Orders of the Day — ADMINISTRATION OF JUSTICE BILL [Lords].

– in the House of Commons on 27th July 1923.

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Order for Second Reading read.

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

I beg to move, "That the Bill be now read a Second time."

In asking the House to give a Second Reading to this Bill, I have been at a little trouble to consider how best to present it to the attention of the House, because, as I understand it, any Debate at this stage should be merely on the general principles of the Bill. Really in this Bill there is no general principle except one, and about that there is not likely to be any dissension in any part of the House, because the object of the Bill is to render the administration of justice more efficient. The immediate reason for this Bill lies in two facts. First of all, there was appointed about a year ago a Committee to inquire into the offices in the Supreme Court and to suggest improvements and changes. That Committee was presided over by a very eminent King's Counsel (Mr. Tomlin) and it recommended changes which are not very substantial but which require legislation before they can be put into force. The other immediate reason for the Bill is this. As the House knows, there is at present a Consolidation Committee sitting in order to consolidate the provisions of the Judicature Acts and Acts governing the administration of justice some of which have existed for more than half a century and have become somewhat involved in consequence. As hon. Members know a Consolidation Bill does not alter the law, it only consolidates it, and in order to render the task more simple it is necessary to get rid of statutes which have become obsolete or redundant in course of time. This Bill is designed to carry that into effect. Opportunity is taken to suggest also certain minor alterations in the administration of justice which experience has shown would tend towards economy and to certainty and efficiency in some way or other.

There are two important Clauses to which some public attention has been directed, and as they happen to be the first two Clauses of the Bill I should like to say a few words about each. Clause 1 is a provision which deals with the holding of Assizes. As the House knows very well it has been from time immemorial a tradition of our country that the King's Judges shall go into every county and bring the King's Justice there. That is a tradition which, I think, all lawyers value and would wish to maintain. But in course of time the change of population and the change in local conditions have been such that, in some counties at any rate, it frequently happens that the Assizes have to be held at very great public expense, and at a great expenditure of judicial time, for very little purpose because there may be only, one or two cases, or even none at all. A Committee was appointed, under the Chairmanship of Mr. Justice Rigby Swift, to recommend alterations in order to meet that difficulty. That Committee, in a Majority Report, recommended certain alterations which would have had the effect, in practice, of stopping the holding of Assizes altogether in certain towns where there has been for a long time very little business. His Majesty's Government have thought that that was too drastic a step to take, and, therefore, they have not adopted that provision, although they recognise that it would tend to a considerable saving of money and time.

What they have done is to accept, in effect, a recommendation with regard to which both the majority and the minority of the Committee were agreed, namely, that where at any particular Assize it appears that there is practically no business to be done, the Lord Chief Justice shall have power, with the concurrence of the Lord Chancellor, to decree that the Assize shall not be held on that particular occasion. For instance, if there is little or no business at the Summer Assize at some town, say, in South Wales or in North Wales, the Lord Chief Justice may say that, for the purpose of that particular Summer Assize, the Assize shall not take place, the necessary provision being made for whatever small business there is to be transacted elsewhere, so that, of course, there shall be no delay in the trial of any prisoner who may be awaiting his trial. That is a provision upon which both the majority and the minority of the Committee agreed, and it is one which I venture to think the House will accept as being reasonable, as effecting a very real economy, and as not prejudicing the interest of any person in any part of the country.

The second Clause to which I want to draw particular attention is Clause 2, which deals with trial by jury, and I am anxious to deal with that Clause a little fully, because it appears, from a Notice of Motion which I see upon the Paper, that there must be in the minds of some hon. Members an extraordinary misconception, either as to the existing law or as to the purpose of this Bill. I find that there is set down an Amendment, in the names of four hon. Members sitting on the opposite benches— That this House declines to give a Second Reading to a Bill which permanently restricts the right of trial by jury. Anybody reading that Amendment would imagine, I should think, that this Bill restricted the right of trial by jury, and gave a smaller right to trial by jury than at present exists; and the House will, perhaps, in view of that, be surprised to learn that the exact opposite is the purpose and effect of this Clause. Not only does this not reduce the right of trial by jury, but it largely increases it as compared with its present statutory position. If that were not true, and if I could not satisfy the Committee, when the Bill gets to Committee, that that is true, I should be quite content to have the Clause deleted. The only reason why this Clause is inserted is that, in the view of the Government, the right of trial by jury, as at present set out in the Statutes, is not adequately protected, and this Clause is put in for the express purpose of increasing it.

Of course, a question of law of this sort is not a very easy one to discuss in a House which, however carefully it considers it, is necessarily composed of laymen, who have to take the statement of lawyers as to what the law really is, but I will try, without speaking at any length, to explain what the present position is. Since 1873, when the Judicature Act was passed, there has been no statutory right to trial by jury in civil causes in this country, until the year 1918. The mode of trial, whether by jury or without a jury, and the right of trial by jury, were defined by Rules of Court made under the Judicature Act, 1873, which were altered from time to time. In 1918, in the pressure of the War, it was thought necessary very much to restrict the right of trial by jury, having regard to the calls on our man-power and upon the time of all of us which were entailed by the War; and an Act was passed, the Juries Act, 1918, which gave a right of trial by jury in certain specified cases, and said that in all others there should be no jury except for special reasons—which, in practice, meant that there was no jury except in those specified cases.

In 1920, when the War had come to an end, an Act was passed, the Administration of Justice Act, 1920, which somewhat altered the position. That Act provided in express terms that there should be a right of trial without a jury in all cases except those named in the Juries Act, 1918, if the Judge thought that the case could not be as conveniently tried with a jury as without. I suppose that was intended at the time to increase the right of trial by jury, but, in fact, as the Courts have pointed out in recent cases with which learned Members of the House will be familiar, it has no such effect, because no one knew quite what was meant by the expression "as conveniently tried." It would really depend upon the view of the Judge as to what was convenient, and he might think it was inconvenient ever to try an action with a jury. It gave no definite standard, and, further than that, it did not provide that any case should be tried with a jury; it simply provided that there should be a statutory right to trial without a jury in certain circumstances. That, obviously, was an inconvenient course, and it is one which has been the subject of severe comment by the Court of Appeal.

We are trying now to get the law back very nearly to what it was in 1914, with some slight improvements, as we hope, but with this very material alteration, that, whereas, in 1914, as I have explained to the House, there was no right by Statute to trial by jury at all—the rule could be altered at any time by the Rules Committeee of the Supreme Court—we are putting this right into a Statute, so that it cannot be taken away except by Act of Parliament. I think the House will agree that that is a very great additional safeguard and a very great additional privilege for those who believe, as I do, that trial by jury is a very valuable right. The law, if this Bill be passed, will stand in this way: First of all, actions brought in Chancery, which are tried, of course, before a Chancery Judge, will not be tried with a jury unless the Court in any particular case other wise orders. That, as the House will realise, has always been the practice. There has never been a jury in Chancery. But, in order to avoid the risk of people trying to evade a jury, if the plaintiff should be so unwise as to wish to do that by bringing his action in Chancery, we have said that the trial shall be without a jury unless otherwise ordered, so that, if any unfair advantage were sought to be taken of that provision, by bringing an action in Chancery which ought to be a jury action, then there is the power of the Court or a Judge to order that a jury trial shall take place, and, of course, the necessary transfer to the King's Bench Division would be made. Secondly, we provide that where always there has been a right to trial without a jury before the Judicature Act of 1873 was passed the position shall be unchanged. That relates both to actions in Admiralty, for instance, which have always been tried with assessors, or actions which before the Judicature Act used to be brought in the Chancery Division, in which equitable considerations come in and matters of that kind, and they will remain tried without a jury as they always have been for more than half a century past. Then we provide that such actions as false imprisonment, seduction and breach of promise, which were before 1914 actions in which there was a rule giving a right to trial by jury, must be tried by a jury if either party wants it. If an action for libel or slander is brought, it obviously involves the greatest imputations on the honour of one party or the other, or an action for breach of promise or for false imprisonment involves issues which experience shows are eminently issues which a jury ought to try, and accordingly we have taken word for word the old pre-1914 rule and have put that into the Bill. We give an absolute right of trial by jury, whatever the circumstances, in any case of that kind.

Then we have gone on to provide that in all other cases there must be a jury if either party wants it, unless the case is one in which the Judge can be satisfied that it is more fit to be tried without a jury. We have got rid, in other words, of the expression, "as conveniently tried," which has been so criticised by the Court of Appeal, and we have given to either party the right to insist upon trial by jury in all other cases, unless the opponent can satisfy the Court that there is a good reason why it is not a proper case to be tried by the jury. That is a power which will very seldom be exercised because it will be a very difficult thing to prove, but there are cases, and I will give one out of several which have come under my own personal notice in my own personal practice. When I was practising at the Bar, I remember a case in which the whole issue turned upon some very obscure provision of the Spanish law. Foreign law is, in England, a question of fact. There were civil codes and codes of procedure and I know not what upon which Spanish lawyers differed and the Spanish Courts had given different decisions, and the decision as to the Spanish law really determined the action. That was a case that had to be tried before a jury and the jury had to make up their mind what the Spanish law was as a question of fact. Obviously it was a most inconvenient thing and in practice, as we had reasonable counsel on both sides—I was one of them—we agreed, after I think half a day, that the Judge should treat that question as a question of law and decide it himself instead of asking the jury to determine it. I give that instance as being an obvious case where trial by jury would be unsuitable and where, but for this provision, there would be no power for either party to prevent the case being submitted to a jury, which would really mean making the verdict very much of a toss up. It is that sort of case we have in mind, which does not often happen, but happens sometimes, and that is really the only substantial modification we have made in the 1914 rule. We have put this in therefore in statutory form. We have, with this slight modification, codified the pre-1914 practice, which has turned out in 40 years to work out very well, and put it into an Act of Parliament to render it essential for the future that that right shall be maintained.

In the old days I suppose I have been in as many jury actions probably as most hon. Members, and I regard the method of trial by jury as a very valuable safeguard for the rights of the parties in any law suit, and I think the decisions which are arrived at by our method of trial by jury are probably the best approximations to absolute justice that have yet been achieved by any mode of jurisprudence, and it is in order to preserve that right and to put it outside the power of anyone except Parliament itself to take it away, that we have thought it right to extend it in the way I have described and make it part of the Statute law of the land. From the notices on the Paper there seems to have been a misconception about it. It is a difficult topic to discuss in the House, but I am prepared to say now that if anyone satisfies the Committee that it is the case that I am not right when I say this gives a bigger measure of right to trial by jury than exists at the moment, the Committee shall be perfectly at liberty, and there shall be a free vote whether the Clause stays in or comes out, and I think that is a fair offer.

I can pass over the other Clauses very rapidly. There are a number of Clauses which deal with the tenure of office and qualifications for office of various officers of the High Court. They are based largely on the recommendations of a Committee. In some cases they codify the existing law, in others they make clear what was very doubtful as to what the qualifications were, and in other cases they set up modifications. Then there are certain provisions which will tend to economy, such as provisions as to the registration of Deeds of Arrangement and Bills of Sale and as to the necessity for having copies in parchment, and things of that kind, which have become an anachronism in these days, and then there are some provisions in Clauses 11, 19 and 20, which are designed to facilitate the work of the Consolidation Committee by getting rid of obscure and obsolete provisions which will have to be reproduced in the Consolidation Bill, but which in practice would be found wholly unnecessary. I have taken some time in explaining what may be regarded as Committee points rather than points of principle, but really the Bill has no points of principle except the one of efficiency in the administration of justice.

Photo of Mr Edward Harney Mr Edward Harney , South Shields

I beg to move to leave out from the word "That" to the end of the Question, and to add instead thereof the words this House declines to give a Second Reading to a Bill which permanently restricts the right of trial by jury. We have heard a speech, delivered with all the weight that properly attaches to the position of the right hon. Gentleman, and also with the weight that naturally attaches to the utterance of one who has established a great reputation for ability, but emphasis is not always argument, and when the right hon. Gentleman says this is a matter which is only properly understood by lawyers, and therefore lay members may take it from him that the effect of this Bill is to increase the right of trial by jury, I totally differ from him and I propose to show the House why. It is not, after all, a legal question. It is the meaning that is given to the ordinary English language. If this Bill restores the pre-War condition why was it necessary to depart from pre-War language, which was found to be highly satisfactory for half a century? Before the House is in a position really to understand how it comes about that my right hon. Friend and I differ, I must say a few words showing the position of trial by jury at present. Before 1854 every question of fact whatsoever had to be tried by jury. There was no other way of dealing with it. By the Common Law Procedure Act of 1854 an exception for the first time was made, and that exception was that where there were questions of account it was pretty absurd that a jury should be asked to deal with them. That was the first exception. So the law stood from 1854 to 1875. Then the Judicature Act was passed. That Act did not in expressed terms in any way cut down or interfere with the right to trial by jury, but it set up a Rules Committee, and that Rules Commitee was authorised to do what it thought advisable generally in rules of procedure which, of course, included the question of the mode of trial. The first thing that the Rules Committee did was to say, "It is ridiculous that Chancery actions which have to do with the application equitable documents which only can be known by lawyers, and only can be applied by lawyers, should be tried by jury. Therefore, we will put these in a different category."

There were various rules made from time to time. It was said, for instance, that it was absurd that scientific questions involving the prolonged examination of documents, and that style of thing, should be tried by jury. So that was excluded. Subject to those rules, the ordinary right of the litigant to have his case tried by a jury was preserved. There was this distinction made, which it is necessary for the House to understand, that certain forms of action were enumerated which it was thought were particularly appropriate for trial by jury, such as breach of promise, slander, defamation, etc. It was said: "In that type of case you shall have a jury without even asking for it. In every other type of common law action you can have a jury for the asking." So that while there was this distinction between the enumerated actions and other actions, the distinction only went so far as to say that in these other actions, "If you go to the trouble of saying, 'please let me have a jury,' you can have it. In one class of case you need not say, 'please let me have it,' but in the other class of case you must say, 'Please let me have it.' If you say, 'Please let me have it,' then as a matter of absolute right you are entitled to it."

1.0 P.M.

It is, therefore, perfectly clear that, up to the time of the outbreak of War, it was the absolute right of every litigant in this country to claim that questions of fact arising in his case should be determined by a jury of his fellowmen. Then the War came, and, of course, it is a truism now to repeat the fact that there was great difficulty in getting juries. Jurors owed a higher duty to protect their country from an outside enemy. Accordingly, the Jury Act, 1918, was passed. In that Act the only change made was this, that while in reference to what I have called the special class of actions, the enumerated ones, such as libel, slander, breach of promise, the right to trial by jury was preserved, in regard to the other class of case where there was right to trial by jury up to 1918 if the litigant asked for it, a provision was substituted that he could only get a jury if the Judge thought that the case was more fit to be tried by a jury.

That for the first time introduced the discretion of the Judge into the matter. The test by which he exercised his discretion under the 1918 Act was this: prima facie it was assumed that the Judge is the right tribunal, and the right was given to the Judge to say, "You can only get a jury in these cases if you satisfy me that your case is particularly suitable for a jury." That resulted, during the War, in juries being practically wiped out. The Judge always exercised his discretion and wiped out the jury in such cases. It was recognised, when that Act was passed, that we were making a big inroad upon the constitutional rights of the people, because a special Section was put in, which says: This Act shall have effect during the continuance of the present War and for a period of six months afterwards. The War came to an end, and so did the period of six months, but instead of doing what one would have thought was the obvious thing, and restoring the pre-War conditions, the Government passed another Act, the Administration of Justice Act, 1920. That Act also preserved the right of trial by jury in the specific cases I have mentioned; but with reference to the class of case that since 1918 had not the right to trial by jury, unless the Judge thought a jury the more fit tribunal, the Act of 1920 said in effect, "If you want a jury you have to satisfy the Judge that a jury is more convenient." That was the state of the law when in 1922 the matter came before the Court of Appeal. I will not trouble the House with the details of the case which came before the Court of Appeal, but I will make brief quotations from the judgment. Lord Justice Bankes said: If matters are to remain in their present position, it is clear that any right to a jury in an action in the King's Bench Division except in the enumerated cases is abolished. Lord Justice Atkin said: The importance of these cases is that they call attention to the provisions of the Administration of Justice Act, 1920, by which for the first time in history the British subject is permanently deprived of his right to have common law actions tried by jury. For the future, the right to trial by jury is taken away. Now you have, in better language than any in which I could put it, the exact state of the law at this moment, that the right that existed from time immemorial, that was said to be the palladium of British liberty, has, in the words of the Judges of the Court of Appeal, been abolished. The question is, Does this Bill restore that which has been abolished? It is not a matter of legal erudition between my right hon. Friend and myself. It is a matter of the intelligence of the ordinary man. The relevant words are very few. The right that has been abolished is being restored to this extent, and this extent only, that a party shall be able to have his case tried with a jury unless, in the opinion of the Court, or a Judge, the cause is more fit to be tried without a jury. The point I am putting is that unquestionably the pre-War position was that in all common law actions of every kind the litigant had the right to a jury, and no discretion of a Judge could deprive him of that. This Bill so far from restoring that right merely says to him, "You shall have your case tried by a jury unless a Judge thinks that you should not."

If my right hon. Friend says that that is an enlargement of the right to a jury I am quite unimpressed. When he says, as, perhaps, either unconsciously or ingeniously, he did say, "I am prepared to delete this Clause if I am satisfied that we have not extended the right to trial by jury beyond what exists to-day," the answer is, that of course you have extended it beyond what exists to day, but to-day it is withdrawn by a long way from what existed before the War. You had an absolute right before the War. As a war measure you cut away three-fourths of that right. Then, as a permanent measure, presumably through ignorance or not understanding the position, when it was intended to restore to some extent the pre-War conditions, all they did was to stereotype as a permanency what was the temporary position established by the war measure of 1918.

That position undoubtedly was that three-fourths of that right was taken away. Now we are told, "By this Bill we are giving you back some portion of the three-fourths that was taken away." That will not do. We want back the three-fourths. We want a restoration of the pre-War position. My ingenious Friend has said, "Oh, but before the War you had your Rules Committee, and it was always in the power of the Rules Committee to cut away your right. Now we have given you, it is true to a less extent, the right to a jury, but at all events we fix the right by Statute and are better in this way, that while you had more before the War that more was liable to be cut down without Parliamentary sanction. You have less now, but that less cannot be cut down." Even if that were a true statement of the case it would not satisfy Members who think like myself, but it is not a true statement of the position because, although by the Judicature Act the Rules Committee had power to alter the system of trial by jury, it could only do so by laying the Rules upon the Table of this House, and it was only after a certain period that these Rules acquired statutory effect.

Therefore, before the War you were in exactly the same position as that in which this Bill puts you, only that the Bill says that you shall have certain rights which cannot be taken away except by the action of Parliament. Before the War the Rules said that you have greater rights to trial by jury, which also could not be taken away except by Act of Parliament. It is unnecessary to detain the House on the advantages of having to the full extent the right to trial by jury, because it is not contested. But in a body of laymen I think that it is just as well that we should appreciate what those, whose daily life is engaged in the administration of justice, think about the jury system. I will just read two passages, one from the judgment of Lord Justice Bankes and the other from that of Lord Justice Atkin. Lord Justice Bankes said: I trust, however, that the other aspect of the case may also be considered, namely, whether the right to a trial by a jury is not sufficiently important to be restored and maintained, subject always to exceptions which should be precisely indicated. The standard of much that is valuable in the life of the community has been set by juries in civil actions. They have proved themselves in the past to be a great safeguard against many forms of wrong and oppression. They are essentially a good tribunal to decide cases in which there is hard swearing on either side or a direct conflict of evidence on matters of fact, or in which the amount of damages is at large and has to be assessed. There is no particular reason why a party in one class of action should have a jury more than another. Lord Justice Atkin said: I speak reluctantly because I cannot bring myself to believe that this far-reaching result was intended by the Legislature. Trial by jury, except in the very limited cases assigned to the Chancery Court, is essentially a principle of our law and has been the bulwark of liberty, the shield of the poor from the oppression of the rich and powerful. Anyone who knows the history of our law knows that many of the liberties of the subject were originally established and are maintained by the verdicts of juries in civil cases. Many will think that at the present time the danger of attack by powerful private organisations or by encroachments of the executive is not diminishing. It is not without importance that the right now taken away is expressly established as part of the American Constitution. Of course it is a truism that juries are the palladiums of British liberty. Some eminent person rightly said that the British Constitution is based upon getting twelve good men into the jury box, but, being myself a practical man, I do not stress these historical or traditional points. I should like to put to the House a few things that have occurred to myself in my own immediate practice, to show the inadvisability of in any way cutting down this right to trial by Jury. You start with this. You say, "The only questions that ever can come before the jury are questions of fact, for the man in the street, involving whether one witness is more likely to be speaking the truth than another, and involving deductions from conduct such as we are drawing every day in our businesses and domestic affairs" In matters of that kind I tell the House, with all humility, after serving 25 years at the Bar, that so far from a single juryman being worse than a single Judge, in my experience even a single juryman would be better.

I will tell the House why. All of us are apt to become slaves to the instrument through which we work. Judges are trained logicians and you can only reach a logical conclusion by establishing data as a basis on which to work. Evidence is given; Judges have to give reasons for their conclusions; and therefore they must crystallise that evidence into definite facts proved. They can only operate by their mental training upon such portions of the evidence as are worth treating as definite facts. A juryman says, "I know he did, or did not do it" or something of that kind, and he is right, nine times out of 10. But if you said to the poor juryman "Oh, that will not do. You have to tell me how you got to that conclusion," he would say, "I am afraid I cannot tell you that." Then you would have to make sure that the conclusion was such as you could trace from the action of certain facts.

There is the first thing. The next is that all of us are subject to pre-conceptions, all of us have our idiosyncracies. No single individual is capable of giving a thoroughly unbiassed view upon almost any question, and when you get a Judge alone you will get a man with this danger. He is as liable to misconceptions as the rest of us, but he is cleverer than most of us; and therefore he can make the conclusions that really are prompted by misconceptions appear very plausible and very sound. If you get 12 men into the jury box, however, there is a perpetual series of mutual correctives; one misconception is cancelling the other misconception; and what emerges out of a jury room on any given question is pretty well what is certain to emerge from almost any jury you could put into the box. My right hon. and learned Friend used an expression which I think was very advisable and proper. He said, "Our system of jurisprudence is the nearest approximation to justice." Approximation! We can never do more than get an approximation, and the best approximation to justice is what the rest of the community would do if they could get into one jury box. I think that 12 men sitting in a jury box, give you as near as you can possibly get what the rest of the community would do if you had them there.

There is the evidence! One more word, and then I have finished. If you cut away the functioning of a jury as part of the daily work of the Courts you are going to make the law a sort of doctrinaire; and my right hon. and learned Friend, and myself, and the rest of us will soon come to use labels for things, and we shall plead before a Judge by reference to this or the other case, or to this or the other doctrine, and gradually we shall get out of touch with the atmosphere of reality. But, by keeping trial by jury constantly present, you force counsel, and you force Judges to show the substance that is underlying their legal doctrines. There is no use in my saying to the jury, "Oh, this is the rule in Shelley's case," I have to show them what rule it is. I have to be fortified by reference, and to explain the commonsense that lies underneath all the legal doctrines, because only by so doing can you get a jury of laymen to understand. In this way the atmosphere of the Court, which is getting a stuffy atmosphere, is everlastingly ventilated by the fresh air of common sense.

Photo of Sir Wilfred Sugden Sir Wilfred Sugden , Royton

Will the hon. and learned Gentleman say something with respect to the presence of women on juries? Wil he state whether it is going to have any bearing on this question?

Photo of Mr Edward Harney Mr Edward Harney , South Shields

I am very much obliged to my hon. Friend. His question was intended very kindly, and was quite proper. I really did not intend to say anything about women on juries, but since he has put it to me, I will do so. I have always been in favour of women sitting on juries, not because I believe they will bring any greater wisdom to the decisions than a man would do, but for the very reason I have just put. If you have two or three women on a jury, when the jurymen come to consider their verdict each asks the opinion of Ms fellowman. With the gallantry that is natural, and I hope always will be natural, toward women, they ask them first, "What is your view?" and they get the woman's aspect. In that way what does emerge from a mixed jury is even more valuable—because you get the opinion of the majority of the whole community, so to speak—than if you had a jury composed only of men. I would have men and women—butcher, baker, rich or poor, all sections of the community—drawn at random; the idea being that you would get into the jury box a fair section of the humanity that walks the streets. Whatever view that section forms as between the two parties—it may or may not be abstract justice—will be the view that their fellow men and fellow women form, and that is the nearest we can hope to get in the line of justice.

I submit that unless the right hon. and learned Attorney-General is as good as his word and agrees to delete this Clause, we ought to reject the Bill. I understand him to say that if he were really satisfied that the jury system—in which, apparently, he believes quite as strongly as I do—were in any way encroached upon by this Measure, he would be with me in seeing that that encroachment was removed. I understand his point to be this, however, "We really are giving greater facilities for trial by jury than you had before the War." If he still thinks that, and I doubt if he can, then the House, which has heard me—I hope I have made myself clear—must express its own opinion, and I can put in one sentence the three things it has to consider. First, the pre-War position was absolute and unqualified right to a jury; second, the War position was the right to a jury if the Judge thought it was a case fit for a jury and, third, the position under the Bill is that there is a right to a jury unless the Judge thinks it is a case more fit for him. It is true the right is more extensive if you say, "You shall have a jury unless the Judge is more fit to try the case" than to say "You shall have a Judge unless the Judge is more fit to try the case." There is a difference in the areas covered, but I am not concerned with that difference. Whichever area is covered, there is a discretion in a Judge, and in regard to that discretion, it would require a metaphysician to decide whether it will fall within one category or the other. What I quarrel with is that whether you, take the War position or the position as outlined under this Bill, for the first time in the history of British jurisprudence, you take away an absolute right and substitute for it some form of discretion. We are entitled to get back to the old absolute right and if the Attorney-General does not agree to that, I hope the House will vote in favour of my Amendment.

Photo of Captain Reginald Berkeley Captain Reginald Berkeley , Nottingham Central

I beg to second the Amendment.

I am sure the House must be very grateful to my hon. and learned Friend the Mover for his lucid and masterly exposition of the legal position created by the Bill. There is an old Latin maxim—Inter arma leges silent—and I suppose a corollary to that is that, in a battle of lawyers, a layman should hold his peace. There are, however, some observations which I think it it proper to make on this Bill from the point of view of a layman. I hope the Attorney-General will not consider that I am offensive, if I say that on this occasion, and in explaining the effect of this Bill, I think he has treated the House with less than his usual candour. His argument that the Bill did not restrict but enlarged the existing right of trial by jury is completely vitiated—I was going to say rendered quite absurd, but I do not wish to put it so strongly as that—by the exposition of the true facts of the case to which the House has just listened. It is true the Bill extends the provisions which were made under Wartime legislation passed in connection with the drain upon man-power then taking place, but it is quite incorrect to represent it as an enlargement, or even an equivalent, of the pre-War right.

Put in simple form, the effect of the Bill is that what are called enumerated cases under the Judicature Act, that is to say cases in which it was absolutely essential formerly to have a jury, it is now the right of the parties a claim a jury, and in the non-enumerated cases, in which it was formerly the right of the parties to claim a jury, it is now discretionary in the Court to decide whether a jury will be granted or not. Let us take the non-enumerated cases and see the class of action in which litigants may be deprived of the right to a jury at the discretion of the Court. They include cases of contract, cases of negligence or running down, and cases of assault. In cases belonging to these categories it is surely essential to the proper administration of justice, that litigants should have the right to a jury. The House will not be led away by the illustration which the Attorney-General gave of the fact that in our law, a question as to the law of a foreign country is treated as a question of fact to be proved by an expert. It is quite true that cases of that kind do arise but the difficulties involved in them could always be settled in the way in which the right hon. and learned Gentleman has told us they were settled in the particular case in which he was concerned. They can always be settled by reasonable agreement between counsel on both sides, and if it were not possible to settle in that way, juries are composed of sensible men and in a case where a question of foreign law arose, the Judge would direct the jury as to the bearing of that particular piece of evidence upon the case.

Colonel ALEXANDER:

No.

Photo of Captain Reginald Berkeley Captain Reginald Berkeley , Nottingham Central

Surely a Judge is entitled to comment upon the evidence. I have no wish to set my lay opinion against the opinions of my legal Friends, but I have always been under the impression that a Judge, in summing up, had a perfect right to comment upon the evidence and, surely, if a piece of foreign law had been introduced into the case, it would be within the Judge's right to comment upon the effect of that law. May I point to some of the results which may come from too hastily taking away the constitutional rights of British subjects? That may appear a rather high-sounding phrase, but these are constitutional rights, and when one is dealing with them it is no harm to state the facts. In our West African Colonies, for various reasons, it has been thought proper to introduce modifications of the legal system. No doubt these modifications were introduced in order to save time, to expedite procedure and, generally, for the best of motives. The result has been, however, that in some of our West African possessions, the right of trial by jury has been taken away, and as hon. Members who have studied the question know, this has aroused bitter comment and opposition. Not only that, but in making legal: changes the next step comes when you restrict the right of people to employ counsel. It is only one step from the one thing to the other. You begin by tinkering with the system of trial by jury. You are doing it in order to expedite procedure, and your motives are excellent, but then you think of some other method of expediting procedure. Again your intentions are excellent, but the next thing is that you say that your County Court administration would be much simpler if you restricted the right of litigants in certain cases to employ counsel. It may sound far fetched, but I can only say that it has been done in our West African Colonies. I do not suggest that it is a proper course to follow in this country, but I give it merely as an illustration of the kind of results that flow when these interferences take place with the constitutional rights of our subjects. The Attorney-General said he would leave to a free vote of the House the passage or non-passage of this Bill if it could be shown that it did not extend the existing rights.

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

I made no such suggestion. What I said was that in Committee I would leave to a free vote of the Committee the question of deleting this Clause from the Bill if it did not increase the existing rights.

Photo of Captain Reginald Berkeley Captain Reginald Berkeley , Nottingham Central

The right hon. Gentleman is quite right, and I misunderstood him, but that is sufficient for my purpose. I believe that sufficient has been said to convince him that in ridiculing the terms of this Amendment, as he did, he was really stepping a little too far. He ridiculed the Amendment because he said this Bill, in effect, extended the existing rights, but the operative words of the Amendment are these "which permanently restricts the right of trial by jury.' The war-time legislation to which reference has been made was a mere piece of temporary, stop-gap legislation, and I would point out that it is a quite proper use of words to describe this as a permanent restriction of the right of trial by jury. I, therefore, confidently look to the Attorney-General to implement his promise on the Committee stage of the Bill.

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

I rise for the specific purpose of saying that I have listened with very great diffidence to the hon. and learned Member for South Shields (Mr. Harney), and to the hon. and gallant Member for Central Nottingham (Captain Berkeley), and I must confess that, after listening to their arguments, I can come to no other conclusion than that the Attorney-General has made out a very strong case. I stand on this side of the House equally as ready to defend the liberty of the subject and the right of trial by jury as anybody else in any other section of the House, but at the same time I would like to say that Clause 2 of this Bill does, in my opinion, give a much greater certainty of trial by jury than people have at the present time. One has heard, after a great deal of elaboration, what we had in 1914, and what great hardships are going to be inflicted if this Bill becomes law, but if one takes the serious argument of the hon. and learned Member for South Shields, he pointed out that before, people had an absolute right to a jury, and that now they have a right to a jury if they ask for it. I would like to ask hon. Members where the real difficulty arises. Surely people who have any right to ask for a thing, and the law gives them that right, are not suffering, and, after all, people who are before a Court and are directly interested in their own particular action, must be left to be the best judges of their own desires.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

That is what we want them to be.

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

If that be so, then surely there is no hardship if those people are given that right and get a jury when they ask for it. One looks at Clause 2, and cannot help seeing that people have that right. If one looks at paragraphs (b), (c) and (d) of Subsection (1), one sees that it is distinctly stated that if any party to the action asks for a jury, he shall have it.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

Where does the hon. and learned Member find that?

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

In Clause 2, Sub-section (1, d). It reads: Any cause, not being a cause to which paragraph (a), paragraph (b) or paragraph (c) of this Section applies, shall, if any party thereto makes an application, in that behalf, be tried with a jury, unless in the opinion of the Court or a Judge the cause is more fit to be tried without a jury. An hon. Member near me on the Labour Benches says that kills my argument, but I do not think it does. If one looks at the Act of 1918, one sees under Section 1, paragraph (c): If it appears to the Court or a Judge that any action, counter-claim, cause, or matter, or any question or issue therein, is more fit to be tried with a jury than without a jury, the Court or a Judge may, and so forth. Under that Act one has to come before a Court and convince the Court that that particular action to which the person making the application was a party was fit to be tried by a jury, and he had to make a case before that jury was granted, but under this paragraph (d) of the present Clause it is set forth that any party who makes an application to be tried with a jury, unless in the opinion of the Court or Judge the case is more fit to be tried without a jury, shall have a jury. The converse now is the truth, namely, that a person has to come before a Court of Justice and satisfy that Court that this is a case that ought to be tried by jury.

Photo of Mr John Potts Mr John Potts , Barnsley

The hon. and learned Member has given us a reference from the 1918 Act. Can he give us a reference from the Act preceding that Act?

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

The hon. Member who interrupts cannot himself refer me to the Act before the 1918 Act. I would like to say to him—and I believe I am right—that there was no Act before 1918, and, therefore, my information in that respect stands accurate. With regard to the Act of 1920, if my memory serves me rightly, the provision under that Act was, if the Judge thought it convenient. There, again, it is left to the discretion of the Judge to say what is a convenient measure, and some Judges are only human beings like some lawyers and Attorney-Generals even in this House. It is quite possible some Judges may have thought it convenient, and others may have not, but, under the present Bill, there is no alternative. The Judge has not, got to decide whether it is a matter of convenience. If this be put into operation, as I hope it will be, a person will have a right to a jury if he asks for one, unless he can come before the Court of Justice and satisfy the Judge that the case is one which should not be tried by a jury. That is the whole kernel of the situation that is being discussed to-day.

I submit, therefore, in that instance the law as suggested by this Bill is perfectly sound. It gives a greater right than people have. at the present time, and, further than that, it gives them a greater security, with the assurance that if they ask for' a jury, they can get it. Hon. Members have pointed out that a person ought to have a right to a jury without asking for it. Is it fair, is it reasonable to say to a man, "Even if you do not want a jury, you must have one?" Surely it is common sense and common justice if someone is libelled by having applied to him a name which did not suit his convenience—[An HON. MEMBER: "National Liberal!"] A National Liberal, if you like. If you chose to take it before a Court of Justice, it ought to be within the prerogative of the man to say, "I am perfectly satisfied to leave the question whether the term 'National Liberal' is a libel or not to a sound Judge," and I have not the least doubt what the decision would be.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

What about the defendant?

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

The defendant has an equal right to make a similar application. He can go before the Court of Justice and ask to have the case tried by a jury, or say he does not want it tried before a jury, but is quite satisfied to submit himself to a Judge. There is a second reason. Trial by jury is an expensive item. One of the parties has to pay for it.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

How much do they have to pay? A few shillings.

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

It may not be very much to my hon. Friend, but there may be people to whom a nominal expense may be big when they have to pay the bill of the legal gentlemen con- cerned. I say that people going to a court of justice ought to have the prerogative to decide for themselves whether they wish to have a jury and pay for it, or whether they are satisfied to leave the case to the common sense of the Judge, whose decision as a rule is very sound indeed. I disagree with the Bill in one slight respect. Under Clause 7 power is given to include ex-Judges in Commissions of Assize. I take it that means that a legal luminary who, having served his country as a Judge, obtains a pension should be called back to serve on Assizes.

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

Only if he consents. But I would ask the attention of the Attorney-General to this Clause for this reason. I believe that people serving on Assizes ought to be either Judges who are on the Bench or members of the Bar who are practising. I do not think it is to the credit of the legal profession to be deprived of the right of serving on Assizes, and to have their places taken by Judges who are no longer in the service of the country. It ought to be the prerogative of members of the Bar to have that exclusive right if there are no Judges in the pay of the State available to take a particular Assize. I make this suggestion for what it is worth. I hope the Attorney-General will bear it in mind when the Bill goes to Committee, and perhaps some Amendment in that respect may be put in. On the whole, I would like to commend the Bill to the House. I for one am ready to support it, and I believe it will have the support of the rest of the House.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

In the first place, I should like to congratulate the House on dealing with this Measure at a reasonable hour of the day, because when the Act of 1920 was passed in the last Parliament, I think it was dealt with at two or three o'clock in the morning. Discussion was limited, on the appeal of the Prime Minister, and, undoubtedly, that particular portion of it which affected the rights of juries was certainly never adequately considered in this House. Therefore, it is a matter of considerable congratulation that we reach this Bill at a reasonable hour. I was very much interested to hear my hon. Friend opposite. His remarks will be read with considerable interest in the Temple tomorrow morning. How different is his appreciation of juries from the remarks recently made by Lord Justice Bankes, who not only gave a very clear warning to members of the legal profession, but to Members of this House. He said: What was once an undoubted right, and, in the opinion of many persons, myself included, a most valuable right, has been gradually eaten into until at last, if the recently issued provisional rule is to be made permanent, it has been entirely taken away.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

It was a judgment given in 1922 after the recent Act was passed by this House. What a different view of the matter from that taken by the hon. Gentleman opposite! And I venture to say, a correct view. My hon. Friend has been arguing to-day a point which none of us dispute. It may well be that this Bill takes the right of trial by jury further than the previous Act, but the issue we are putting to the Government this afternoon is this: Are we, or are we not, going to restore the same right to the litigants of this country of trial by jury as existed before the War? That is the simple issue.

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

I do not want to interrupt the hon. Member, but he has not pointed out how far this Bill does not restore the original position.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

My hon. and learned Friend should give me a moment or two to develop my argument. I think his best way of dealing with that matter would be to put that question either to the Attorney-General or the Solicitor General. I am afraid neither of them, although my hon. Friend is apparently briefed with them on this occasion, will agree with their learned junior. They will undoubtedly tell the House—I am sure the Solicitor-General will, because he is always eminently fair—undoubtedly he will tell the House—and the House ought to be told most explicitly—that this Bill does not give the same right of trial by jury to the litigants of this country as existed before the War. What I say is this: It is for hon. Members who desire it to get up in this House and address themselves to the reason for this change. The people who advocate this must come forward and say why. I have not yet heard a single argument put forward, or a Member say why this alteration is being made in the Constitution of this country. Who has promoted this suggestion? Whose idea is it that trial by jury should be limited in this way? Have the Judges met? Have they passed any resolution? Has any body of lawyers met? Has any great society met? Whence comes this suggestion that the rights of the citizens from time immemorial should be limited in this way? The only possible answer that can be given is that the previous Act, which has been subjected to such severe comment by the Court of Appeal, did limit, and that inasmuch as this Bill extends it—quite legitimately—therefore it is, as the hon. and learned Gentleman opposite says, "a beautiful Bill." I take no such view.

When the Solicitor-General comes to reply I want him to tell the House why we cannot go back to the same position as we were before the War. I make that appeal to him more particularly because I have a vivid recollection that he got up when he was sitting on this very Bench and appealed to the Attorney-General, who, I think, was then in charge of the Bill, and put the same question to him as I am putting now. In those days the Solicitor-General was a very active and prominent private Member. He took the same view as many Members of this House take this afternoon, and one entirely different from the hon. and learned Gentleman opposite. The Solicitor-General then took the view that there was no reason why trial by jury should be restricted, or why we should not go back to our pre-War methods. There was a reason advanced in 1918 for restricting the right of trial by jury—that was because the jurymen were away. It was unfortunate, but the Judges, it was said, must make the best of the position and get on with the work. That position does not exist to-day. Why should we not go back to the time before the War when the jury system was fully established? I wish my hon. and learned Friend would peruse the important judgments of the three Lord Justices on the present unfortunate position in which this country is now placed in regard to the jury position. They certainly do not take his view of the matter. I have heard of no Judge who has come forward and taken that view that he has put forward.

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

The present Bill, may I say, does extend a much greater right of trial by jury than was the case when these judgments were given.

2.0 P.M.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

My hon. and learned Friend is perfectly right in so saying. No doubt this Bill has been brought forward in view of the severe comments made by these Lord Justices. I doubt whether a Bill would have been brought forward but for that. He must not pretend for a moment—I am sure he will not do so—that this Bill by any means receives the assent of the Lord Justices! Very far from it. Because Lord Justice Bankes suggested that we should get back to our pre-War conditions. I ask the Solicitor-General, who is present: Why are we not going back? What is the reason? It is a strange thing that the right hon. and learned Gentleman the Attorney-General to-day has made a most remarkable offer to this House. He said, in the course of his speech: "If I cannot get up in Committee and prove that this Bill does not go further than the previous Act, then I am prepared to leave it to the free vote of the Committee." That is not what we want. What we want is to have a vote o his House as to whether we cannot get back the full position of the litigants of this country of trial by jury as it was before the War. I would remind the Solicitor-General of a statement of Lord Justice Bankes, who says: It is surely not the best way of determining whether a case shall be tried by a jury to leave to what is practically the uncontrolled discretion of a Judge a question upon which individual opinion may so widely differ, and to leave it without any indication of the matters which should be taken into consideration in arriving at a decision. Surely that is a wise and careful statement to make? What we really want is not to be given the points raised by the hon. and learned Member, but to be told how we are to put the people of this country, the citizens, in the same position as they were before the War. If not, we want to know why not? I do not know where this suggestion has come from at all. I think the best thing that can be said for trial by jury was said by Lord Justice Atkin in the same place: Trial by jury, except in a very limited number class of cases assigned to the Chancery Court, is an essential principle of our law. It has been the bulwark of liberty, the shield of the poor from the oppression of the rich and powerful. Anyone who knows the history of our law knows that many liberties of the subject were originally established and maintained by the verdicts of juries in civil cases. Many will think that at the present time the danger of attack by powerful private organisations, or by encroachments of the executive is not diminishing. Are encroachments of the Executive diminishing to-day? Does my hon. and learned Friend think that? I see no signs of it, either during the last Parliament or this. I venture to tell the hon. Member opposite, who, no doubt, has some acquaintance with the law, that it is essential, very essential, that the right of trial by jury should be restored in full for the very reason which Lord Justice Atkin has laid down. The Attorney-General relies on what is done in this House on the last occasion when, as I say, there was a most incomplete discussion. What does Lord Justice Atkin say about that? He says this: I am not prepared to speculate what the precise limitations in the minds of the Legislature were, and though I have serious misgivings whether we are correctly interpreting the real intention of Parliament, I am unable to put any meaning upon the words other than adopted by the other members of the Court. What, in fact, did happen? The Solicitor-General will correct me if I am wrong, but I think throughout the whole discussion on the last Act there was never a full and complete statement made in this House that trial by jury was at all to be restricted. If this House for a moment had realised that we were going to put on the Statute Book an Act that was going permanently to restrict the power and the right of trial by jury they would never have done it. I feel very strongly on this matter. I hesitate very much before I assent to the Second Beading of a Bill which contains this principle. The Solicitor-General may say that this is a Committee point. It is not a Committee point. We are here affirming a very important principle if we pass the Second Beading of this Bill. We are going to lay down permanently that we are not going back to our 1914 position. I regard that with some apprehension. Only the other day a County Court Judge's decision was the subject of review by the Divisional Court, and the Judge said: I find my hours are so crowded that I decline to give a certificate for a jury to sit with me. He said that he did not want a jury.

Photo of Lieut-Colonel Maurice Alexander Lieut-Colonel Maurice Alexander , Southwark South East

On a point of Order. May I point out that I did not say that I was advocating the slippery slope of trial by jury, because under the present Bill the Judge has no alternative?

Photo of Lieut-General Edward Fitzroy Lieut-General Edward Fitzroy , Daventry

That is not a point of Order.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

This is what was said in the Divisional Court with regard to a particular Judge: Here the Judge seems to have thought that it was a matter for him to say whether the case should be tried with or without a jury. The ground for this decision seems to have been that the lists of the Court happened to be very congested, and if the case was tried by a jury the trial of other cases would have to be postponed. In this case a distinguished Judge came to the conclusion that these people should be deprived of their right of trial by jury. I appeal to the House and to the Government to reconsider this matter, and I do so with all the more confidence because I think it is the universal desire of the profession, and in the interests of the citizens of the country. I think we should be doing a wise thing to go back to the old system, and I do not think any adequate reason has been advanced for any change. I hope the Government will conclude that this matter is one which ought to be left to a free vote of the House.

Photo of Sir William Adkins Sir William Adkins , Middleton and Prestwich

As one who has urged in every possible way that this Bill should be discussed in the light of day, I desire to thank the Solicitor-General for having put it down now, instead of attempting to smuggle it through the House in its darkest hours. This Bill contains provisions which those in any way connected with the legal profession are very glad to have submitted to Parliament. Many of those provisions are wanted because they will economise and strengthen the administration of the law. In a Bill of this kind, which contains a variety of provisions, it would be more than human to expect all of them to be good. As to Clause 1, I have grave doubts about a discretion which is given to the Lord Chief Justice about the holding of Assizes, because I think that is going too far. I know it is a Committee point, but it is one of the first magnitude, and I desire to say that while it is perfectly right where there are no prisoners for trial, or causes set down, that Assizes should not be held at all, I think you require more careful restrictions before you leave the settling of this substantial point to the discretion of any Judge. Many things are considered substantial to litigants and the people of the neighbourhood who do not appear so important to people who have other things to do.

With regard to Clause 7 surely it is desirable that where ex-Judges are available to try cases they should be allowed to do so. This will increase the efficiency of the Courts and prevent much of the embarrassment which arises at the present time. With regard to Clause 2 what on earth is it that the Attorney-General really means? Does he mean to go back to the pre-War practice or not? If he does, why does he not say so distinctly; and if he does not, will he give us a reason or instruct the Solicitor-General to do so? This Clause, though very carefully worded, does not substantially alter the position to-day. I know it puts the onus of the Judge's decision the other way, but does it touch the point that whereas before the War the right to a jury was absolute it will in future depend on judicial discretion, and is it a fact that under this Clause it depends on judicial discretion still. If a Judge takes the view, unlike the Court of Appeal, that the less jury cases he has the better is he able to express that view, or does my right hon. Friend say that he cannot do so.

Photo of Sir William Adkins Sir William Adkins , Middleton and Prestwich

It says in Clause 2, paragraph (d): Any cause, not being a cause to which paragraphs (a), (b) or (c) of this Section applies, shall, if any party thereto makes an application in that behalf, be tried with a jury, unless in the opinion of the Court or a Judge the cause is more fit to be tried" without a jury. That is surely making the jury dependent on the discretion of the Judge. My hon. Friend said that some of the Judges are human, but whether they are human or divine the argument would apply, and they would act upon their view as to whether it was a suitable case to be tried by a jury, and that is exercising their discretion in the matter. We want it made perfectly clear whether there is or there is not judicial discretion on this point. If the right hon. Gentleman is right and states that there is given in this Clause the absolute right to have a jury will he be good enough to say so, and promise to put it in words which are not ambiguous and make it perfectly clear.

This may be called a Committee point, but some of us believe that it is in the interests of the public and all concerned that the right to a jury which before the War was very extensively availed of should be made perfectly clear and absolute, and should not depend upon the discretion of any individual. Those of us who desire this right to be maintained press upon my right hon. Friend not to imperil or embarrass the procedure of this Bill, but take a more definite line and present a Clause much freer from doubt than the one which we are now discussing.

Photo of Mr John Simon Mr John Simon , Spen Valley

I greatly regret that I was not in the House at the time to hear the statement made by the Attorney-General at the beginning of the debate. There are two questions which certainly should be kept entirely distinct, and, as regards one of them, there ought not to be, and with the skilled guidance which we have from the Law Officers I am sure that there will not be, any real dispute. One question is whether or not this Bill does restore the position, so far as regards the right of trial by jury is concerned, as it existed before the War began. That is a question which laymen may very properly turn to lawyers to answer, but it is a question which is of very great general importance. The importance of it far transcends the technicalities of lawyers, because it is deeply involved both in the rights of ordinary citizens and in the constitutional traditions of the country. The other question which might arise is the question as to whether or not it is desirable to make any change from what the practice was before the War broke out. Those two questions are quite distinct, and it is desirable that they should not be confused one with another.

As regards the second question—the question whether we ought after the War to have different arrangements as to the extent of the right to trial by jury from those which prevailed before the War broke out—I do not understand that the Attorney-General makes any such suggestion. I do not understand that the Government are bringing forward this Bill and avowedly and openly urging the House of Commons to restrict the right to trial by jury as it existed before the War. If, indeed, that issue be raised, there is a great deal that may be said about it, and it is by no means a Committee point. It is a point of the greatest and most fundamental importance. If I assume that is not the defence which is offered for this Clause, then I am left with the other question which ought to be capable of a distinct and clear answer by any trained person; and it is one on which it is surprising that there should be controversy. Does this Bill really restore the position as regards the right to trial by jury as it was before the War? If the Solicitor-General is going to reply, I would ask him to be good enough to follow the matter through in some such way as this. My understanding is that in civil trials in a Common Law Court before the War broke out, there were certain classes of action as to which you could give notice of your desire to have a jury at the time which is provided in Rule 2 of Order 36, and under Rule 6 of the Order, in any other cause or matter upon the application, within 10 days of the notice of trial which has been given, of any party thereto for a trial with a jury of the cause or matter or any issue of fact, an order shall be made for a trial with a jury.

If I put those two things together, then I have this result. We have nothing at all to do with proceedings in the Chancery Division, which deal very largely with documents and with matters which you could not ask ordinary citizens to judge sitting as a jury. We have nothing to do with a case where the matter to be decided involves a prolonged examination of documents or a detailed examination of accounts, because anybody who has been responsible for conducting a case before a jury knows that it is very difficult to conduct it if there be an immense mass of documents of which each juryman wants to have an intelligent knowledge. Putting those cases aside, my understanding is that, whether under Rule 2 or Rule 6, in any other action in a common Law Court, whether it was an action for slander, libel, false imprisonment, malicious prosecution, seduction, or breach of promise of marriage, or whether it was any other Common Law action, such as negligence or nuisance, the party, if he were so minded, could secure a jury as a right. I do not believe that anybody who is at all acquainted with this subject matter will dispute that that was the position before the War. Let me take as a simple example, an action for negligence. Of course, if it be simply a running down action, if it be an action brought against a motor omnibus because it has knocked down somebody in the street, it is obvious that a jury is perfectly well able to attend to the evidence and to assess the damages, and I have no doubt that under this Bill any Judge would so hold.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

Judges are not holding that.

Photo of Mr John Simon Mr John Simon , Spen Valley

I am saying that under this Bill I should have thought that they would. Let us, however, take a very different kind of action, an action such as is sometimes sought to' be brought against a professional man, a solicitor, a surgeon, a dentist, or what you please, alleging that he has been careless in the discharge of his duty. I can quite understand some Judges saying, "I shall try this case very much better than a jury.' But as I understand the law before the War, the plaintiff in such a case in a common law action was entitled to say, "I want my rights here ascertained by calling together 12 of my fellow citizens," who, so far as matters of fact are concerned, under the direction of the Judge, are able to determine which of two sides is telling the truth and is to be believed, and which is lying, and who can bring their own practical citizen's good sense to bear on the matter. That was undoubtedly the position before the War. Is it the position under this Bill? As I read this— Any cause, not being a cause to which paragraphs (a), (6) and (c) apply"— and negligence therefore is included— shall, if any party thereto makes an application in that behalf, be tried with a jury, unless in the opinion of the Court or a Judge the cause is more fit to be tried without a jury. What was there before 1914 which provided that in an action for negligence or nuisance or an action on contract, apart from the prolonged examination of documents or the investigation of accounts, the right to a jury depended upon the opinion of the Court or a Judge as to whether the cause was more fit to be tried without it? There was nothing of the kind, and I invite the Solicitor-General, when he answers in this Debate, to tell me whether I am wrong, or whether during the 20 years I have been at the Bar I have been under the misapprehension that either party in an action of that sort could claim and could get a jury as a matter of right and could only be deprived of that right, providing he took the proper steps, if, indeed, the action was one that involved the prolonged examination of documents or the investigation of accounts. If that be right, what is the good of saying that this Bill is restoring the right to trial by jury which existed before the War?

May I be permitted to make this one observation on the other branch of the subject. I do not approach this subject in a professional spirit or from what one may call the lawyer's point of view. My own view of the matter is that the question of preserving the right of trial by jury goes far beyond any professional interest or any technical legal question. It is a great and proud British possession. It is the fact that the liberties of this country have in times past been very largely preserved and secured by preserving and increasing the powers of juries. Everyone will agree that the right of the jury to answer a question "Aye" or "No," "Is this a libel," has had a great part in protecting the rights of subject. I have in mind an illustration—a striking illustration of the value of a jury when more than 100 years ago William Hone, a bookseller in London, was tried on three successive days in the City of London on a criminal charge of blasphemous and seditious libel. Mr. Justice Abbott tried the case first but on the third trial the Government of the day were so anxious to secure a conviction that they sent Lord Ellenburgh down to the City. I well recall that the jury exercised their right by acquitting the defendant, although undoubtedly the authorities were very anxious to secure a conviction.

Those, of course, are criminal cases, untouched by this Bill, but I offer the opinion for what it is worth to the House that the protection which is afforded by the use of a jury in civil cases is a much more valuable protection than many light-hearted critics suppose. No one disputes the impartiality of the Judge, but the prejudices of one individual can be corrected by gathering together 12 individuals, none of whom may be anything like so learned as the Judge. Some of our very best Judges have felt that most strongly. There are some questions that arise which depend for a proper decision far more on practical good sense than on the exercise of great judicial qualities. Anyone who has had the business in life of conducting cases in which juries take part know this. What I have been struck with often is that the British jurymen undertakes his task in such a serious spirit. He may, of course, suffer from prejudice, like the rest of us, and sometimes he may allow that prejudice to run away with him, but when you get men gathered together out of the street, put them on a hard seat, and impose on them very serious conditions such as that they must not speak or interrupt, that they must listen even to a tedious Counsel or to a joking Judge, I say that the most surprising and satisfactory thing about the British juryman is that he sets about his task within the limits of his power in a way which is a great credit to our national character.

It seems to me that if before the War that system worked well, as I believe it did, the system which gave as a right a jury, on the application of the litigant at Common Law, in any kind of action apart from special cases which were by rule barred for practical purposes, then it is a serious departure from our pre-War practice to say that the right is not to be continued if, in the opinion of the Judge or Court, the case is "more fit" to be tried without a jury. The frailties of human judgment and human prejudices cannot be got rid of by going before either a Judge or a jury. In those cases that come into Common Law Courts, apart from detailed examinations of documents, if you get both a Judge and a jury on the whole you are securing the best instrument of justice. The House must not act as though, by having a jury, it is handing over the duty from the Judge to the jury. That is not the alternative. The alternative is between no jury and a Judge with a jury to help him. Whatever function the jury plays, it is a function completely under the direction of a Judge under whose very skilful, though often unseen, guidance, the juries discharge their duty solely with reference to facts. It is the experience of many that the fact of handing over to juries the assessment of damages, the question whether proper care was taken or whether people are fraudulent or honest—is to hand over something upon which the ordinary citizen is perfectly well able to form a pretty shrewd opinion, and you get better justice, because the Judge can apply his mind to the law with which he is acquainted without being embarrassed with questions of fact. Before the Debate concludes, I would ask the Solicitor-General to deal with a matter which I think is proper to be dealt with on the Floor of the House. Does the hon. and learned Gentleman tell the House that this Bill restores the right of the ordinary litigant to claim a jury as that right existed before the War? I do not believe it does. If it does not, it is a matter about which the House of Commons ought to be invited to express its opinion.

Photo of Colonel Josiah Wedgwood Colonel Josiah Wedgwood , Newcastle-under-Lyme

Although this Debate hitherto has been largely between the Liberal party and the Law Officers of the Crown, we ought to make it quite clear that, on this question of Judge versus jury, the Labour party are wholeheartedly with the opposition brought forward to this Bill. The perpetual and never-ending conflict between the executive and the democracy is merely exhibiting itself in a new light to-day. If it is a question on the one side of the experts and on the other side of the man in the street, we on these benches have a prejudice in favour of the man in the street. More than that, we have here an example of Government short-sightedness. Here is a Bill the large majority of the Clauses of which are excellent. There is just this one Clause, Clause 2, to which serious objection is being taken, and it is on account of this Clause that all the difficulty has arisen, in spite of the fact that, as I believe, all Members in this House, belonging to all three parties, are absolutely united in desiring to get back to pre-War conditions in this regard. It is perfectly well known that trial by jury was curtailed during the War. We all remember the reason, and it was well known at the time—there were not 12 men to get to sit on juries, and, therefore, we had to curtail the natural normal resort to trial by jury. For that reason only, during the War, the normal rights of British subjects were curtailed. Now, there is no sort of excuse. With the present unemployment, juries can easily be found. What is the reason against it? What is the argument that the Attorney- General and the Solicitor-General put forward for this particular Clause? They do not bring forward a single argument against the restoration of pre-War conditions, but they say that this Clause does restore them. That, surely, is a matter which the layman can decide as well as the lawyer, and any layman—

Photo of Colonel Josiah Wedgwood Colonel Josiah Wedgwood , Newcastle-under-Lyme

I understood him to allege that this restored pre-War conditions. Obviously, to anyone reading the Clause, it does nothing of the sort, but if that was not alleged, then we really ought to have from the Law Officers of the Crown a serious defence of a change in the established practice of this country. Is there any argument that can be brought forward to show that a Judge without a jury should now take the place of a Judge with a jury, to which we have been accustomed throughout the centuries? If there are any arguments in favour of that, let us have them; if there are none, let us go back to pre-War conditions. On these grounds I hope the Government will see their way to accept the Amendment which has been moved, or else to give a pledge that, when this Bill goes to a Committee, a free vote will be allowed on the question whether this Clause does or does not, or can be made or cannot be made, to restore pre-War conditions. The pledge we have at present is a pledge of no value whatever. It is admitted all round that this is an improvement upon the existing conditions. So far, we are all at one, and when we are offered the opportunity of a free vote if it can be shown that the present Bill is not better than the present conditions, we are being offered nothing at all, because this Bill is, obviously, better than nothing. But it does not restore pre-War conditions, and, until we get those conditions, I think we are entitled to oppose this Measure.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

It must be a satisfaction to my right hon. Friend who introduced this Bill to feel that, although the Bill comprises some 22 Clauses, there is only one that has been the subject-matter of any serious criticism. As the hon. and gallant Gentleman who has just spoken said, the Bill is excellent, I understand, subject to quite minor Amendments, in every respect except as to the Clause which deals with the question of juries. The hon. and learned Member for Middleton (Sir R. Adkins) did refer to one point in connection with the power to dispense with the holding of Assizes in places where they are considered unnecessary, but I think that, perhaps, he overlooked the fact that that is only to be decided by the Lord Chancellor, and I think it is a reform which, generally speaking, has commended itself to all those who have considered the question. The serious matter, however, that has been discussed by the House is Clause 2, which deals with the essentially British institution of the jury. As the right hon. and learned Gentleman the Member for Spen Valley (Sir J. Simon) pointed out, of course everyone will recognise that the Bill does not deal at all with the question of juries in criminal matters; it is entirely confined to the question of juries in civil matters. Also, in spits of an observation of my hon. Friend the Member for West Woolwich (Sir K. Wood), which was, perhaps, not intended to have the effect that it did have—namely, his question whether this Clause deals with juries in County Courts—there is a Clause in the Bill which is certainly an extension of the existing right to have juries in the County Courts.

Photo of Mr Edward Harney Mr Edward Harney , South Shields

Would the Solicitor-General give the ipsissima verba of that Clause?

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I do not know what the hon. and learned Gentleman means by asking what are the ipsissima verba. If he will read the Clause for himself, he will find that it is Clause 12, which deals with trial by jury in the County Courts, and I do not think anyone would suggest that that Clause either cuts down the existing right or in any way lessens the right to trial by jury in the County Courts that existed before the War. In that respect, therefore, also, the Bill is perfectly satisfactory to every one. The criticism made against the Bill is in respect of juries in civil causes, which are dealt with in Clause 2. The right hon. and learned Gentleman the Member for Spen Valley asked two questions, which he said were the questions which the House has to consider and decide. The first was, does the Bill restore pre-War conditions; and the second, is it desirable to make any change? The right hon. and learned Gentleman suggested that, if those two questions are answered in a particular way, the result ought to be to lead the House to reject this Bill, because that is the Amendment that has been moved. Might I suggest to the right hon. and learned Gentleman that those two questions are not questions which the House has to ask itself? The law as it existed before the War was embodied, as the House will remember, neither in Magna Charta nor in any other Statute, but in Rules of Court, which were subject to alterations from time to time by what is called the Rules Committee. The law, or practice, as it existed before the War, was altered, first of all, by the Act of 1918, which was a temporary Act, and, secondly, by the Act of 1920, which, no doubt, did cut down the pre-War practice with regard to the right of trial by jury. This Bill, in my submission, and I am sure my right hon. and learned Friend will not demur to this, extends the right of trial Toy jury as enacted in the Act of 1920; and, therefore, the question which the House has to decide, when making up its mind as to whether or not it will accept the Amendment to reject this Bill, is: Is this Clause an extension or not of the existing law as to the right of trial by jury? The question is not, does it restore the law as it was before the War—

Photo of Mr John Simon Mr John Simon , Spen Valley

Would the Solicitor-General do me the honour of answering my question, which some people think is relevant—Does this Bill, according to his understanding, restore the right of trial by jury as it existed before the War?

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

If the right hon. and learned Gentleman intended to suggest that I was guilty of any discourtesy because I had not answered his question at once, I apologise to him. I was merely dealing, first of all, with the question which, as he suggested, the House has to consider; but I was going on in my next passage to answer, as I will candidly, the question which he asked: Does this Bill restore the pre-War conditions precisely as they were? My answer to that is that the Bill does not, and that it is not designed for that purpose. I do not think that anyone in the House who has read the Bill could have read it as saying that the pre-War conditions were restored precisely.

Photo of Mr Edward Harney Mr Edward Harney , South Shields

On a point of Order. We shall see in the OFFICIAL REPORT, but I understood it was opened that, not only did this Bill restore the pre-War conditions, but that it extended the pre-War conditions.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I had not the advantage of hearing my right hon. and learned Friend the Attorney-General, but he tells me that, in his speech in which he moved the Second Reading, he stated that the Bill enlarged the existing right of trial by jury, with the result that there will be modifications upon the pre-War rights of trial by jury, and that, I think, is apparent to anyone who is as familiar with these matters as most of my hon. and learned Friends who have discussed this question in the House this afternoon. It is because there are, as it seems to the Government, reasons for modifying in not very important respects the pre-War practice that this Bill has been introduced in this form. I think it will be conceded by the right hon. and learned Gentleman the Member for Spen Valley that this is an advance—not such a great advance as he would desire, but still an advance upon the law as it is enacted in the Acts of 1918 and 1920. The question is whether the Bill, which modifies to some extent the law and practice as it existed before the War, goes as far as is desirable—and not whether the Bill should be rejected because it cuts down the existing right of trial by jury, but does it go as far as some hon. Members think would be desirable in restoring what they call the full right of trial by jury? No one, I am sure, will suppose that the Government, any more than anyone else, has not the greatest possible respect and admiration for the jury system. We have all practised before juries. We admire their courage and independence. It is essentially a British institution and it has been the instrument by which many of our liberties have been obtained. But I would have the right hon. Gentleman notice that the illustrations he gave as to the trial in the City of London a hundred years ago was a case which would certainly have been outside the Bill, as he said, first of all, because it was a criminal proceeding, and secondly, it would have been an action for libel, in which case the right of the litigants to a jury would have been indefeasible under this Bill. I suppose the cases which are in most Members' minds in which the liberties of the subject have been obtained are those famous trials for libel where the jury time after time resisted sometimes the guidance of the Judges as to the law, cases in which to-day under this Bill if it became law the litigants would be entitled to a jury.

The right hon. Gentleman suggested many cases in which a jury would not be given under this Bill in which it would have been given before the War, but I think he is inaccurate in one not unimportant respect. He gave two illustrations outside those which are contained in the Bill in Clause 2 (1, c), as cases in which the litigants would have been entitled to a jury before the War and now would not be entitled. They are cases of negligence and cases of nuisance. In the case of negligence I agree that before the War there would have been an indefeasible right to a jury, and now it will be governed by paragraph (d) and they will be tried with a jury, unless in the opinion of the Master or the Judge the case is more fit to be tried without a jury. But I can hardly conceive any Judge who would say that an ordinary running-down case or a case of negligence is more fit to be tried by a Judge than by a jury.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

That is quite a different question. This Clause does not deal only with cases of negligence, but compendiously with all cases, and if any Master or Judge said an ordinary running-down case was more fit to be tried by a Judge than by a jury I imagine the Court of Appeal would correct such an impression, if it was in the mind of the Judge, at the earliest possible moment. That is the view I present to the House, and I think most hon. Members would agree that no Judge would say an action for negligence is more fit to be tried by a Judge than by a jury. Now as to the case of nuisance. The right hon. Gentleman suggested that in such a case before the War there would have been an indefeasible right to a jury. I think he is wrong. It would come under Rule 4 of Order 36, which provided that in questions or issues which before the passing of the Supreme Court of Judicature Act of 1873 would have been tried without a jury, there should be no right to a jury. Therefore, if an action for nuisance was brought in the King's Bench Division there would be no right to a jury, though the Judge might order it on application to be tried with a jury. The position to-day would be precisely the same in regard to that important class of action as it was before the War and I think what I am saying will be found, on examination of the rules, to be an accurate statement of the position. It comes back to this, that in many of the classes of actions with which we are most familiar, libel, slander, seduction, malicious prosecution and false imprisonment, there is an indefeasible right to a jury. In another class of case, such as that of nuisance, there will be the same right to trial by jury as before the War.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

Precisely the same right. In such cases as those of negligence, commonly called running down cases, and contract, subject to what I am going to say in a moment, they will be tried by a jury because no Judge will be able to say that they would be more fit to be tried by a Judge than by a jury. The cases in which a Judge would be most likely to say they were more fit to be tried by a Judge than by a jury would be where, without exactly saying there were a large number of documents which would require to be examined, which would bring the case under a different rule, there were considerations which it was difficult for the jury to appreciate without close opportunities of examining perhaps a plan, or one or two plans, which the Judge might have. The case which occurs to one is a case of fraud which I remember was brought in connection with the working of a colliery. It did not involve a very large number of working plans, but it involved a certain amount of mining and technical knowledge. If my right hon. Friend's wish was followed a litigant would have an indefeasible right to have that case tried by a jury. I think what would usually happen is what has happened in the experience of most of us, that 12 honest men would be summoned there to hear the opening and at the end of two days it would be recognised that it was really impossible to decide the case by a jury, and everyone would agree to dismiss the jury and the case would go on before the Judge, as, indeed, it ought to do and will do under this Bill, because it would be more fit to be tried by a Judge than by a jury. I am sure my right hon. Friend will bear me out that there are innumerable cases within his experience where that has happened. The parties have applied for a jury and have got a jury under the old system, and when he and the Judge and his opponent in the case have considered the matter broadly, they have all agreed to dispense with the services the jury can render.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

Then why alter the old practice?

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

We are now going to avoid the inconvenience of that course, and say the parties may apply to the Judge before the case comes into Court, instead of after it has come into Court, to say whether it is more fit to be tried by a Judge than by a jury.

Photo of Mr John Simon Mr John Simon , Spen Valley

I should like to put what I think the difference is. This is not a party question at all and we are all trying to discover what is the best solution. The difference between the two cases the hon. and learned Gentleman puts is this. It is one thing when a case has been prepared for trial and the two sides know all about the dispute, and the case is opened and the details are appreciated, to say at that stage, "Now that I look into the heart of this case, sensible people will agree it is better not to have a jury." It is quite another thing to go on a summons, which probably is disposed of in the course of two or three minutes before a Master or a Judge sitting in chambers dealing with a list of 20 or 30 cases—he must inevitably knock these things off pretty rapidly—before the material is all collected, before the evidence is accurately known, and say, "Now is this a case which is more fit to be tried with a jury or without?" That is the real difference. My hon and learned Friend puts it very fairly, but he knows there is the most enormous difference between those two things.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

My right hon. and learned Friend is quite entitled to make that addendum to his observations by way of reply to my statement, but I think he has a little exaggerated the way in which these matters are dealt with before the Master or the Judge.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I can only give my experience, which I think is quite as great as that of the hon. Member for West Woolwich (Sir K. Wood). On many occasions I have attended before the Master or the Judge on appeal as to this right of trial by jury, and it has been made when the whole of the materials, probably, have been completed, when the pleadings have been put in, and the evidence has been collected upon the advice of counsel and everybody knows what the issues are.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

My right hon. and learned Friend never goes before the Master more than once a year. It is a well-known fact that King's Counsel very rarely go before the Master.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I began my profession at the Bar before I was a King's Counsel. There are good reasons for slightly modifying the pre-War practice. There is a class of persons to be considered who have not been considered, and that is the jury. The right hon. Member for Spen Valley paid well deserved tributes to the way in which juries perform their duties. I have heard on many occasions, particularly on circuit, jurymen bewailing pitifully their lot at being. summoned from the furthest corners of the county in order to attend a trial, in the proceedings of which their services may be dispensed with. The jurymen have to be considered. It is not fair that they should be brought from their business, at great expense to them- selves, and not sufficiently remunerated, unless it is certain that it is a case as to which the Court or the Judge will decide that it is a case in which their services are necessary in order to give the best trial that is possible.

Anybody who is familiar with the system will know of the hardship to jurymen in being forced to come away from their business when very often their services are not wanted. This Bill will have the effect of requiring an independent mind to be brought to the consideration of the question as to whether jurymen ought to be brought, at great expense to themselves. If they are really wanted they will be brought, but if they are not wanted, they will not be brought. I think it was the hon. and gallant Member for Newcastle-under-Lyme (Colonel Wedgwood) who suggested that this is the old story of a contest between the executive and democracy. I do not know whether hon. Members read the judgment of learned Judges. If so, they will know that the executive to-day receive no particular leniency from the Judges. I think that is a criticism which the hon. and gallant Member would not have made if he had been more familiar with the course of litigation.

I can suggest another reason for not insisting upon trial by jury where the case is not one that could be more fitly tried by a jury than a Judge, and that is the expense to the parties. I can remember, some years ago, being engaged in a case in which my right hon. and learned Friend the Member for Spen Valley had a part. It related to the property in a ditch which, as hon. Members may be aware, depends upon the important question as to the side upon which the hedge is situated. The case was tried once by a jury, who disagreed, although the learned Judge summed up strongly in favour of my client. We found afterwards that the jury were 10 to two in my favour. The case was tried a second time, and the learned Judge again summed up in favour of my client, but the jury again disagreed, and we found out that they were 11 to one in my favour. The case was tried a third time, and the learned Judge again summed up in my favour. I remember that Lord Alverstone expressed himself strongly as to the right decision, but the jury again disagreed, and we were invited for the third time to take the verdict of the majority, strong in the assurance that the jury would, at any rate, have a majority in favour of my client. We agreed to that course, but we then found that they were seven to five against my client. My client lost his case and his fortune, and he was made bankrupt, whereas if that case had been decided by a Judge, and more fittingly decided by a Judge, there is very little doubt as to what had been the result.

Photo of Mr Edward Harney Mr Edward Harney , South Shields

Is that the reason for this Bill?

3.0 P.M.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

That is an instance of the way in which trial by jury can operate to the great enrichment of counsel and the great impoverishment of a client. Speaking as a member of the Bar, I can say that if a member of the Bar considered only his income he would desire trial by jury, if possible, in every case. Not only are the fees larger, but the time spent in trying the case is longer and the mistakes that may result and lead to the Court of Appeal and possibly to the House of Lords are more numerous.

Photo of Sir Kingsley Wood Sir Kingsley Wood , Woolwich West

Does my hon. and learned Friend assert that?

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

It is in order to avoid such incidents, incidents ruinous to the client that it is desirable to modify in some respects the law as it existed before the War. I do not want the House to be under any impression that this Bill makes any serious inroads, or any inroads to any appreciable extent upon the rights of the litigant as they were before the War. It enlarges the rights as they exist to-day. If hon. Members reject this Bill the law will be left as it stands to-day, giving the litigant less privileges in regard to trial by jury than he will have if this Bill passes. It is quite conceivable that in Committee hon. Members may desire either to enlarge the Clause or to remove it altogether. They will have freedom of vote in accordance with the pledge which my right hon. and learned Friend the Attorney-General has given, which was, that if upon a free vote of the Committee they decide that this Clause should be deleted, the Clause shall be deleted. [HON. MEMBERS: "Who said that?"] That was the pledge that was given by my right hon. and learned Friend. [HON. MEMBERS: "No!"]

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I give it now, and I am simply repeating what my right hon. and learned Friend said.

Photo of Mr Edward Harney Mr Edward Harney , South Shields

The undertaking which the Attorney-General gave was not that he would delete the Clause if on a free vote it was found to have a majority against it, but the undertaking was that he would delete the Clause if in Committee he was satisfied by arguments on the other side that it did not enlarge the right of trial by jury that existed before the War. I then asked, and I was careful to point it out, whether he was referring to the rights that had been largely taken away during the War or to the enlargement of the rights that existed before the War, and I understood him distinctly to say "the rights before the War."

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

As this discussion relates to the pledge which I gave, may I say that the hon. Member for South Shields (Mr. Harney), in quoting what he says I promised, is mistaken. If he consults the OFFICIAL REPORT I think he will find that he is incorrect. I never said that if I was satisfied that the Clause did not enlarge the existing right it should be deleted. I said, "If the Committee was satisfied." The promise I gave, and the promise which my hon. and learned Friend the Solicitor-General is repeating, was that if in Committee it turned out that the Committee is satisfied, that this Clause does not enlarge the existing rights of trial by jury, in other words, does not extend the existing law, then the Committee would be perfectly free, so far as the Government were concerned, to alter the Clause.

Photo of Mr John Simon Mr John Simon , Spen Valley

Could not the right hon. Gentleman see his way to undertake that, in the Committee, the question as to whether or not we should restore the right of trial by jury, as it existed before the War, should be determined without interference from the Government Whips?

Photo of Sir Douglas Hogg Sir Douglas Hogg , St Marylebone

That is not the pledge which I gave.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

All I can do is to repeat what I have said as to the pledge which my right hon. Friend gave when he introduced the Bill. If the Amendment for rejection were passed it would have an effect precisely the opposite to that which the hon. Members desire. They desire still further to enlarge the existing right to trial by jury, beyond what is provided by this Bill. The Government think that in the small cases to which I have referred the law as it existed before the War could, with advantage, be altered. That is the sole question before the House. If this Bill is rejected the right to trial by jury will be limited to the right which exists to-day. If the Second Beading is accepted, as I hope it will be, the right to trial by jury as it exists will be enlarged. The hon. Member for West Woolwich asked if this proposal had been approved by any societies or learned Judges. If he will refer to the Debate in 1920, when the present Lord Chief Justice introduced a Bill in a speech of about 12 lines, he will see that the Lord Chief Justice said that the Judges were in favour of the proposals in that Bill. As admittedly this Bill goes far beyond the Bill of 1920 in restoring the right of trial by jury perhaps the same approval of the Judges will apply to this. The criticism of Lord Justice Bankes, which has been mentioned, dealt with the Act of 1920, and not with this Bill. Therefore, in spite of the natural anxiety lest the traditional rights of British citizens should be cut down, which can be more fully discussed in Committee, I hope that the House will give a Second Beading to this Bill, which has been designed to make reforms in the administration of justice, of which this particular Clause is only one section.

Photo of Mr William Pringle Mr William Pringle , Penistone

The concluding observations of the Solicitor-General are the finest illustration of the difficulties and embarrassments to which both he and his learned colleague have been reduced in this Debate. In reply to the question of the hon. Member for West Woolwich, as to whether the opinion of Judges or societies could be quoted in favour of this Bill, the hon. and learned Gentleman referred to a statement of the present Lord Chief Justice in 1920 to the effect that the Judges approved of the Act of 1920, and said that therefore they would approve of this Bill. But immediately he said: "You must not quote Lord Justice Bankes, Lord Justice Atkin, or Lord Justice Scrutton, because the Act of 1920 does not apply there." I suggest that when you have a gentleman, who is so acute as the Solicitor-General usually is, reduced to such a position of dialectical imbecility, there is really something wrong with it. A further interesting light is thrown on this matter by the hon. and learned Gentlemen's speech. I am sorry to say I did not hear the speech of the right hon. and learned Attorney-General, but I have heard a good deal second hand of what he said, and I have had the advantage of hearing some of his own explanations or repetitions of what he said, so that I can gather, to some extent, the line he took. There is no doubt that the impression he conveyed to the House in his opening speech was that this Bill was practically a restoration of the pre-War system.

Until my hon. and learned Friend the Member for South Shields (Mr. Harney) spoke, I think the majority of the lay Members of the House were prepared to accept that conclusion. Since he spoke, however, and since other hon. Members, like the hon. Member for West Woolwich (Sir K. Wood) have made their contributions to the Debate, it is safe to say that the illusion has been completely dispelled. Further, the hon. and learned Solicitor-General has had to give away the case with both hands. Nobody has ever contended, on either side of the House, that this Bill does not extend the right as compared with the Act of 1920, and, therefore, when the Solicitor-General argues the matter on the basis of the Act of 1920 he is simply darkening counsel. He is endeavouring to minimise the extent to which the former rights enjoyed by His Majesty's subjects are being restricted by this Bill. I am not going to quote the statements of Lord Justice Atkin and Lord Justice Eldon Bankes. They have been quoted often, but I can say this, that practically every criticism which they made on the Act of 1920 applies to the proposals in this Bill. They were a definite condemnation of the taking away of pre-War rights; that was the whole force of them.

Indeed, in the judgment of Lord Justice Eldon Bankes, which I hold in my hand, he sketched the whole history of trial by jury and the various developments of the right. His criticism of the Act of 1920 was that the rights which had been enjoyed before were taken away. He said: If matters are to remain in their present position, it is clear that any right to a jury in an action in the King's Bench Division, except in the enumerated cases, is abolished. … I trust, however, that the other aspect of the case may also be considered, namely, whether the right to a trial by jury is not sufficiently important to be restored and maintained. Restored and maintained!

Lieut.-Colonel J. WARD:

Why not?

Photo of Mr William Pringle Mr William Pringle , Penistone

This Bill is not doing it; that is our case. It is because this Bill is not doing it that we are taking this opportunity of exposing the intention of the Government, and of seeking a definite decision of the House to prevent its being carried out. I could quote expressions of opinion, equally emphatic, in the judgment of Lord Justice Atkin. He refers to the Act of 1920 as one by which, for the first time in history, a British subject is permanently deprived of his right to have Common Law actions tried by jury. In one respect, at least, this Bill is worse than the Act of 1920. The Act of 1920 continued the Act of 1918, which was introduced as a temporary Measure. Under the Act of 1918, cases involving questions of fraud were among the exempted cases, in which there was an absolute right to trial by jury. If hon. Members look at the particular paragraph with which we are now concerned, they will find that the special instance of cases of fraud is omitted. What was allowed, even in the Act of 1918 and the Act of 1920, is withdrawn by the present Bill.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

The hon. Member is under a misapprehension as to what the Rules of Court were before the War in regard to cases of fraud. His thesis is that he wants to get back to the position before the War, and if that be his anxiety, I think he is under a misapprehension as to the Rules of Court in these cases.

Photo of Mr John Simon Mr John Simon , Spen Valley

Was there not a right to trial by jury?

Photo of Mr William Pringle Mr William Pringle , Penistone

What did the Act of 1918 give? I will quote it: In the case of any action, counterclaim, issue, cause or matter in which fraud is alleged or in which there is a claim in respect of libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage, either party shall on making application for the purpose in accordance with Rules of Court be entitled as of right to a trial with a jury. Does the Solicitor-General suggest that that paragraph extended the pre-War right of trial by jury? If he does not his interruption is wholly meaningless.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

My hon. Friend has more acquaintance with the law of Scotland than with that of England.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

The answer to him is that there is a right to trial by jury in cases of fraud, and that there is no limitation of the right.

Photo of Mr William Pringle Mr William Pringle , Penistone

Then does the Solicitor General suggest that, under the Act of 1918, which was intended to limit the right of trial by jury, and to dispense with juries as far as possible, the Legislature actually extended the right to trial by jury? That is a contention which will not impress anyone. On the basis of the 1918 Act and of the 1920 Act—which the Judges described as stereotyping the temporary Act of 1918—you have a right in cases where fraud is alleged and that right is withdrawn in this Bill. Even on the contention that you are giving an extension compared with the law as it is now, in this matter of cases of fraud the arguments both of the Solicitor-General and the Attorney-General are unsound. In any case where fraud is alleged there is an indefeasible right to trial by jury under the law as it stands. If this Bill passes that right will no longer remain absolute but will become subject to a discretion. The hon. and learned Gentleman again showed the difficulties in which he is plunged. Having, to the best of his ability, put forward the contention that this is a paltry change, he goes on to enumerate a large number of advantages which are going to accrue to the subject result of the change. First of all, it is not a change at all, then it is a minor change, then, having got the length of a minor change, he goes on to say that there will be large advantages to the subject. First of all, you are going to relieve the jurymen, who will not require to be summoned, and they will save their expenses. We did not know that this was a Bill to relieve juries.

But much the best thing of all was the great case in which the hon. and learned Gentleman was interested, the case whereby his client became bankrupt and he became Solicitor-General. I do not think this is going to do much to temper the misfortunes of that distressed client. It seems to me that, so far as that distressed client is concerned, it is a case of locking the stable door after the horse has been stolen. However, he will be relieved to know, I have no doubt, that his unfortunate, or perhaps I should say his fortunate, counsel, who decided at the wrong time to take the majority vote—

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I wish to say that as, on the third attempt, I was unable to attend, my right hon. Friend the Member for Spen Valley (Sir J. Simon) did it for me, and he took the majority vote.

Photo of Mr John Simon Mr John Simon , Spen Valley

But I am in favour of retaining the right of trial by jury.

Photo of Mr William Pringle Mr William Pringle , Penistone

This somewhat alters the construction to be put upon this matter. I am surprised that the results should have been so fortunate to the right hon. Member for Spen Valley (Sir J. Simon). Apparently the real pathway to success at the Bar and to law office in the Ministry is to come to a wrong decision as to the views of a jury. But this is a very narrow ground on which to base this Bill, that there has been a dispute about a ditch, and that, in spite of the eloquent advocacy of the Solicitor-General reinforced, as we now know, by the right hon. Member for Spen Valley, reinforced further by three summings up by Judges—probably it would have been better without the summings up, for in the slender experience I had at the Bar, what I often found was that I got on best with the jury when the Judge summed up against me, and that is one reason why I am speaking to-day. Of course, the whole of this argument is based on the fallacy that the Judges were right, that because the Judge summed up strongly, therefore it was right, and because the Judge did it three times, it, was all the more right. I should lament very much, after what I have seen in the Courts and read of the Courts, coming to any such conclusion. In fact, it is really because of the fallibility of Judges that English law throughout has laid stress upon the value of a jury. It has believed that the ordinary citizen, on questions of fact, is usually a better judge than the man who lives a sequestered life on the Bench, cut off from all the ordinary associations of mankind. That seems to me to offer the most adequate explanation of certain judicial aberrations which have been brought to my attention. It is obvious that Judges are, to a large extent, men withdrawn from the ordinary walks of life. Of course, they have made mistakes, probably, in testing the opinions of Judges, like the Solicitor-General and the right hon. Member for Spen Valley, when they were at the Bar, but when they have got to the Bench they are withdrawn from all these things, and they sit apart as Olympians, looking down upon common men, and are not subject to the same conditions. Consequently, that is why the commonsense of the English people has always insisted on the value of a jury in the past, and, in this matter, I am not impressed by the hon. and learned Gentleman who sits on the National Liberal benches. He, I think, was not likely to give the traditional view on a matter of this kind, even although his party name has the word "National" in it. I rather appeal to the old traditions and the old instincts of this House in this matter.

When the Act of 1920 was passed, it was done in a hurry. It was done, as my hon. and learned Friend the Member for Middleton (Sir R. Adkins) said, in the silent watches of the night. The Lord Chief Justice, who was Attorney-General at that time, did not speak more than two minutes, and did not say anything about the importance of the provisions that were being passed. The Solicitor-General had some doubts, although, having consulted the OFFICIAL REPORT, I find that he expressed implicit faith in the judgment of the Attorney-General, which was perfectly appropriate in a learned Gentleman with expectations. But he was somewhat critical. The Committee stage was taken right away. It was reported without Amendment to the House, and was read a Third time. That was penny-in-the-slot legislation. We have got away from those automatic methods in the present Parliamtnt. We can get these things discussed in the light of day on a Friday afternoon, and when there are a good many in the House. [HON. MEMBERS: "Oh!"] Yes, it is better than it was when the Attorney-General spoke, and, if I may say with regret, when my hon. Friend the Member for South Shields (Mr. Harney) spoke, because there could be nothing more complete than the exposure he made of this provision.

We are all agreed that there are many admirable things in this Bill. There are only one or two provisions which have been mildly criticised in the course of the Debate. The provision now under criticism is the provision which most nearly and intimately affects all classes of His Majesty's subjects. The other things are technical, matters of legal reform, which concern mainly those engaged in the practice of the law. This is a matter which goes to the roots of the rights of the subject, and when you have a pro vision, although in a single paragraph of this kind, which deals with a great Constitutional right, the proper time to challenge it is on the Second Reading of the Bill. The Solicitor-General suggested that if we succeed, the whole thing will go, the great reforms will be held up, and we shall be in a worse position than we were before. I hope the House will not be impressed by any suggestion of the kind. The Government would be compelled by the vote of the House to accept the provision we are now advocating. They dare not allow the situation to remain as it was under the Act of 1920, after the vote of the House, which not only condemned the Act of 1920, but condemned their own reform on that Act. They would be bound, at the peril of their lives, to accept the decision of the House, and I ask the House, therefore, not to be impressed by the warnings of the Solicitor-General. The fears which he cherished have no reality. No Government, still less a Government so weak as the present—[HON. MEMBERS: "Hear, hear!"]—I am not referring to the legal talent—

Photo of Mr William Pringle Mr William Pringle , Penistone

I have been so busy attending to my Parliamentary duties that I have not heard the result of the Bye-Election; but I can quite understand that it is cold comfort even to the former Leader of the National party! Any Government, say, a Government of pre-War strength, would have to accept the decision of the House, and it is because the Government would have to accept the decision of the House that we should vote for this Amendment now, and see that this provision is not passed. Upon the whole, I think, they are the more bound to do this, in view of the somewhat evasive and contradictory precedents that have been given by the right hon. Gentlemen the Attorney-General and the Solicitor-General. There is no clear pledge that if on a free vote either on Committee or Report this is defeated, that the Government will accept the decision. There is the qualification of the Committee being satisfied that there is no improvement on the Act of 1920. That is not the kind of pledge that we want. What we ask from the Government is this: Will they accept a free vote on the matter without any qualification, without any reservations at all? That is a simple question. There can be no reason for withholding or refusing an answer to that. If they cannot do that, if they cannot say that they will accept the opinion of the Committee, I say that the only course for those who criticise this provision is to vote against the Second Reading of the Bill.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

May I say just a word or two on that part of the Bill, the remainder—for the Bill consists of 22 Clauses—which has not been, or much, the subject of discussion? I think the hon. Gentleman who spoke last was mistaken in suggesting that the reforms of procedure and so on that are embodied in the various Clauses of the Bill are small and trifling.

Photo of Mr William Pringle Mr William Pringle , Penistone

Oh, no! Let me tell my hon. Friend that I did not wish to convey that impression. I admitted that there were important things, technical. But my argument was that this other was a thing more closely affecting the average man, and, therefore, was of greater importance, and that this would be put in peril by the vote of the House this afternoon.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

: My point was, that there are a large number of other provisions beyond this question of trial by jury, and that these other questions do affect and concern very intimately a very large number of people who are concerned in litigation. As to that immense remainder of the Bill the Government have, of course, the support of the Law Society, and I believe of gentlemen connected with important technical bodies who are entitled to express an opinion upon matters of the sort. That being the case we are faced with an Amendment asking us to reject this Bill solely on the ground of Clause 2. I want to deal with that objection in a few sentences, and I desire to ask the House to consider carefully whether there is any reason for rejecting this Bill because of the opposition to Clause 2. The arguments which have been brought forward for rejection have been, if I may say without offence, most misleading, and not only so by hon. Members who might have the excuse of not knowing better, but even by no less a person than my right hon. and learned Friend the Member for Spen Valley. He quoted the Hone case, and other cases, and spoke very eloquently, as he always does, upon the extreme value to the subject, and to the liberty of the subject, of the right of trial by jury. Is that the right hon. Gentleman's experience of trial by jury? I am a keen student of constitutional history and I am able to agree with everything he said in favour of the very great importance of preserving that right. Where he misled the House was that that argument does not apply to this Clause.

This Clause not only preserves but even restores to a great extent the right of trial by jury wherever the liberty of the subject is likely to be imperilled. What, after all, is this curtailment of the right of trial by jury which it is suggested is contained in this Clause? It is cutting down the right of the litigant to a trial by jury in cases where the liberty of the subject does not come in at all. It is cutting down the right in a great many cases of a very petty character where neither the freedom nor the reputation of the litigant is at issue at all, and in all those cases in which in the past the freedom and liberty of the subject has been built up on that old institution of trial by jury, every single one of them are secured and reinforced by the Clause as it stands. Let me say at once that this Clause does not restore the entire pre-War rights of the subject, but may I remind hon. Members, and particularly those who are connected with the law, that if they will cast their minds back to a year or two before the War they will find that at that time there was an enormous number of complaints in regard to little cases where the right to a trial by jury was really unnecessary, and led to a great waste of time and expense.

Photo of Mr Edward Harney Mr Edward Harney , South Shields

I never heard of them.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

Probably the hon. and learned Member was not practising in this country at that time.

Photo of Mr Edward Harney Mr Edward Harney , South Shields

I have been practising in this country for over 14 years.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

At any rate that does not alter the basis of my argument, that there were many cases before the War in which the right of trial by jury had nothing to do with the liberty of the subject, or had any constitutional importance. I know there were opinions expressed by Judges and others that the law with regard to the right of trial by jury did require some modification and that is so now. Hon. Members may agree or they may not, but the main point is after all that this is a matter for Committee. The question of the right to trial by jury in important Measures is not at issue or brought forward in this Clause, and it is preserved. All the change suggested by the Clause as it stands is a change in the right of trial by jury in comparatively unimportant matters, and this has been urged upon us before the War by Judges, barristers, and laymen, and therefore I think it is a matter which is very properly dealt with under this Clause. That being so, I do ask the House not to accept the Motion for the rejection of this otherwise extremely useful Bill on the ground that there is in it a Clause which deals with trial by jury, not in those important cases which affect the liberty of the subject, but in comparatively small and unimportant cases, from the point of view of general principle, whatever they may be from the point of view of the particular individual. Those are points which can perfectly well be dealt with in Committee; and I think I am right in saying—in fact, I know I am right—that the criticisms as to the actual provisions of the Clause which have been brought before the Attorney-General have been met by him With a great deal of consideration and sympathy; and we know that we may rely upon what he has said, and that he will listen and receive with consideration all the arguments and considerations put forward for amendment of the Clause. I ask the House to remember that there is no question whatever at issue as to the right of trial by jury so far as that is one of the treasured liberties of the subject and that you have here a most useful Bill which will save trouble, expense and annoyance; and to accept the Bill on Second Beading without hesitation.

Photo of Mr Sidney Webb Mr Sidney Webb , Seaham

I want to call attention to one small point which has just been mentioned, but which I do not think has been quite fairly and thoroughly explored. We may pass over at once any suggestion that the rights of the subject are in danger in the picturesque way in which they have been in danger in previous centuries. I quite understand, and the House now quite understands, that the proviso in Clause 2, to which we are objecting, does not relate to the enumerated cases, though I am still a little uncertain about fraud, but it does relate to a number of cases which may not seem important to hon. Members, which may not seem to have anything to do with the liberty of the subject, and which have been referred to as small and unimportant cases. The proviso, which enables a Judge to deprive the litigant of his right to trial by jury, is not limited to small and unimportant cases, or to cases which are supposed to be not suited to be tried by a jury. The Judge, apart from the enumerated cases, can deny the litigant the right to trial by jury in any case where he thinks it would be better dealt with by a Judge without a jury than with a jury. It is not where he thinks it is not fit to be tried by a jury, but where he thinks it would be better tried by a Judge without a jury than with a jury. It has nothing to do with the criticism which has been expressed chiefly by members of the legal profession as to the efficacy of trial by jury in a great many of these cases. If the House and the Government want to except certain cases from those in which the litigant has the right to a jury, then let the Clause enumerate them. What we object to is that it should depend upon the length of the Judge's foot or perhaps upon the conceit of the Judge in thinking that the case, though quite suited to be tried by a jury, would be better tried by a Judge without a jury than with a jury. There is no limitation in the proviso to cases which are unfit to be tried by a jury or which cannot properly be tried by a jury; it is cases which can be better tried by a Judge without a jury than with a jury. If the right hon. and learned Gentleman wants to deprive a litigant of the right of trial by jury, it ought to be on the ground that the class of case is such that it is not suited for the intervention of a jury. Before the War, in various complicated ways, a jury could be dispensed with in a number of cases, but in the majority of cases it was with the consent of the parties. That is entirely different to being deprived of the right of trial by jury by order of a Judge. I have no objection to the parties agreeing to dispense with a jury, but if that is done, it is no argument for entrusting a Judge with the right to deprive a litigant of his right to a jury. It is no answer at all to our case.

The suggestion which has been made by the Solicitor-General, that the House ought not to vote for this Amendment because it would involve the loss of this Bill, is to my mind nonsense. Does anyone believe that if the House by a majority agrees to the Amendment, the British public and the legal profession would be deprived of the improvements embodied in this Bill? Of course they will not.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

The carrying of the Amendment involves throwing out the Bill.

Photo of Mr Sidney Webb Mr Sidney Webb , Seaham

Surely the hon. Member knows better. He must be aware that the result would be that the Government would bring in the Bill altered in the way the House desires. It is practising on the stupidity of Members to say the whole Bill is lost if this Amendment is carried.

Photo of Mr Dennis Herbert Mr Dennis Herbert , Watford

It will involve bringing in another Bill instead of the one thrown out.

Photo of Mr Sidney Webb Mr Sidney Webb , Seaham

On the contrary it will merely mean reprinting the Bill, and that is an important difference. We are to have an adjourned Session, there is plenty of time, and no evil will result from voting for this Amendment. The Government will merely be reminded that if they are going to touch the right of a litigant to a jury, they must put it in clear language and explain to the House why they think it right to do so. If the House does not vote by a majority for the Amendment the Bill will go upstairs. But we have no pledge that the Committee will be allowed a free hand in the matter or that the Government will accept its decision if it chooses to leave out the proviso to this Clause. Neither the Attorney-General nor the Solicitor-General have given any such pledge, and that means that the Bill will come back to the House to be dealt with on Report and it may strike a blow—it may be a very serious one—at the right of the litigant to trial by jury. I hope the House will decide now that, if there is going to be any encroachment upon the right of litigants to trial by jury, it shall be stated in clear terms, limited to particular cases, and made not dependent on the decision of a Judge, but decided by this House in the proper constitutional manner. Consequently, I hope that we shall go to a Division on this Amendment, and I certainly shall ask everyone I can to vote for it, in order that we may at any rate stand up for the full restoration of the right of trial by jury, and those who vote against the Amendment will go down as voting against that full restoration.

Photo of Mr Thomas Warner Mr Thomas Warner , Lichfield

We have been listening attentively in this Debate to the words of lawyers, and I have come to the conclusion that juries are very much to be pitied, because it is very difficult for the ordinary layman to realise what the facts of the case are when they are put in perfectly legal form. One thing, however, has come out very clearly, and that is that we are not going to get the same amount of trial by jury from this Bill that we had before the War. That is the point that is before us. I and my friends are very reluctant to vote against the Government when they are bringing in a Bill for simplifying the law, and a Bill which, I believe, will, in many cases, do a good deal of good; but at the same time, when you touch one of the great principles of the English Constitution, namely, trial by jury, in however small a way you do it, it is outside of legal ideas and outside the consideration of legal points; and we cannot vote for the abolition of trial by jury in any degree at all as long as we are here as the guardians of the liberties of the country. I, for one, am reluctant to vote against the Bill, but no pledge has been given by the Government that this Clause will be struck out, or that the Judge will not be left power in some cases to decide whether there shall be a jury or not. The Judge is the wrong person to decide, because he is one of the interested parties. We must vote against the Second Reading, because the principle is a constitutional one—that of the whole jury system before the War. We passed a Bill during the War for emergency purposes, and the state

of things now has nothing to do with that. We want to put back the old English law that we had before. I regret, therefore, that I shall have, on that account, to vote against the Second Reading of the Bill.

Photo of Mr Frederick Banbury Mr Frederick Banbury , City of London

The hon. Member for Seaham (Mr. Webb) stated that, if the Second Reading of this Bill were rejected, all that the Government would have to do would be to bring in a new Bill. I do not like to lay down the law, but my belief is that the Government would not be able to do that.

Photo of Mr Frederick Banbury Mr Frederick Banbury , City of London

Yes, next Session, but not otherwise.

Question put, "That the words proposed to be left out stand part of the Question."

The House divided: Ayes, 149; Noes, 92.

Division No. 337.]AYES.[3.55 p.m.
Ainsworth, Captain CharlesFraser, Major Sir KeithMilne, J. S. Wardlaw
Alexander, E. E. (Leyton, East)Furness, G. J.Mitchell, W. F. (Saffron Walden)
Alexander, Col. M. (Southwark)Galbraith, J. F. W.Mitchell, Sir W. Lane (Streatham)
Amery, Rt. Hon. Leopold C. M. S.Garland, C. SMorrison-Bell, Major Sir A. C. (Honiton)
Apsley, LordGaunt, Rear-Admiral Sir Guy R.Murchison, C. K.
Ashley, Lt.-Col. Wilfrid W.Gilmour, Lt.-Col. Rt. Hon. Sir JohnNewman, Colonel J. R. P. (Finchley)
Balfour, George (Hampstead)Goff, Sir R. ParkNewman, Sir R. H. S. D. L. (Exeter)
Banbury, Rt. Hon. Sir Frederick G.Gould, James C.Newson, Sir Percy Wilson
Barlow, Rt. Hon. Sir MontagueGray, Harold (Cambridge)Newton, Sir D. G. C. (Cambridge)
Barnett, Major Richard W.Greenwood, William (Stockport)Nicholson, Brig.-Gen. J. (Westminster)
Barnston, Major HarryGrenfell, Edward C. (City of London)Nicholson, William G. (Petersfield)
Bentinck, Lord Henry Cavendish-Hacking, Captain Douglas H.Ormsby-Gore, Hon. William
Berry, Sir GeorgeHall, Rr-Adml. Sir W. (Liv'p'l, W. D'by)Parker, Owen (Kettering)
Blundell, F. N.Halstead, Major D.Pennefather, De Fonblanque
Boyd-Carpenter, Major A.Hannon, Patrick Joseph HenryPercy, Lord Eustace (Hastings)
Brass, Captain W.Harrison, F. C.Perkins, Colonel E. K.
Brassey, Sir LeonardHenn, Sir Sydney H.Philipson, Mabel
Bridgeman, Rt. Hon. William CliveHennessy, Major J. R. G.Pollock, Rt. Hon. Sir Ernest Murray
Brittain, Sir HarryHerbert, Dennis (Hertford, Watford)Raeburn, Sir William H.
Brown, Brig.-Gen. Clifton (Newbury)Herbert, S. (Scarborough)Rawlinson, Rt. Hon. John Fredk. Peel
Bruton, Sir JamesHilder, Lieut.-Colonel FrankReid, Capt. A. S. C. (Warrington)
Buckley, Lieut.-Colonel A.Hiley, Sir ErnestRentoul, G. S.
Burney, Com. (Middx., Uxbridge)Hogg, Rt. Hon. Sir D. (St. Marylebone)Reynolds, W. G. W.
Butcher, Sir John GeorgeHopkins, John W. W.Richardson, Sir Alex. (Gravesend)
Button, H. S.Howard, Capt. D. (Cumberland, N.)Richardson, Lt.-Col. Sir P. (Chertsey)
Cadogan, Major EdwardHudson, Capt. A.Roberts Samuel (Hereford, Hereford)
Cayzer, Sir C. (Chester, City)Hume, G. H.Robertson-Despencer, Major (Islgtn, W)
Cecil, Rt. Hon. Sir Evelyn (Aston)Hunter-Weston, Lt.-Gen. Sir AylmerRoundell, Colonel R. F.
Cecil, Rt. Hon. Lord H. (Ox. Univ.)Hurst, Gerald B.Russell, Alexander West (Tynemouth)
Chadwick, Sir Robert BurtonHutchison, G. A. C. (Midlothian, N.)Samuel, A. M. (Surrey, Farnham)
Chamberlain, Rt. Hon. N. (Ladywood)Inskip, Sir Thomas Walker H.Sanders, Rt. Hon. Sir Robert A.
Churchman, Sir ArthurJodrell, Sir Neville PaulSanderson, Sir Frank B.
Clayton, G. C.Joynson-Hicks, Sir WilliamSandon, Lord
Cobb, Sir CyrilKing, Captain Henry DouglasShipwright, Captain D.
Cockerill, Brigadier-General G. K.Kinloch-Cooke, Sir ClementSingleton, J. E.
Colfox, Major Wm. PhillipsLamb, J. Q.Skelton, A. N.
Cope, Major WilliamLane-Fox. Lieut.-Colonel G. R.Steel, Major S. Strang
Craik, Rt. Hon. Sir HenryLloyd, Cyril E. (Dudley)Stott, Lt.-Col. W. H,
Croft, Lieut.-Colonel Henry PageLloyd-Greame, Rt. Hon. Sir PhilipSugden, Sir Wilfrid H.
Crooke, J. Smedley (Deritend)Lorden, John WilliamSykes, Major-Gen. Sir Frederick H.
Davison, Sir W. H. (Kensington, S.)Lorimer, H. D.Thomson, F. C. (Aberdeen, South)
Doyle, N. GrattanLoyd, Arthur Thomas (Abingdon)Tryon, Rt. Hon. George Clement
Edmondson, Major A. J.Lumley, L. R.Tubbs, S. W.
Ednam, ViscountMcNeill, Ronald (Kent, Canterbury)Turton, Edmund Russborough
Ellis, R. G.Malone, Major P. B. (Tottenham, S.)Wallace, Captain E.
Falcon, Captain MichaelMargesson, H. D. R.Ward, Col. L. (Kingston-upon-Hull)
Foxcroft, Captain Charles TalbotMason, Lieut.-Col. C. K.Wells, S. R.
White, Lt.-Col. G. D. (Southport)Wood, Maj. Sir S. Hill- (High Peak)TELLERS FOR THE AYES:—Commander the Right Hon. B. M.
Windsor-Clive, Lieut.-Colonel GeorgeWorthington-Evans, Rt. Hon. Sir L.
Winterton, EarlYate, Colonel Sir Charles EdwardEyres-Monsell and Colonel the Rt. Hon. G. A. Gibbs.
Wise, FrederickYerburgh, R. D. T.
NOES.
Adams, D.Hall, G. H. (Merthyr Tydvil)Roberts, C. H. (Derby)
Adamson, W. M. (Staff., Cannock)Hardie, George D.Robertson, J. (Lanark, Bothwell)
Adkins, Sir William Ryland DentHarney, E. A.Russell, William (Bolton)
Alexander, A. V. (Sheffield, Hillsbro')Hay, Captain J. P. (Cathcart)Scrymgeour, E.
Barnes, A.Hayes, John Henry (Edge Hill)Shaw, Hon. Alex. (Kilmarnock)
Batey, JosephHenderson, Rt. Hon. A. (N'castle, E.)Short, Alfred (Wednesbury)
Benn, Captain Wedgwood (Leith)Henderson, Sir T. (Roxburgh)Simon, Rt. Hon. Sir John
Bonwick, A.Hinds, JohnSitch, Charles H.
Broad, F. A.Hodge, Rt. Hon. JohnSmillie, Robert
Burgess, S.Irving, DanSnell, Harry
Burnie, Major J. (Bootle)Jenkins, W. (Glamorgan, Neath)Spears, Brig.-Gen. E. L.
Buxton, Charles (Accrington)John, William (Rhondda, West)Spencer, H. H. (Bradford, S.)
Cape, ThomasJones, G. W. H. (Stoke Newington)Spoor, B. G.
Chapple, W. A.Jones, J. J. (West Ham, Silvertown)Thorne, G. R. (Wolverhampton, E.)
Collie, Sir JohnJones, T. I. Mardy (Pontypridd)Thornton, M.
Cotts, Sir William Dingwall MitchellKelley, Major Sir Frederick A.Wallhead, Richard C.
Cowan, D. M. (Scottish Universities)Lansbury, GeorgeWard, Col. J. (Stoke-upon-Trent)
Dudgeon, Major C. R.Leach, W.Warner, Sir T. Courtenay T.
Duncan, C.Linfield, F. C.Watts-Morgan, Lt.-Col. D. (Rhondda)
Ede, James ChuterLort-Williams, JWebb, Sidney
Edmonds, G.Lowth, T.Westwood, J.
Edwards, C. (Monmouth, Bedwellty)M'Entee, V. L.White, H. G. (Birkenhead, E.)
Emlyn-Jones, J. E. (Dorset, N.)McLaren, AndrewWilliams, Dr. J. H. (Llanelly)
Evans, Ernest (Cardigan)Maclean, Neil (Glasgow, Govan)Wilson, C. H. (Sheffield, Attercliffe)
Fairbairn, R. R.March, S.Wintringham, Margaret
George, Major G. L. (Pembroke)Morel, E. D.Wood, Sir H. K. (Woolwich, West)
Graham, D. M. (Lanark, Hamilton)Morrison, R. C. (Tottenham, N.)Young, Rt. Hon. E. H. (Norwich)
Graham, W. (Edinburgh, Central)Murray, R. (Renfrew, Western)Young, Robert (Lancaster, Newton)
Gray, Frank (Oxford)O'Grady, Captain James
Greenwood, A. (Nelson and Colne)Parkinson, John Allen (Wigan)TELLERS FOR THE NOES.—Mr. Phillipps and Major McKenzie Wood.
Grenfell, D. R. (Glamorgan)Potts, John S.
Groves, T.Pringle, W. M. R.

Bill read a Second time.

Motion made, and Question put, "That

the Bill be committed to a Committee of the Whole House.—[Mr. Harney.]

The House divided: Ayes, 87; Noes, 133.

[Division No. 338.]AYES.[4.4 p.m.
Adams, D.Grenfell, D. R. (Glamorgan)Pringle, W. M. R.
Adamson, W. M. (Staff., Cannock)Groves, T.Roberts, C. H. (Derby)
Adkins, Sir William Ryland DentHall, G. H. (Merthyr Tydvil)Robertson, J. (Lanark, Bothwell)
Alexander, A. V. (Sheffield, Hillsbro')Hardie, George D.Russell, William (Bolton)
Barnes, A.Harney, E. A.Scrymgeour, E.
Batey, JosephHay, Captain J. P. (Cathcart)Shaw, Hon. Alex. (Kilmarnock)
Benn, Captain Wedgwood (Leith)Hayes, John Henry (Edge Hill)Short, Alfred (Wednesbury)
Bonwick, A.Henderson, Rt. Hon. A. (N'castle, E.)Simon, Rt. Hon. Sir John
Broad, F. A.Henderson, Sir T. (Roxburgh)Sitch, Charles H.
Burgess, S.Henderson, T. (Glasgow)Smillie, Robert
Burnie, Major J. (Bootle)Hinds, JohnSnell, Harry
Buxton, Charles (Accrington)Hodge, Rt. Hon. JohnSpears, Brig.-Gen. E. L.
Cape, ThomasHutchison, Sir R. (Kirkcaldy)Spencer, H. H. (Bradford, S.)
Chapple, W. A.Irving, DanSpoor, B. G.
Collie, Sir JohnJenkins, W. (Glamorgan, Neath)Thorne, G. R. (Wolverhampton, E.)
Cotts, Sir William Dingwall MitchellJohn, William (Rhondda, West)Thornton, M.
Cowan, D. M. (Scottish Universities)Jones, J. J. (West Ham, Silvertown)Wallhead, Richard C.
Dudgeon, Major C. R.Jones, T. I. Mardy (Pontypridd)Ward, Col. J. (Stoke-upon-Trent)
Duncan, C.Leach, W.Warner, Sir T. Courtenay T.
Ede, James ChuterLinfield, F. C.Watts-Morgan, Lt.-Col. D. (Rhondda)
Edmonds, G.Lowth, T.Webb, Sidney
Edwards, C. (Monmouth, Bedwellty)M'Entee, V. L.Westwood, J.
Emlyn-Jones, J. E. (Dorset, N.)McLaren, AndrewWhite, H. G. (Birkenhead, E.)
Evans, Ernest (Cardigan)Maclean, Nell (Glasgow, Govan)Williams, Dr. J. H. (Llanelly)
Fairbairn, R. R.Morrison, R. C. (Tottenham, N.)Wilson, C. H. (Sheffield, Attercliffe)
George, Major G. L. (Pembroke)Murray, R. (Renfrew, Western)Wintringham, Margaret
Graham, D. M. (Lanark, Hamilton)Newbold, J. T. W.Young, Rt. Hon. E. H. (Norwich)
Graham, W. (Edinburgh, Central)O'Grady, Captain James
Gray, Frank (Oxford)Parkinson, John Allen (Wigan)TELLERS FOR THE AYES.—Mr. Phillipps and Major McKenzie Wood.
Greenwood, A. (Nelson and Colne)Potts, John S.
NOES.
Ainsworth, Captain CharlesAmery, Rt. Hon. Leopold C. M. S.Banbury, Rt. Hon. Sir Frederick G.
Alexander, E. E. (Leyton, East)Ashley, Lt.-Col. Wilfrid W.Barlow, Rt. Hon. Sir Montague
Alexander, Col. M. (Southwark)Balfour, George (Hampstead)Barnett, Major Richard W.
Barnston, Major HarryHannon, Patrick Joseph HenryNicholson, William G. (Petersfield)
Berry, Sir GeorgeHarrison, F. C.Ormsby-Gore, Hon. William
Blundell, F. N.Hennessy, Major J. R. G.Parker, Owen (Kettering)
Boyd-Carpenter, Major A.Herbert, Dennis (Hertford, Watford)Pennefather, De Fonblanque
Brass, Captain W.Herbert, S. (Scarborough)Percy, Lord Eustace (Hastings)
Brassey, Sir LeonardHilder, Lieut.-Colonel FrankPhilipson, Mabel
Bridgeman, Rt. Hon. William CliveHiley, Sir ErnestPollock, Rt. Hon. Sir Ernest Murray
Brittain, Sir HarryHogg, Rt. Hon. Sir D. (St. Marylebone)Raeburn, Sir William H.
Bruton, Sir JamesHopkins, John W. W.Rawlinson, Rt. Hon. John Fredk. Peel
Buckley, Lieut.-Colonel A.Howard, Capt. D. (Cumberland, N.)Reid, Capt. A. S. C. (Warrington)
Burney, Com. (Middx., Uxbridge)Hudson, Capt. A.Rentoul, G. S.
Butcher, Sir John GeorgeHume, G. H.Reynolds, W. G. W.
Button, H. S.Hunter-Weston, Lt.-Gen. Sir AylmerRichardson, Sir Alex. (Gravesend)
Cayzer, Sir C. (Chester, City)Hurst, Gerald B.Roberts, Samuel (Hereford, Hereford)
Cecil, Rt. Hon. Sir Evelyn (Aston)Hutchison, G. A. C. (Midlothian, N.)Robertson-Despencer, Major (Isltn, W)
Cecil, Rt. Hon. Lord H. (Ox. Univ.)Inskip, Sir Thomas Walker H.Roundell, Colonel R. F.
Chadwick, Sir Robert BurtonJodrell, Sir Neville PaulRussell, Alexander West (Tynemouth)
Chamberlain, Rt. Hon. N. (Ladywood)Jones, G. W. H. (Stoke Newington)Samuel, A. M. (Surrey, Farnham)
Churchman, Sir ArthurJowitt, W. A. (The Hartlepools)Sanderson, Sir Frank B
Clayton, G. C.Joynson-Hicks, Sir WilliamSandon, Lord
Cobb, Sir CyrilKelley, Major Sir Frederick A.Shipwright, Captain D.
Cockerill, Brigadier-General G. K.King, Captain Henry DouglasSingleton, J. E.
Colfox, Major Wm. PhillipsKinloch-Cooke, Sir ClementSkelton, A. N.
Cope, Major WilliamLamb, J. Q.Stott, Lt.-Col. W. H.
Craik, Rt. Hon. Sir HenryLane-Fox, Lieut.-Colonel G. R.Sugden, Sir Wilfrid H.
Croft, Lieut.-Colonel Henry PageLloyd, Cyril E. (Dudley)Thomson, F. C. (Aberdeen, South)
Davison, Sir W. H. (Kensington, S.)Lloyd-Greame, Rt. Hon. Sir PhilipTryon, Rt. Hon. George Clement
Doyle, N. GrattanLorimer, H. D.Tubbs, S. W.
Ednam, ViscountLort-Williams, J.Turton, Edmund Russborough
Ellis, R. G.Loyd, Arthur Thomas (Abingdon)Ward, Col. L. (Kingston-upon-Hull)
Falcon, Captain MichaelLumley, L. R.Wells, S. R
Foxcroft, Captain Charles TalbotMcNeill, Ronald (Kent, Canterbury)Windsor-Clive, Lieut.-Colonel George
Furness, G. J.Malone, Major P. B. (Tottenham, S.)Winterton, Earl
Galbraith, J. F. W.Margesson, H. D. R.Wise, Frederick
Garland, C. S.Mason, Lieut.-Col. C. K.Wood, Sir H. K. (Woolwich, West)
Gilmour, Lt.-Col. Rt. Hon. Sir JohnMilne, J. S. WardlawWood, Major Sir S. Hill- (High Peak)
Goff, Sir R. ParkMitchell, W. F. (Saffron Walden)Worthington-Evans, Rt. Hon. Sir L.
Gray, Harold (Cambridge)Mitchell, Sir W. Lane (Streatham)Yate, Colonel Sir Charles Edward
Greenwood, William (Stockport)Morrison-Bell, Major Sir A. C. (Honiton)Yerburgh, R. D. T.
Grenfell, Edward C. (City of London)Murchison, C. K.
Hacking, Captain Douglas H.Newman, Sir R. H. S. D. L. (Exeter)TELLERS FOR THE NOES.—Commander the Rt. Hon. B. M. Eyres-Monsell and Colonel the Rt. Hon. G. A. Gibbs.
Hall, Rr-Adml. Sir W. (Liv'p'l, W. D'by)Newton, Sir D. G. C. (Cambridge)
Halstead, Major D.Nicholson, Brig.-Gen. J. (Westminster)

Bill committeed to a Standing Committee.

The remaining Orders were read, and postponed.

Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 3, till Monday next (30th July), pursuant to the Resolution of the House this day.

Adjourned at Eleven Minutes after Four o'Clock.