§ 2.52 p.m.
§ The Lord Chancelllor (Lord Mackay of Clashfern)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee. —(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 1 [Allocation of business between High Court and county courts]:
Lord Mishcon moved Amendment No. 1:
Page 2, line 18, leave out ("and").
§ The noble Lord said: In moving the first amendment to this important Bill, perhaps I may say, as a member of the legal profession and as one who will be followed by many others of the legal profession in moving, supporting or opposing amendments, that I propose to see that my profession keeps its honoured name by speaking briefly, pithily, and, I hope, persuasively. Having said that, I move this amendment in that spirit.521
We are dealing here with the question of deciding on the jurisdiction of courts, whether it be the High Court or the county court. I think that it is important throughout this Bill and all its stages to realise that the person who is supposed to be assisted in the main by the provisions of the Bill is, if I may so call him, the customer, the member of the public who comes before the court as a party to proceedings. It is in that spirit that I urge in this amendment that the interests of the parties be one matter among others which should be very seriously considered. The wording used in Amendment No. 2 is:
the wishes of the parties concerned".
§ In conclusion, perhaps I may say that the phrase "the interests of justice" is very often mentioned in speeches. We should make very sure that those words do not cover only the interests of judges, practitioners or administrators. They must also cover the interests of the parties. I beg to move.
§ Lord Renton
I wish to support the amendment moved by the noble Lord, Lord Mishcon, with his usual grace and persuasion. It is felicitous that the first amendment to this Bill is one upon which barristers and solicitors can easily agree. Indeed, the noble Lord, Lord Meston, and I tabled exactly the same amendment simultaneously with that tabled by the noble Lords, Lord Mishcon and Lord Prys-Davies. Then of course the clerks who look after these matters had but to amalgamate them into one amendment.
This is clearly a matter which the noble and learned Lord the Lord Chancellor should bear in mind when being guided by the criteria mentioned in subsection (2) of the clause. It is so plainly a case for doing something to remind the Lord Chancellor of the wishes of the parties concerned that I have no hesitation whatever in agreeing with what the noble Lord said.
§ Lord Rippon of Hexham
I agree entirely with what has been said already, but will the noble and learned Lord the Lord Chancellor, when he replies, indicate the status of those criteria? If these words are added, does it ensure that that is what the order will do? Can he confirm that the position is not, as some people have suggested, that all those criteria might in fact be ignored and other criteria substituted?
Subsection (2) says simply:any such order may differentiate between categories of proceedings by reference to such criteria as the Lord Chancellor sees fit to specify in the order".The next subsection states:The criteria so specified may, in particular".Can we read "may" as "must"?
§ Lord Meston
I too should like to support this amendment. Dealing with the last point, it seems to me that none of these criteria, whether or not the words in the amendment are added, binds the Lord Chancellor to do anything. It strikes me that he may ignore them all completely. I hope that he will not do so. However, subject to that observation, this is a necessary amendment. It is entirely right that there should be some reference in this part of the Bill to 522 consumer choice and it is consistent with present law, which allows the parties to choose to some extent between court A and court B.
The Lord Chancellor
I am extremely happy to agree with the proposition that the object of the courts is to provide a service to the public, to those who have recourse to them. It is in order to ensure that the courts do that most effectively that my noble and learned friend Lord Hailsham set tip the Civil Justice Review to make proposals upon these matters.
It may be worth reminding ourselves of what the Civil Justice Review had to say on this matter. It found that too many general cases of relatively low substance and importance were being handled and tried in the High Court, and this was considered to be a major cause of excessive cost and delay. The review suggested that the main function of the High Court should be to deal with public law and other specialist cases and that general cases should go to the county courts unless they were of exceptional substance, difficulty or complexity. That is why the review suggested a new system of case allocation and transfer, to curb the tendency which the Civil Justice Review appropriately termed "upward drift". In order to achieve this it is invevitable that some restrictions will be placed on litigants' choice of forum, although the new system is intended to benefit all litigants by reducing cost and delay —in other words, not just the litigants in a particular case but litigants generally.
I should emphasis that the order that is proposed under Clause 1 will be concerned with t he allocation of cases between the High Court and the county courts. So far as concerns the parties' convenience, the more important decision will often be not the choice between the High Court and the county court but the choice of location within the county court, because that more than anything will affect the ease with which, for example, witnesses can attend. In practice, of course, the choice is normally made by the plaintiff's legal adviser. The Civil Justice Review considered that it was possible that some put their own convenience, or even expectations in relation to remuneration, before the interests of the clients.
The expertise of High Court judges —a scarce and valuable resource —is best directed at specialist business, and at more substantial or difficult general cases. The effectiveness of the system as a whole is undermined if too many smaller cases are handled and tried at an inappropriately high level. It cannot therefore be right for plaintiffs to have an unrestricted choice of forum regardless of the substance, importance or complexity of their cases.
I should make two points in conclusion. First, the list in subsection (3) is not exclusive. It would not prevent the convenience of the parties being taken into account in the order if in particular circumstances that seemed necessary. For example, the choice of the plaintiff to go to a particular court might well prevail unless there were other factors —such as complexity, importance or amount —which would dictate a different choice. Secondly, it will remain open to both the plaintiffs and the defendants to apply for transfer up to the 523 High Court. Cases will be transferred if the court is satisfied that they are suitable for High Court trial, and conversely transferred down from the High Court to the county court.
The list is intended to show the criteria that would be relevant for the purposes of this clause. It does not exclude other criteria. As I indicated, for example, the wish of the plaintiff will often be an important consideration. But the purpose of this clause is to provide objective criteria for allocating cases between the two levels of court.
I entirely agree with the view that the convenience of the parties is an important consideration in deciding on the location within the level of court at which that should happen. It would be contrary to the spirit of what the Civil Justice Review recommended if parties could agree in effect and thereby reach a binding conclusion that the case should be in one court or another.
An important consideration is this. It is the interests of all litigants that have to be served. If people choose the High Court for cases that are not suitable for that court then in effect one is misusing these very important resources. Other litigants will be impeded in the progress of the case by those unnecessarily clogging up that very important court. While I do not exclude taking account of the wishes of the parties in appropriate circumstances, the thrust of the clause is to identify by reference to objective factors that arise those cases which should go to the higher or lower level.
I hope that in the light of these considerations the noble Lord will feel able to withdraw the amendment.
§ 3 p.m.
§ Lord Renton
Before the noble Lord replies, perhaps I may say that I am sure that we are grateful to my noble and learned friend for the broad statement of his intention on the clause, and for reminding us what the Civil Justice Review proposed. He has conceded that the convenience of the parties must be a factor to be taken into consideration, I should have thought at all stages. It is therefore a question of how that objective is best ensured by the wording of the Bill.
We have put forward an amendment which refers to "the wishes of the parties". There may be a better way of wording it. The criteria already under paragraph (c) refer simply to "the parties". We do not quite know what that means. Does it mean the nature of the parties, the status of the parties, the wealth of the parties or what about the parties? If the point that matters is the convenience of the parties, it might be worth my noble and learned friend the Lord Chancellor considering by Report stage putting down an amendment which refers to "the parties to the proceeding including their convenience". We ought not to part with the amendment without ensuring that such a provision is put in the Bill. The noble and learned Lord the Lord Chancellor has described it as important.
§ Lord Campbell of Alloway
There may be confusion here. Surely the clause is concerned with the 524 allocation of business. The criteria by which business is allocated by statutory provision cannot be dependent upon the wishes of the parties. But the wishes of the parties on the question of inconvenience or hardship come into play by the concession of my noble and learned friend the Lord Chancellor when the application for transfer is made. With respect, there could be some provision that, when the parties are heard in opposition to an order of the court which seeks to implement these statutory provisions, such opposition on grounds of inconvenience or hardship shall be taken into account. That could conceivably be inserted as subsection (8). But one cannot draft such legislation; it is merely a concept.
The Lord Chancellor
I have sought to explain that as between the courts at a particular level the convenience generally of those having to resort to the court will be important. We come to that at a later stage. This clause is concerned with allocation of cases as between the two levels of courts. That must depend on the objective character of the cases and what is involved in them.
The wishes of the parties no doubt are matters that may be of very great importance in relation to location within a particular level of court. However, as my noble friend has said, we must be careful to distinguish between the objective criteria that are to be applied to particular cases in allocating between the various levels of court and the separate question of the convenience of the parties to be served within that level of court. For example, the plaintiff's choice may prevail where the plaintiff takes a case in a particular level of court unless the objective criteria show that it should be at the other level.
I hope that the noble Lord will feel that I have his considerations very much in mind. I shall certainly carefully consider what he has said. However, at this stage I believe that the view that I have sought to put before the Committee is the correct one.
§ Lord Mishcon
The last thing that I wish to do at the very commencement of Committee stage is to find myself at variance with the noble and learned Lord. I hope to persuade him that many just as important amendments are acceptable. In view of what he has said, I do not propose to attempt to divide the Committee.
However, before I leave the amendment, I should like to put this thought in his mind. We are at the very commencement of the Bill. One would like to see the ideal that he has initiated in the Bill apparent on the face of the Bill at an early stage; namely, that the interests of the parties is a very important consideration. We lose nothing by putting those words in because the noble and learned Lord has said that it is a matter which must have consideration, but it may be secondary to the main objective. I know that I do not have to remind him that these are not exclusive criteria. Nor is there an order of priority set out in them. I am most grateful for the speech of the noble Lord, Lord Renton, in this context. If by Report stage the noble and learned Lord could provide for the interests of the parties, I am sure that the Committee will be extremely grateful and 525 we shall have achieved an objective which I believe he shares.
Following on from what the noble Lord, Lord Mishcon, has said, I wish the amendment stated that. It does not refer to the interests of the parties, but to "the wishes of the parties concerned". So often the wishes of the parties concerned are in direct conflict with their interests.
The Lord Chancellor
I share the aims of the noble Lord and should like to get the matter as correct as possible. However, I wish to avoid any confusion about the nature of the criteria to be applied as regards Clause 1. No doubt, when we have had a chance to consider some of the later clauses and the effects on the interests and convenience of the parties, we may be in a better position to assess exactly how our objectives may be met. I am grateful for the stance that the noble Lord has taken on the matter.
§ Lord Mishcon
In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved.]
§ The Chairman of Committees (Lord Aberdare)
If Amendment No. 3 is agreed to I cannot call Amendments Nos. 4 or 5.
§ Lord Rippon of Hexham
moved Amendment No. 3:Page 2, line 21, leave out subsection (4).The noble Lord said: In moving the amendment I ask Members of the Committee to have regard to the wide powers which are sought by the Government in subsection (4). Under the subsection the Government may:amend or repeal any provision made by or under any enactment relating to … the jurisdiction, practice or procedure of the Supreme Court; or … of any county court, so far as the Lord Chancellor considers it to be necessary, or expedient".That is a wide enabling provision. It gives unlimited discretionary power to the Lord Chancellor of the day in relation to the jurisdiction, practice and procedure of the courts.
It is an especially bad example of the growing use of what is called the "Henry VIII clause", so named for obvious reasons. It reflects the absolutism for which that monarch was notorious. It gives power to repeal or amend primary legislation by order—that is, legislation which, as is clear from the dicussion in respect of Amendment No. 1, is of concern to the people who are affected by the administration of justice.
I do not wish to weary Members by repeating everything that I said on Second Reading about the way in which this type of clause is increasingly used in one Bill after another. Almost invariably, the excuse given is flexibility —let the Bill provide the framework and the officials will provide the details. I suggest that there is something in the saying, "The devil is in the detail".
526 It is no real safeguard to say that such an order will be made only after consultation or that it will be subject to affirmative resolutions of both Houses. We all know that such orders cannot be amended. Indeed, it is the practice in this House —I do not know whether it is wise —that they are never voted against. From my experience, the other place exercises hardly any greater control.
If the subsection is accepted, Parliament will no longer be able to determine by primary legislation any question of the jurisdiction, practice or procedure of either the Supreme Court or the county court. It will have abrogated in an enabling Bill —which perhaps should be a separate Bill —all its power to the Executive. With respect, it is no answer to say —as did my noble and learned friend the Lord Chancellor on Second Reading —that the powers are necessary:in order to match the transfers to the resources". —[Official Report, 19/12/89; col. 246.]In other words, to make sure that we transfer down what is resourced to the courts.
We all greatly admired the way in which my noble and learned friend sat patiently throughout those proceedings, listened carefully to all that was said and answered fairly fully. Therefore., I am not surprised that at col. 247 he added to those words that I have quoted:I am sorry if I do not make myself plain —it must be the lateness of the hour—but perhaps I should proceed".I am afraid that he did not make himself plain to me. I understand that the Government are saying that because they do not know when or how they will proceed they cannot say what they propose to do or how they propose to implement their policies. Therefore, they say, "We must have a blanket power". As I indicated when speaking to Amendment No. 1, my view is that the criteria which will be applied are unclear. It appears to be anything that the Lord Chancellor sees fit to specify. As we have heard, not only is the list not exhaustive but each and every one of the existing criteria could be entirely ignored.
As I indicated on Second Reading, the nine Acts of Parliament which contain Henry VIII clauses giving powers to amend or repeal legislation, and which were introduced before the publication in 1932 of the Donoughmore Report, contained much more limited power to amend primary legislation than is now proposed. There was normally a time limit. The kind of case involved was the Local Government Act 1888 which gave power to amend legislation so as to change, if necessary, the date on which the first local government councillors were to be elected to the new authorities. Clause 1 contains no time limit and the powers given under it may well be exercised by the next Lord Chancellor but three. After all, we have been told that it will take one to five years to implement the Government's plans under the review.
Therefore, I believe that the time has come for us firmly to apply the recommendation of the Donoughmore Committee with regard to Henry VIII clauses. In other words they should be abandoned in all but the most exceptional cases. They should 527 not be permitted by Parliament except on special grounds stated in the ministerial memorandum to the Bill. Until 1939 no Bill, however complicated, contained any such provision. Therefore, we are dealing with a comparatively recent drafting practice based entirely upon what the Government consider to be expedient and easy in the circumstances of the day.
There have been other occasions on which I have complained about the use of Henry VIII clauses, particularly in respect of local government legislation. I have always assumed that one of the reasons why the clauses are slipping through is that we no longer have a legislation committee of the Cabinet, presided over by the Lord Chancellor and supported by the law officers whose duty it was to look at the form as distinct from the policy and the content of legislation.
I am sure that none of the Lord Chancellors under whom I served on that committee —that is Lord Kilmuir, Lord Dilhorne and subsequent Lord Chancellors —would allow the Bill to come forward in this form. After all, this measure has been brought forward by my noble and learned friend the Lord Chancellor. He is the one member of the Cabinet who, by the nature of his office, should be the foremost guardian of the rule of law.
We must now consider not only the policies of the Bill but the method by which it is to be implemented. I believe that, in effect, the Lord Chancellor has abrogated what should be one of his main functions; namely, to prevent Ministers —that is any Minister —from bringing forward legislation of this kind. It may be within the recollection of some Members of the Committee that a similar situation arose last year when we considered the Children Act. It was piloted through with the noble and learned Lord's political skill.
Clause 15 of that Bill gave extraordinary powers to the Secretary of State by regulation to modify or repeal a large part of the Act or add to the powers or duties of local authorities. After a forceful attack by my noble and learned friend Lord Simon of Glaisdale, my noble and learned friend the Lord Chancellor agreed to leave out the words "modify or repeal" and insert the word "amend". Perhaps that was not a great victory but it was a step in the right direction. However, even the power to amend primary legislation in such circumstances goes very far.
In a measure which has wide constitutional implications I do not believe that we should give even the power to amend. After all, we increasingly acquiesce in the practice of ceding virtually uncontrollable power to the Executive because we all too readily accept the argument in favour of administrative convenience at the expense of constitutional principles. For those reasons, I beg to move that subsection (4) be omitted from the Bill.
§ Lord Simon of Glaisdale
I support what the noble Lord, Lord Rippon, said. It seems to me quite extraordinary that one finds in an Act of Parliament a provision whereby the normal legislative processes of Parliament are arrogated instead to the Executive. 528 It is even more extraordinary that that is put forward by my noble and learned friend the Lord High Chancellor who should be the guardian of constitutional proprieties.
Still more extraordinary is that that occurs after the events of last Session to which the noble Lord, Lord Rippon, referred. On that occasion in the Children Bill there were the words "amend or repeal". Lord Elwyn-Jones took up the main attack and my noble and learned friend the Lord Chancellor hastened to agree that the word "repeal" was unacceptable. Therefore, one is bound to ask why that has reappeared in this Bill.
Then again last Session in that Bill the order-making power was subject only to the negative resolution procedure. From all sides of the Committee, and subsequently the House, there was expostulation. An amendment was moved and my noble and learned friend immediately accepted it. The most extraordinary thing of all perhaps is that this power under subsection (4) is not subject to the affirmative resolution procedure, unlike subsection (1), but is subject to the negative procedure only so that a Minister having arrogated to himself legislative powers does not even have to lay a document before Parliament which he has to explain.
This is called a Henry VIII clause because Henry VIII took statutory power under the Statute of Proclamations to do this sort of thing. As the noble Lord, Lord Rippon, said, during the first stage of bureaucratic aggrandisement in the 1920s, one found an increasing use of the Henry VIII clause. Then came the Donoughmore Scott Report. The noble Lord, Lord Rippon, referred to certain provisions of that both on Second Reading and today. There were two essential matters which were both brought out in the debates on the Children Bill. The first was that the powers should only be used in quite exceptional circumstances and the second was that the situation should be explained and fully justified by the Minister claiming those powers. Not only did my noble and learned friend bring forward both provisions, but he did not claim at Second Reading that it was essential, nor did he explain in his opening speech why it was proposed.
In my respectful submission, we shall not have this matter right until Parliament asserts itself and brushes aside all these excuses about administrative convenience. Of course they are real. It is far more convenient for the Executive to bypass what it finds to be the devious parliamentary processes and proceed to immediate legislation by itself. However, that is unconstitutional by every understanding of the British Constitution. Therefore, since we shall not have this matter right until Parliament really asserts itself, the time has come when this provision, which is only the first of many contained in the Bill, must be immediately excised.
§ Lord Rawlinson of Ewell
Some 30 years ago I was a member of the legislative committee to which my noble friend Lord Rippon has just referred. In the centre of that committee was the redoubtable and formidable figure of the late Lord Dilhorne, the then Lord Chancellor, flanked by Sir John Hobson who was the Attorney-General and myself as 529 Solicitor-General. We were instructed and briefed to interrogate the Ministers who were proposing legislation and bringing it before that committee. The then Lord Chancellor attributed a great deal of importance to the task which was given to us.
Ministers and their civil servants sitting behind them were interrogated not about the political points or social purposes of the Bill but only on two matters—namely, constitutional propriety and the terms of the actual drafting. It was considered by Ministers at that time as a Star Chamber. Of course it was intensely disliked by the civil servants. It was our duty to ensure —and this was a Tory Government under a Tory Prime Minister —that none of those elements (which we dislike so much and which have been raised today and referred to by my noble friend Lord Simon of Glaisdale) was allowed to creep in to the provisions. That was a constitutional duty given to us.
Apparently that has been abandoned because there is now presented to us by the first Law Officer of this Tory administration this particular clause in this particular Bill. He takes upon himself—it is not him personally but the office of the Lord Chancellor —the power to sweep aside and reject everything which we have decided and debated in the two Houses of Parliament because it suits the convenience of those administering a particular service. That is surely not good enough.
As we start upon a Bill which moves away from the old rules where the judges had certain powers and puts certain powers into the hands of the Executive and therefore into the hands of the civil servants, it is our duty to see that we do not have any Minister —as I say, personalities do not come into it but principles do—riding roughshod over the wishes of Parliament, even in a minor matter, as it is said that this is. The Bill deals with the jursidiction, practice and procedure of the courts. Why, when Parliament has pronounced, should a Minister and his civil servants say that something should be repealed? It is not good enough. As we start our task of dealing with this Bill, let us recognise the constitutional importance of the Bill and this particular subsection.
§ 3.30 p.m.
§ Lord Hooson
Although there are certainly precedents for authorising the amending of primary legislation by means of subsequent statutory instrument, I have always regarded it —and I think it is widely regarded —as an unsatisfactory and sloppy legislative practice. It is one which ought not to be encouraged, least of all, one should think, by a Lord Chancellor.
I am particularly interested in the Lord Chancellor's special justification for the provision in subsection (4). Why does he need this power to amend or repeal any provision relating to jurisdiction? Obviously jurisdiction is the most important matter. Why is it not right that he should come back to Parliament with primary legislation on this matter rather than resort to the growing practice of using this kind of clause and this kind of power? The truth is that in using statutory 530 instruments, whether by affirmative or negative resolution, Parliament tends to act as a rubber stamp on those occasions, as my noble friend Lord Rippon mentioned earlier. I am sure the Committee would be particularly interested in the specific justification by the Lord Chancellor in respect of this Bill.
§ Lord Coleraine
I rise with great reluctance, in the face of such powerful speeches from my noble friend and the noble and learned Lords who have spoken, to ask whether we are not discussing what is basically a constitutional molehill. The Committee should be aware that what the Lord Chancellor is seeking to do is to take power to alter such matters as the jurisdiction of the High Court. What are the enactments which the noble and learned Lords and my noble friends see as being so sacrosanct? Surely it is only right that my noble and learned friend should, if he is to bring into effect the very desirable provisions of the Civil Justice Review, have the right to make these alterations without coming back to the Committee with primary legislation.
§ Lord Mishcon
But for the speech of the noble Lord I had no intention at all of rising on this amendment at this stage. I do so because otherwise the Committee might —and I say t his with deep respect —be misled.
Shall we take an example of what is now the inherent jurisdiction of the High Court, which is the very important matter of judicial review —the check upon the Executive, as it has so often been called? Let us take it for granted that Parliament decides in one year or two years' time to extend the jurisdiction in regard to judicial review. If Parliament so decided it would be open to the Executive to say that they did not like that extension of judicial review which was given by way of jurisdiction to the High Court. A Lord Chancellor —I am sure not the present one —would have the power under this Bill and might use it; hence my reference to the fact that I am sure the present noble and learned Lord the Lord Chancellor would not do so. He might do so with a negative resolution coming before the Chamber. We all know where we are with negative resolutions, although we are not in a very much better state with affirmative ones; but there it is.
One other point has been left out of this argument, if I may say so. I am sure the noble and learned Lord will refer to it, but nobody else has; that is, subsection (5), which states:Before making any order under this section the Lord Chancellor shall consult".There are various important personages in the judiciary with whom he would have to consult. We all know, however, that "consult" does not mean that he has to take from those very important personalities in the judiciary the advice that is tendered to him. It is therefore true—it may be that the person who drew up this clause did not realise the ambit within which it was drawn —that the jurisdiction of the High Court and the county court may in future, even if not now, make a very important contribution to our constitutional life which would be completely upset if a Minister decided by order that jurisdiction, apart from 531 practice and procedure, should not exist in certain circumstances.
§ Lord Beloff
Perhaps it may be permitted for a lay member of the Committee to intervene in a matter which has so far occupied the attention only of members of the legal profession. There are two points I should like to make in support of the amendment of my noble friend Lord Rippon. The first is, as he referred to it, the apparent desuetude of the check within the Cabinet to such legislation. I have tried to discover what the current practice is. I am informed on very good authority that the legislation committee meets, but it meets not more than 48 hours before the publication of a Bill, at which point the civil servants will say, "You cannot possibly expect us to reprint or rethink in so short a time". It has therefore become, as it was not in the day of the noble and learned Lord, Lord Rawlinson, a rubber stamping exercise.
The second point relates to why civil servants behave in general in this way. I think we all know; but why in this particular case? I suggest that one reason is the ill-preparedness of the present system of county courts to take the additional burdens which this legislation will place upon them. That is to say that clearly a major transfer of jurisdiction to the county courts —I think this was agreed on Second Reading—cannot take place until their resources are adequate to deal with it.
The civil servants do not wish to commit themselves to the provision of such adequate resources and therefore would like the position to remain so that these changes need only be made by delegated legislation when the time has come for the executive of the day to find it appropriate. That may not be the whole reason. I suspect it is part of the reason, but in any event we would need —as I think other noble Lords, including the noble Lord, Lord Hooson, have said —an explanation as to why the Henry VIII clause is necessary in this case.
§ Lord Bridge of Harwich
Are we not making too much of this? Is it yet observed that what subsection (4) provides is for orders to be made or for provisions to be included in an order under subsection (1) consequential upon subsection (1)? If the Lord Chancellor is to be given power under subsection (1) to confer jurisdiction on the High Court in relation to proceedings in which the county court has jurisdiction and to confer jurisdiction on the county court in matters in which it does not now have jurisdiction, surely it is obviously sensible that he should have power to make consequential provisions to avoid conflict with other statutory enactments.
It also seems not to have been observed that any provision under subsection (4) must be included in an order under the subsection, which is an order under subsection (1) and therefore comes under the affirmative resolution procedure and not the negative resolution procedure.
§ Lord Renton
With great respect to the noble and learned Lord, I think he has overlooked the fact that jurisdiction especially is at present governed almost 532 entirely by Act of Parliament. We are concerned here particularly with the County Courts Act 1984 and the Supreme Court Act 1981.
Parliament has decided that, broadly speaking, in this country matters of jurisdiction between one court or one set of courts and another shall be covered by statute. There is an exception —a very good and necessary one; namely, that the Lord Chancellor has for many years been given power to raise the pecuniary limits of county court jurisdiction to take account of inflation. Apart from that, matters of jurisdiction have been covered by Act of Parliament.
If this subsection stays in the Bill that will no longer be the case. The next two amendments stand in my name and they would leave out jurisdiction from the power to amend or repeal. I believe that is far more important than either the practice or procedure points. Broadly speaking, I do not see much purpose in Parliament legislating on practice or on procedure. It may legislate occasionally on procedure. In the County Courts Act —including some of its provisions which Members of the Committee will find are to be repealed in the schedule —we have enacted too much on procedure. But the vital part of the amendment of my noble friend Lord Rippon is that power is taken to amend jurisdiction without consultation with Parliament whether or not consequential on the earlier power mentioned in Clause 1.
Therefore I support my noble friend. I do not believe it to be an effective excuse to say that this provision will be subject to affirmative resolution. We know that orders cannot be amended in either House. The experience of some of us in another place reminds us that orders for affirmative resolution arise late at night when the House is not well attended. I am always subject to correction —though I have been in this Chamber for 10 years —but I understand that if another place has given an order an affirmative resolution it is contrary to the convention of this Chamber to reject it. In my time during the past 10 years I do not believe that any such affirmative resolution has been rejected by any Members of your Lordships' House.
There is a further doubt about this matter. Clause 82(3) states that it is only orders made under subsection 1(1) which are subject to affirmative resolution. Orders made under subsection (4) or elsewhere in Clause 1 are subject therefore only to the negative procedure and that is even less favourable to those who think that there is a safeguard. I believe that the reasons we have been given for asking the noble and learned Lord the Lord Chancellor to think again about this power which he has taken are so strong that I hope my noble friend Lord Rippon of Hexham will feel obliged, if necessary, to press this matter to a Division.
§ Lord Henderson of Brompton
Perhaps I may enter this argument as a layman like the noble Lord, Lord Beloff, and in support of the noble and learned Lord the Lord Chancellor. I believe that the Committee would be most unwise to accept this amendment and I hope that the noble Lord, Lord Rippon, will not press it.
533 Having listened to the noble Lord, Lord Renton, we should be discussing the next amendments which are in his name, because they are the ones that matter. It is most important that this subsection should remain in the Bill at least for matters which are not of prime importance; namely, the practice and procedures of the Supreme Court. If the Committee agrees to the amendment of the noble Lord, Lord Rippon, then that provision goes out of the window and Parliament will have to be burdened with primary legislation on any amendment which the noble and learned Lord the Lord Chancellor wishes to make on such minor matters as practice and procedure. I believe that the argument is quite clear and I very much hope that the noble Lord, Lord Rippon, will withdraw his amendment.
Incidentally, whenever we hear from the noble and learned Lord on the subject of the statute book it is sometimes about the Henry VIII clause, but on other occasions it is about the enormous expansion of the statute book. If the amendment we have been discussing is agreed to, the statute book will expand enormously and the amount of parliamentary time taken up in passing the extra laws which this amendment demands will be enormous. I have spent a lifetime in Parliament and time and time again I have heard it argued that less important matters should be dealt with by delegated legislation in order to relieve congestion in Parliament. I believe that to be a matter of prime importance. I very much hope that this amendment will not be pressed.
§ 3.45 p.m.
§ Lord Hailsham of Saint Marylebone
Before my noble and learned friend replies to this very full debate perhaps I may put forward two or three very short points for his consideration. I will not come to the support of King Henry VIII, a monarch who it seems to me has always had a better press than he deserves. After all, he killed two of his wives and, worse still, two of his Lord Chancellors! Turning from that general consideration of the moral position of Henry VIII, I put these points to my noble and learned friend. I believe that there is a distinction between enlarging the jurisdiction of the court and restricting it. It is perfectly true, as my noble friend Lord Renton has said, that the High Court jurisdiction is very largely the creature of the Supreme Court Act and therefore it is a creature of statute. It is in fact a court of almost unlimited jurisdiction.
To restrict that by a negative resolution might be a very serious matter. In referring to what my noble and learned friend Lord Bridge said, it might turn out to be necessary to enlarge the jurisdiction of the county court as a consequence of the passage of Part I of this Bill. I should not have thought that there was the same kind of objection to the use of the secondary legislation weapon to enlarge the power of the county court if the object of the exercise is, as I understand it, to transfer from the High Court to the county court certain categories of proceedings.
The Lord Chancellor
I regret to say that there has been a certain misunderstanding as regards some of 534 the matters that have been put before the Committee. In the first instance it is right for me to point out that all of subsection (4) of Clause 1 is governed by the words,in consequence of any provision made by the order".I believe I am right in saying that my noble friend Lord Rippon stopped reading immediately before that phrase, but I may be wrong. If I do him an injustice I shall happily correct it when I have had a chance to read the record. But that is the point. Subsection (4) is restricted to amendments that are consequential to an order under subsection (1).
The second point I wish to make is that my noble friend Lord Renton is wrong in thinking that one can make an order under subsection (4). That subsection is only concerned with what may be in an order under that subsection. The only power to make an order is contained in subsection (1). Therefore the basis on which my noble friend has spoken on that aspect of the matter is just incorrect. That means that subsection (1) is the important order-making power. The provisions of Clause 82 apply to it. Accordingly, what my noble and learned friend Lord Simon of Glaisdale said is incorrect also because subsection (3) states:No instrument shall be made under section 1(1) … unless a draft of the instrument has been approved by both Houses of Parliament".
§ Lord Simon of Glaisdale
I wonder if my noble and learned friend will allow me to refer to what he has said. Why does not Clause 82 apply the affirmative resolution to subsection (4) as it does under subsection (1)? Does not subsection (4) in fact use the word "order"?
The Lord Chancellor
Subsection (4) refers to an order made under this section. The only order-making power under this clause is in subsection (1). Accordingly, Clause 82(1) is intended to refer to the only orders that may be made under Clause 1 of this Bill which is under the power contained in subsection (1).
Accordingly, I make it absolutely plain that what we are concerned with here is the affirmative resolution procedure dealing with provisions which are consequential on the main order made under subsection (1).
The purpose of that is to give absolute clarity to the statute book. It has, as I see it, nothing whatever to do with Henry VIII clauses. The clauses give the Lord Chancellor power to increase the jurisdiction of the High Court, as my noble and learned friend Lord Hailsham said, to increase the jurisdiction of the county court and then to make allocations of proceedings between the two courts. That is precisely what the Civil Justice Review thought it was necessary to do.
Noble Lords could have legislation which set these matters firmly and in detail today. That is no problem. But there is all the problem in the world in seeing whether it would work properly. The need is to make sure that the county courts are able properly to cope with the work that is sent down to them. It does not mean that what is sent down today will necessarily be the last word on the matter. If the 535 county courts work well more can be sent down to them. If on the other hand it is found that they cannot deal with the matter properly for various reasons, the county courts will have less sent down to them. The allocation can be altered. What I am asking the Committee to do is to affirm that principle which is the principle of the Civil Justice Review and which appears to me to make absolute sense.
I cannot understand therefore what the effect would be of subsection (4) being left out. What is it supposed would happen if subsection (4) were left out? Let us suppose that I made an order under subsection (1) extending the jurisdiction of the county court. Let us further suppose that an earlier statutory provision in a particular case limited the jurisdiction of the county court. The power exercised under the later statute would prevail. All this provision does is to enable me in the subsequent order to draw attention to that fact and make clear what Parliament has intended, which is that the order under subsection (1) should apply.
The purpose of all this, as the noble Lord, Lord Mishcon, said earlier, is to serve the public and to enable the public to get the best possible service from the courts that the resources available to the courts enable them to give. I certainly think that the responsibility for the allocation of resources is one which the Lord Chancellor should take. It should rest on the Lord Chancellor's responsibility. I have made it perfectly plain that before making any order under this clause I shall consult the senior judiciary. Such consultation is a serious matter and is one which any Lord Chancellor would treat seriously. If the affirmative resolution procedure applies to provisions under this clause, as in my submission it clearly does, when I come to justify an order to Parliament, which I shall certainly have to do, I shall have to make it quite plain what the views of the senior judiciary are and what arrangement we have made for the allocation of proper resources. That is a matter for Parliament. It is for Parliament to judge whether the order is properly matched by the provision of resources that we are seeking to make at that stage.
I submit to the Committee, with the greatest respect to those who have taken a contrary view, that to leave this subsection out would simply be to put obscurity in the statute book. Great obloquy has been heaped upon the present Lord Chancellor for not going alonl, with the procedures that may have been followed some years ago. I have in general terms to take that as best I can. However, I believe that to leave this subsection out will be to create confusion in the statute book and certainly multiply the number of quite unimportant statutory provisions which would be laid before Parliament. This is an entirely justifiable use of this method of procedure.
Perhaps I should say in conclusion that I think I am right in saying that the passage in my reply to which the noble Lord, Lord Rippon, referred is a passage in which I was dealing with the general order-making power in subsection (1) of Clause 1 and was not the particular point on subsection (4). I was seeking to deal with what I thought was an 536 intervention from a sedentary position from a part of the Committee which was not specified at the time.
In my submission the position is very plain. If the Committee were to delete the subsection it would be putting a quite unnecessary confusion into the statute book. It would be an impediment to the effective implementation of the Civil Justice Review on this matter.
§ Lord Mishcon
With deep respect to the noble and learned Lord, if his reading of the subsection is right he should not blame any participant in this debate who was in some doubt. I assure him that the wording of this subsection is not as clear as it obviously was to him. If the wording had been:An order under this section may, for the purposes of subsection (1)",so that it was obviously an order limited to the matters mentioned in subsection (1), half the speeches that were made this afternoon would not have been made. The matter is not in my hands because it is not my amendment. However, I say at once that I shall withdraw my objection if it is made absolutely clear on the face of the Bill that the limitations to the order made under subsection (4) are within the purview of subsection (1).
The Lord Chancellor
I am grateful for that observation, but I must say that the only order-making power in the whole clause is in subsection (1).
The Lord Chancellor
That is my reading of it. It says:The Lord Chancellor may by order make provision".In no other place does the Lord Chancellor have a power conferred upon him to make any order under this clause. What subsection (4) says is what an order under subsection (1) may do. It is an elaboration of a consequential or incidental provision, consequential on the main provisions in the order. If it can be made any plainer I shall certainly ask parliamentary counsel to tell me how it can be done. At the present moment I do not see that it can be made plainer. I am happy to consider whether it can be made plainer. That is certainly the intention.
As I am on my feet again perhaps I should also draw attention to subsection (6) which makes it perfectly plain that no order under subsection (1) could confer power on the county court to consider applications for judicial review. No power to restrict the High Court's jurisdiction in judicial review could be exercised under this subsection. I understood the noble Lord to make a point of that kind in answer to my noble friend Lord Coleraine.
§ Lord Simon of Glaisdale
My noble and learned friend has just said, and it has been the theme of his argument, that the only order-making power is under subsection (1). I venture to ask him how under subsection (1) he can amend or repeal any provision. That can be done only by an order under subsection (4). That subsection, unlike subsection (1), is a negative procedure subsection. I ask my noble and 537 learned friend to accept the amendment, take the subsection away and redraft it to take account of the point made by the noble Lord, Lord Mishcon, and my noble and learned friend Lord Hailsham. We can then consider it at Report and decide whether it is constitutionally and practically acceptable.
§ Lord Alexander of Weedon
I should like to raise another point. I would accept that it is clear on the face of the Bill that the order-making power would be under Clause 1. I also accept that my noble and learned friend the Lord Chancellor is concerned to seek complicity and to make consequential arrangements. I want to put to him a different point which concerns me. It relates to the practice and procedure of the courts.
As I understand the position, the practice and procedure of the courts is laid down in the High Court by the rules of the Supreme Court and in the county court by the rules of the county courts. I believe I am correct in saying that both those rule-making bodies derive their power from statute. They make their rules under statute and can only make them under statute. What concerns me about the clause is that at present the rule-making bodies consist very largely, although not exclusively, of those who have the conduct of judicial business. I see the position under the clause as raising the possibility that a Lord Chancellor of the day in transferring business from the High Court to the county court might be able to make amendments to rules which have been determined by the body charged with making rules for the conduct of cases in court. I do not believe that possibility to be fanciful.
One of the debates which took place in this Chamber concerned whether work might be transferred down to the county court before that court had adequate resources. It is easy to see a political situation developing where the Government's concern —and the general cry —that justice should be done more speedily leads to a transfer of further business to the county courts at a time when the procedure under which county courts conduct their business would mean that that volume of business could not be handled. In that situation, is the Lord Chancellor to have powers contrary to the wishes of the rules committee to intervene and say that the nature of pleadings in the court should be curtailed; the time for delivery of proceedings should be curtailed; and that even various rights given to the parties in respect of advocacy should be curtailed?
I seek an assurance that under this clause the noble and learned Lord the Lord Chancellor does not visualise that the Lord Chancellor of the day would have power to interfere with the rules which had been made by the rule-making bodies both in the Supreme Court and in the county court. Given that assurance, I would have no misgivings about the clause; however, without such an assurance I would have considerable misgivings.
§ 4 p.m.
§ The Lord Chancellor I am obliged to my noble friend for the point he made. The way I see the situation is that the restriction that If mentioned at the end of both branches of the subsection is in consequence of any provision made by the order. All the order can do is to confer jurisdiction on the High Court, or on the county court and allocate. Under that power it cannot alter anything that the courts' method involves. Therefore all that subsection (4) allows me to do is to make any consequential amendments to the practice rules which may be consequential upon the fact that the court has new work. For example, in the event of an extension there may be rules of court which specify certain types of action which must be taken in relation to a particular volume of work, or in relation to a particular type of case.
§ If I made an order adding a new type of case, it might be right to extend the rules without more ado to cover such a case, after proper consultation. Therefore I do not evisage any situation of the sort mentioned by my noble friend. Moreover, I do not think that the words—although, I shall seek advice on the matter —in their natural meaning confer the kind of power which my noble friend has in mind. However, I shall check the position: and if there is any doubt in the matter, I shall seek to make it plain. What has been suggested was not the intention. However, as my noble friend mentioned the point. I should perhaps say that the rule-making power under the Supreme Court Act confers power to alter statutory enactments. Therefore the process of procedural rules altering primary legislation is by no means a novelty.
§ Lord Rippon of Hexham
In so far as the noble and learned Lord the Lord Chancellor already possesses the power to which he referred, perhaps he could rely upon that alone without the provision to which I directed my amendment. In speaking about subsection (4), I assumed on Second Reading, and by what I said this afternoon, that the order-making power derived from Clause 1(1). Therefore, I took the view that it is not sufficient to rely upon either any affirmative resolution or upon consultation.
So far as concerns subsection (1) (which as the noble and learned Lord the Lord Chancellor says contains the only order-making power), I have tabled a Motion on the Marshalled List that Clause 1 should not stand part of the Bill. I find the whole of Clause 1 to be an enabling measure containing proposals which ought, as my noble and learned friend, Lord Hailsham suggested on Second Reading, to be dealt with largely by primary legislation in any event. It seems to me therefore that it is incumbent upon the Government, and especially upon the noble and learned Lord the Lord Chancellor in a constitutional Bill to make perfectly clear just what is wanted. We have been told by various noble Lords that what is proposed has been brought forward with great haste and without proper consultation. However, I shall deal with that aspect when we reach the clause stand part stage.
My objection to subsection (4) remains as I stated; namely, that it is one of the worst examples which 539 can be found of a Henry VIII clause giving power to amend or repeal any provision made by or under any enactment relating to the matters set out so far,as the Lord Chancellor considers it to be necessary, or expedient".We may have the utmost confidence in the present Lord Chancellor; but there may be future Lord Chancellors. The provision refers to any enactment —that is, past, present or future —and it gives a power which I think in principle is wholly wrong.
In my view if Members of the Committee cannot kill this Henry VIII clause now in these circumstances, having regard to the very sensible recommendations contained in the Donoughmore Report —which are now totally disregarded —then I think it would be a sad day for this Chamber. I hope that the principle of what is proposed will be considered by noble Lords, and in the circumstances I must divide the Committee on the matter.
§ The Chairman of Committees
The Question is that this amendment be agreed to. As many as are of that opinion shall say "Content" and those to the contrary shall say "Not-Content".
§ Lord Hailsham of Saint Marylebone
Perhaps I may point out to the noble Lord the Chairman of Committees the fact that I think noble Lords sitting behind me really intended to divide the Committee but that they said "Not-Content" when they meant to say "Content". In the circumstances, perhaps the Question could be put again.
§ 4.8 p.m.
§ The Chairman of Committees
I shall put the Question again: The Question is that the amendment be agreed to. As many as are of that opinion shall say "Content" and those to the contrary "Not-Content".
§ Their Lordships divided: Contents, 83; Not-Contents, 141.541
|DIVISION NO. 1|
|Ackner, L.||Donaldson of Kingsbridge, L.|
|Airedale, L.||Dormand of Easington, L.|
|Ardwick, L.||Ewart-Biggs, B.|
|Aylestone, L.||Ezra, L.|
|Beloff, L.||Fanshawe of Richmond, L.|
|Broadbridge, L.||Gallacher, L.|
|Callaghan of Cardiff, L.||Galpern, L.|
|Campbell of Eskan, L.||Gladwyn, L.|
|Carmichael of Kelvingrove,L.||Glenamara, L.|
|Graham of Edmonton, L.|
|Cledwyn of Penrhos, L.||Grantchester, L.|
|Cocks of Hartcliffe, L.||Grey, E.|
|Cross, V.||Harris of Greenwich, L.|
|Cudlipp, L.||Hatch of Lusby, L.|
|Dacre of Glanton, L.||Havers, L.|
|David, B.||Hooson, L. [Teller.]|
|Dean of Beswick, L.||Hunt, L.|
|Hutchinson of Lullington, L.||Rathcreedan, L.|
|Jeger, B.||Rawlinson of Ewell, L.|
|Jenkins of Hillhead, L.||Renton, L. [Teller.]|
|Jenkins of Putney, L.||Rippon of Hexham, L.|
|Kearton, L.||Ritchie of Dundee, L.|
|Kennet, L.||Robson of Kiddington, B.|
|Kilbracken, L.||Rochester, L.|
|Leatherland, L.||Roskill, L.|
|Listowel, E.||Russell, E.|
|Lockwood, B.||Sainsbury, L.|
|Longford, E.||Seear, B.|
|Macaulay of Bragar, L.||Selkirk, E.|
|McCarthy, L.||Shackleton, L.|
|McIntosh of Haringey, L.||Shaughnessy, L.|
|Mason of Barnsley, L.||Simon of Glaisdale, L.|
|Meston, L.||Stallard, L.|
|Mishcon, L.||Stedman, B.|
|Molloy, L.||Strabolgi, L.|
|Monson, L.||Taylor of Mansfield, L.|
|Parry, L.||Tordoff, L.|
|Peston, L.||Turner of Camden, B.|
|Peyton of Yeovil, L.||Walston, L.|
|Pitt of Hampstead, L.||White, B.|
|Ponsonby of Shulbrede, L.||Williams of Elvel, L.|
|Prys-Davies, L.||Winterbottom, L.|
|Airey of Abingdon, B.||Goff of Chieveley, L.|
|Aldington, L.||Goodman, L.|
|Allen of Abbeydale, L.||Griffiths, L.|
|Allerton, L.||Grimston of Westbury, L.|
|Ampthill, L.||Hacking, L.|
|Arran, E.||Hanworth, V.|
|Ashbourne, L.||Harmar-Nicholls, L.|
|Auckland, L.||Hayter, L.|
|Belhaven and Stenton, L.||Henderson of Brompton, L.|
|Belstead, L.||Henley, L.|
|Bessborough, E.||Hertford, M.|
|Blatch, B.||Hesketh, L.|
|Blyth, L.||Hirshfield, L.|
|Boardman, L.||Hives, L.|
|Bolton, L.||Hood, V.|
|Boyd-Carpenter, L.||Hunter of Newington, L.|
|Brabazon of Tara, L.||Hylton-Foster, B.|
|Brain, L.||Iddesleigh, E.|
|Bridge of Harwich, L.||Johnston of Rockport, L.|
|Brightman, L.||Kaberry of Adel, L.|
|Brookeborough, V.||Killearn, L.|
|Bruce-Gardyne, L.||Kilmarnock, L.|
|Butterworth, L.||King of Wartnaby, L.|
|Caithness, E.||Knollys, V.|
|Campbell of Alloway, L.||Lawrence, L.|
|Campbell of Croy, L.||Lloyd of Hampstead, L.|
|Carnegy of Lour, B.||Lloyd-George of Dwyfor, E.|
|Carnock, L.||Long, V.|
|Carr of Hadley, L.||Lyell, L.|
|Cockfield, L.||Mackay of Clashfern, L.|
|Coleraine, L.||Mackie of Benshie, L.|
|Constantine of Stanmore, L.||Macleod of Borve, B.|
|Cottesloe, L.||Malmesbury, E.|
|Cox, B.||Manton, L.|
|Darcy (de Knayth), B.||Margadale, L.|
|Davidson, V. [Teller.]||Massereene and Ferrard, V.|
|Denham, L. [Teller.]||Merrivale, L.|
|Derwent, L.||Middleton, L.|
|Donaldson of Lymington, L.||Morris, L.|
|Eden of Winton, L.||Mottistone, L.|
|Effingham, E.||Mountevans, L.|
|Elibank, L.||Munster, E.|
|Ellenborough, L.||Nathan, L.|
|Elles, B.||Nelson, E.|
|Elliot of Harwood, B.||Newall, L.|
|Elliott of Morpeth, L.||Norrie, L.|
|Erne, E.||Nugent of Guildford, L.|
|Faithfull, B.||Orkney, E.|
|Ferrers, E.||Orr-Ewing, L.|
|Fisher, L.||Oxfuird, V.|
|Fraser of Carmyllie, L.||Pender, L.|
|Gainford, L.||Phillips, B.|
|Gisborough, L.||Porritt, L.|
|Quinton, L.||Strathmore and Kinghorne, L.|
|Reay, L.||Taylor of Gryfe, L.|
|Reilly, L.||Templeman, L.|
|Rochdale, V.||Terrington, L.|
|Rodney, L.||Teviot, L.|
|Romney, E.||Thomas of Gwydir, L.|
|St. Davids, V.||Thorneycroft, L.|
|Salisbury, Bp.||Thurlow, L.|
|Saltoun of Abernethy, Ly.||Trumpington, B.|
|Shannon, E.||Tryon, L.|
|Skelmersdale, L.||Ullswater, V.|
|Somers, L.||Walton of Detchant, L.|
|Stodart of Leaston, L.||Wigram, L.|
|Strange, B.||Wise, L.|
|Strathcarron, L.||Wyatt of Weeford, L.|
|Strathclyde, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.17 p.m.
Lord Renton moved Amendment No. 4:
Page 2, line 24, leave out ("jurisdiction").
§ The noble Lord said: I can move the amendment briefly because the point which arises on this amendment and the next, which is grouped with it, is one which I raised during the previous discussion. It must have become clear from the previous discussion that, whatever we may feel about giving the Lord Chancellor power to amend enactments relating to practice or procedure, we ought to think twice, or more often, about giving him the power to alter the jurisdiction of the courts merely by an order repealing or amending previous Acts of Parliament.
§ The decision on the previous Division is an indication of what would happen if I pressed this amendment to a Division. All that I can suggest to my noble and learned friend, and of course I do so with humility, is this. In view of the powerful arguments used on both sides when we were discussing the previous amendment to delete subsection (4), instead of taking that power to repeal or amend previous enactments dealing with jurisdiction he should seriously consider putting into the Bill on Report what he intends to do with regard to jurisdiction. He would not lose much flexibility because, after all, the Civil Justice Review was specific.
§ My noble and learned friend has some pretty sure guidance in the early parts of Clause 1 as to the kind of orders that he may make, but when it comes to deciding upon the essential jurisdiction as between the High Court and the county court it may be that his mind is made up. I hope that it is. I hope that he would not have embarked upon the first part of the Bill without a clear idea as to what changes in jurisdiction he intended. Therefore this must necessarily be a probing amendment which would enable me to make that suggestion. It would enable my noble and learned friend the Lord Chancellor to say that in spite of everything that has passed he truly has an open mind. I beg to move.
§ Lord Rawlinson of Ewell
Whatever the correct or incorrect interpretation, there is no doubt that many Members of your Lordships' House are not totally ignorant of the law. Yet they are in considerable doubt as to the effect of the clause. Therefore I 542 am sure that the noble and learned Lord the Lord Chancellor would not wish to do other than to clarify it. If it is the case in this House that noble Lords with the experience of the noble and learned Lord, Lord Simon of Glaisdale, made the points that he did, it is incumbent on the Lord Chancellor to make quite clear exactly what the clause does. I am sure he will wish to do that.
There is no doubt that it is alarming to see on the statute book that the Lord Chancellor can by order repeal or amend any enactment concerning these matters of jurisdiction, practice and procedure. He may be able to do that by executive power. Once upon a time I used to be sent round the country by my Conservative colleagues. In those days they were very keen about the rights of Parliament and keen to see that the Executive was trammelled and controlled. The Conservative Party felt strongly then that the powers of Parliament should be maintained.
In those circumstances, as the noble and learned Lord is a Conservative Lord Chancellor, surely he wishes to ensure that when the Bill comes to another stage he makes absolutely clear those powers which he wishes to take, which he thinks ought to be taken. He will not take the excessive powers which on the face of it some Members of your Lordships' House believe he has taken.
It is worth stressing that this is not an excessive power. Under subsection (4) as I read it the power is only to make an order to amend or repeal any provision as a consequence of an order under subsection (1) or to present orders that are incidental and transitional to that major power. In the circumstances it is by no means a draconian power.
The Lord Chancellor
The purpose of subsection (1) is to enable the Lord Chancellor to confer new jurisdiction, for example, on the county courts. The county court jurisdiction is statutory and there are restrictions on it, for instance, in relation to defamation which we shall hear about later. If I thought it was right in the light of the resources available to the county courts to increase their jurisdiction, then it would be right to make clear the effect of that on the existing statutory situation in the county courts. The whole purpose of the legislation is to enable the jurisdiction to be varied in order to make it possible to allocate cases between the two levels of court to the best advantage of the public as a whole.
To take "jurisdiction" out of this clause would be to take its base from it altogether. ft is primarily the jurisdiction that would be affected. The more incidental matters to which my noble friend Lord Alexander of Weedon referred are very incidental. Jurisdiction is the main matter to be affected in the way that the Civil Justice Review proposed.
I thought it best to indicate, possibly in relation to clause stand part, what I have in mind. At the moment I shall certainly make no order without full consultation. I intend to put a draft of the order out to those interested before I make any order at all. At the moment I propose to follow what the Civil Justice Review proposed; that is my present 543 intention. However, that is open to whatever suggestions may be made to me in proper consultation.
§ Lord Hailsham of Saint Marylebone
Perhaps my noble and learned friend will bear with me if I reiterate what I said to him on the previous amendment. There is all the difference in the world between restricting the jurisdiction of the High Court and enlarging the jurisdiction of the county courts. The purpose of the judicial review is mainly to enlarge the jurisdiction of the county courts in order to move work from the High Court to the county courts.
The difference between the two courts—despite the point validly and technically made by the noble Lord, Lord Mishcon —is that the jurisdiction of the High Court is virtually unlimited, subject to the rules of court, and so on. However, the jurisdiction of the county court is extremely limited. It is entirely the creature of statute and therefore anything one does must be allowable by some form of legislation. I should find no difficulty at all about enlarging its jurisdiction for the purpose of the judicial review, but I should have considerable anxiety about restricting the jurisdiction of the High Court.
The Lord Chancellor
In view of what my noble and learned friend said, I should add that there is no power to restrict the jurisdiction of the High Court under these proposals. The only power is, by order, to make provision conferring jurisdiction on the High Court. That is additional jurisdiction because there are restrictions on High Court jurisdiction by statute in regard, for example, to consumer credit arrangements and such matters. The second power is to confer jurisdiction on the county court.
There is no question of my having a power under this statute to restrict the jurisdiction of any court whatsoever. The powers of allocation are referred to, but regarding jurisdiction it is only conferring the jurisdiction that is empowered in subsections (1)(a) and (b).
§ Baroness Elles
The purpose of the Bill is to clarify and help customers and clients to understand the law better and be better serviced. My noble and learned friend the Lord Chancellor has clearly explained the purpose of the clause in relation to Clause 1(1). However, it would be helpful to those who have to read the Act later on if provision were made in subsection (4) to relate the matter back to Clause 1(1) and explain the purpose of this clause. That would help those who will in the future have to examine the Act to see what rights they have and what constitutional protection there may be for citizens.
The Lord Chancellor
I have already undertaken, in answer to the noble Lord, Lord Mishcon, to see whether we can make it absolutely plain that subsection (4) is intended purely as an incidental or explanatory provision to the powers contained in Clause 1(1).
§ Lord Rippon of Hexham
Will my noble and learned friend explain what enactments, past, present or future, he may wish to repeal or amend? Will that be made clear in subsequent proceedings?
The Lord Chancellor
It depends on what one decides to do. I do not wish to pre-empt the amendment of the noble Lord, Lord Mishcon, about defamation, but let me take it as an example, without prejudice to the argument that he will no doubt put forward. At present there are restrictions on defamation actions in the county court under the statute. Supposing I thought it was a good idea to allow the smaller actions of defamation to proceed in the county court. Under the powers in subsection (1), I could confer jurisdiction on the county court to hear such actions. Then the effect would be to amend the existing statutory prohibition against it.
It would be right to make it clear so that everyone knows —as my noble friend Lady Elles pointed out —that the existing section of the County Courts Act was no longer effective. It was superseded by the order conferring on the county court jurisdiction in actions of defamation up to the value of £25,000 or something similar. That is just an illustration which occurs to me in answer to my noble friend's question.
However, before making any order under subsection (1) I shall publish the full detail of the legislation and consult people about it. It is difficult to get these matters absolutely right. Then I shall have the responsibility of making sure, once we decide what order should be made, that the appropriate resources are available to enable the county court to carry it out. Such a change requires to be done with a certain amount of notice. One does not have the necessary resources available long before the work comes, and one has to be careful about that. The resources would have to be there when the work came.
In answer to a previous question, my noble and learned friend the Lord Chancellor stated quite clearly that Clause 1 did not give power to the Lord Chancellor to take jurisdiction away from the High Court. It gives him power to confer jurisdiction on the High Court only in relation to proceedings.
However, under subsection (1)(g) he also has the power to make orders specifying proceedings which may take place only in the county court. Those proceedings could previously be taken only in the High Court. Does that not take away the power from the High Court? Perhaps I have totally and completely misunderstood that answer.
§ 4.30 p.m.
The Lord Chancellor
Yes, I think the noble Lord may be correct in saying that subsection (1)(g) would enable the jurisdiction of the High Court to be restricted in the circumstances of that particular part, but the point I am making is that the only powers to deal with jurisdiction as such are the powers in (a) and (b), which are to confer jurisdiction, not to restrict it.
§ Lord Renton
I am grateful to those noble Lords who have taken part in this further discussion. I wish 545 to take up the consequences of the point made by my noble and learned friend Lord Hailsham. I do so by referring first to subsection (1) of Clause 1, subparagraph (a) of which enables the Lord Chancellor by order to make provision conferring jurisdiction on the High Court in relation to proceedings in which the county courts have jurisdiction; and subparagraph (b) of which provides for the conferring of jurisdiction on the county courts in relation to proceedings in which the High Court has jurisdiction. He cannot do either of those without amending or repealing existing statutory provisions.
A number of less important statutory provisions of the County Courts Act 1984 have been repealed. They are listed on pages 114 and 115. Scarcely anything in the Supreme Court Act of 1981 has been repealed; there are but one or two very small references. Thus in exercising his power under subsection (1) he will have to use his power to amend or repeal provisions under existing enactments or, as my noble friend Lord Rippon has pointed out, in future enactments, including this one, relating to the jurisdiction of the Supreme Court or of the county courts.
That brings us back to the point which so many of us regard as fundamental. I think even those who supported my noble and learned friend the Lord Chancellor in the Division Lobby in the recent Division regard it as fundamental that when Parliament has already made enactments, relating to jurisdiction —I leave aside practice and procedure —we need something more than an affirmative resolution and consultation in order to justify making that change.
However, I have done my best, as have other noble Lords. I can only leave it to my noble and learned friend in all his sincerity, and with all his ability and consciencious attitude, to think about the matter again between now and the Report stage. I certainly hope that he will do so, as we must come back to it at Report stage. Meanwhile, I beg leave to withdraw the amendment.
§ The Earl of Onslow
May I ask the noble and learned Lord a very simple question? Does the power in this Bill enable him to amend the Bill by order, because, if that is the case, there is hardly any point in going on with the discussion?
The Lord Chancellor
As I understand the provision, the order is to repeal any provision made by or under any enactment —that is to say, an enactment which presently exists which is affected by an order made under this provision. I do not see in what circumstances it could possibly affect a provision of this Bill.
§ Lord Mishcon
Perhaps I may ask whether the noble and learned Lord means to inform the Committee that the words "any enactment" would not refer to an enactment which was passed after this Bill, giving therefore the power under this Bill to alter, vary or repeal that enactment? Does he say that it is an enactment which exists only as at the date at which we are speaking?
The Lord Chancellor
Yes, because a subsequent enactment, if it did not do so expressly, would impliedly repeal any power to alter it. The last word of Parliament would prevail. Let us take the defamation example: supposing in a year's time Parliament decided that defamation should be restricted to the High Court, and supposing I had made an order under this provision allowing defamation proceedings in the county court, the new Act of Parliament would supersede because it would impliedly repeal the power to put defamation in the county court; it would be saying defamation could only be in the High Court. So any later enactment, being the last word of Parliament, would repeal this provision as far as it was inconsistent with it.
§ Lord Renton
Yes, but we have to move a stage further. Supposing that Parliament has altered the law in the way that my noble and learned friend suggested, under this clause the Lord Chancellor could again make another order repealing that statute, which is nonsensical.
While I am on my feet, my noble and learned friend said that the words "any enactment" do not include disenactment. That cannot be right.
§ Lord Mishcon
If the noble and learned Lord would allow me one final observation, all this discussion, taking place at the instance of noble Lords whose opinion in this House is much respected, leads me again to repeat to the noble and learned Lord that I am sure that his interpretation as he gives it at this moment is a very honest one and, from the point of view of the language employed, a very clear one. Perhaps I may tell him that there is doubt which can lead to all sorts of difficulties in the future if at Report stage or at some stage when this Bill is before your Lordships' House there be not made abundantly clear, first of all, the limitation of the order to be made under subsection (1) and, secondly, the limitation on the powers of the noble and learned Lord the Lord Chancellor or any of his successors to deal with either future enactments or this enactment. Otherwise there is going to be doubt. If the noble and learned Lord will only say that he will consider this, as I believe he did say before, with a view to clarifying the language and making matters abundantly clear, he will have done a great service to the House.
The Lord Chancellor
Perhaps I should say generally, and in particular in reference to this point, that I believe debates in this House inform us all. After one has listened to various points which have been put forward, one sometimes sees ambiguities which were never seen before. Ingenuity is always capable of producing ambiguity which can sometimes arise in ways other than as a result of ingenuity.
Certainly, I would wish to take account of all that has been said. If the drafting of the Bill in any of its parts can be improved as a result of our debates, I shall take advice and come forward with appropriate amendments. I am happy to say that I have good advice upon which I can rely, and I shall consider whether any improvement can be made in the light 547 of the discussion we have had. I regard this Bill as of great importance and therefore I am extremely anxious to get it right. I am grateful to the Committee for helping me to do so.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 5 not moved.]
Lord Ackner moved Amendment No. 6.
Page 2, line 37, at end insert ("and the President of the Council of Circuit Judges").
§ The noble and learned Lord said: I beg to move Amendment No. 6. I hope your Lordships will find that this amendment has two merits: first, it is a very modest little one, and secondly it has at least the inferential support of the noble and learned Lord the Lord Chancellor. Therefore, I hope that it will be uncontroversial.
§ As has been pointed out, the purpose of Part I is to move down a mass of litigation from the High Court to the county court. My noble and learned friend the Lord Chancellor has said, as one would expect, that he will make orders under this clause only after very full consultation. There are 400 county court or circuit judges at the moment. There will be many more as the transfer occurs. A clause which does not introduce them among the persons to be consulted seems, if I may respectfully so submit, a remarkable clause if very full consultation is to occur.
§ I accept immediately that the senior presiding judge is included. He happens at the moment to be the deputy Lord Chief Justice. He is a very busy person who obtains his information about the county courts via the High Court judges who are presiding judges. Although I am sure that his information is most helpful, it is not first-hand information.
§ I suggest that it is somewhat hurtful to a body of county court judges who are to receive a large increase in work that they should not be consulted. The Council of Circuit Judges is a highly responsible organisation which has provided the Lord Chancellor with its views on the Civil Justice Review consultation paper and on the Green Paper. Its president is always a highly responsible person. Thus the amendment proposed is a modest one.
Perhaps I may now rely on the inferential support of my noble and learned friend the Lord Chancellor. I do so by reference to the debate on Second Reading on 19th December and the noble and learned Lord's reply at col. 245 of Hansard. We were debating the advisory committee and who should serve on it. A noble Lord suggested that it should include a county court judge. My noble and learned friend's reaction was:
I was interested in the suggestion that a circuit judge should be a member of the committee. Obviously I shall consider that suggestion very carefully. I certainly envisage that the judiciary on the circuit bench may well have a role in relation to this matter".
That relates to the advisory committee which makes decisions. All that is required under the amendment is that the Lord Chancellor consults or seeks the views of the president of the Council of Circuit Judges. He does not have to follow them. He can totally disregard them.
The other inferential support in the same debate (reported in col. 246 of Hansard) related to the criticism which had been made by the noble Lord, Lord Beloff, of the introduction into the scheme of the legal services of the Director General of Fair Trading. To that criticism, among others, my noble and learned friend the Lord Chancellor said:
It would be for the judges and the Lord Chancellor to decide. It would not be for him [the director general] to decide but his advice would be available".
I stress the next words:
I cannot see that obtaining advice from whatever quarter is bad".
§ That is why I have respectfully suggested that I have my noble and learned friend the Lord Chancellor's inferential support for his consulting the president of the council that represents the 400-plus circuit judges who will receive —so it appears —this vast influx in litigation. I beg to move.
§ 4.45 p.m.
§ Lord Hooson
I should like to support the amendment by saying that it is a practical amendment. The purpose of the clause is to transfer work from the High Court to the county court. Therefore a much greater burden and greater responsibility will be placed on circuit judges. It seems obvious to me that there should be a direct conduit between the Lord Chancellor and the circuit judges. The obvious person to fulfil the role of spokesman for the circuit judges would seem to be the president of their council.
The Lord Chancellor
I certainly value the opinion of the circuit judges and I intend that they should be among those consulted on the draft order. However, they would not be the only people consulted; the Bar, the Law Society and those representing consumer groups would also be consulted.
I think I am right in saying that the Council of Circuit Judges is an informal and not a statutory body. In this provision I have expressed an obligation to consult the senior judiciary, including the senior presiding judge. The purpose of making consultation with the presiding judge statutory is to recognise in statute the existing arrangements. I believe that the appropriate statutory consultation is through the presiding judges because, as your Lordships know, they have responsibilities on each circuit. However, that does not mean that I am restricted to that.
On the other hand, one must be careful to see that arrangements are satisfactory. That is the channel through which I would expect to obtain the official views of the circuit judges. In addition to the circuit judges there are also the registrars, whose official title we propose to change later in the Bill, and a large number of groups to be consulted. The only question between my noble and learned friend Lord Ackner and myself and the noble Lord, Lord Hooson, and myself is whether one needs to include that particular office-holder on the face of the statute.
I only have reservations about that for the reasons that I have given, but I am very happy to consider the matter further if my noble and learned friend 549 will allow me to do so. Those are the only problems so far as I am concerned.
§ The Earl of Onslow
If my noble and learned friend did not put that on the face of the Bill, presumably he could add it by order afterwards.
§ Lord Ackner
In view of my noble and learned friend the Lord Chancellor's agreement to consider the proposal and also his statement in terms that he proposes to consult county court judges, I await the Report stage with enthusiasm and optimism. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Ackner moved Amendment No. 7:
Page 2, line 37, at end insert ("and obtain the concurrence of the Lord Chief Justice").
§ The noble and learned Lord said: I hope that the Committee will give me a little indulgence in dealing with the amendment at somewhat greater length than the previous one, particularly as to an extent it is bound to overlap with Amendment No. 9.
§ There are many illusions about judges. One is that they start work at 10.30 in the morning and disappear with a puff of smoke at 4 or 4.15. The other is that they are totally immune from and take no part in administration. In fact, they are responsible for the administration of the courts to a very high degree. The Committee may know, but it may be a long time since it was reminded, that the Beeching Commission decided that there should be a new administrative procedure for dealing with courts.
§ The Beeching Commission specifically provided that in order constitutionally to ensure that the Executive did not involve themselves in the areas which belong to the judiciary there should be set up on each of the six circuits two High Court judges known as presiding judges. They would be responsible to the Lord Chief Justice for the overall administration of those circuits. They would be answerable to the Chief Justice, who himself was answerable for the efficient working of the courts throughout the country. There is now a senior presiding judge who oversees the presiding judges.
§ In the Second Reading debate, my noble and learned friend the Lord Chief Justice said that a great deal of what was proposed in the civil justice parts of the Bill had already been overtaken by work done by the judges. The work which has been done by the judges, particularly High Court judges, in reorganising the work in the High Court to ensure greater expedition has been very significant. In the civil justice review consultation paper, noble Lords will find it recorded that the waiting time from setting down the action until trial in the Queen's Bench Division (I use that as an example because the greatest amount of litigation takes place there and the greatest proportion of that will be transferred to the county court) was 20 months. As the result of increased judicial administration, it is now 10 weeks. If one wishes to have a date given with more than a 90 per cent. chance of being heard on that date, it 550 is three months. The risk of not being heard is due to other cases running beyond their estimated length.
§ I am told —this is direct from the judge in charge of the list —that the lists are now generally in a reasonably healthy state and, if there is urgency with an order for speedy trials, cases can and do come on very quickly. The judge writes that he recently had an asbestos case with liability and quantum in dispute. There were three medical and three engineering experts on each side. The case came on for trial 12 weeks after the plaintiff discovered that he had asbestosis, at which point he went to his solicitors for the first time. That is not a record. More recently, a difficult case was tried five weeks after the writ was issued. The judge in charge points out that, for the general list, the period of 10 weeks from setting down to trial is slightly below the target of 12 weeks, since that target is accepted as the minimum reasonable period to allow the parties to make their final preparation of trial.
§ I draw attention to those points as an indication of the significant import that judges have in the proper administration of the courts. Cases which are at present considered as appropriate to be remitted to the county court for trial are processed by being remitted to certain specified courts. I believe that the overall number is 40. The senior presiding judge and the presiding judges on the circuit involved ensure that it is working smoothly and, if it is not, they turn off the tap. By that process it is ensured that work which is done expeditiously in the High Court is not siphoned off to the county court, where it may well be discovered that it is not possible to carry out that work properly.
§ It was over 30 years ago that as a junior I was appointed to a Lord Chancellor's committee on county court administration —such a long time ago that Sir Denis Dobson, long retired as the Permanent Secretary, was a relatively junior representative of the Lord Chancellor on that committee. We then had the selfsame problems as exist now. How on earth does one ensure that a case which will take more than one day —and many of those cases will take more than several days —will have a continuous hearing? Despite the High Court judges monitoring the flow, there is still the problem of the county court judge finding that his list cannot begin with the case that needs two or three days because there are urgent injunctions and applications of one kind or another. He therefore starts at about 12 o'clock, overruns and must adjourn, and the adjournments are often for several months.
§ Inherent in the county court is the absence of recording facilities. All that a circuit judge is issued with is a hand-held set into which he speaks his judgment —not a very efficient-looking process. There are no recording systems for the evidence and no libraries. There are inadequate consultation rooms. But, worst of all, as noble Lords know, the present staffing situation in the county courts is quite disastrous.
I was particularly interested in a letter in yesterday's Times because I was the presiding judge on the Western Circuit for the usual four years. That was not during the reign of my noble and learned friend Lord Hailsham; it was during the time of Lord
Elwyn-Jones. The system there worked well. It is now becoming worse and worse. I wish to refer to a number of excerpts from that letter, which noble Lords may have seen yesterday. It stated:
Enquiries of the Bournemouth County Court as to why we have not received a response frequently receive the reply, 'You have to appreciate we have many months of unopened mail yet to be dealt with'. I also have on my desk a letter from the Portsmouth Combined Court, dated November 27, 1989, in which the Chief Clerk writes: 'The Court has considerable arrears of correspondence and is only now dealing with that from August', A recent enquiry to Salisbury County Court regarding a bill of costs submitted for taxation some months before produced the less than helpful comment:'… Not yet taxed, Deputy Registrars for 3 weeks who tend to leave bills (sic)'. We are also experiencing considerable delays in the taxation of legal-aid bills, which means that my firm is subsidising the Legal Aid Board".
That is a letter from a well-known firm of solicitors in Hampshire.
§ In the Second Reading debate much was said about this being a problem of staff. It is not only a problem of staff; it is a problem of cash limits. One of the recent consequences on one of the circuits—and this rings hollow in view of the protestation of my noble and learned friend the Lord Chancellor that he wants to increase speedy access to the courts —was as follows: a High Court civil case was due to be tried. As is often the case, there was no High Court judge available so a Queen's Counsel was asked to perform the role of a deputy High Court judge. The Lord Chancellor pays the daily rate of such a person, but the subsistence —his overnight stay at the hotels —must come out of circuit funds. There were no circuit funds available for his subsistence and there was therefore no trial. On another circuit, 13 assistant recorders were due to try criminal and civil cases. Again, the Lord Chancellor's Department was prepared to pay their daily rate. The circuit could not afford their subsistence, so 13 assistant recorders were cancelled and the work, which we are told everyone is so anxious to deal with, could not be dealt with.
§ At Second Reading, my noble and learned friend the Lord Chancellor said, I thought rather blandly, "Well, of course, we train our staff so well that when they are properly trained, off they go to solicitors and banks". Where is the market discipline which should have retained them? The market discipline requires that people are properly paid or one loses them. It requires that, if courts are to be occupied by judges, someone pays their subsistence. It requires that, when bulbs blow in courts, one does not wait until more than 40 are required to be replaced before one realises that funds must be found.
§ The purpose of the amendment is to assist my noble and learned friend the Lord Chancellor. I have no doubt that his spirit—particularly his spirit —is very willing, but, vis-à-vis the Treasury, his flesh is immensely weak. The letter which the noble and learned Lord the Lord Chief Justice quoted at Second Reading, a letter from his judge, said that in the past two years things had got worse. It is in the past two years that active contemplation has occurred about Part I of this Bill and transfer to the county court.
§ This is an earnest and sincere wish to assist the Lord Chancellor. If he is able to say to the Treasury, 552 "I and everybody want work transferred to the county court but I cannot do it because the Lord Chief Justice, through his presiding judge, through his network of information throughout the country, tells me with chapter and verse that the county court is in a shambles and it can barely deal with its work now, let alone the new jurisdiction resulting from the Children Act; I cannot move without his concurrence and I cannot get his concurrence because he very properly says that the county courts are being under-resourced", then the Treasury would either have to do something about it or be answerable to Parliament for failure to ensure that the ringing words of my noble and learned friend the Lord Chancellor about how anxious he is to improve access to justice are being frustrated.
§ This simple amendment is essentially to ensure that those who are at the receiving end of the trial cases—judges, not the civil servants —and who have to administer justice should have a say, not merely be consulted, which could be ignored. They should be in a position to say, "We know what the position is throughout the country. It does not justify any action yet. Provide the system with the funds it requires and then we will agree". I have considerable faith in my noble and learned friend the Lord Chancellor but I do not have blind faith and that is what this subsection requires: a total resignation to the dictates of the Executive without any control as to whether it can fund what it proposes to do.
§ In many ways Part I is a disaster from the point of view of the Government because it has enabled the situation in the county courts and in the circuit courts to be opened up for public scrutiny and it is common ground that the present situation is a scandal. Therefore to that extent Part I has performed a very useful function; but it will not be useful if the control of the judiciary through the Lord Chief Justice is not kept firmly in place. I beg to move.
§ 5 p.m.
§ Lord Campbell of Alloway
Very briefly I should like to say that I listened with great attention and some horror to the account given by the noble and learned Lord, Lord Ackner. With the greatest respect, commending the noble and learned Lord for his frankness, I question whether this is an appropriate way in which to bring pressure upon the Treasury or to seek to improve the efficiency of the Lord Chancellor's Department as regards administration. I suggest to the Committee that these matters lie within the direct remit of government and that it is essential for government in cabinet to allocate funds appropriate to that purpose.
The other question arises: where does the ultimate responsibility lie; and is it wise, when it lies with the Lord Chancellor, to divide the responsibility, as proposed by this amendment? The making of the order under subsection (1), the specifying of the criteria under subsections (2) and (3) and the amendment, repeal and ancillary provision under subsection (4) are all the responsibility of the Lord Chancellor who, as such, is answerable to Parliament. With respect, I question whether there is any need to move from consultation with the Lord Chief Justice, the Master of the Rolls, the President 553 of the Family Division, the Vice-Chancellor and the senior presiding judge and, so to speak, in effect confer a veto upon the Lord Chief Justice. It is a cathartic division of responsibility which may not commend itself to the Committee.
§ Lord Boyd-Carpenter
It was impressive, as it always is, to listen to the noble and learned Lord, Lord Ackner, There is no doubt at all that he has a very serious point in respect of the under-provision at present for the county courts, to which it is a major purpose of this Bill to transfer a great deal of business. Therefore I believe that the Committee will start out with great sympathy with his objective.
However, his method was somewhat startling. Apparently it is intended to use the noble and learned Lord the Lord Chief Justice as a kind of blackmailing weapon against the Treasury. Apart perhaps from showing less respect than most of us feel for the office of the Lord Chief Justice, it was certainly a rather unusual constitutional expedient. Also, if the Committee accepts the amendment, it will put the Lord Chancellor in a very strange position. He is the Minister responsible for these matters to Parliament and to the public. If there were to be a disagreement between him and the Lord Chief Justice he would have to say, "I am terribly sorry. I think this should be done but I cannot do it because you have equipped the Lord Chief Justice with a veto on my action". That would be quite extraordinary legislation. It is not for me to speak for him, but I should have thought that it would be a matter of some embarrassment to the noble and learned Lord the Lord Chief Justice and certainly a matter of very considerable embarrassment to the noble and learned Lord the Lord Chancellor.
Perhaps I may raise another point which is of less importance. In subsection (5) is listed a number of very distinguished figures who must be consulted, including the Lord Chief Justice. But it is proposed in this amendment that alone of them he requires not only to be consulted but must have his concurrence obtained, which seems to suggest that in the process of consultation his view is distinctly more important than that of all the others put together. Again I wonder whether that shows a proper respect to those distinguished judicial figures.
Therefore, although I am deeply impressed by the ingenuity with which the noble and learned Lord, Lord Ackner, used this amendment to make a legitimate point —and it is a point on which I agree with him and, the Committee may recall, one which I made at Second Reading—about the inadequate provision for the county courts and the necessity of improving it rapidly before this Bill comes fully into operation, this particular expedient seems to be a quite extraordinary one. It is one which, if the Committee adopts it, might well expose the legislation in question and those who put it forward to a measure of derision.
§ Lord Donaldson of Lymington
My noble and learned friend Lord Ackner said that one of the vices of subsection (5) is that one can consult and ignore. I appreciate that there are fields in which it is 554 possible for a Minister to consult and virtually ignore. However, I doubt whether the noble and learned Lord the Lord Chancellor or any successor of his would think that that was a course that was open to him where the statute expressly names senior judges as having to be consulted.
I am sure that I have no need to warn the noble and learned Lord the Lord Chancellor, but perhaps I could warn his unknown successors of this. If any of the holders of this office —and although I speak only for myself I am sure that the same is true of others—advised very strongly that it was wrong to make orders for such reasons as my noble and learned friend Lord Ackner has mentioned, and that advice was ignored, the Lord Chancellor of the day would be acting within his powers, but he would be gravely mistaken if he thought that the advice that had been tendered to him would remain confidential. It would certainly be the duty of one or more of the senior judges to make it clear to the public that they did not think that the provision could work in the present circumstances. I have no doubt that they would do so. I certainly would do so.
§ Lord Henderson of Brompton
I should like to add one brief word in support of what the noble Lord, Lord Boyd-Carpenter, and indeed the noble Lord, Lord Campbell of Alloway, have said. As the noble and learned Lord moved the amendment, I could not help but feel that he was moving what is in effect an unconstitutional amendment. He was giving a veto in a matter of public expenditure to someone who was not answerable to Parliament. With all the good intentions in the world, he has contrived an unsuitable form of amendment to achieve what I am sure we all desire: proper finance for the purposes of Part I of the Bill.
I hope that in the light of what has been said he will withdraw the amendment.
§ Lord Mishcon
My aim in rising is twofold. First, I wish to try to be constructive with regard to the matters to which the noble and learned Lord, Lord Ackner, referred. The issue was very fully discussed at Second Reading with many examples given. Out of courtesy, perhaps I may pay a tribute to the noble and learned Lord the Lord Chancellor. He was kind enough to write to me on some matters that I raised at Second Reading. I refer to matters that all of us regret are occurring (and have occurred for some time) in the county courts relating to personnel, proper finance and general administration.
Secondly, I am conscious that the Committee usually likes economy of debate where possible. The noble and learned Lord, Lord Ackner, moved Amendment No. 7 and spoke to Amendment No. 9. He stated that he felt it was a way of dealing with the critical condition of the county courts and of ensuring that nothing absurd happened by adding to their jurisdiction before they were in a proper state to deal with the matters that were being passed to them.
With economy of debate in mind, and without moving it at this stage, I refer the Committee to Amendment No. 10 which stands in my name and that of my noble friend Lord Prys-Davies. I believe 555 that it achieves the objective that the noble and learned Lord had in mind. However, it does so in a way that is rather more constructive and enables the noble and learned Lord to speak to the Treasury in his usual measured but very forceful terms. It enables him to say, "You do realise that I cannot carry out the purpose of the enactment of a clause in the Bill which has had the concurrence and sanctions of Parliament because I am not satisfied that my order can be made because conditions prevail which require more money to put them right".
Perhaps I may say with deep respect that all these points appear to be covered in my amendment. It provides that:The Lord Chancellor shall make no order under paragraph (b) of subsection (1) … unless he is satisfied that sufficient resources to offer a reasonable level of service to litigants are being provided to the county courts, including provision of facilities for the hearing of cases"—a point that was also mentioned in parenthesis —which last for more than one day so that they can be heard on subsequent consecutive days".That provision enables Parliament —this Chamber —to show its view that support has to be given by the Treasury to the noble and learned Lord in order that the purpose of the Bill can be carried out.
Perhaps I may save the Committee from being burdened by a further speech from me when Amendment No. 10 is reached. The amendment provides what the noble and learned Lord, Lord Ackner, and I believe all of us, want. However, it does so without any of the constitutional or other difficulties that have been pointed out by participants in the debate.
§ 5.15 p.m.
§ Lord Hooson
I wish to add a very few words. I agree with what the noble Lord, Lord Mishcon, has said, save for one point. It is not only a question of money. Obviously we must do everything we can to support the Lord Chancellor's Department in obtaining more money to make the fulfilment of Part I of the Bill feasible.
I have made inquiries on my own circuit. In one crown court town the courts do not sit until 11.30 on a Monday morning because the department cannot afford the money to pay overnight subsistence to its staff. The situation is serious although not so serious as in other parts of the country.
If the clause is enacted without amendment the Executive and not the judges, have the final say on how the court should be administered. That goes to the root of the problem about how business should be allocated within the court system. A fear that I have heard expressed many times at the Bar and by judges is that the Lord Chancellor's Department is slowly but surely taking control not only of the Bar and of the solicitors' profession but of the judges as well. That is the underlying fear.
The noble and learned Lord the Lord Chancellor assures us that that is not his intention. However, we must consider the safeguards that are provided in the Bill. We are taking so many matters on trust. The power will be provided. That is the great 556 concern. I shall not spell it out at any greater length. It is the underlying concern of most people on viewing the Bill.
The Lord Chancellor
I regard it as the primary responsibility of the Lord Chancellor to secure the proper resourcing of the courts. I do not think that it could be right to expect the judges to do so. On the other hand, the whole system can work only if the Lord Chancellor takes proper account of the views of the judges.
Since I have come to office and have had the responsibility of being president, under statute, of the Supreme Court, I have endeavoured to make arrangements in the administration of the courts in conjunction with the judges. The presiding judges have a very important part to play in that. They usually speak directly to the circuit administrator for the circuits for which they are responsible. If there are difficulties to be resolved at a higher level, they come through the senior presiding judge, and the heads of division, and we there have to examine the matter and seek to resolve it.
I think it entirely appropriate that before making an order the Lord Chancellor should consult with the four heads of division and the senior presiding judge. The principal purpose is to try to ensure that anything done by the Lord Chancellor is in accordance with their views and has their agreement because they will be operating the system from day to day. The judges must sit in the courts and administer the judicial aspects of the cases before them. It is the job of the Lord Chancellor to do his best to serve them in that capacity and therefore it is highly appropriate that he should consult the senior judiciary. Any order made under the power is subject to the affirmative resolution of Parliament.
I believe that one of the issues with which Parliament will expect the Lord Chancellor to deal in any attempt to make an order under this section will be the attitude of the consulted judges. Although my noble and learned friend Lord Ackner has primary interest in the Queen's Bench Division, Chancery Division-type and Family Division-type on-circuit work is also done. Those different interests must also be served.
An important matter which must be considered most carefully in relation to the Bill and its operation is the work under the Children Act which will be given to the county courts. Therefore important responsibilities across the whole field must be considered.
With the greatest possible respect to my noble and learned friend Lord Ackner and to the noble Lord, Lord Hooson, I believe that the Lord Chief Justice will be put in a somewhat false position. For example —and I hope that this will not happen —supposing I assure him that all will be right in a year's time and that we shall have everything that is required and then for a reason perhaps beyond my control that does not happen but he has given his consent, he would be put in a false position. If he agreed with me in consultation that the matter should go forward he would be doing so upon the assumption that I was responsible for producing the 557 correct resources in order to provide the proper level of services when that was put to the test.
Therefore, I believe that the system we have set up in the Bill is correct. My noble and learned friend Lord Ackner is right in saying that one of the results of our actions is to focus attention on the county courts. As he has explained, they have already received a large influx of work as a result of the transfer down by the judge in charge of the list of cases previously in the High Court. If too much is going down they have a system under which they are warned by the presiding judges. The county courts are now dealing with a good deal more work than they were a short time ago. There are difficulties, as I have explained, and I am doing my best to remedy them. I explained some of the steps which are being taken to do so.
I believe that it is the Lord Chancellor's responsibility fairly and squarely to deal with the matter and that he is the person responsible to Parliament for doing so. Although I entirely agree with the purpose underlying my noble and learned friend's amendment, I believe that the noble Lord, Lord Mishcon, is correct in saying that the Lord Chancellor should have that responsibility. Precisely how he should properly discharge it and what the statutory provision should be we may discuss in a little more detail when we deal with the noble Lord's amendment. I hope that my noble and learned friend will be able to withdraw his amendment.
§ Lord Ackner
I do not comment on the reference to "blackmail", which was an unworthy word for my noble friend Lord Boyd-Carpenter to use. One can rely upon the Lord Chief Justice to consult with his judges. One can rely upon him to have in mind solely the interests of judges and to refuse his consent where necessary because that is appropriate—
§ Lord Boyd-Carpenter
Will the noble and learned Lord allow me to intervene? I used the word quite deliberately in the light of what he said in his speech. Perhaps before making any further comment he will read his speech in Hansard and, as a fair-minded man, I believe that he will accept that the use was justifiable.
§ Lord Ackner
I have listened to the comment. I do not comment further upon it.
The concern of the Committee can be put in a sentence. The underfunding to which reference has been made is not being taken seriously by the noble and learned Lord the Lord Chancellor and his department. It is not being taken seriously or it would not have been allowed to reach the level described when it is contemplated that a great deal of extra work will be placed upon it not only as a result of the Children Act but from the High Court.
The situation is not being taken seriously when one can receive the following statement from the noble Baroness, Lady Hooper, during the debate on the humble Address. She was then holding the brief for the Lord Chancellor. She said:Additional money has recently been allocated to the court service from within the departmental resources to stabilise staff 558 numbers and maintain performance at the required level". —[0fficial Report, 23/11/89; col. 227.]We heard nothing about that from my noble and learned friend the Lord Chancellor on Second Reading. However, my inquiries reveal that the additional money was recently allocated in the following circumstances. A short time ago an award of increased pay was made to the staff in the county courts. But it was made only on the basis that the money would be found from the already allocated cash, which necessitated a number of staff having to be stood off. It gave rise to even more increased problems and, I have been told, the cash recently injected was to enable the staff that had been lost to be rehired. If that is correct it is an indication that the matter is not being taken seriously.
The quotation to which I wish to refer from the Second Reading debate is taken from the speech of the noble and learned Lord the Lord Chancellor. He said:It seems to be the case that the training that we give to the staff in the courts makes them extremely valuable once they are trained to, for example, solicitors in private practice and to local authorities. It is a difficult task therefore to maintain in the county courts and in the court service an adequate supply of fully qualified staff'.—[Official Report, 19/12/89; col. 242.]If that had been stated by a commercial organisation it would have been laughed out of court. There is no difficulty in retaining properly qualified staff if you are prepared to pay them, but that is not allowed to occur. My attempt to involve the judiciary was in order to ensure that something should be done.
No explanation has been given as to how the situation has been allowed to accrue (luring the past two years and to result in the letter to which I made reference. Things have been getting worse and worse during the past two years. Respectfully, I have no confidence in the proposition, "We will do our best", because the best is of little value unless the Treasury can be made to take action. It is perfectly clear that the Lord Chancellor's Department lacks the clout to do it.
I have made my submissions. I reserve the right to return to the matter at a later stage and meanwhile I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.30 p.m.
§ Lord Mishcon moved Amendment No. 8:
Page 2, line 37, at end insert —
("( ) No order under subsection (1) shall specify that proceedings for defamation shall be commenced or taken only in the High Courts.").
§ The noble Lord said: I should like to direct the attention of the Committee to an interesting and important matter. All Members will remember a quotation about the value of the character and reputation of a lady or gentleman. Sometimes they are valued at more than life itself. Whatever be the value, I do not believe that any Member of the Committee would doubt that one's reputation is a very valuable asset which one would want to safeguard.
§ The present situation in law is that if you want to protect your reputation which has been attacked, at present you can only do so by issuing a writ in the 559 High Court if the matter has reached the litigious stage because you can get no satisfactory recompense from the proposed defendant. Anyone who has any knowledge at all of libel actions in the High Court will know that it is a very expensive exercise indeed if it is pursued until the very gates of the trial court.
§ Many defendants take advantage of the fact that they have means but the plaintiff does not. Therefore, they feel, whatever be the strength of their case, that if they only carry on long enough defending the case, the plaintiff will not be able to pursue it further.
§ The second matter which I bring to the Committee's attention is that the efforts by many of us, both on these Benches and others, to obtain provisions to make available legal aid to those who cannot afford an action for libel and who have a meritorious case, have met with no success. The noble and learned Lord the Lord Chancellor will be the first to admit very frankly that no question of legal aid applies at present to libel actions and there is no prospect, unless I am very much mistaken, for legal aid to be available for libel actions in the immediate future. I believe that he has other priorities. If he tells me that I am wrong about that, I still make my plea for the people who are so often forgotten. The rich are remembered because they are able to do things and the poor are looked after by legal aid. However, there is a great number of our citizens who are stuck somewhere in the inconvenient middle. They are not eligible for legal aid but nevertheless do not have the means to bring a libel action when their reputation has been attacked.
§ The third matter which I bring to the attention of the Committee as a matter of law is that the County Courts Act 1984 does not enable anyone to go to the county court and prosecute a libel action unless —and I believe it is Section 15 of that Act —both parties consent. I have already said that some defendants feel that allowing the case to proceed in the High Court is possibly the best way in which to deter the plaintiff from continuing with his action. Thus there are very few cases indeed where both parties consent to a libel action being heard in the county court, and so at present the county court has no jurisdiction.
§ Members of the Committee may have often heard that libel actions are heard before a judge and jury and may wonder whether there is any provision for a jury in a county court if jurisdiction were given to it to hear libel actions. The answer is that the rules provide that in certain cases —and defamation is included —the county court can try an appropriate case but, as I said, at present that is limited to cases which have the consent of both parties. There is no difficulty about a jury being obtainable in a county court.
§ Therefore, the purpose of this amendment, which I hope Members of the Committee will find meritorious, is to see to it that no order can be made —and I believe that this is a fairly subtle way of bringing the matter to the Lord Chancellor's attention —which would bar county courts in the future from hearing defamation actions. The whole thrust of the amendment is that if this went into the 560 Bill, Members of the Committee may feel that the noble and learned Lord would take an early opportunity to see that defamation actions were brought within the jurisdiction of the county court. I beg to move.
§ Lord Rawlinson of Ewell
I listened to the noble Lord, Lord Mishcon, with great interest but I strongly counsel against extending the power to hear libel actions in the county court at this time. I am sure that the noble and learned Lord the Lord Chancellor is well aware of the anxiety felt about the present defamation law, and the practice concerning it is very serious indeed. I hope that at some time serious attention may be given to the changes to the libel law proposed by the Faulks Committee which was set up when my noble and learned friend Lord Hailsham was the Lord Chancellor in 1970. I also hope that at some time we shall have a major debate about what should be the true libel law of this country.
With great respect to the very proper arguments produced by the noble Lord, Lord Mishcon, I counsel against libel law going to the county court, because very often a newspaper will receive what is in effect a blackmailing action. Very often the newspaper will pay out small sums because it is cheaper to do that than defend an action even when it knows that it is an absolute scoundrel who is making the claim. Therefore, there is the other side of the coin.
We shall come to provisions in this Bill about conditional fees and what that may lead to which I know the noble and learned Lord the Lord Chancellor appreciates will be very hotly contested. That may be an opening —and I do not believe that editors of newspapers and television programmes have quite appreciated this —to many more defamation actions. In view of the present state of the law, if I was an editor I should be quaking in my shoes.
While I see a lot of the justice of what the noble Lord, Lord Mishcon, said, I believe it would be a mistake at present to extend the power to have defamation actions tried in the county court. However, I ask the noble and learned Lord the Lord Chancellor to consider very carefully a real review of the law of defamation which I believe at the moment sticks out like a sore thumb in the law of this country as not being that which it should be in a civilised country.
§ Lord Ackner
I agree with my noble and learned friend Lord Rawlinson. He and I were old sparring partners from the county court up to the High Court and in libel actions in particular. Like many practitioners before me, I came into the libel field merely as a result of there being a sudden fall-out of all the talent and I was the one who resulted from scraping the barrel. Mr. Justice Faulks had become a judge, Mr. Justice Milmo had become a judge, Mr. Beyeus QC had died and Gerald Gardiner QC had become Lord Chancellor, I came in as a QC. I then realised how incredibly complex, specialised and technical was that field of law. It is contemplated imposing upon county court judges—very few of whom have ever been near a libel action —a whole 561 lot of extra work. To contemplate them trying libel actions at this stage, unless my noble and learned friend is to adopt the suggestion of the Civil Justice Review body that there should be a higher grade circuit judge, and not the one grade of circuit judge which exists at present, would be quite wrong.
On the point of complexity, perhaps I may quote briefly from the judgment of Lord Justice Harman in the case of Broadway Approvals v. Odhams Press, in which I unsuccessfully appeared. He said:As a comparative newcomer, the law of libel seems to have characteristics of such complexity and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels".That is not, I respectfully submit, the type of jurisprudence to put into the county court, at least at present.
§ Lord Hailsham of Saint Marylebone
I rise to say a very few words on this issue. With great respect to the noble Lord, Lord Mishcon, who always puts his case with such persuasiveness, I ask the question (if only rhetorically): what does he hope to get out of this amendment if it were to be accepted?
In the first place we have the fact to which my noble friend on the Cross-Benches has adverted, that we are putting on the county courts a lot of new work which the present provision makes extremely unlikely they will be able to digest without a great injection of resources. Therefore, I do not see my noble and learned friend on the Front Bench making an order of this kind even if he were otherwise disposed to do.
In the second place, as the noble Lord, Lord Mishcon, pointed out, the status quo is that the county courts have no jurisdiction to try defamation cases unless both parties consent.
§ Lord Hailsham of Saint Marylebone
I am obliged to my noble and learned friend on the Cross-Benches. But with that sole exception they cannot do it unless both parties consent. The chance of any Lord Chancellor —let alone the present one with his wisdom —in his right senses making the order, which is prohibited under the amendment, restricting defamation cases to the High Court, to where in practice they are already restricted, is just about equal to that of an icicle in June. I wonder what he hopes to gain out of it.
There is only one footnote I should like to add to the speech of the noble Lord, Lord Mishcon. It is part of the conventional wisdom on this subject that the middle classes are excluded by reason of the absence of total availability of legal aid from bringing certain types of action. That has never been my experience. I say that quite categorically. In the field of defamation, however, my noble and learned friend Lord Ackner has made it abundantly plain that it is true that, if one does not have any money but brings an action against a newspaper, one can nevertheless obtain something because they will pay you to go away rather than incur the expense of a High Court 562 action. The chances therefore of a frivolous, vexatious or blackmailing action by a middle-class plaintiff are unfortunately only too high at the moment.
The Lord Chancellor
We have had an interesting debate and, as the Committee may know, I have intimated that I propose to carry out a review of the law of defamation. We are seeking to prepare some material, including reviewing the reports which have been available for some little time, to see whether any action can be taken on all or any of them. However, with great respect to the noble Lord, Lord Mishcon, for us to pre-empt this matter in the way he is seeking to do at the present moment would not be right. I think perhaps he is drawing my attention to it rather than believing that it would necessarily be effective immediately.
I certainly have in mind all that he said, but it would not be right for the Committee to commit the legislation in this way at this stage. If I were minded —which, frankly, at present I am not —to increase the jurisdiction of the county court in respect of defamation actions, I should certainly wish to consult very widely on that part of any such order. The noble Lord may take it, however, that his words have been listened to with care and I certainly will not forget the particular problems of defamation to which he drew attention. With that assurance he may feel able to withdraw this amendment.
§ 5.45 p.m.
§ The Earl of Onslow
Perhaps I may ask my noble and learned friend a short question. I believe I am not the only layman who is slightly concerned about the size of libel damages and a general oddity, it appears, about the outcome of libel and slander actions. When my noble and learned friend has thought this over and considered what he is going to do, will he then do it just by his order-making powers under this Bill or will we need a new defamation Bill?
The Lord Chancellor
If I were proposing to do that which the noble Lord, Lord Mishcon, wishes —in other words, to give jurisdiction to the county court —one could do it under the powers of this Bill. If one were to deal with the kind of complexities referred to by my noble and learned friend Lord Ackner, however, that would have to be a Bill of its own. At least it would not be part of this exercise. It would be big enough, I think I can assure my noble friend, of itself to justify a pretty substantial Bill if we were to try to deal with all the difficulties that exist in the law of defamation.
Perhaps I should say finally that it must have been a pretty good barrel of which my noble and learned friend was at the bottom.
§ Lord Mishcon
I thought I detected a slightly illogical note in the arguments advanced against this amendment. The noble and learned Lord, Lord Ackner, talked of the complications and complexities of libel law. I am not sure that there are not many cases tried in the county court which require very much more legal experience and expertise so far as 563 county court judges are concerned. If I was doubtful about that point then something would be wrong with our administration of justice because, as the noble and learned Lord the Master of the Rolls pointed out, the county court judge would have to deal with the matter if it were raised by way of counterclaim. Either he is fit to deal with it or he is not; or those who plead defamation in a counterclaim are exceedingly badly served, which is something I suppose the noble and learned Lord the Lord Chancellor would want to look at immediately.
It should not therefore be the question of complexity that pronounces defeat for this amendment. It is a question of fairness. It is the idea that people can protect their reputations when they feel that they have been impugned by going to an administration which ought to be, if Part I succeeds, a more efficient and economical way of dealing with the matter.
The noble and learned Lord has been gracious enough to say that he will be taking these matters into account when he makes his orders and that very careful consideration will first be given to what has been said in this debate. Being used to taking the temperature of the Chamber from this side —a very necessary knowledge that one has to acquire over a period of years —I have an idea that on this occasion the amendment might not succeed. It is with that in mind and wanting very much to see that the noble and learned Lord carries out his promise to consider the matter further that I ask leave to withdraw the amendment.
§ Lord Rippon of Hexham
Before the noble Lord sits down, is it his understanding, as it is mine, that the noble and learned Lord the Lord Chancellor said he could make this provision in any event by order under Clause 1, just as equally, even if it were put into the Bill, he could take it away by order under Clause 1?
§ Lord Mishcon
I am not at all sure that taking up the point would better my chances of getting the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Ackner had given notice of his intention to move Amendment No. 9:
Page 2, line 37, at end insert—
("(5A) No order shall be made under this section so as to increase the jurisdiction of any county court unless the Lord Chancellor and the Lord Chief Justice are satisfied that the arrangements for the despatch of business in the county courts affected by the order are adequate.').
The noble and learned Lord said: In moving the earlier amendment I asked for the Committee's indulgence to enable me to proceed to this amendment because the two are connected. The words of this amendment may not suffer from the alleged constitutional defect of the earlier one because it provides that:
No order shall be made under this section so as to increase the jurisdiction of any county court unless the Lord Chancellor and the Lord Chief Justice are satisfied".
It may be that the constitutional point that was raised is adequately satisfied by that wording. My
arguments in support of this amendment are those which I have already mentioned at such length that I do not propose to take the matter any further.
§ [Amendment No. 9 not moved.]
§ Lord Mischon moved Amendment No. 10:
Page 2, line 37, at end insert—
("(5A) The Lord Chancellor shall make no order under paragraph (b) of subsection (1) above unless he is satisfied that sufficient resources to offer a reasonable level of service to litigants are being provided to the county courts, including provision of facilities for the hearing of cases which last for more than one day so that they can be heard on subsequent consecutive days.").
§ The noble Lord said: I am appreciative of the gesture made by the noble and learned Lord, Lord Ackner, in not moving Amendment No. 9. Therefore I hope that I shall be able to attract his support for Amendment No. 10. When I spoke previously I talked about economy of debate and therefore I know that the Committee will not expect a further long speech on this amendment.
§ The Committee heard not only at Second Reading but also today about the sorry situation which exists in some of our courts. In particular our attention has been drawn to conditions in the county courts. On the last occasion examples were given of the London courts as well as some of the provincial ones. I believe it appropriate to bring to the Committee's attention three examples. They are all recent. They arise out of the suffering caused by problems concerning what I would describe as little people. I know the Committee will understand what I mean by that. The examples come from the citizens' advice bureaux.
§ The first report comes from Hertfordshire and concerns a client who had completed all payments under an administration order, but four months later the creditors had still not received the money from the county court. The second example comes from a citizens' advice bureau in South Wales. It reports about a client replying to a summons for a debt. He made a repayment offer. Five months later the client had still not heard whether the court had accepted that arrangement for an instalment order. In the meantime the size of the debt had increased. The third and last example again comes from a citizens' advice bureau in Manchester. It reports on a client injured by a gas appliance in 1984. She was finally awarded compensation and costs late in 1988. The costs were disputed by the defendants and the matter was referred back to the county court for taxation in June 1989. By the end of that year no date had been fixed for the hearing of the taxation proceedings.
§ I bring to the attention of the Committee factors which I do not believe are disputed and certainly not by the noble and learned Lord who is as worried about them as we are on this side of the Committee. I refer to the conditions in the county courts. If there is not a provision in this Bill clearly stating that there can be no more transfers of jurisdiction to the county court and unless the noble and learned Lord can be satisfied with what is contained in this amendment, then I feel that as legislators we have miserably failed in our duty. It will mean that all the 565 debate that has taken place concerning conditions in the county courts will have been so much verbiage without any action whatever being taken in regard to that matter.
Lastly, I refer to the matters about which the noble and learned Lord the Lord Chancellor will have to be satisfied before he makes this order. There should be:
sufficient resources to offer a reasonable level of service to litigants … being provided to the county courts, including provision of facilities for the hearing of cases which last for more than one day so that they can be heard on subsequent consecutive days".
They are minimum requirements and I hope that, without more ado, the noble and learned Lord will be able to accept this amendment so that we may proceed with other matters. Unless something is done regarding the present situation, we are wasting our time on Part I of the Bill and we are also not fulfilling our obligations to the public.
§ Lord Rawlinson of Ewell
I agree with the noble Lord, Lord Mishcon, because in this part of the Bill we are really participating in a charade unless my noble and learned friend the Lord Chancellor can assure us that he has received an assurance that he has, and will have, sufficient resources made available to him by the Treasury in order to make sense of what we are trying to do in Part I of the Bill. As the noble Lord, Lord Mishcon, said, there is no point going over and over again into all these matters if at the end of the day the Lord Chancellor unfortunately has to say to us: "I will if I can and if the Treasury let me".
In another place we would have sent for a Treasury Minister and asked him to tell us, before we continued with hour after hour of debate, whether there was to be a sufficient supply of funds in order to make sense of the proposals. As the noble Lord, Lord Mishcon, has pointed out, everything depends on the resources. I presume that the Government would not have started on this part of the Bill unless they were satisfied that there was very good reason to suppose that there would be sufficient resources to make sense of the proposals. I hope that my noble and learned friend will be able to assure us that we are not participating in a charade and that, if we approve the various clauses in this part of the Bill, then in the course of the lifetime of some of us, at any rate, we shall see that they come to pass.
§ Lord Simon of Glaisdale
The proposals in the Green Papers were highly criticised and those in the Bill which are based on the Green Papers are, in the view of many of us, deeply flawed. There is obviously a temptation to try to float in those proposals on the back of the widely approved Civil Justice Review which, unlike the Green Papers, was based on wide consultation and commanded general assent.
As has been indicated, we would be dishonoured if we allowed Part I of the Bill to pass into law without being satisfied that it really did what it purports to do. I am not one of those who regard the Treasury as a hostile force in occupation and in command of Whitehall. On the contrary, I 566 consistently supported my noble and learned friend the Lord Chancellor on the Legal Aid Bill because I thought that it was entirely consistent and sensible that he should say, "I have had additional resources from the Treasury, but I certainly cannot accept any open-ended commitment".
As regards this part of the Bill, the Committee is entitled and indeed bound to see where we stand financially. Speaking for myself, I find it very difficult to sort out what is meant by the financial memorandum and what my noble and learned friend said at Second Reading. The Explanatory and Financial Memorandum says that the initial cost will be £5.1 million a year, rising to £6.5 million after three years. But it does not make it clear—perhaps my noble and learned friends will make it clear—whether that £6.5 million is a continuing annual sum as the cost of Part I. In addition, my noble and learned friend said at Second Reading that the Autumn Statement vouchsafed to his department £70 million. He said that that would not all be available for the purpose of Part I but he did not say how much would be available.
As I understand it, we have to consider financing under three headings. The first is the rectification of the immediate situation. An alarming picture was painted by my noble and learned friend the Lord Chief Justice, and it was supplemented just now by the noble Lord, Lord Mishcon. I cannot see in the Explanatory and Financial Memorandum at the beginning of the Bill what if any sum is being allocated so that the county courts can cope with their present business.
Secondly, there is the transitional provision. I do not know whether this is purely administrative; but what sum will be needed over and above what is needed to enable the courts to deal with their additional burden? What additional sum is needed by the courts to enable them to cope with the additional burden which my noble and learned friend proposes to lay upon them? What are those burdens?
Finally, after three years, what continuing sum will be required not only to keep the courts ticking over and coping with their present business but also with their increased business? I hope that my noble and learned friend can help us on those matters.
§ 6 p.m.
§ Lord Meston
I support this amendment which has the same moving spirit as Amendment No. 9. The amendments are clearly not intended to wreck or inhibit the Bill, but rather to ensure that it works as the Civil Justice Review intended. We heard at Second Reading and we have heard again today the widespread misgivings about the capacity of the county court system to cope with its existing workload, let alone with the burden imposed by this Bill and by the Children Act 1989. We also heard from the noble and learned Lord the Lord Chancellor about the extra resources to which reference has just been made. We can only suspend our judgment about those and see how they will work in practice.
567 Meanwhile, I should like to refer the Committee to what is said on page ix of the Explanatory and Financial Memorandum of the Bill. It says:The increase in the volume and substance of county court cases will be phased over a period of years, and will be adjusted as necessary to reflect the capacity of the courts to absorb new work".That is obvious common sense and no doubt should happen in practice. I hope that this amendment will be accepted so that what is said in the Explanatory and Financial Memorandum is written into the Bill.
I support the amendment and in particular the portion of it which deals with the hearing of cases on subsequent consecutive days. Cases can run over into a second or further day either because they were obviously going to do so from the first or because, as the noble and learned Lord, Lord Ackner, pointed out, they do not come on, although they are expected to, at 10.30 a.m. There may be other reasons. They may go more slowly than expected because the advocate is not very good or because the judge talks too much. Cases can run over for a large number of reasons.
When cases run over in the county court it is often difficult to refix them quickly. They cannot be heard the next day because the judge has a list and there is nobody available, as there would be in the High Court, to take over that list so that he can continue with the case. It may take some time before a case can be refixed at a moment when not only the judge can hear it but the parties can be available and the same counsel can be there. That is intensely unsatisfactory.
It is more unsatisfactory in a county court than in the High Court because with fewer facilities for recording the evidence and so on, it is more difficult to know on a subsequent day what happened earlier. I have had this experience and I have felt the deep dissatisfaction of clients who thought their problems would be resolved one way or the other. They have had to come back a month later only to find that the judge has half forgotten the details of the case or that the same counsel is not available and new counsel does not know what is going on. This is deeply unsatisfactory and is presumably also rather expensive because everyone has to go back and get the case going again.
Before more serious and more important cases are transferred, there must be a real assurance that those matters can be coped with. I refer not merely to the case that is planned to last for three days, so that the judge can set time aside for it, but to the case that runs over. There must be facilities for another judge to be available to take the hearing judge's list. This amendment is eminently satisfactory and has no constitutional problems attached to it. To reject it would be extraordinary because that would suggest that the Lord Chancellor intended to make transfers to the county court when he was not satisfied that sufficient resources were available. Surely that is something which the noble and learned Lord would not wish even to contemplate doing, and therefore the amendment is desirable.
§ Lord Hailsham of Saint Marylebone
I agree with almost every word that has been spoken so far about 568 the state of affairs in the county court. I doubt whether the amendment itself will do much good. I particularly agree with what has just fallen from the noble Viscount, Lord Bledisloe, about the crucial importance of continuous hearings in the county court if work is to be transferred to them. I also agree with the noble Lord, Lord Mishcon, that we have not yet begun to appreciate the extra resources that will be required simply for implementation, with the intentions behind the judicial review involving the transfer of work from the High Court to the county court. They are much wider than people think.
It is not simply a question of staff, although staffing is extremely important. It will involve the provision of courtrooms at considerable expense. It will involve the provision of facilities for staff which will require premises on quite an expensive scale. We must reconcile ourselves to the fact that the new family jurisdiction which will undoubtedly attend the county courts under the Children Act will be an extra source of requirement imposed on the county courts.
This amendment in itself is simply a statutory restriction on the powers of the Lord Chancellor. I am sure that my noble and learned friend would not attempt to do more than he thinks can in one way or another be achieved. The problem will arise not at the stage at which he enlarges the jurisdiction of the county court, important as that may be and relevant as the various factors that have been raised may be. It will arise at the moment of allocation of particular cases from the High Court to the county court, at the point of entry when proceedings are commenced to decide where and in what circumstances the cases are to be tried. Therefore, I do not think that this amendment will improve matters. However, I agree that it attracts attention to a problem which must be faced if we are to make a success of this part of the Bill.
§ Lord Hacking
I apologise to Members of the Committee for my premature intervention just now in the wrongful belief that the noble and learned Lord, Lord Ackner, was moving his amendment and in the mistaken belief that the Question had been put. Perhaps I may now tell noble Lords and the noble and learned Lord, somewhat belatedly, that his amendment certainly had my support as indeed does that put forward by the noble Lord, Lord Mishcon.
The Committee has heard a great deal about the inadequacy of resource in the county court. I should like to draw attention to another matter which I believe should create a certain amount of unease among noble Lords. It certainly causes me to feel uneasy. The civil income of both the High Court and the county courts exceeds the non-judicial expenses. I am able to tell the Committee that because in another place the noble and learned Lord's right honourable friend the Attorney-General answered a Question on 3rd November last year put to him by Mr. Peter Archer. In his Answer, the Attorney-General said that in the year 1988–89 the county court fee income amounted to £97.4 million and that the Supreme Court fee income amounted 569 to £52.5 million. If my arithmetic is correct that amounts to a total income of £149.9 million. The non-judicial expenses —by that I mean all expenses, except the salaries of the judges—amounted to £143.9 million. Again, if my arithmetic is correct, that gives a surplus of income over expenditure of £6 million.
It is interesting to compare the latter figure with those which are set out in the Explanatory and Financial Memorandum to the Bill, to which the noble and learned Lord, Lord Simon of Glaisdale, referred. We are informed there that in the third year the increased costs will amount to a figure of £6 million. Clearly the figure in respect of the resources which we are urging the noble and learned Lord to make available to the county courts should be far higher. However, it is disturbing to note that even the income received by both the county courts and the Supreme Court is not put back into administration. That is a matter which should be of concern to Members of the Committee and that is why I have drawn attention to it.
I wish to make but one further observation about the amendment not moved by the noble and learned Lord, Lord Ackner, and about the amendment moved by the noble Lord, Lord Mishcon. I think that what has been proposed deals only with the present situation. Important though it is, the proposal seeks only to place a restraint upon the action of moving more work to the county court within the provisions of the Bill until such time as sufficient resources are available. I draw attention to that fact because at a later stage in this debate, when we come to consider Amendment No. 77, I shall seek to persuade noble Lords that there is also an onward responsibility to set out a mechanism under which the income achieved by the civil courts —that is, both the High Court and the county courts —is turned into resource and that there is a relationship between the income of the courts and the resources which they make available. If that mechanism is set up and if the noble and learned Lord accepts the amendment moved by the noble Lord, Lord Mishcon, either in principle or in its present form, perhaps we shall then have a regime in which this most sad and lamentable state of affairs will no longer exist.
§ 6.15 p.m.
§ Earl Russell
It is only with the greatest trepidation that a layman intervenes in such matters. However, listening to the debate on this amendment and to the related debate on Amendment No. 7, I could not help finding a great deal of what was said painfully familiar. In understanding any problem it is important to try to get a sense of the whole size and shape of the matter. The debate has encouraged me in the belief that the difficulties of the law, of medicine and of universities have a great deal in common.
I found the speech of the noble and learned Lord the Lord Chief Justice on Second Reading to be very powerful but disturbing. Moreover, listening to the noble and learned Lord, Lord Ackner, this afternoon 570 and hearing him say that the under-funding is not being taken seriously, I heard something with which I think any vice-chancellor in the country would agree. Listening to him talking about an unfunded pay increase reminded me of a most powerful speech made on 6th December last by the noble Baroness, Lady Gardner of Parkes. The Government have received warnings on the matter before, but such warnings do not seem to have been heard. I begin increasingly to suspect that the Government resemble my former family doctor, who said that he made it his professional policy to ignore half of his patients' symptoms. In this case I think that we need to spell the symptoms out a little more clearly.
I think that the point made by my noble friend Lord Hooson about the importance of judges controlling their own courts is one which any fellow professional would recognise. However, I shall not persist with that point at this stage. The question of trust arises in this matter. It strikes me that all noble Lords who have taken part in this debate have expressed their trust in the noble and learned Lord the Lord Chancellor —and they mean it. However, we do not trust the Treasury. The business of the Treasury is to try to keep down expenditure. Some of us think that the Treasury is quite alarmingly good at that task.
It is not the business of Parliaments to trust the Executive. It is not the business of Parliaments to encourage the Treasury. It is the business of Parliaments, even if they think that 99 times out of 100 it will be all right, to make provision on the assumption that there will be that hundredth case. It is in fact the business of Parliaments to be distrustful. That has been true as long as there have been Parliaments in this country. It is no good the Government saying, as the noble Lord, Lord Peston, put it on 21st December of last year, that, "it will be all right on the night". We need such a provision in the Bill. I support the amendment.
The Lord Chancellor
The county courts are a service given to the public in the administration of justice. It is extremely difficult at the beginning of a year to estimate precisely the volume of work that may accrue. We must try to estimate the necessary provision and try to obtain it in competition with a good number of other very worthy causes which have a call on the Exchequer. I believe that the court service is regarded —indeed, I certainly regard it as such —as a very important call on the public purse.
The situation so far as concerns the county courts is that we have had difficulties. I certainly acknowledge that fact. However, I am not going to depart from what I said on Second Reading about the difficulty of retaining staff, especially in the South-East. My noble and learned friend Lord Ackner seemed to think that that problem was confined to the county courts. Anyone who has the responsibility in large organisations in the South-East knows how difficult it is to retain qualified staff. We are doing our best in that connection, and I have initiated some further matters.
One of the most important difficulties lies in the administrative aspect of the county courts. Part of 571 the reason for that is the amount of routine administrative work that the staff have to do. The two main matters that I mentioned on Second Reading will have a considerable effect on easing our problems with regard to existing staff.
The first of those matters is the summons production centre to deal with the production of bulk issue by creditors who have many summonses to issue. The Committee will understand the drudgery of trying to do that by hand. We already have some technology in position to assist with that procedure. We have it in mind shortly to open a summons production centre capable of handling a substantial proportion of that work. The result will be the release of the full-time equivalent of about 50 staff. One of the important aspects of the matter is the interest that one can create in the work. The type of work that will be handed down from the High Court to the county court will be more interesting than the routine work that it has had to do to date.
The second matter —it is exceedingly important —is that at the moment the courts handle a great many small amounts of money which are paid in by a debtor against whom a judgment —not enforced by the bailiffs —is taken. The debtors pay the money to the court. The court has to gather up all the cheques and pay them to the creditors. The Committee will immediately see that there is a great deal of room for mistake and difficulty in identifying the payments. People go in with money. They are given a slip and are supposed to relate it to the action in which they were sued. Unless they have the correct reference number there is considerable difficulty in connecting the money paid to the action.
I have sought when I had the chance to examine the matter —I have visited a number of county courts over the past year or two —to try to reduce that burden. We have now initiated arrangements which will curtail the amount of such money that has to be handled by the county court. In many cases it is much more convenient for the debtor to pay the creditor —for example, a public utility —directly unless a question of enforcement arises. Of course when the bailiff comes on the scene the matter is different.
That curtailment of suitors' cash, as we call it, will release —on the estimates that I have received —about 300 staff for work which is much more interesting than they are now doing when handling that money.
The important matter in the county court which must be dealt with is the one to which the noble Viscount, Lord Bledisloe, and others referred —the facility for continuous trials. That was the real inhibition in sending work to the county court in the past. It has been overcome to some extent because otherwise the High Court judge in charge of the list, to whom my noble and learned friend referred, and his colleagues would not send cases down to the county court. That was one of the inhibiting factors. We now have nearly 50 trial centres in operation providing facilities for continuous trials. We are seeking to make arrangements for another 25 or so.
We cannot have a continuous trial arrangement everywhere because again, as my noble and learned 572 friend pointed out, we want to have continuous trials in places where there is more than one judge as no one can tell what will happen on the day. A case may settle or a case may go on longer and so on. We can only get the swings and roundabouts together if there are a fair number of judges sitting together. We therefore have to make arrangements for continuous trial centres where a number of judges are available. I believe that that is the most critical aspect of making it work.
It is the Lord Chancellor's responsibility, dischargeable to Parliament, to obtain the necessary resources. I am engaged on doing just that. I have made arrangements under which no change will be made without the necessary resources. I must point out one matter which may have escaped the Committee's attention. At present High Court judges send down considerable numbers of cases to the county court. It would save a great deal of trouble if those cases started in the county court instead of going to the High Court and having to be sent down. That causes no additional trouble. In fact it would create a saving. If the Committee approves Clause 1, the orders that I could make under it would deal with that matter and so produce a saving in administrative costs.
So far as the necessity for arranging proper resources are concerned, I am entirely at one with what the amendment moved by the noble Lord, Lord Mishcon, aims to achieve. I doubt however whether it is appropriate to put it in its present form in the Bill. It contains part of the accountability to Parliament which is inherent in ministerial responsibility. The primary responsibility for that lies in the voting of supply in the other place. The central responsibilty is a parliamentary responsibility. I have no doubt that the proposal is fundamental but it should be achieved by accountability to Parliament, which is what I am now seeking. Accordingly, I do not feel that to put the amendment into the Bill would be a helpful change. The proper constitutional arrangement is that the Minister has to account to Parliament and it is from Parliament that the Minister has to obtain the necessary resources.
I mentioned on Second Reading that I believe that I am in a position to obtain a further 350 staff in respect of existing commitments and a further 100 in respect of the transfer arrangements although all 100 will not be required in the first year, (1991–92). The total number of staff that will be available as a result of the changes that I mentioned is of the order of 350. They will be saved from routine administrative tasks and put on to more interesting ones. The central matter is that of continuous trial centres, and on those we are making good progress.
§ Lord Renton
Will my noble and learned friend allow me to intervene? I believe the point would be worth his clarifying, if he would. When he mentions the number of staff that it is intended to obtain is he saying that he will receive the resources for them or that he knows that there will be staff trained and available?
The Lord Chancellor
I am saying that provision has been made to enable me to obtain 350 staff. In so far as it is necessary, we have to have training arrangements for staff and we devote a great deal of effort to that training. One of the results is that we have staff who are quite valuable to other people, as I mentioned earlier. A good deal of effort is devoted in the Lord Chancellor's Department to this.
§ 6.30 p.m.
§ Lord Simon of Glaisdale
I apologise for intervening but is my noble and learned friend able to say how much is required to bring the existing courts up to a standard where they are able to cope with their existing task?
The Lord Chancellor
I estimated that primarily by reference to staff numbers. One of the difficulties about all this is to estimate the workload that the court may have in a particular year. This year the increase in workload has been quite high. However, it is difficult to estimate at the time when one is preparing the necessary estimates for the public service. However, on the whole we seek to do that to the best of our ability.
§ Lord Simon of Glaisdale
I am sorry to interrupt my noble and learned friend again, but now is the time when the estimates for his department are put to the Treasury. Does he not know how much is required now to bring the existing courts up to a state where they are capable of dealing with their existing load? He must have put in or at least prepared figures.
The Lord Chancellor
I have obtained figures which are part of the totals referred to in the Autumn Statement which my right honourable friend the Chancellor of the Exchequer made to Parliament. I indicated that one of the consequences of what has been allocated in that Statement is that it will enable me, all being well, to have 350 additional staff for existing commitments, and up to 100 further staff for the implementation of changes. These arrangements strike me as reasonable.
Of course I have to accept that it is not easy to mirror expenditure with income exactly. The purpose of the fee income regulation is, taking one year with another, to try to balance the two. But it is quite difficult to estimate in advance precisely how many items there will be and we have to fix the fees before the items come in. So a variation between income and expenditure in one way or the other is not at all unexpected.
I submit to the Committee that this is a matter which ought to be left to the accountability of the Minister to Parliament. To seek to put it in this form in the Bill—
§ Baroness Seear
I am sorry to intervene, especially with so many eminent lawyers asking questions. Can the noble and learned Lord the Lord Chancellor answer this? When he puts in his estimate, if he receives all that he has asked for and is satisfied, he can then staff the county courts to do the job that 574 he wishes. If he does not get what he has asked for, what will he do? Will he hold up the work until he receives the money? What actions will he take if he does not receive the response from the Treasury and the money which he thinks is adequate for the job?
The Lord Chancellor
The money to which I have been referring is the money allocated in respect of the courts and the Lord Chancellor's department generally in the Autumn Statement. That is a statement to Parliament of what is to be expended out of the public purse on these services.
When I come to consider what order should be made under this provision, I shall certainly wish to ensure, for example, the stage we have reached with the continuous trial centres. Unless there is a reasonable distribution of continuous trial centres over the country as a whole, I should not wish to proceed with the order; I should want to examine these matters as we proceed. I have in mind that if the approximately 25 further trial centres are available, we shall have a reasonable spread.
Members of the Committee will not forget that a good many of the cases are already going down. The additional number going down if the order were to take the shape that I have in mind at the moment would be about 1,500 per year. The total number of trials taking place in the county courts al the moment is of the order of 10,000 per annum. The total addition under this order would not be great, but one of the considerable savings involved would be that cases which would ultimately be tried in the county courts would start there.
§ Lord Ackner
Before my noble and learned friend sits down, he has addressed a good many of his observations to staffing problems. I wish to inquire whether he is taking any steps to deal with the wholly unrealistic cash limits imposed upon the circuits which resulted in the examples which I gave. Judges or deputy judges were being told that their services could not be used because the subsistence could not be paid by the circuits, although the daily rate could be paid by the Lord Chancellor. Buildings could not be cleaned, as the noble and learned Lord the Lord Chief Justice pointed out on Second Reading, because there was no cash. Clocks could not be put right after the winter and summer time changes because it costs money to get a clocksmith in from outside to do that. Building proposals have been scrapped and I have even been told that certain security requirements have been delayed because of the cash limits.
That has nothing to do with staff. It will not in any way be affected by employing more staff. What is happening is that these cash limits are screwing down the service to such an extent that it is in the shambles which was described by the noble and learned Lord the Lord Chief Justice. My noble and learned friend has not addressed any observations in regard to that. I wish to know what is happening about these wholly unrealistic cash limits, not only in relation to the county courts—as the noble and learned Lord the Lord Chief Justice pointed out —but in relation to the crown courts throughout the entire country.
§ Lord Rawlinson of Ewell
Before my noble and learned friend replies to those points, it seems that something has gone seriously wrong with the provisions for justice in the county courts over the last two years. During that time we seem to have had the situation which has just been described and which is becoming worse. Presumably in the Autumn Statement of 1988 my noble and learned friend sought what he thought would be sufficient to remedy or at least to put into good working order that for which he is responsible; namely, the county courts.
If all the stories we have heard are correct —and I have no reason to doubt them —that was not sufficient. The situation does not seem to have improved. Over the course of the past year, if we believe what we have heard, the situation has become very bad indeed. Are we to assume that the estimate in the 1988 Autumn Statement was wholly wrong and too little? If that is so, are we to accept that in 1989 there has been such an increase that we can rely upon it to put the situation right at present before the new extra load comes on to the county courts?
If not, I say with great respect to my noble and learned friend that in other circumstances, if the departments of other ministers had such an indictment laid against them for two years, the ministers would have been very much harried in another place. It seems that for two years the situation has been becoming increasingly worse. With what confidence does the noble and learned Lord face 1990 under the present system, having regard to what he sought in the Autumn Statement?
The Lord Chancellor
I spoke particularly in relation to staff numbers because that is the most important resource. As regards the situation of individual courts, we sought to devolve this because budgets are best handled at local level. I have explained already that the burden of work in the county courts this year turned out to be quite high. So far as the Crown Courts are concerned, to which my noble and learned friend Lord Ackner referred, I believe that the waiting times in those courts are as low as they have been for a considerable number of years. We have concentrated on the Crown Courts in past years, and in this I include my noble and learned friends Lord Hailsham and Lord Havers. These are areas where the liberty of the subject is primarily at issue, and our efforts have produced considerably reduced waiting times.
So far as the county courts are concerned, it is an exaggeration to say that there have been difficulties all across the country. I have given figures for the output of work of various kinds. It is true that there can be deficiencies, but considering the volume of work done the financial provision which we made was a reasonable one. The difficulties are particularly great towards the end of the year if the burden of work has increased, but I am reasonably confident in the arrangements made for the year to come. I am not a prophet but I am doing my best to secure the necessary resources to deal with what we forecast as the likely level of work.
§ The Earl of Onslow
Could my noble and learned friend enlighten another non-lawyer on the question raised by the noble Lord, Lord Hacking? It appears that the courts' income is more than the courts' expenditure, which, as Mr. Micawber said, is a very happy state of affairs. If that is so, how much of the courts' income comes from the Treasury and —another pocket —through legal aid, therefore obviously threatening or affecting public expenditure, and how much of it comes out of litigants' real pockets and consequently does not come out of public expenditure? If the latter fears the burden, it should be possible to provide more judges at no public expenditure cost. Or have I got it totally wrong?
The Lord Chancellor
I would not say that my noble friend had it totally wrong, but the figures that the noble Lord, Lord Hacking, gave are exclusive of judicial salaries; they comprised costs other than judicial salaries, so we do not need to consider judges' salaries in this regard. These figures show that there is roughly a £6 million advantage so far as fee income is concerned over expenditure, but that is what happens if one has more work than one bargains for. The expenditure has to be estimated before it is known exactly how much work there is. Considering that the total budget is of the order of L143 million, £6 million is not very far out especially as the estimate was made a long time before the start of the year. My noble friend can be reassured on that aspect of the matter.
I do not think I have a breakdown of the amount of court fees which are paid by the Legal Aid Fund, but it does not really matter for this purpose because we are talking about court fees, and the point that the noble Lord, Lord Hacking, made was that, if there is more income than expenditure, one should be in a good position to increase expenditure. I see that. Of course the methods of control of public expenditure require us to conform to the estimates, and if it happens that the workload increases one is apt to get a little more money than one would otherwise. But that is part of the public financial arrangements.
A Noble Lord
The noble and learned Lord has said that in his view the amendment is not particularly helpful. Can we take it that at least he sees it as harmless, and therefore if some Members of the Committee take the view that it is helpful there is really no great reason for opposing or objecting to it?
The Lord Chancellor
That obscures the real point. What your Lordships want to achieve is the carrying out of the objective recommended by the Civil Justice Review. To put an obstacle in the way of the Lord Chancellor doing that does not of itself achieve very much. The Lord Chancellor hopes to get the necessary resources and do what is wanted, and to put an obstacle in his way in the form of this amendment does not appear to be particularly constructive.
There are details of the amendment which I could mention. For example, it is not sufficient that 577 resources are adequate at the moment. The wording of the amendment is:satisfied that sufficient resources to offer a reasonable level of service to litigants are being provided to the county courts".The question that I have to ask myself is: if I am to make one of these orders, are the resources going to be available at that time in the county courts to give proper facilities in response to the order when it takes effect? The whole object of the order is to add to the work of the county courts. There is no point knowing what they have now; it is a question of what they have when the order takes effect. This wording does not really take account of that, but apart from that it is just an obstacle to progress rather than a help to the Lord Chancellor.
§ 6.45 p.m.
§ Lord Mishcon
I wish that the noble and learned Lord had offered a more redoubtable defence to the amendment because then I should have no difficulty in accepting his assurance in regard to trying to put right the sorry present state of our county courts and Crown Courts. I would then have accepted the situation quite placidly and would not have wanted to press the amendment.
I listened very carefully to the noble and learned Lord. He said, looking at the wording of the amendment, that it is fundamental that this should be done. He then went on to say that he and any future Lord Chancellor would be accountable to Parliament and presumably would be accountable on the basis of saying, "I have not carried out the provisions of Part I because I have not had sufficient resources", or for some other reasons Part I had not been carried out in a satisfactory way.
We are legislating here on the basis in regard to Part I that we are out to secure a cheaper and more efficient service in our courts. If we are not trying to achieve that, there is no point in our going through these amendments and there is no point in passing Part I. What we are trying to do is to strengthen the noble and learned Lord's hands, and to do it quite legitimately, enabling him to say in his accountability to Parliament and in argument with the Treasury that it was a matter of policy of Parliament that this should be done for the sake of justice, its efficiency and its economy: "I have a provision in this Bill that unless I am satisfied that an efficient situation can be created in order to carry out the provisions of Part I I cannot make an order; the policy cannot be carried out".
That is all that the amendment calls for. I propose to strengthen the noble and learned Lord's hands, not to obscure any issue because no issue is obscured by this. It may be argued with some tautology, "You merely talk about being satisfied with the present situation but really you ought to be satisfied before the order is carried out that you can provide for the future situation". Obviously that is the very terminology of the amendment and anyone would realise that that is its purpose. The amendment is not only helpful to the noble and learned Lord; it makes our work throughout the stages of the Bill, and certainly Part I, worth while instead of being, 578 as somebody has described it, a mere mirage. In the circumstances, I believe that the amendment ought to be passed by the Committee, otherwise all our efforts are useless.
§ 6.50 p.m.
§ On Question, Whether the said Amendment (No. 10) shall be agreed to?
§ Their Lordships divided: Contents, 69; Not-Contents, 99.579
|DIVISION NO. 2|
|Ackner, L.||Macaulay of Bragar, L.|
|Addington, L.||McGregor of Durris, L.|
|Airedale, L.||Mackie of Benshie, L.|
|Avebury, L.||Masham of Ilton, B.|
|Bancroft, L.||Meston, L.|
|Beloff, L.||Mishcon, L.|
|Bledisloe, V.||Monson, L.|
|Bonham-Carter, L.||Oram, L.|
|Brain, L.||Parry, L.|
|Byron, L.||Peyton of Yeovil, L.|
|Carmichael of Kelvingrove, L.||Pitt of Hampstead, L.|
|Cledwyn of Penrhos, L.||Rawlinson of Ewell, L.|
|Cocks of Hartcliffe, L.||Rea, L.|
|David, B.||Rees-Mogg, L.|
|Dean of Beswick, L.||Renton, L.|
|Dilhorne, V.||Rippon of Hexham, L.|
|Donaldson of Kingsbridge, L.||Robson of Kiddington, B.|
|Dormand of Easington, L.||Russell, E.|
|Falkland, V.||Seear, B.|
|Foot, L.||Selkirk, E.|
|Galpern, L.||Shackleton, L.|
|Graham of Edmonton, L. [Teller.]||Sherfield, L.|
|Simon of Glaisdale, L.|
|Grantchester, L.||Stedman, B.|
|Grey, E.||Stockton, E.|
|Hacking, L.||Stoddart of Swindon, L.|
|Hampton, L.||Taylor of Gryfe, L.|
|Hatch of Lusby, L.||Taylor of Mansfield, L.|
|Hooson, L.||Thurlow, L.|
|Hutchinson of Lullington, L.||Tordoff, L. [Teller.]|
|Jay, L.||Turner of Camden, B.|
|Jeger, B.||Walston, L.|
|Jenkins of Hillhead, L.||White, B.|
|Kagan, L.||Winterbottom, L.|
|Alexander of Tunis, E.||Elton, L.|
|Allen of Abbeydale, L.||Faithfull, B.|
|Arran, E.||Ferrers, E.|
|Astor of Hever, L.||Fraser of Carmyllie, L.|
|Belstead, L.||Gisborougli, L.|
|Blatch, B.||Goodman, L.|
|Blyth, L.||Gray of Contin, L.|
|Boardman, L.||Greenway, L.|
|Boyd-Carpenter, L.||Grimston of Westbury, L.|
|Bridge of Harwich, L.||Hailsham of Saint|
|Brookeborough, V.||Marylebone, L.|
|Butterworth, L.||Harmar-Nicholls, L.|
|Caithness, E.||Hayter, L.|
|Campbell of Croy, L.||Henderson of Brompton, L.|
|Carnegy of Lour, B.||Henley, L.|
|Colwyn, L.||Hesketh, L.|
|Craigavon, V.||Hives, L.|
|Craigmyle, L.||Hooper, B.|
|Darcy (de Knayth), B.||Johnston of Rockport, L.|
|Davidson, V. [Teller.]||Kaberry of Adel, L.|
|Denham, L. [Teller.]||Kenilworth, L.|
|Donaldson of Lymington, L.||Kimball, L.|
|Eden of Winton, L.||Kinloss, Ly.|
|Elles, B.||Lauderdale, E.|
|Elliot of Harwood, B.||Lawrence, L.|
|Lloyd of Hampstead, L.||Rochdale, V.|
|Long, V.||Rodney, L.|
|Lucas of Chilworth, L.||Romney, E.|
|Lyell, L.||Roskill, L.|
|McCollofDulwich, L.||Saltoun of Abernethy, Ly.|
|Mackay of Clashfern, L.||Sanderson of Bowden, L.|
|Macleod of Borve, B.||Selborne, E.|
|Margadale, L.||Shannon, E.|
|Marshall of Goring, L.||Skelmersdale, L.|
|Merrivale, L.||Stodart of Leaston, L.|
|Mersey, V.||Strange, B.|
|Morris, L.||Strathclyde, L.|
|Mottistone, L.||Strathmore and Kinghorne, E.|
|Nelson, E.||Teviot, L.|
|Nelson of Stafford, L.||Thomas of Gwydir, L.|
|Newall, L.||Trumpington, B.|
|Nugent of Guildford, L.||Tweeddale, M.|
|Onslow, E.||Ullswater, V.|
|Orkney, E.||Vinson, L.|
|Orr-Ewing, L.||Westbury, L.|
|Oxfuird, V.||Wilberforce, L.|
|Pender, L.||Wise, L.|
|Radnor, E.||Wynford, L.|
|Reay, L.||Young, B.|
§ Resolved in the negative, and amendment disgreed to accordingly.
§ 6.58 p.m.
Lord Prys-Davies moved Amendment No. 11:
Page 2, line 40, at end insert ("except for applications for judicial review challenging decisions by local authorities under Part III of the Housing Act 1985 (Housing the Homeless) or the failure of a local authority to determine a claim for Housing Benefit or Community Charge rebate").
§ The noble Lord said: In speaking to Amendment No. 11, it may be for the convenience of the Committee if I also speak to Amendment No. 32, which is in identical terms.
§ It has been very strongly represented to us on this side of the Chamber by the National Consumer Council, the citizens advice bureaux and the Law Society that the county court should have power to undertake judicial review of a local authority decision on an application for accommodation by a homeless person under Part III of the Housing Act 1985. A homeless person has no right of appeal against a decision under the 1985 Act.
§ An aggrieved person who considers that he is homeless and whose application for assistance has not been adequately met by the local authority may only proceed to challenge the position by way of judicial review in the High Court. According to the evidence that the citizens advice bureaux and the consumer council have collected, those proceedings are felt to be complex and lengthy, so there is a need for more speedy relief at a local level. We are advised that there is widespread demand for a cheap and accessible way for homeless people to challenge a local authority decision on homelessness.
§ Some noble Lords will recall that the Civil Justice Review found that a significant number of respondents had pressed for the creation of a cheap, accessible, local method for challenging local authority decisions in cases involving homelessness. Last year the National Children's Home published a worrying report and came to the conclusion that an accessible means of appeal is urgently needed. That report was in respect of the need to house 580 vulnerable, young, single, homeless people. Many Committee Members will recall how concerned the House was last year over the issue when we discussed the provisions of the Children Bill.
§ The National Children's Home found that a significant proportion of local authorities misinterpret the law when deciding whether a person is vulnerable and it went on to give examples. We are also told that many decisions were taken by officers unfamiliar with the details of the legislation. Some did not think that the law had any relevance to them. It therefore appears that local authorities are able to get away with poor decision-making because vulnerable, homeless people find it difficult to bring High Court actions for judical review.
§ Although I speak as strongly as I can and with as much conviction as I can in support of the amendment, I appreciate that I do so in the presence of some of the greatest authorities in the land on the law of judicial review. I appreciate that in a sense the amendment might be in some difficulty if we have regard to legal theory. Nevertheless, we on this side of the Committee are persuaded by the evidence that the Committee should find a means of enabling aggrieved, homeless people to challenge the local decision locally. To allow an application for a review of a decision to be heard in the High Court would be a small step towards a cheaper and more accessible means of challenging the decision of the local authority. I beg to move.
§ 7 p.m.
§ Lord Roskill
I am sure that the Committee appreciates the motives which underlie this amendment and the other amendment to which the noble Lord spoke but I hope that Members of the Committee will not yield to the noble Lord's blandishments for the following reason. Judicial review is a comparatively new creation in our legal history. It was Sir William Wade who not long ago described the judges as having had a burst of judicial activity in bringing about his much-needed reform for the control of the Excutive. When Order 53 was introduced in 1977 it became plain that, unless it was controlled by those judges who sat in the Divisional Court —the then Lord Justice Donaldson, my noble and learned friend the Master of the Rolls, took control of that Divisional Court in 1979 and 1980 and got the matter under control —there was a grave risk of disparity of decisions developing. It so happened that in a case in the Court of Appeal over which I presided in 1978 or 1979 with the present Lord Chief Justice, the then Lord Justice Lane, the question arose as to whether the Chancery Division should exercise jurisdiction over judicial review. We gave a very emphatic no to that question and there were a large number of reasons for that view. I understand from my noble and learned friend the Master of the Rolls that that is still the position, unpopular as it was at the time.
Judicial review has continued to develop but it has developed as it has over the last 15 years or so only because it has been strictly controlled by one court with judges sitting there who are specialists in the field and are nominated by my noble and learned 581 friend the Lord Chief Justice. I believe that at the moment there are 13 or 14 Queen's Bench judges who regularly sit in that court. If the control is allowed to go to the county courts all over the country, questions of great difficulty —I accept what the noble Lord said; namely, that there are difficult problems with housing —will be dealt with in courts which have no experience of that highly technical field.
The question of jurisdiction is a difficult one. Some of us are all too familiar with complaints in Whitehall that judges interfere too much with the ordinary course of Executive adminstration. The balance which must be struck between those who believe that the power should rest in the Strand and those who believe that it should rest in Whitehall is a delicate one and must not be disturbed. It has been carefully laid down, partly in this House in its judicial capacity, partly in the Court of Appeal and by judges in the Divisional Court. With great respect to those who tabled the amendment and those at whose instance it was moved, it would be wrong in principle to allow that careful and sensitive jurisdiction to he widely exercised. Everyone understands that housing matters such as are contemplated in the amendment are highly delicate and difficult. But judicial review is easy to obtain. It is not expensive to go to the Divisional Court. In many of those cases legal aid is easily obtained.
In a homelessness case dealt with in this House a few years ago, it was plain that the boundary between judicial interference and Executive discretion was dangerously near being impinged upon. Nothing would be worse for the general efficiency of government than that judicial review should get out of hand. It is quite valuable. It has been invaluable and the matter should rest where it is—in the courts which control it.
§ Lord Rippon of Hexham
I entirely share the view expressed so cogently by the noble and learned Lord, Lord Roskill. I must point out that as I understand the position it does not matter whether the provision is included or not because the Lord Chancellor of the day could put it in if he wanted to. Even if it is not included in the Act, a future Labour Government could put it in by order which would require only the affirmative resolution. So we need not worry too much about that. The present Lord Chancellor will probably not include it. A future Lord Chancellor may do so, but it is all governed by order, not by statute.
§ Baroness Faithfull
Perhaps I may ask the noble and learned Lord, Lord Roskill, for some help. Having had to deal with homeless families over many years, I know that it is essential that cases should be dealt with quickly. That is a great problem to those of us who have had to deal with homeless families. Leaving aside the legal situation, where can the case be dealt with most expeditiously?
§ Earl Russell
Having listened to the noble and learned Lord, Lord Roskill, and to the noble Baroness, Lady Faithfull, I think I hear a conflict 582 here between right and right. I do not want to join issue with the justice of what the noble and learned Lord said.
There is another side to the story. It is easy to underrate how difficult it is to deal with the social security system. By now I think that I probably know a little more about it than does the average citizen of this country, but if I had to make my living out of handling the social security system I should be lost very rapidly indeed —the bulk of regulation is so great and the language in which it is put I remember was described quite recently by the noble Lord, Lord Skelmersdale, as somewhat impenetrable.
Constantly handling that kind of thing tends to generate a state approaching mild paranoia in claimants. In that state there is a very great distrust of authority. If authority is arrayed in wig and gown in the High Court, not instantly available, not local and maybe some distance away, that state can become a great deal worse.
None of that in any way denies anything that the noble and learned Lord said. As I observed, it is a conflict between right and right. However, I think we can only approach the task of resolving that conflict if we concede both rights and not just one of them.
§ Lord Donaldson of Lymington
I merely say that it is a curious irony that the High Court is by far the quickest and simplest way of raising issues of judicial review. I would not make that claim for any other part of the work of the High Court but the judicial review jurisdiction has been developed in such a way that anybody who thinks he has been the victim of an abuse of power by local or central government —I use that phrase in a very loose sense —has only to go along to the Crown Office in the Strand and explain his problem. Within certain obvious constitutional limits he will receive advice about the kind of form that he ought to fill in —it is only a question of filling in a form and supporting it with a simple affidavit —and in some cases within hours and certainly within a very few days the matter will go before a single specialist judge. There is a fee, I believe of £10, payable on the proceedings. The matter goes before a specialist judge who straightaway will say whether or not there is a case fit to be investigated.
I believe that it was Lord Justice Woolf who pointed out that being able to have the opinion of a specialist High Court judge for £10 must be about the best value for money known in the legal profession. So there is a great deal to be said for it.
If the specialist judge —I repeat that it is a specialist judge —sees that there is something in the matter, then there is nothing capable of stopping both the judge and the applicant, because if necessary, the judge will virtually conduct the case for the applicant. The respondents will find themselves having to come forward and explain. In fact it is much more efficient, cheaper and quicker than the county court could possibly be.
I should like to add that I think that there is some confusion between the nature of judicial review and 583 an appeal. I cannot help but wonder whether the average citizen who is aggrieved by those forms of decision does not in fact want to appeal. He wants to say that the local authority wrongly exercised its discretion. That is not a matter which is susceptible of judicial review because Parliament has said that it is the local authorities which have to decide these matters. What it amounts to is a plea for a statutory right of appeal. That might well be held to be appropriately dealt with by the county court but it is a different animal. There one is saying to the court, "On the facts this local authority —or this national authority —arrived at the wrong decision. Look into it and substitute your decision". That is an appellate proceeding. If it is properly set up under statute it can be very effective, although I am bound to say that there would no doubt be considerable delay if the county courts were asked to take it on.
But the Divisional Court under judicial review has to ascertain whether the authority has been exercising properly the powers given to it by Parliament or indeed whether it has been ignoring its duties. It is not concerned with the merits of particular decisions. Therefore I venture to think that the idea behind the amendment is also misconceived, although I should be very sorry to see the amendment adopted in any event.
§ 7.15 p.m.
§ Lord Macaulay of Bragar
As a Scottish lawyer I rise with some hesitation even to speak about English law, about which regrettably I know very little, far less would I attempt to interfere with its progress. However, on this occasion I venture to speak because this is not a purely legal issue. The reasoning behind it has a socio-political dimension.
The noble and learned Lords, Lord Roskill and Lord Donaldson, have presented a formidable case for leaving the totality of these matters in the higher courts. One of the problems is that the law can become extremely and unnecessarily technical. We need look only at the development of industrial law which was brought in as a simple process for a reasonable man to understand. It now runs to volumes of cases and has become extremely complicated. One wonders whether there is any necessity for this type of review to be highly technical or so complicated. All that the judge is asked to do is to have a look at how the local authority has carried out its statutory business.
It has to be noted that this amendment does not at all take away the judicial review from the superior courts. In the way in which it has been worded it is designed to deal with matters of housing benefit and community charge rebate. The amendment attempts to keep within the locality what are perhaps minor issues when one considers the whole of life, but major issues to the individuals involved, where it is of the essence that there should be a quick and cheap decision so that the individual can know as quickly as possible where he stands in relation to the local authority.
I respectfully suggest that were this amendment to be carried it would bring a measure of swift justice at the local level in an area which affects social needs 584 and the local authority. It is not the type of review that requires the High Court judge's decision. As I say, it is not an overall transfer. It covers a very limited area with a very limited purpose. I suggest that it is important that in these areas people in the locality should be made aware of what is going on and the decisions that are being made in the name of the authority.
Dealing with what are to the individual important matters at a local level would bring home to the people in the area and perhaps other people with similar problems what was happening in that locality. I should say that this amendment has the support of the Law Society and the National Association of Citizens Advice Bureaux. The latter group is particularly well placed to assess the needs of individuals within society and the problems that they face. It can be seen whether the present system in fact brings a measure of swift and cheap justice to people who may be in dire straits. They are, on occasion, quite pathetic individuals who need their affairs to be dealt with as quickly as possible. Not for one moment do I suggest that everyone who is rendered homeless is a pathetic individual but many of them are people who need a great deal of care and looking after in the stressful times that they are going through. Accordingly, on the social basis if nothing else I support the amendment moved by my noble friend Lord Prys-Davies.
§ Lord Hacking
Notwithstanding the very careful advice that has been given to us by the two noble and learned Lords who have spoken, and not forgetting that when the noble and learned Lord, Lord Donaldson, was the senior judge of the commercial court, his court had the reputation of being the fastest court in the land, I commend this amendment to the Committee and ask for its support.
As the noble Lord, Lord Macaulay, and the noble Baroness, Lady Faithfull, have argued, the amendment raises social issues. As the noble Lord, Lord Macaulay, has said, the passing of this amendment does not offer any serious prospect of disturbing the process of judicial review. When I address the Committee on Amendment No. 31, I shall argue that the main instruments of judicial review should remain in the High Court, and in the Divisional Court of the High Court.
I challenge the noble and learned Lord, Lord Roskill, on one point in his submissions, although his advice has largely been answered by the noble Lord, Lord Macaulay. The noble and learned Lord referred to county court judges who may be taking these cases of judicial review as lacking in experience on matters of judicial review. When I had the honour of appearing in the county courts as a member of the Bar, and before the High Court, I was frequently struck by the great knowledge of law that was needed by county court judges for the wider dimensions of law that they had to apply. I foresee no difficulty with experienced and sensible county court judges taking such judicial review as is provided for in the amendment.
The matter has also received the attention of the Civil Justice Review body. The noble and learned 585 Lord, Lord Griffiths, was a member of that advisory committee. I think that I am right in saying that in the Civil Justice Review no recommendation was made on this issue. However, I refer to paragraph 750 on page 141 of the Civil Justice Review in which the problem was noted. I believe that it is important that the Committee take note of it.
A significant number of respondents pressed for the creation of a cheap, accessible local method for challenging local authority decisions in cases involving homelessness. Preference was expressed for a right of appeal to a County Court in such cases rather than applications to the High Court for judicial review, the latter being seen as a complex, lengthy and expensive method by which to obtain reconsideration of a decision which needed, of its nature, to take place with the utmost urgency".It is an urgent social problem. Members of the Committee who live in the City of London see with their own eyes evidence of young persons who are homeless. They know that it is an urgent social problem. The purpose of the Bill is to provide access to justice. That is an urgent form of access that I commend to the Committee.
§ Lord Griffiths
I rise only as a member of the Civil Justice Review. The passage to which my noble friend Lord Hacking referred reflects the view of many people that there should be a right of appeal from decisions on homelessness. If such a right were to be given I should have thought that the county court was clearly the right place for such appeals.
As the noble and learned Lord the Master of the Rolls has already explained, an appeal is an entirely different process from judicial review. The objective of judicial review is for the judges to ensure that the executive, and indeed all persons holding public office and duties, exercise their powers as Parliament intended. It has two facets. One is to explain the limits of their powers. That is the usual case on judicial review. The argument is whether or not those concerned have exceeded their powers. Another function —very much more rarely needed —is to strike down a decision which, although it may have been within the strict limit of the powers, is clearly an abuse of them. It is a very limited function of review, and it is a very responsible and delicate task. It is not an appeal.
I can assure the Committee that the passage in the Bill which inhibits the Lord Chancellor from passing the function of judicial review to the county courts had the full support of the Civil Justice Review.
§ Lord Boyd-Carpenter
I hope that the Committee will not feel disposed to disregard the highly authoritative advice that we have been given by the noble and learned Lord the Master of the Rolls and the noble and learned Lord, Lord Roskill. There is no question that consideration of a serious social problem motivates those who support the amendment. However, with great respect, the amendment goes the wrong way about it.
As Members of the Committee have been told, the issue has nothing to do with an appeal. It has nothing to do with providing a system under which appeals could be made to the county court against decisions 586 of local authorities. There may be a great deal to be said for that, but the amendment does not relate to it. The amendment deals with the much more difficult and complex subject of judicial review.
As has been hinted to the Committee, the question of judicial review is one for which our courts are entitled to very great credit not least because it has been handled with great tact and restraint. If judicial review were to be unduly frequently exercised it would undoubtedly provoke a strong reaction from Whitehall, from local authorities, and from Government, because it involves challenging decisions which elected people have taken in matters of public administration and public decision. It is greatly to the credit of those who have handled it and —if I may say so in his presence—in particular to the noble and learned Lord the Master of the Rolls that it has been so handled as not to provoke any reaction of that kind. However, if it were to be suggested that it should be made widespread, and exercised in any county court even in a limited number of areas, then a quite different and difficult situation might be created.
The Committee has had the great advantage of advice from those who know more about the subject than anyone else in the country. I hope it will accept that advice and reject the amendment.
§ Baroness Seear
Will the noble and learned Lord comment on the point that the purpose of the amendment might be better served by strengthening the powers of the local ombudsman?
§ Baroness David
I too have put my name to the amendment. I appreciate what noble and learned Lords have said about judicial review. I understand what it is. It is not an appeal.
However, there is a very real social problem here. I take issue with the noble and learned Lord, Lord Donaldson, when he states how easy and quick such a procedure is. From all the evidence that we have had from the Citizens' Advice Bureaux, it is not all that easy for homeless people to walk in, obtain a form, fill it up, and find the f10. That should be remembered.
The Lord Chancellor
I thought for one moment that I should be able to agree entirely with my noble friend Lord Rippon. However, I think that at the very end he unfortunately fell into a small error. Subsection (6) makes it perfectly plain that the Lord Chancellor cannot confer such jurisdiction on the county courts.
§ Lord Rippon of Hexham
Could not a future Lord Chancellor make an order under Clause 1(6) repealing that provision? Having repealed that provision, could he make the amendment now required?
§ 7.30 p.m.
The Lord Chancellor
No, certainly not, because subsection (6) quite plainly restricts the scope of subsection (1). It is plain that if one exaggerates the effect of subsection (1) it may be easier to suggest that such provision should not pass into law. But 587 the matter is quite plainly restricted by that provision. That is why the noble Lord has moved the amendment.
I accept the social problem referred to by the noble Baroness, Lady David, and my noble friend Lady Faithfull. Homeless cases are extremely difficult. It is always necessary to remember that the homelessness law is creating a priority in favour of particular people over others on the housing list. In the case on homelessness referred to by my noble and learned friend Lord Roskill, I had the privilege of being one of his colleagues on the judicial committee. A very difficult and delicate case it was.
As my noble and learned friend Lord Griffiths has said, it is plain that the Civil Justice Review was flatly against judicial review being anywhere except in the High Court. At paragraph 120 it stated that all public law cases should be reserved to the High Court. On the other hand, the review body referred to the problem of a local method of challenging local authority decisions in that area. However, it was thinking primarily by way of appeal. Although it did not go into the matter in great detail, it is plain that the primary option was for an appeal. No doubt an appeal provision would indicate the criteria which the Appeal Court would have in mind and would not leave the issue open as is the case in respect of judicial review.
As regards the suggestion put forward by the noble Baroness, Lady Seear, I believe that where a decision properly taken by a local authority is being challenged it is difficult to regard it in any sense as maladministration. The local authority represents the interests of those other than homeless applicants and, therefore, it has a right to explain to whoever is to adjudicate the reasons for its decision and, if necessary, to support those reasons by evidence, argument and so forth.
With great respect, I doubt whether the local authority ombudsman would be the correct person. As was said by my late noble and learned friend Lord Diplock when rejecting an argument which I put forward in a case, the ombudsman is for dealing with administration but the courts of justice are for giving justice to people and the two are distinct. Whether the homeless person was unjustly refused a home is a matter of justice and, therefore, for some form of adjudication. Strictly speaking, the ombudsman does not have that role.
I hope that, having heard my comments, the noble Lord will consider that the amendment should not be pressed.
§ Lord Hacking
Before the noble and learned Lord sits down can he help the Committee in respect of the matter of appeal? In its report the Civil Justice Review was careful enough to record only views that had been expressed to it on the issue. It recorded the fact that preference was expressed for a right of appeal to the county court in such cases. However, is there not a fundamental difficulty because the appeal system is not available in respect of the decisions of a public body such as a local authority or when a homeless person is trying to remedy a decision made by a public authority? That is where 588 judicial review comes in; it is the reviewing of decisions made by public authorities.
The Lord Chancellor
The noble Lord is right in saying that at the present time the only method available for dealing with these matters is judicial review. My understanding of the report of the Civil Justice Review —and it is confirmed by my noble and learned friend Lord Griffiths —is that the preference for which previously there was argument and representation was some form of appeal. There are plenty of statutory provisions for which there is a right of appeal to the courts in respect of a decision of a local authority. I am sure that the noble Lord is well aware of those. However, normally they provide some form of criteria on the basis of which the county court judge can decide the appeal. The judicial review is an entirely different process available only where Parliament has not thought it appropriate to allow such an appeal. The argument put before the Civil Justice Review was that in such cases some form of appeal should be provided rather than that judicial review should be available. However, none exists at the moment.
§ Lord Prys-Davies
We are grateful for the assistance of Members of the Committee who have spoken in support of the amendment. I have listened carefully to the authoritative advice given to the Committee by the noble and learned Lords. However, the fact remains that many people believe that it is difficult to obtain a judicial review of a decision. We accept that we are talking about a judicial review and not a right of appeal.
We must study carefully what has been said during the course of the discussion and decide whether it is an issue which we should bring back on Report. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Viscount Ullswater
I believe that this is a good time to break and suggest that we do not return to the business until twenty-five minutes to nine. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.