932, to have a right of audience, even though the Tribunal was to be a Judge of the High Court appointed by the Lord Chancellor—that is to say the Judge of the High Court was sitting in an inferior capacity.
Under the Patents Act 1949, certain rights of appeal to the Court of Appeal from the Patents Appeal Tribunal were included on certain grounds. Shortly thereafter it became apparent that parties before the Appeal Tribunal were dissatisfied with certain decisions of the Appeal Tribunal on points of law. They therefore took the matter to a Divisional Court to obtain an order of certiorari. This 1299 first occurred in the case of Baldwin and Francis in 1957. Now I must read a short paragraph from the judgment of Lord Goddard in that case:Both my brother and myself have said that we cannot go into the technical details because if we did we should not understand them. We have had no training in these matters. We are not supposed to be gentlemen of particular scientific attainments.I say that the present noble and learned Lord the Lord Chief Justice, who I see is in his place, is a gentleman of scientific attainment, and is able to understand these matters perfectly. I do not know whether that applies to all of his brethren. It is obviously extremely unsatisfactory that on these points of law one has to go to such a Tribunal. Although (I say this with very great respect to the noble and learned Lord the Lord Chief Justice) the decisions have been extremely satisfactory, obviously it is not the right Tribunal to hear appeals on questions of law.
This summer the Committee on the British Patents System, under Mr. Banks, reported to the President of the Board of Trade, and I have here in my hands the Report that the Committee made. I should like to refer to paragraph 166, in which they said:To sum up, we recommend:The establishment of a Patents Court of High Court status to hear all patent actions including appeals from decisions of the Comptroller.I will leave out the next paragraph, and come to the third recommendation:That when the Patents Court is sitting as an Appeal Court, the procedure and provisions relating to the right of audience and instructing counsel should remain the same as those of the present Patents Appeal Tribunal and that the present practice of the Tribunal of awarding a lower scale of costs than the High Court should be continued.Your Lordships will see that that is suggesting the creation of a Tribunal which will have High Court status, but at which patent agents will be entitled to appear and argue the cases. So will solicitors—though I do not want to say anything controversial about solicitors, because in the last twenty years I can think of only one solicitor who has appeared before the Patents Appeal Tribunal and he is a Member of your Lordships' House. But this proposal means that this new Patents Court would have High Court status, yet cases would 1300 possibly be argued by patent agents who have no legal training at all except for the specialist Acts. That is obviously extremely unsatisfactory.
The reasons for recommending this new Patents Court were these. The first was the unsatisfactory nature of the application for an order of certiorari, and the second was the one I have already given: that the Court would have High Court status and its decisions could be taken as authoritative. I am glad to say that this recommendation has not been accepted by Her Majesty's Government. I am glad to see they have substituted a right of appeal from the Patents Appeal Tribunal on points of law and of jurisdiction, either with the leave of the Tribunal itself or with the leave of the Court of Appeal. That will channel all possible appeals to the Court of Appeal and not to the Divisional Court of the Queen's Bench Division. I have no doubt that the noble and learned Lord the Lord Chief Justice is pleased about that, because in the Baldwin and Francis case there were in fact five different proceedings: before the Comptroller General, the Patents Appeal Tribunal, the Divisional Court, the Court of Appeal and the House of Lords. It was highly unsatisfactory. If we can cut out one stage it will be a great improvement.
I should like to suggest to the noble and learned Lord the Lord Chancellor that this is possibly a case where the "leap-frogging" procedure provided for in the Administration of Justice Act 1969 should be invoked. It is a fact that the first case of "leap-frogging" has been a patents case; and it has entirely justified itself. The House of Lords, by a majority, gave a very startling decision which showed a very serious defect in the Patents Act 1949. That defect would possibly not have been noticed if the case had had to pass through the Court of Appeal on its way.
The second part of this clause, Clause 45, refers to the Scottish Appeals Tribunal, and will no doubt give considerable pleasure North of the Border. This Tribunal has had a strenuous life. On January 1 next it will celebrate its twenty-first birthday. Up to now, no person has been appointed to carry out its functions and no rules have been made to regulate its procedure.
1301 My Lords, there is one other point that I wish to raise at this stage (I have given the noble and learned Lord notice of it) and it is not concerned with patents at all. There is considerable disquiet among the county councils that the provisions of Schedule 3, paragraph 1, will be interpreted widely, and if there happens to be a magistrates' court embedded in a shire or county hall the powers to take over the whole of the building may be invoked. I should like to ask the noble and learned Lord whether, in his reply, he can give me an assurance that compulsory purchase will be resorted to only in exceptional circumstances, and that, if possible, a list of premises to be acquired should be available as early as possible, preferably before this Bill becomes law.
§ 6.5 p.m.
§ LORD DENNING
My Lords, I am sorry that I was not able to be present for the first stages of this debate, but I should like, if I may, to say how much the whole country owes to my noble and learned friend Lord Gardiner for being the initiator of this great and important reform. For over 600 years the Judges of England went on Assize and the magistrates kept their county quarter sessions and the recorders their courts. That was the basis of our administration of justice all these years. But it has been shown to be outworn. Particularly as regards quarter session, when I was called to the Bar they finished their work in two or three days; latterly they have been in almost continuous sessions. Whereas previously, too, the judges had to go on circuit because the means of communication were very poor, now with motor-cars and the like the system can and should be more centralised. There is no doubt whatever that the proposals in the Beeching Commission's Report should be implemented, and I think all those who gave evidence were in line with the recommendations that were made.
It is important that in the Crown Courts the magistrates should sit with the judge and should have a voice and participate in the proceedings of the smaller cases, as they do now in quarter sessions. I myself sat as chairman of quarter sessions for several years and always I found the magistrates of the greatest help and support. The recorders 1302 never took part in this way, but under this new system they will in proper circumstances, so that they are not overburdened; they will be able to sit with the Circuit judges and the High Court Judges, for that matter, in proper cases.
The Bill deals with several matters which are not embodied in the Beeching Commission's Report. One small instance was mentioned by my noble friend Lord Goodman: that in civil cases there should in future be available verdicts of a majority. When that proposal was made in regard to criminal cases I felt that it was too radical and I spoke and voted against it here. But it has been proved in practice to be the right decision and the right course. On all the information I have, majority verdicts are a great improvement on the system we had before. Now it is quite time and quite right that that practice should be extended to civil cases, where there may be long cases of trial by jury. Majority verdicts should equally apply there.
May I add one word of caution. This Bill will lead to a great deal more centralisation of the administration of justice. The Lord Chancellor's Department is bound to be, whatever it is in name, a Ministry of Justice. Great powers are given to the Lord Chancellor and his Department. Take, for instance, the Circuit judges who would be appointed by him, or on his recommendation, and the salaries of each one—the provision in the Bill says, "each". They are to be fixed by him. Furthermore, the power of removal of Circuit judges for misconduct or inability is in the Lord Chancellor's hands. In having this Ministry of Justice, so long as we have Lord Chancellors such as the Lord Chancellor and the ex-Lord Chancellors we have in the House to-day we need have no fear that the independence of the judges will be assailed. I only hope that this will always be so, because the independence of our judges is perhaps the most important feature of our whole Constitution. If salaries can be altered, if dismissals can be made, by a Ministry of Justice, unless carefully watched—if need be by Questions in Parliament—independence might be assailed. Fortunately, it is still maintained in regard to High Court Judges.
1303 As to the small clause which my noble and learned friend Lord Dilhorne mentioned—that, so long as he is in office, a Circuit judge shall not take on any other work—perhaps it is to be remembered that in this country alone, so far as I know, by a convention, a judge on his retirement does not return to the Bar or engage in legal work at all. In the United States, in Canada and in many other countries it can be done and is done. I venture to think that that is unsatisfactory, because during his tenure a judge might have his eye too much on what he was going to do after he ceased to be a judge; and I hope, whether expressly or by convention, it will remain the case that a judge on his retirement does not return to the Bar or undertake legal work.
My Lords, there are one or two matters which perhaps I might mention and which cause me a little apprehension on this very point of the independence of judges. Clause 19 says that a judge of the Court of Appeal or a High Court judge or a recorder may be asked to serve as a county court judge. It says that he shall be capable of sitting as a county court judge and shall be available to sit as such a judge at such times and on such occasions as the Lord Chancellor considers desirable. One would have no fear of the present Lord Chancellor or any of those whom we know, but might it not in the future—perhaps far ahead—be rather different if some Lord Chancellor thought that he might demote a judge of the Court of Appeal and send him off to a far off county court? It is those little things that I would ask your Lordships to observe. We must not in any way allow the independence of the judges to be impaired.
There is another small matter which I would raise. The Lord Chief Justice and I, with the help of the Lord Chancellor, alternately appoint the masters of the Queen's Bench who do all the preliminary work on the cases in our courts, and we are able to see the possible candidates. We know them all; they present the cases in our courts; we know how suitable they are, and that system has worked well in the past. Is there need for a change and that it should be vested in the Lord Chancellor, as Clause 25 purports to do? I would urge that we should be careful not to get over-centralised by this system.
1304 Perhaps I ought not to pass over the remarks made by my noble friend Lord Goodman, and also to say how glad I am to see the noble Lord, Lord Fletcher, back in his place, to whom I, too, would pay tribute. As to the argument put forward by my noble friend, I suppose I may be said to be on the barristers' side by reason of my training, but there are important matters to be considered here. It is not a question of ability or knowledge of the law. Solicitors are equally able, and I have known many who are just as able, qualified, of high standing, integrity and judicial qualities as members of the Bar. It is a matter of experience in the work which a judge has to do. I would remind your Lordships that now it is exceedingly easy for any solicitor who wants to do so to become a barrister.
Under recent regulations made under the authority of the Inns of Court it is little more than a formality for him to be able to change from being a solicitor to being a barrister. So a young man who feels that he would like to become a judge can easily set himself on that training and then he will qualify. But by the time he becomes, say, 48 or 50 years of age—the age when a judge is appointed—as a rule a suitable solicitor is engaged in big work; it may be big business with corporations and the like and it may be 20 or 30 years before he is engaged in any advocacy. But the member of the Bar—such a one as is appointed a judge—throughout his career will have been day by day in practice, procedure and work of the court. It is that experience which a member of the Bar has and which a solicitor as a rule has not, which means that the qualification should perhaps be not so much as a barrister but one experienced in the practice and procedure of the courts. I think that is the telling reason why we should be slow in departing from a system which has worked so well for so many years. My Lords, these are small points. This great Bill should be welcomed everywhere, and I am sure that we all would join in the welcome which has been given to it.
§ 6.17 p.m.
§ LORD ILFORD
My Lords, I have to begin what I am going to say to-night by offering an apology to the noble and learned Lord on the Woolsack for my 1305 absence during the early part of his speech. I regret that I had to leave the Chamber for a time, but other things have been going on here this afternoon besides this Bill, and that must be my excuse. I shall detain your Lordships only long enough for me to express to the noble and learned Lord the Lord Chancellor my own appreciation of this Bill and the changes which it will make in our judicial system. That, I believe, will be the view generally acceptable by the Bar—if one who has been absent from the Bar for a good many years now may be accepted as an interpreter of their views.
My Lords, this Bill, and the Administration of Justice Act which we passed last year, may be regarded as completing the reform of our judicial system, just as the great judicatory Acts of the last century completed the process of law reform in that century. I was glad to hear the noble and learned Lord, Lord Denning, refer to the historical aspect of the Bill. I think it is worth remembering to-night that this Bill represents something like three-quarters of a century of law reform. In the same way, in the 19th century three quarters of a century had passed before the great judicatory Act set up the system with which we are familiar to-day. Just as the Act of 1873 cast off the mantle in which our judicial system had then existed, so to-day this Bill and the Administration of Justice Act will cast aside the mantle of the 19th century, though not until it is worn almost threadbare. So every century produces its law reformers and so tonight, my Lords, let us cast our crowns before the noble and learned Lord on the Woolsack and his predecessor and recognise him as the master lawgiver of our generation.
My Lords, may I now turn to another aspect of the Bill which is perhaps less agreeable than that with which I have been endeavouring to deal? Under the terms of the Bill the Lord Chancellor exercises very wide and very unusual powers in the requisition of buildings. The local authorities may be required to provide what is called a courtroom. There is no definition of what a courtroom is to be. I think we can all appreciate the sort of premises which the Bill contemplates will be subject to requisition. But it is a very wide power indeed. Does it 1306 include the town hall? Does it include the chamber where the council usually meet? Does it include the court in which the magistrates sit? There is no indication. It could even be made to include the mayor's parlour, which might be very usefully employed as the judges robing room. These are the powers the Bill will give to the Lord Chancellor.
That is not the whole matter, because the Lord Chancellor will not only be entitled to requisition them but will be under no obligation to pay for them. There is provision for payment of compensation in certain cases, but in the generality of cases there is no obligation to pay anything at all. It seems to me that that is going a little far, and it really is not surprising that the local authorities regard it with a certain amount of distaste. After all, there is no reason why the cost of the national system of jurisprudence should be placed on the ratepayers. I should have thought it rested on the national organisation. It is true that some of the premises which will no doubt be taken are used for the administration of justice; they are used at the expense of the local authority because the obligation is upon the local authority to provide them. Indeed, the only buildings the Government are required to provide are the county courts, which are under the control of the Lord Chancellor. I mention these matters to-night, not because they are matters we can properly deal with to-night; they are matters we shall have to deal with at the Committee stage of the Bill.
In conclusion, may I say that, apart from those aspects to which I have referred, I welcome this Bill. I believe, as the noble and learned Lord, Lord Denning, said, that it represents an important historical step in the advance of our judicial institutions. With those observations, I hope that it will pass into law—without, of course, those features to which I have referred—without undue obstruction.
§ 6.23 p.m.
§ LORD MILVERTON
My Lords, at this late hour I do not propose to detain the House for more than a few sentences. I had intended to deal, perhaps in some detail, with the effect of this Bill—which everybody greets, I think, with enthusiasm—upon the local authorities and their 1307 position; but the noble Lord, Lord Ilford, has already indicated the lines on which they feel considerable apprehension about some of the provisions of the Bill. Although I know it is a minor detail, it would be a pity if a great improvement of justice and its organisation in this country were accompanied by perhaps a certain amount of injustice to the local authorities and their position.
The effect of the Bill is intended to speed up the work of the higher courts which has fallen into arrears over the past years, and to ensure that resources, both of judges and of court accommodation, are used effectively and economically. The Association of Municipal Corporations, who represent local authorities, most emphatically agree broadly with the Beeching Commission's recommendations as to reorganising these courts, and consequently they are in almost enthusiastic appreciation of the main objects and provisions of the Bill. But they do feel this apprehension about the power which the noble and learned Lord, the Lord Chancellor, will have, to do all the things which were detailed by the noble Lord, Lord Ilford, just now, within the next ten years while the new buildings and new courts and so forth are being made. For that reason, I would ask that further consideration may be given to these aspects, and no doubt that is a matter to be dealt with properly in Committee.
§ 6.26 p.m.
§ THE LORD CHANCELLOR
My Lords, I think I should be less than courteous if I did not thank your Lordships for the generally friendly welcome which this Bill has received from, I think, every Member of your Lordships' House who has addressed it in our debate. In particular, the noble and learned Lord, Lord Gardiner, was extremely kind in the references to my office and staff and to the Government of which I form part, for the speed and expedition with which they have brought this Bill out. If I may say so, I think that this provides a general answer, although not a specific answer, to some of the questions which he posed.
I found myself in the position of a legatee of a partly finished work. The 1308 Beeching Commission had reported. The noble and learned Lord who preceded me on the Woolsack and the office which I inherited had done a certain amount of work upon what was by then a partly finished Bill. I had certain options in front of me. Obviously, I could start from the beginning again. I fancy that that would have taken three or four years, by which time there might have been another Lord Chancellor who had the same option. That was not really "on". I had to get on with the job. Secondly, I had to get Government approval. It is one thing to get Government approval if you are the Lord Chancellor who set up the Commission and if everyone knows the situation and what you were trying to do. But after the General Election we had a clean sweep. and I had to explain what it was about and why it was important.
It is never easy to get Government approval for a Bill. You have to get Parliamentary time, and it is obviously a very difficult thing to get a high place in the queue for any particular piece of legislation. Thirdly, I had an office which, as the noble and learned Lord said, had been extremely hardpressed. To produce a Bill of any proper dimensions and accuracy in the timetable which it was necessary for me to observe in order to get Government approval for a Bill at all, broadly speaking I had to set myself the task of seeing what was essential or easy. The essential and the easy had to be given priority over a great many of what I might call fringe benefits which I might have sought had I been looking for perfection or for a Bill in respect of which there was unlimited Parliamentary time. So I went for the Beeching proposals as a whole. I did what could be done administratively—and admittedly there were a number of recommendations outside the main purpose of the Bill—or alternatively that which I thought would not take up a great deal of unnecessary internal work or an unnecessary amount of Parliamentary time.
This is basically a radical Bill for the radical reform of the structure of certain of the courts, and although I have put into it as much as I thought we would take, if I put any more on the plate I would either have failed to get the Bill through in a Session or I would have failed to get through my colleagues the 1309 necessary approval in regard to it. Therefore, it does not necessarily follow from the fact that some of the particular recommendations of the Commission are not implemented in the Bill and that others have been dealt with administratively, that there is any policy difference in respect of this matter.
The noble and learned Lord began his speech by asking me a question about the draftsmanship of two of the earlier sections where the phrase occurs:by or on behalf of the Lord Chancellor".I think I accept the explanation which the noble Lord the Lord Chief Justice gave in a subsequent speech. I do not think there is anything either difficult or sinister about it. It simply means that the Lord Chancellor can in fact delegate to the man on the spot some of the functions but retains his Parlimentary responsibility to this House for what is done. He has to answer for it, but he may in actual practice have delegated the power. A wide range of things have to be done in regard to which the Lord Chancellor's concurrence is necessary, but he remains the responsible Minister and therefore he has to concur. In some cases the presiding judge will do it; in other cases the circuit administrator may do it, and in other cases it may be done in his office.
As I pointed out to the noble Lord, Lord Goodman, there is power by order now to increase the jurisdiction of the county court, a matter about which the noble and learned Lord asked. But it was of course recently raised to £750 and to £75 for registrars, and the advice I have been given is that the courts must be given time to absorb this increase in jurisdiction before a further step forward is made. I will be perfectly candid with the House. I should have liked this Bill to have done in relation to the county courts broadly speaking what has been done in relation to quarter sessions. I should like to amalgamate the jurisdiction of the county courts. But this is utterly out of the question at the present time. I suppose it would require another Commission, and it would need years of work. The result is that there we have left things as they are.
The noble and learned Lord asked about the juvenile appeal court which was recommended by the Beeching Commis- 1310 sion. It is the Government's intention that appeals in juvenile cases should continue to be heard by a legally qualified chairman and juvenile court justices. This will be provided for in the rules to be made under Clause 5 on how the Crown Court is to be constituted. But we see substantial administrative advantage in the administrative staff of the Crown Court being able to provide the infrastructure. We think this is a more flexible way of dealing with the same thing, and therefore we see advantages in having done it in this way. It is not that we reject the policy outlined in the Report.
The noble and learned Lord asked about affiliation appeals. There is, of course, room for the view that these should go to the Family Division of the High Court. But if they did it might involve bringing witnesses to London. Often, the issues are issues of fact, and lay justices bring their contribution to these issues. For the moment we have left them where they are. I confess that I have a hankering after domestic courts which would handle this and other kinds of issue and which would be somewhat differently constituted from either the magistrates' courts or the county courts as they now are. But that again is. I think, out of the question at the present time, although I hope that it will not be indefinitely out of the question.
The noble and learned Lord also asked whether there was anything in the eleven Schedules which I ought to have brought to the attention of the House and have not. It is rather difficult for me to answer this with complete candour or with complete certainty of being accurate. I felt that I could not take up the time of the House with a good deal of interesting material in the Schedules, but, on the whole, I thought I had done my duty by them.
It may be of interest to the House to notice the amendment of the House of Commons (Disqualification) Act, although perhaps it would be better discussed in another place. I took the view that we ought to rationalise the disqualification of Members of another place in relation to the tenure of judicial offices. One view, of course, would be that they ought not to be appointed to any of these positions. I did not myself take that view. I have always regretted that in recent years some 1311 of the more distinguished members of the Bar have not been able to secure the experience of public life which was open to them when I was younger; and I should like to retain the marriage (if I may put it in that way) between the practising profession and the public career of politics.
There were arguments both ways and your Lordships can see how it is presented in the Schedule. I thought that we ought to continue to allow part-time judges or recorders to be appointed from the ranks of the House of Commons, but that whole-time judges should be disqualified. The present limit of disqualification is not altogether rational. I feel that the Bill is about right. Apart from that, I do not think there is any other point in this great mass of material which I ought to have brought to the attention of the House on Second Reading.
The noble and learned Lord also asked about the justification for all-male or all-female juries. The real truth is that, broadly speaking, we retain the existing law as it is, largely because of the general reasons which I stated a moment or two ago. He asked also about the appointed day. I hope—though I am not promising—that it will be January 1, 1972, for all purposes. But that is a target and not a promise. The Morris Report on Jury Service is, strictly speaking, a matter for the Home Secretary and not for me. I cannot make any announcement. It has no Parliamentary time this Session, and I do not think that my right honourable friend has come to any other conclusion except that.
The only point of criticism that I noticed in the noble and learned Lord's speech related to the City of London. Well, that is a point of difference between him and me. I think it is extraordinary that two such different animals as he and I are should differ so little, because we have had very different lives and we have very different outlooks on many things. But in this respect I have a wholly different approach from him to the matter. I think I share the view that my noble and learned friend Lord Dilhorne voiced in the course of his speech; that the delays in the Central Criminal Court are not in any way due to the fact that the Mayor sits with the High Court Judge on the Bench. Therefore I could not see the 1312 relevance that that kind of observation had to the particular point at issue. The truth is that the Mayor has sat on the High Court Bench without interfering for I do not know how many hundreds of years, and I do not see why we ought to change the custom. It does nobody any harm, and it would cause a great deal of ill-feeling if one changed it.
The noble and learned Lord, Lord Gardiner, delicately suggested that I might be influenced by the friendship of my Party for the City of London. I equally delicately, I hope, venture to suggest to him that on this occasion he might have shown a slightly unreasonable prejudice against the City who have, at great expense to their own funds, undertaken a great public burden. The new courts going up there will greatly ease the situation. I have been in touch with the Recorder about the delays in the Central Criminal Court. One of the reasons for the delays in the Central Criminal Court, apart from anything else, is that it is such a convenient venue that from all the way round London justices commit there. What I have, which is the reality of power, is the circuit administrator, and the transference of staff.
If the Mayor and Aldermen, or the Sheriffs—or whoever may be the people entitled- like to sit on the Bench with a High Court Judge as technically members of the Court, I am quite happy to let them stay there. Indeed, I was sorry when the noble and learned Lord stopped me from being a magistrate. I have never sat as a magistrate, and I never wanted to as I was far too busy; but the fact was that for "donkey's years" Privy Counsellors were automatically magistrates. He took that away from me—I did not really understand why. This just indicates that we are rather different animals. I did not want to sit, and it made no difference, but he thought that as part of the process of modernisation he ought to stop the magistrates from including ex officio, Privy Counsellors. Well, good luck to him But I would not have done it that way.
Similarly, I remember that when I was Lord President of the Council I was on the Commission of Assize. I did not care whether I was on the Commission of Assize or not, but my circuit, oddly enough, used to read out my name with that of the judge because they thought it 1313 was rather a joke on commission day to have read the rather strange figure of the Lord President who was also a member of the South-Eastern Circuit. Again that was all abolished; but that only indicates that the noble and learned Lord is rather a different person from me. I cannot complain that it has done any harm; I hope he will not complain that I have done any harm by leaving the Lord Mayor undisturbed on the Bench of the Central Criminal Court with a High Court Judge. It is not a matter which is going to bring the administration of justice into disrepute whatever we choose to do.
The noble and learned Lord the Lord Chief Justice gave me a valuable degree of support in his remarks about the Bill. He stressed, as I would have stressed, the importance of flexibility, and stressing, I was glad to hear, the explanation offered for the drafting in Clause 4(2). As regards the rehearing of appeals at quarter sessions, he did answer the noble and learned Lord, Lord Gardiner, that in the absence of a transcript you are pretty well bound to have a rehearing. I am afraid my own approach to the problem is even more pragmatic: that it would have involved a rather radical change in the law which would have put too much on the capacity of the whole judicial system and of the Office to absorb in addition to what I am already doing. I shared the view, up to a point, both of the noble and learned Lord and of the Lord Chief Justice on the matter.
I was glad to welcome my old colleague, if he will allow me to say so, the noble Lord, Lord Fletcher, on what was his maiden speech. He will be a great addition to our debates; both our general debates and our specialist legal debates such as we are having now. I am very glad indeed of the remarks which he made. I shall come back to some of them when I turn to deal with part of the speech of the noble Lord, Lord Goodman.
The noble and learned Viscount, Lord Dilhorne, asked me a number of questions, some of which I may be able to answer. The first was on Clause 16(6), about barring Circuit Judges from practice, which also led him to a disquisition about the desirability of High Court Judges retiring from practice. The actual clause on which he hung his argument 1314 is only a simplified version of the County Courts Act 1959, Section 6. Following on our general policy, we maintained the state of the law exactly as it was, except where we considered it necessary to reform it. It is, of course, perfectly arguable whether one puts in that kind of thing if we are discussing the matter de novo.
As regards the possibility that the Lord Chancellor could impose a condition of appointment on judges who afterwards found that they had made a mesalliance with the Bench, I can only point out to the House that such a condition, if I were to impose it, would be unenforceable, so far as I can see. Perhaps noble and learned Lords who are better qualified than I am can think of a way in which I could enforce it; but personally I cannot. I venture to tell High Court Judges, when I interview them before appointment, that I regard their irremovability by Parliament as one reason for treating the career as a permanent one, and I tell them that I think they should approach the Bench with the enthusiasm of a bridegroom approaching marriage, or of a priest approaching priesthood. Whether I can go further than that, I really do not know. But I have not yet thought of anything more effective than a little homily—which I am sure will have little more effect than my other homilies. I hope, none the less, I shall inspire them to actions of one sort of another.
The noble and learned Viscount, Lord Dilhorne, also asked me about locations, citing Devizes and Northampton. I would tell him this in general, which I hope will satisfy him up to a point: that the locations are not yet sacrosanct. They will begin to be crystallised when a start is made on building the new courts, because we shall not be able to go back on them when we have erected our grand new palaces of justice. In the meantime, I am still open to persuasion, both about the boundaries of the circuits and about the status of individual towns.
I must issue a warning that I receive a great number of representations from individual places who wish to retain the equivalent of their quarter sessions and assizes, and I am afraid that the great majority of them must expect a fairly negative answer. The whole purpose of the reform would be defeated if every time there was a strong constituency point 1315 to be made in another place, or the local trades council, county council or town council thought it was an insult to their town that we were closing down the quarter sessions or assizes, or were closing the assizes for civil business, they were to have their way. I am not really a very hard-hearted man, but I am afraid that I shall have to be fairly hard-hearted about this particular matter, and I hope that I may have the support of those who realise what is at stake in turning down most of the requests. That does not mean to say that individual cases will not be considered again. Obviously, Devizes might be one case; and also Salisbury, which is part of the same complex.
Passing over the noble Lord, Lord Goodman, for a moment, I come to the noble Lord, Lord Cawley, who raised two very different points. One was to do with patent appeals. Clause 45, as he pointed out, provides for appeals on points of law to lie from the Patents Appeal Tribunal to the Court of Appeal. This will in fact remedy one of the main weaknesses of the existing structure, in which, since the Patents Appeal Tribunal is an inferior tribunal, appeal by application for an order of certiorari to Divisional Court is sometimes the only remedy. The rest of the recommendations of the Banks Committee, which are of a more radical kind, are the departmental responsibility of my right honourable friend the Secretary of State for Trade and Industry. All that I am really able to tell my noble friend this afternoon is that my right honourable friend is at present considering the recommendations of the Committee, including those relating to appellate jurisdiction, and hopes to make an announcement about his intentions in the near future.
My noble friend also raised questions, as did my noble friends Lord Ilford and Lord Milverton, about the local authorities. Clearly, one has to distinguish here between the temporary provisions of transition, before the new system really gets into play, when one is dealing with existing court buildings only and the ultimate aim where some court buildings will be kept for permanent use and others will be built quite afresh by my right honourable friend the Secretary of State for the Environment.
1316 As regards the transitional provisions, and indeed as regards compulsory acquisition generally, I think I can tell all three of my noble friends that compulsory power will be used only as a last resort. In regard to some of the points which they raised, acquisition will be restricted to buildings which are wholly or primarily court houses in the sense in which everybody would understand them to be court houses; that is to say, mayors may remain with their sherry in their parlours, eating their bread and honey, without fear that the Lord Chancellor will seek to intrude. My powers will not be used for the acquisition of any of the administrative centres of a local authority. Indeed, I hope that we may settle all these complicated matters by good will and by negotiation, without the use of any compulsory power at all, although it is of course there in the last resort.
I was grateful to the noble and learned Lord, Lord Denning, for his intervention. He quite rightly stressed the importance of the independence of judges, and I feel sure that anyone who held my office would be wholeheartedly with him in that respect. I rather shy, if I may say so, at the description of the Lord Chancellor's Office as a Ministry of Justice. No Minister of Justice sits on the Woolsack as Speaker of any Legislative Assembly of which I am aware, except the Lord Chancellor of Great Britain. Many Ministers of Justice not merely appoint judges, but also look after prisons and start prosecutions. To my mind, this would be something altogether dreadful in the British system and I would fight that in the last ditch.
What we have, however, is a centralised administrative court service. Admittedly, members of my Party are against centralisation and this runs counter to our general philosophy; but I am convinced that it is necessary in this case. The administration of justice is, broadly speaking, accepted as a function of central authority in the great majority of civilised States. Obviously, America, as in everything else, is to some extent an exception, because the Americans regard their States for some purposes as independent entities at the base of their Constitution. But I think the administration of justice is a central function and a function of Central Government. If it 1317 were not, this Bill would be wholly wrong in its conception, because it does centralise. But I hope that the Lord Chancellor is not an empire builder, and he certainly will not encroach on the independence of the judges.
The noble and learned Lord, Lord Denning, raised a point on Clause 19 (2). I understand that the Lord Chief Justice is going to move an Amendment requiring the consent of a High Court Judge before he is the victim of this particular power; and if he does move it I shall accept it in Committee. So that would meet the noble and learned Lord's point. He also asked about Clause 25, which deals with the Queen's Bench masters. The modest fact about this is that a Royal Commission recommended this as long ago as 1915, so I can hardly wear the red robe of a revolutionary in this respect. The Royal Commission of 1915 had advice from such eminent and respectable lawyers as Lord Haldane, Lord Muir Mackenzie (who was in those days the Lord Chancellor's Permanent Secretary and held office for about forty years), Lord Wrenbury and Sir Thomas Heath, who was a Permanent Secretary to the Treasury. Lord Loreburn held an intermediate position which certainly was not that of the status quo. So I think I am in very good company if I have erred there.
I should have thought it was constitutionally desirable that the person who appointed to remunerative offices paid out of the Consolidated Fund ought to be somebody responsible to Parliament, rather than somebody not responsible to Parliament who could be removed only by a very complicated procedure. One has to recognise that the appointments to masterships have caused at least two Lord Chancellors to lose their positions in the last 250 years. I should have thought that the noble and learned Lord would be only too glad to get rid of this dangerous possibility, even although it may happen only about once a century. However, I do not think this need cause us any ill-feeling, because, as I said, I shall not dream of exercising any of these powers under Clause 25 without the closest consultation—which indeed I always have with heads of Divisions on any 1318 matter of importance affecting judicial patronage.
This brings me back to the only allegedly controversial point which has been raised during the course of this debate; that is the, to my mind, relatively unimportant question of Clause 15(3). The fact of the matter is that in relation to that, I have followed exactly the same principle as I have followed in relation to almost every other feature of the Bill; that is to say, I have maintained the status quo. The reason why I have maintained the status quo is quite a simple one; that this is a Bill about the structure of the courts, and not a Bill about the structure of the legal profession.
I myself share the view of the noble and learned Lord the Master of the Rolls. As every noble Lord who has spoken has said, the test is, of course, the public interest. But it seems to be generally accepted, even by those who want to change, and even by those who want to insert the change into this Bill by a side wind, which I think is most inappropriate, that what is wanted on the Circuit Bench is what there is now; namely, very considerable experience of trying cases—I use the verb in the American sense—and taking part in litigation in court. It is open to question how many solicitors possess that necessary qualification, or whether the Law Society really understands what a very high standard of experience is demanded by Lord Chancellors in making appointments to the Bench at the present time.
The noble Lord, Lord Fletcher, used the phrase—I think not in relation to his own feelings on the subject, but in relation to the feelings of others: "insult to the solicitors' profession." I hope that nobody will run away with that sort of idea—I am the last man to bite the hand that has fed me for 36 years. Indeed, two of the hands that have fed me at one time or another have been those of the noble Lord, Lord Fletcher, and the noble Lord, Lord Goodman, who has now blown out, as well as having blown in and blown off during the course of the debate. But really I do not think any question of prestige arises here. If I thought that,, of course I should have to concede that a great number of chartered accountants or patent agents who 1319 I know have all the qualities necessary to be judges. So, perhaps, have some of the Bishops. But I do not regard it as an insult, either to the Bishops or to the patent agents or the accountants, that I do not include them at the moment in the status quo for appointment to the Judicial Bench.
There are a good many misconceptions about this matter. Of course, as I think one noble Lord said (it may have been my noble friend Lord Cawley) the fact is that, given complete transferability between the two branches of the profession, there really is not an arguable case on either side. By the present qualifications—I forget what the actual statutory provisions are—a solicitor who becomes a barrister can count his years as a solicitor as part of the qualification for this purpose. The idea that one thinks that they cannot be judges is laughable when one considers that Lord Justice Widgery, Mr. Justice Plowman, Mr. Justice Withers Payne, Mr. Justice Megarry, Mr. Justice Caulfield and Mr. Justice Wien were all solicitors. So, on the County Court Bench, were Judge Rowe Harding, Judge Steel, Judge Harold Brown, Judge Wallis-Jones, Judge Brooke Willis and Judge Curtis. The idea that there is any prejudice against this profession when it has already provided such a high proportion of both Benches is little short of ridiculous.
But the point, really, is this. The Circuit Bench will of course be that much more exacting than the County Court Bench. The only change I have made in the law with regard to qualification is that I have made the qualification ten years' continuous practice, instead of seven. The requirement of advocacy in the courts is going to be a little more onerous in the future. The requirement is a high one because they will now have to try a great number of what will be virtually High Court cases, both, I think, in a civil capacity and more particularly in a criminal capacity. Nobody pretends that there are many criminal courts of higher jurisdiction—that is, criminal courts trying cases on indictment—in which solicitors have a right of audience as advocates. As I explained to begin with, I have maintained the status quo there: solicitors will be admitted to those 1320 courts where they already have a right of audience and where a case is made out, but in the main they have not got it.
I myself would not contemplate with anything like conviction appointing to the Circuit Bench somebody who had never appeared in a criminal court at assize or Crown Court level over a number of years. Occasionally, of course, there are exceptions. The Vice Chancellor of the Duchy of Lancaster would probably be such an exception. And, equally, some of the official referees who are also Circuit Judges might occasionally be exceptions—although I think that already, even in my short tenure of office, I have appointed more official referees as commissioners of assize than most Lord Chancellors. But in fact considerable experience at Crown Court level as an advocate would be necessary.
I must say to the noble Lord, Lord Goodman, that it is all very well to laugh at these arguments, or to suggest that these things are really of very small matter. But the fact is that if we allowed this to happen it would be fundamentally altering the structure of the legal profession, because it would mean raising the whole question of the right of audience in the higher courts. This may be desirable, and it may be a battle that we shall one day have to fight. But I said quite clearly in the course of my opening remarks that I do not want to put more on this plate than deals with the structure of the courts; and I regard this raising of the position of solicitors as an attempt to introduce into a Bill about the structure of the courts a rather fundamental provision about the relationship between the two branches of the legal profession which may be one day desirable but for which there is no case here.
When I am reminded of the Beeching Commission's recommendations, I reply that it must be remembered that not only was it a majority recommendation only, but it was a recommendation in the terms, "We are inclined to think", not, "We recommend"; and that is not very strong ground for a Lord Chancellor to act on. When I add that the Commission did not take any evidence on the subject (they did not. so far as I know, consult the Lord Chancellor's Office, which might have given some quite useful evidence; and as far as I know they did not consult anybody else, before being "inclined to 1321 think" in that rather tentative kind of way) it seems to me to be very unstable ground on which to ask me to act.
The noble Lord, Lord Goodman, referred to the fact, which is the case, that solicitors were eligible for the paid employment of chairmen and deputy chairmen of quarter sessions. So they are. I wonder if your Lordships really would have gathered from what the noble Lord, Lord Goodman, said that that power has existed for some thirty years. And how many people do you think have been appointed in that time? Two. So it does not really look as if there is this enormous queue of available talent being held back only by a restrictive practice of a Lord Chancellor who happens to have practised at the Bar for most of his life.
The fact of the matter, my Lords (and I will say this both to the noble Lord, Lord Goodman, who is not here, and to the noble Lord, Lord Fletcher, who is), is that the one thing they did not say about this job is that they would like to have it for themselves. I will tell the House why they would not like to have it for themselves. They are far too prosperous where they are, and it really would ruin them. It is all very well to talk about their desire for public service, but if a senior partner in a first-class solicitors' office, who is the head of a really big business with, I suppose, an invested capital of £500,000, is so full of public zeal that he wants to become a county court judge or its equivalent, then all I can say is that he needs his head examined.
My Lords, I went to the Bar not because I thought going to the Bar was much superior to becoming a solicitor but for four very good reasons. The first was that my father was a barrister, and I had come to think it was a good thing to be—which does not involve any insult to any other profession. The second was that I do not like writing letters, and solicitors do practically nothing else. The third was that I do not keep accounts, and solicitors have to keep not only one set of accounts but at least two, or they get turned out; and the last was that I cannot be trusted with my own money, let alone anybody else's. All these are good reasons for going to the Bar, provided you have a fairly lucid mind and a capacity for marshalling facts and 1322 cross-examining and examining witnesses, which you can acquire by training if you can pass the necessary number of A-levels. So I went to the Bar with a considerable measure of hope—and look where I have ended up!
A solicitor is a very different kind of animal indeed. He does not spend most of his time doing advocacy except in his early days, when he is sent off by the senior partner who cannot stand him in the office; and when he finds that it is rather fun, he then transfers to the Bar and becomes a Judge, as Lord Justice Widgery did. If, on the other hand, he does not like it at all, he becomes a senior partner in Goodman, Derrick and Co., and manages to accumulate a huge fortune, which he would not have done at the Bar. And as, when you are at the Bar, you cannot save very much, owing to the penal rates of taxation—and even when you leave the Bar you are not now allowed your post-retirement earnings—of course this is a great inducement to barristers to join the Circuit Bench, and the Lord Chancellor has his fishing line out on almost every well-known member of the Bar to see whom he can bring into his keep-net. The result, of course, is that this is a very convenient arrangement. Whether at some time it will need alteration, I do not know. What I am pretty sure of is that we should be mad to try to alter it in this Bill, which is really not about that subject at all. I thank your Lordships very kindly for being so patient with me. I hope that I have set out what has been passing through my mind during the debate.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.