HL Deb 02 May 1977 vol 382 cc816-23

My Lords, I beg to move that this Bill be now read a second time. This is another of those useful, but I fear unexciting, Bills which Lord Chancellors have to bring before your Lordships from time to time to make helpful improvements in the administration of justice and to meet changing demands and circumstances. The last one was introduced by the noble and learned Lord, Lord Hailsham of Saint Marylebone, in 1973, so I do not apologise too much for bringing this one before you after an interval of four years.

The provisions of the Bill are, I think, even more than usually miscellaneous. In another place they used to be called, unkindly, a "ragbag", but if that is meant to be deprecatory I hope to persuade your Lordships that this is a Bill of value. The only recurring theme which I can detect is that, since inflation has come to he accepted as an ever-present factor in our lives, or at any rate to be an ever-present factor in our lives, it is inconvenient that figures of jurisdiction, interest rates, and so on should be in primary legislation alterable only by an amending Act of Parliament, instead of in subordinate legislation, or in some cases—for instance, in relation to rates of travelling and subsistence allowances—dealt with by administrative direction. This is a trite thought for us, but it would indeed have shocked our Victorian and Edwardian predecessors. Indeed, between the wars, and even shortly afterwards, Parliament was still prepared to insert the current rates of interest into primary legislation in the firm belief that they would be durable and valid for the foreseeable future. A number of the clauses in the Bill cover that point. Otherwise they are, as I have said, an assortment of beneficial and I hope noncontroversial reforms.

It may suffice for me on Second Reading to run through the provisions of the Bill, and perhaps we can leave the consideration of the matter in detail until the Committee stage. Clause 1 and Schedule 1 implement two recommendations of the Legal Aid Advisory Committee. First, for England and Wales they remove the considerable burden on those who administer the civil legal aid scheme of re-calculating an assisted person's contributions whenever there is a change in the income limits, which nowadays is very nearly an annual event. There is no such provision in Scotland. Secondly, for both England and Wales, and Scotland, the clause and the Schedule abolish the panels or lists of barristers, advocates and solicitors which are now generally acknowledged to be an unnecessary complication in the running of the legal aid scheme. In practice the panels have already in effect been replaced by legal aid "referral lists", which are widely available to the public, and which indicate not only solicitors who take legal aid cases, but also the types of problem each is normally prepared to undertake; and this improved system will continue.

Clause 2 and Schedule 2 carry out the policy which I have just mentioned by enabling the rates of certain expenses and other allowances which now have to be prescribed by Statutory Instrument—such as payment of travelling, subsistence and loss of earnings allowances and of other expenses to magistrates—to be determined administratively. I should emphasise that this applies only to the rate of the allowance. The conditions for payment and other matters will continue to be prescribed as before.

Clause 3 and Schedule 3 require a word of explanation because, though the concept is simple enough, the form of the amendments is complicated. Under the Maintenance Orders Act of 1950 a maintenance order made by a court in one part of the United Kingdom may be registered for enforcement in the equivalent court of another part of the country; for example, a Scottish Court of Session order may be registered in the High Court here, and probably will be if the person liable to make the payment comes to live in this part of the country. Now, under the Maintenance Orders Act 1958 an order made by the English High Court can be registered for enforcement in a magistrates' court so that the payee can take advantage of the simpler enforcement procedure available in the magistrates' court. But at present an order made by the Court of Session and registered under the 1950 Act in the High Court here, cannot be re-registered under the 1958 Act for enforcement in a magistrates' court.

The purpose of the provisions in the Bill is to enable that to be done, and it will be a considerable benefit to a Scottish or Northern Irish woman whose husband comes to live here after she has obtained a maintenance order against him in the courts of Scotland or Northern Ireland. These provisions do not apply to enforcement in Scotland or Northern Ireland because the 1958 Act operates only on enforcement in England, and the systems of enforcement in the other two countries are different. I should add for completeness that the clause does enable an order registered in a magistrates' court to be re-registered in the High Court, although that will be a rare case.

Clause 4 makes amendments to a number of Statutes which have become necessary now that the old rule has been abolished under which the courts of this country gave judgment in sterling only and in no other currency. Clause 5 remedies a defect in the powers of the Courts Martial Appeal Court to award costs in favour of a person who has been successful on a special reference. Clause 6 enables temporary additional judges to be appointed to the Employment Appeal Tribunal. This is a precautionary measure to enable any necessary steps to be taken to deal with a backlog of business if that situation should arise in what has become an increasingly busy appeal tribunal.

Part II of the Bill, which applies to England and Wales only, opens with Clause 7 which contains two provisions about appeals. The first abolishes the rule that the Court of Appeal's decision is final on ancillary matters in matrimonial cases, save on a point of law, and will enable questions of custody, maintenance, financial provision, and so on to be taken right up to the House of Lords in the rare cases—and they will be rare—where that may be appropriate. The second removes the statutory rule which requires an appeal from an inferior tribunal to be heard by a Divisional Court and leaves the Rule Committee to make provision as appropriate in each case for an appeal to be heard either by a Divisional Court or by a judge sitting alone. Clause 8 enables me to appoint temporary officers to posts in the Supreme Court, as well as deputies for any officer who is absent, and it enlarges the field of choice from which appointments to certain of those offices can be made. It has become apparent that in some respects the qualifications are nowadays too restrictive.

Clause 9 has, as its main purpose, to enable funds in court to be banked at any bank designated by the Lord Chancellor and not necessarily at the Bank of England. Your Lordships will note in this respect as a side note that the requirement for banking suitors' funds at all was first imposed in the year 1721. Until that year the officers of the court were free to invest such funds as they chose and to pay the expenses of their offices and staff out of the income. Any balance of the income they kept for their own benefit. That practice continued until, unhappily, serious deficiencies occurred when some of the funds were found to have been lost in the South Sea Bubble. As a result of this and other irregularities in the Court of Chancery, I regret to say that one of my predecessors, the first Earl of Macclesfield, was impeached and fined in the sum of £30,000 by your Lordships' House—a mournful event, indeed. Coming back to the present, it seems expedient to relieve the Accountant General of his duty to maintain his account at the Bank of England. This implies no lack of confidence in that institution, but it no longer in practice maintains a branch in the Law Courts, and it is therefore more convenient to make use of whatever alternative and responsible banking arrangements may be available.

Clause 10 reduces from five to three years the period of service as a recorder which qualifies a barrister or a solicitor for appointment as a circuit judge. In particular, this will enable me to recommend a solicitor/recorder for appointment to the Circuit Bench after three years' service, where he has shown himself suitable for the higher appointment. Under the operation of the present provision requiring a five-year period of service I have been able to recommend this year five solicitors who have become circuit judges.

Clauses 11 to 18 all relate to the county courts. Clause 11 simplifies the administration of those courts by removing certain statutory requirements as to the place and time of sittings, and will save a good deal of wasted judicial and administrative time. Clause 12 gives a county court jurisdiction to grant an injunction or declaration in relation to land of appropriate value even though no other remedy is sought in the proceedings. At present, the remedy of injunction or declaration can, as a rule, be given only where it is ancillary to another claim; for example, for damages. The new provision will, for instance, enable a tenant to obtain an injunction against unlawful harassment or threats of eviction on the part of his landlord. Clause 13 raises the limits of Admiralty and probate jurisdiction in the county courts, and enables those limits to be raised by Order in Council in future. Under Clause 14, directions may be given to enable a solicitor's clerk to appear in court on certain minor and uncontentious matters, such as applications for adjournment by consent, so saving the time and expense of attendance by his employer solicitor. The Law Society and the Institute of Legal Executives have urged this sensible change.

Clause 15 removes a defect from the highly successful small claims procedure, which is now in operation in the county courts, under which cases are referred for informal arbitration by the registrar or judge, instead of being heard in open court with formal rules of evidence and procedure. This has enabled a large number of people to bring or defend their cases successfully in person, without a lawyer, thereby saving a good deal of money. It is mainly used for small consumer disputes or for small claims arising out of motor accidents. In 1976, over 12,000 cases were determined in this way, by arbitration in the county courts. At present, an order of the court is required before this procedure is brought into play, and the parties cannot be certain from the outset that this will be given. Under Clause 15(1) the parties will be able, in suitable cases, to agree among themselves on the arbitration procedure. The clause also enables small awards under the Arbitration Act to be enforced through the county court rather than the High Court.

Clause 16 raises from £10 to £50 the figure which requires an unsatisfied county court judgment to be entered in the register of county court judgments, and enables the figure to be amended in future by order. The present figure of £10 has stood since the year 1852, and the increase proposed can hardly, I think, be called excessive in the circumstances. Clause 17 carries to its conclusion the process by which, over the years, the county court registrar, who was originally purely an administrative officer, has become a judicial one, to the great advantage, I believe, of the administration of justice in small cases. It is indeed an essential part of the reorganisation of the civil and criminal courts that he should perform judicial functions. Under this clause the registrar's remaining administrative duties will be transferred to the officers of the courts service, and the registrar will be given clear authority to determine small cases without any right for the parties to object. Such an objection is very rarely made in practice, but the provision for it causes administrative difficulty. Clause 18 makes a small change in the method of proving service in the county court. It reflects a technological change in the keeping of court records, and will save costs.

Clause 19 has more historical interest than any of the others. Put briefly, it removes the obsolete jurisdictions which are now possessed by certain local courts, but it leaves those courts in being to perform any non-judicial functions which they now carry out and which may be valued in the locality. I should also make it clear that the clause does not abolish the judicial functions of a court—and there are about 20 of these—which currently exercises them to the benefit of the area which it serves. There are two examples of such courts in Clause 19(1), and they are specifically excepted since they might otherwise have lost their jurisdiction under the general heading of Courts Baron and Courts Leet in Part I of Schedule 4. The Estray Court for the Lordship of Denbigh (where the Sovereign is the Lord of the Manor) sits once a year to adjudicate on claims to the ownership of sheep that have been gathered in by the court bailiffs from the Crown wastes during the year. There is no suggestion that these sheep have been culled in from the farms and lands of those who are the rightful owners of them. Those days, if they ever existed, my Lords, have long since passed. This is a very useful court, and it would be quite wrong to abolish it.

The Court Leet for the Manor of Laxton, in Nottinghamshire, also sits once a year to administer and settle any disputes over the open field system of farming, which still operates in that area. A substantial part of the parish has never been enclosed and survived the Enclosures Acts, and it is still farmed on the mediaeval three-field system. Again, to do so would be highly unpopular, for the tenants who farm on the estate are very jealous of their ancient traditions and are extremely keen that they should continue undisturbed; and in my view it would be quite wrong to abolish such a useful institution. I do not think that I need say any more about this clause or Schedule 4, which sets out in Parts I and II the courts which are to lose their obsolete judicial functions, and in Part III the non-judicial business which will continue to be conducted by certain of those courts where it has proved to be identifiable. Those of your Lordships who are further interested in the subject will find a fuller explanation in the Law Commission's Report No. 72, on which this clause is based, although it is not fully followed in every detail.

Clauses 20 and 21 make alterations to the Land Registration Act 1925. Clause 20 enables the register to be inspected, on proper authority, in connection with criminal proceedings or to trace the proceeds of crime. It may be right, although opinions differ on even this, that the register should, in general, be private, but it cannot, I think, be justifiable to enable the privacy of the register to act as a barrier behind which the proceeds of crime used to acquire land may be concealed. Clause 21 abolishes an obsolete procedure known as the "mortgage caution", which serves no useful purpose but causes a certain amount of confusion in the scheme of protecting minor interests in registered land.

Clause 22 corrects a minor defect in the Proceedings Against Estates Act 1970 which at present prevents it from providing the full benefit intended for cases where legal proceedings are instituted against a person who has died. Clause 23, first, enables the rate of interest payable on an unpaid statutory legacy to be determined by Statutory Instrument; and, secondly, enables the method of capitalising a surviving spouse's life interest in an intestate's estate to be similarly determined. In each case the statutory provisions of the Administration of Estates Act are now inequitable and out of line with current conditions.

Finally, my Lords, Clause 24 enables the Court of Session to make an Act of Sederunt (rules of court, in English parlance) allowing written statements and reports to be given in evidence in Scotland in circumstances where that is not now possible; and Clause 25 raises the limits of value under Section 68 of the Lunacy Regulation (Ireland) Act 1871. This will enable the simplified procedure for administering the property of a mental patient in Northern Ireland to be extended to a wider range of cases.

My Lords, those are the substantive provisions now in the Bill and I commend them to your Lordships. It is, of course, always difficult to know when one has come to an end with reforms of this nature and I may well have one or two further proposals to put before you at the Committee stage; but I shall do my best not to overburden your Lordships further. I beg to move that the Bill be now read a second time.

Moved, that the Bill be now read 2a.—(The Lord Chancellor.)