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

Part of the debate – in the House of Commons at on 27 July 1923.

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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.