Clause 17. — (Abolition of Special Juries.)

Orders of the Day — Juries Bill – in the House of Commons at 12:00 am on 14th February 1949.

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Motion made, and Question proposed, "That the Clause stand part of the Bill."

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

We wish to have a discussion on this Clause on the general question of special juries.

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

I think it will be for the convenience of the Committee if the Debate also covers Clause 26, which deals with the same point in reference to Scotland.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

On the question of special juries, I take as the test that which was propounded by my hon. Friend the Member for Oxford (Mr. Hogg), namely, whether the results of the change will be satisfactory from the point of view of justice to the parties. I do not think any Member can object to that as a criterion, although different answers may be given to the question. The question appears to raise two subsidiary questions; first, whether the advocates of the change have shown any type of case where injustice may be done by the system of special juries, and secondly, whether there can be said to be any social evil in the fact that a distinction is made at all. I have read with great care all the speeches that were made on this subject during the Second Reading Debate, and the only class of case that has been seriously argued is where a person of extreme Left Wing views has brought an action for defamation against a person whose views are further to the Right, or a newspaper. It seems to me that that is a bad example from two points of view. Even if there were substance in the suggestion that wrong verdicts had been given—and I do not think there is—it would not be right for us to legislate for extreme cases.

I have used the argument as often as most people of Mr. Easy's maidservant, who it will be remembered was the lady who gave the well-worn and well-known excuse for her baby: "But it is only a little one." If my memory is right, the right hon. Gentleman has used the argument with equal force when he was in Opposition and the Government of the day were seeking to perpetrate what he thought was an injustice on the ground that it affected only a small number of persons. That can be a formidable argument, especially in the mouth of the Home Secretary; but I suggest that the converse does demand our attention. There is no reason to dispense with something which is beneficial, and which works well in the vast majority of cases, if there can be found only one extremely limited class of case in which it can be shown not to work.

6.30 p.m.

But I go further than that and say that the arguments against the jury system based on its working on a class basis are really unworthy of this House and not in accordance with either the facts or the experience of any unbiased person. The hon. and learned Member for North Hammersmith (Mr. Pritt) suggested that as a general proposition in his Second Reading speech. He said: We never see a working class jury. It just does not happen. Every case in which the working classes are involved—which means some of the civil cases and nine-tenths of the criminal cases, because your criminal lawyer is a middle-class man—is a case in which one side is trying the other."—[OFFICIAL REPORT, 1st February, 1949; Vol. 460, c. 1552.] I am sorry to say this in the absence of the hon. and learned Member; but he did speak on Second Reading and that is why I felt that I was entitled to refer to it here, because I thought he would be with us. I respectfully suggest that what he said is complete nonsense. For anyone who has had experience of jury trials to say that a British jury of either type deals with a case involving a working man on the basis that one side—and by that the hon. and learned Gentleman was referring to the middle class against the working class—is trying the other, is simply a travesty of what takes place in our courts. I do not believe that any hon. and learned Gentlemen opposite who have had great experience—and I see many of them here—in cases where workmen have been the plaintiffs have ever had that feeling in their minds for a moment, whether they have been dealing with a common jury or a special jury. I certainly have appeared for hundreds, if not thousands, of workmen in my time at the Bar and I have never felt that, and I have never had that put to me by one colleague in the course of a period which is now longer than I care to think about.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Mr. Paget (Northampton) rose

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I was just about to quote the hon. and learned Member, so perhaps he will defer his interruption until I have done so. I will, of course, give way willingly, but I should prefer to make my point, and then I will answer whatever he has to ask. This quotation from the speech of the hon. and learned Member for Northampton (Mr. Paget) is most interesting; he will see the point that I am making. Referring to people who draw the distinction between the common jury and the special jury he says: Personally, I think they are wrong. I believe that the real hard core of reaction lies in the sort of property class from which the common jury is called. But most people think that a special jury provides a political advantage and justice does not appear to be done."—[OFFICIAL REPORT, 1st February, 1949; Vol. 460, c. 1572.] I am very glad to have the hon. and learned Member on my side in rejecting this Clause. However, I should, with respect to him, deny that I had found that reactionary quality in common juries which I have seen functioning, and I should be surprised if he found many people who shared his experience on that point.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I do not think that the point made by the hon. and learned Member for North Hammersmith (Mr. Pritt) is quite that which was being put into his mouth. Whether the jury trying a case concerning a workman who has been injured be a middle-class jury or a working-class jury, I think that the reaction is very much the same: "The insurance company ought to pay." Personally, I think that is a proper reaction; that is a typical jury reaction, from whichever class it comes. But in a criminal case dealing with political agitation, my own view is—and I say this advisedly—that one gets a fair trial from a rural Tory bench because they are so careful about their prejudices; but I do not think one gets a fair trial in those circumstances from a common jury.

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

I should like to point out to the Committee that this Clause deals with the abolition of special juries, and as special juries do not apply to criminal courts I think that the discussion is getting rather wide.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I agree, Mr. Bowles, and I shall not pursue that line any further. The time may come when the hon. and learned Member and I can debate the second point he made. You will realise, Mr. Bowles, that the reason I referred to the hon. and learned Member's Second Reading speech was that it does help on the point I am now making; he was differentiating rather in favour of the special jury as opposed to the other group.

I put it to all hon. Gentlemen opposite that the suggestion that juries function on a class basis is one which they ought seriously to reconsider before making it the basis of an argument in this Committee or elsewhere. I could not but be impressed, as I always am, by the speeches of the Lord President of the Council when I read them in the Press; and when I heard his almost pathetic cri de coeur to the middle class to stand by him, I could not help contrasting it with the extremely poor opinion expressed as to the probity and judgment of the middle class by those who are today basing this change on that view. I simply do not believe that verdicts are arrived at as a result of prejudice. I am sorry that the hon. Member for Oldham (Mr. Hale) is not here, because on Second Reading he gave us a very quick and summary reasoning on his own mental processes in deciding whether or not to apply for a special jury. I do not believe and I do not accept that a case can be made out on the ground that any type of case receives an unfair hearing because it is tried by a special jury.

I now come to the other point, which I have termed: "Is there any social evil?" I think hon. Members will understand what I mean by that. I mean the broad question of continuing the distinction and whether it is on reflection to be considered a social evil. I believe that experience is an advantage in exercising judicial functions. I mean experience of occupation, of business, of calling and of life generally. I am not referring to education in the academic sense at all; that may or may not be helpful on this point. I think that is arguable. What is, I submit, beyond argument is that experience, in the broad sense which I have endeavoured to define, is a useful adjunct to performing this service. One function of a jury in practically every case is that of valuation. That function comes into ordinary accident cases when one gets on to the question of damages. I think that the Committee will agree with me that valuation is one of the most difficult functions of a special jury in a serious case of personal injury.

Suppose the range of damages which might appeal to one jury or another or one judge or another were somewhere between £2,000 and £5,000. I ask the Committee to remember the way in which it was put by the hon. Member for Oldham. He said that if he had a case about which he was perfectly satisfied as to liability, he then applied for a special jury in order to try to get bigger damages. I ask the Committee to note that that is not a piece of cynicism by the hon. Member for Oldham, but because he thinks that he will get a better assessment of damages from a special jury and a more accurate assessment of damages—

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I am not taking such a poor view of the hon. Member for Oldham as the hon. Member who interrupts. I was developing this because it is a sound point. The hon. Member for Oldham, I am sure, believes that a special jury will give a more accurate assessment of the damages, and believes that the higher damages are the more accurate assessment.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

Mr. Turner-Samuels (Gloucester) rose

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I will give way in two minutes. It is not because I do not want to give way, but unless one can develop one's argument for about five minutes without interruption, it is very difficult to get it across.

May I come back to the point which I was making, because this is material? I see that the hon. Member for Oldham has now come into the Chamber, so I shall tell him to what I was referring. I expressed my regret that he was not here. I had drawn attention to what the hon. Member had said on Second Reading, that when he had a certain case of liability he applied for a special jury because he thought that he would get higher damages. I was defending that point of view against the implied reproach of cynicism from hon. Members behind him, and defending him on the lines that he not only wanted to get higher damages because they were higher, but because they were, in his view, a more accurate assessment of the damages to which his client was entitled.

6.45 p.m.

Photo of Mr Charles Hale Mr Charles Hale , Oldham

The right hon. and learned Gentleman expressed his regret at my absence but had he let me know he required my presence. I should, of course, have been here. My recollection of the remarks which I made on Second Reading is this: I think that I was talking about the general practice and if I applied the general practice, it must have been one of the very rare occasions on which I did so. I said that, generally speaking, when the whole question was one of damages, if one's case was certain, then one anticipated higher damages from a special jury than from a common jury. If, on the other hand, one had a case where a pedestrian was battling with a motorist, a special jury which was a motorist jury, was most unfair to the pedestrian.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I think that I quoted the first part of the hon. Gentleman's remarks perfectly correctly. I was taking the case where the range of damages which might appeal to one judge would be £2,000 and to another judge £5,000, or similarly in the case of juries. What are the factors that have to be considered? There are the interest rates and what the plaintiff is likely to get if he invests the sum he recovers. There is the amount of the annuity he gets if he wants to buy one. There is also the likelihood of his investing the sum in a business of his own. That is the awful problem which we have all had to consider on so many occasions. They are all points which we have discussed, if not ad nauseam, at very great length when we have been considering lump sum settlements in the old days concerning workmen's compensation. All those points, together with the changes in the value of money, have to be borne in mind.

There is a very real difficulty—and I put this without any offence to the Committee—if people have not had to consider largish sums of money before, because they have not got it themselves, or for the reason that their daily life does not take them into fields where they have to consider large sums of money. When one gets up to £2,000 it appears to them to be such a large sum that they disregard other important factors which, if considered, would bring one up to £5,000 or somewhere near it. I put that argument forward in all seriousness because I suggest that it is a point which has to be met.

I remember that in the days when I was in Liverpool and one had special juries and common juries, the fact that one saw on a special jury a surveyor, or someone used to valuation, was a real help on the question of damages, and it was also of assistance if there were people on the jury who were accustomed to considering questions involving large sums in connection with their businesses. There is a value in having a man who has to consider his capital position or the capital position of the business in which he is engaged. I submit that the same qualities are an advantage in dealing with complicated facts. There is also the advantage that the system is well-tried, and that it has worked well. In ordinary cases, I have not found a serious complaint of injustice between plaintiffs and defendants.

I now come to the second point of the argument of the hon. Member for Oldham. It is true that a special jury in the case of a pedestrian and a motorist may contain some motorists and, therefore, they may be able to consider the difficulty of the motorists more accurately. I think that, on the other hand, if he goes over his results broadly in his mind, his experience will not prove to be very different from mine, or probably that of the learned Attorney-General, that plaintiffs have succeeded in at least three-quarters of the special jury cases with which one has had to deal. I do not think that hon. Gentlemen will contradict that if they really go through their experience and endeavour to make the assessment.

Photo of Mr Charles Hale Mr Charles Hale , Oldham

The right hon. and learned Gentleman is putting an argument of substance and importance, but I do not think he is addressing his mind to the present position in which either side can peremptorily demand a special jury, if it suits their purpose. That is a very material point.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I shall come to that point, and put forward a suggestion which I am sure the hon. Member will consider. I hope that he will consider it favourably. I will not forget the point. I was saying that that is my experience, which I think no one with considerable experience would contradict. I am told that the tendency is not to have juries very often in running-down and personal injury cases today, and that the number of cases with a jury is getting smaller than it was in earlier days. The cases in which one can get a jury, apart from defamation, are, of course, fraud, where either party is entitled in effect almost to demand a jury.

What are the cases of fraud which actually come into our courts? Again, in my experience they are largely of two kinds. They are either fraud in the sale of a business or fraud in the sale of a motorcar. There are other cases, but I am being realistic. My experience on the Northern Circuit was that the vast majority of fraud cases were fraud in the sale of businesses. I do not think that the right hon. and learned Gentleman would contradict me, unless the situation changed very much when I did not cover the Northern Circuit so often. On that kind of case you have to consider exactly the same range and kind of fact. You need to have somebody who has experience in business and who knows the run of takings, and the proportion of profits to takings, and the like. It is an advantage to have someone who has some business experience and who is able to bring that in.

Now perhaps I may come to the point which the hon. Member for Oldham was good enough to put to me. I think the hon. Member would agree that where those parties want a special jury, it is somewhat difficult to argue convincingly that they should not have it. If we take the point which the hon. Member put, where one party says that he does not want a special jury, I suggest that it ought then to be left to the judge to decide with the guidance which my hon. Friends and I have endeavoured to put forward in the two Amendments, namely, by reason of the technical or complex nature of the issues or questions involved. It would be for the party who wanted the special jury to show that the issues were so complex, difficult or involved that the court would be helped by experience of the type that I have tried to define, and to show that the case was within that category. That is a point well worthy of consideration. Unless that could be shown and demonstrated, and the kind of background which I have indicated was required, the party would not get the special jury.

On that basis, I do not think there is unfairness. The Attorney-General put the matter attractively in his speech introducing the Bill, when he said that the jury should be a cross-section He made answer to me that with the jury list amalgamated, the people I have mentioned would be in the jury list somewhere. I do not think that any hon. Gentlemen who share my experience in this matter would say that that answer met my point. If we fix a limit however rough-and-ready, people who come from houses above that limit will include the types I have mentioned, namely, surveyors and business people with experience, who will be able to give help in trying the cases.

I am sure that few hon. and right hon. Gentlemen would really seek to put this problem on a crude, class basis. I am sure that they would all desire, as I desire, to try to find out what will do justice for the litigant. I am sure they want to approach it in that way. Therefore I ask them to think again over the points I have ventured to put forward and to say whether, having considered those points, they think it is right to do away with a well-tried system which is working so efficiently.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Whatever else one may say about the politics of the right hon. and learned Member for West Derby (Major Sir D. Maxwell Fyfe), nobody can doubt that he possesses courage, and that is one of the most important of the political virtues. I say that here, because advocacy of the continued retention of this well-tried judicial anachronism certainly requires courage rather than discrimination.

I was glad when, in his closing remarks, the right hon. and learned Gentleman said that he thought one should not approach this matter from a political point of view or on any kind of—I think the words were—class basis. I shall certainly not approach it from any such point of view. I think it has been thought in the past—this is perhaps only a matter of historical interest—that special juries often inclined to have Conservative tendencies in those cases in which, directly or indirectly, political issues arose at all. In the period between 1906 and 1914, I think, the Liberal Party very often said that the special jury was composed either of Conservatives or of publicans, and they seemed to take an equal objection to both. I shall certainly not approach the matter from any political point of view. I hope that the Committee will not for a moment allow itself to be divided about this matter on political lines. I do not think that it is a political problem.

7.0 p.m.

Nor do I think, as the right hon. and learned Gentleman rather tended to say, that this is in any sense a new problem or one which has been affected by the view which some people may have formed about the decisions of special juries in recent libel cases involving some kind of political complexion. So far from that being the case, in 1913 the whole question of jury law and practice was made the subject of inquiry by a Departmental Committee and much evidence was given at that time in favour of the view that special juries should be completely abolished. That view was not accepted by the Departmental Committee at the time but the Committee recommended quite a considerable number of alterations in the law relating to juries and to special juries, including the abolition of a number of the qualifications on which the special jury list is now founded, and the alteration of the remaining qualifications for that list.

I want to refer to one or two paragraphs of that Committee's Report because I want to put it quite out of our discussion that there is any suggestion of political difference about this or that this is a matter which has only recently arisen because of the decisions of certain special juries in particular cases. This is what the Committee said in paragraphs 178–9 of their Report: In connection with this question of the competency of the jury in commercial cases"— They were dealing here with the most technical of all the cases— we have been much struck by the poor opinion that clearly prevails in certain quarters with respect to the capacity of the modern special jury. In theory, a special jury is particularly fitted for the trial of cases such as those we have mentioned, but in London at any rate, and perhaps elsewhere, we are faced with two facts that are bound to influence any estimate of the value of the special jury. There appears to be a widespread feeling that the special jury panel usually includes an undue proportion of licensed victuallers, in consequence no doubt of the higher rateable value assigned to licensed premises as compared with that of other property, and it would also seem that the qualifications of 'banker, merchant or esquire' (see paragraph 52 above) have now become so meaningless as to result in the bestowal of the rank of special juror on a variety of small tradesmen and others, for whom it is hardly probable it was originally intended. Whether for these or other reasons, the quality of most special juries has, it is represented, shown of late years a marked tendency to deteriorate. Several of the witnesses commented on this fact, but we may point out that this degeneracy has been observed more particularly in the special juries that appear in the High Court in London. I was glad to see this, coming from the Northern CircuitThere is reason to believe that in the provinces the special juries have escaped this tendency. Then the Report said this: Against this apparent deterioration in the quality of the special jury it is satisfactory to be able to set some evidence of a decided improvement in the standard of common juries. We have been informed, indeed, that in London at least, though not, it would seem, elsewhere, a common jury is sometimes not merely as good as, but even superior to a special jury, and in one respect at any rate there are many who would prefer the common jury's verdict, if it be tree, as we are told, that special juries 'think in larger sums.' These ideas were not novel to those who spoke in the Second Reading Debate in this House. The Committee went on to express their conclusions about all this, and in paragraph 214 they said that they did not think that in all the circumstances, although there was a difference of view about this, they would be justified at present in advising any interference with the existing division of juries into two classes, and they explained their reasons: Our principal justification, however, lies in the expectation that several of the recommendations made in this Report will be found to meet the most important of the objections that have been taken to the special jury. To begin with we propose considerable restrictions on the present almost absolute right to trial by jury. We believe that henceforth not only will trials by any kind of jury be far less numerous, but that if the mode of trial and the kind of jury to be used are left, as we have suggested, to be determined by the judge"— That is rather what the right hon. and learned Gentleman suggested might be done but what has not in fact been done in any class of case in which a jury is available at present— the abuse, if any, of the special jury will effectually be prevented. This innovation gives the very best possible guarantee that henceforth a special jury will only be used when it is really required. Similarly, we are confident that our proposals for revision of the qualifications required for special jurors will make the special jury far more representative by considerably enlarging the area from which special jurors may be drawn. We believe that we have ensured the inclusion of classes whose exclusion under the present system has been one of the chief causes for dissatisfaction. Again—this is a matter which will interest the hon. Member for Liverpool, Exchange (Mrs. Braddock) because it is still a matter which has not been settled—the Report states: Lastly, we would point out that if, as we have recommended below, some uniform and purely mechanical system is adopted for the selection of jurors from the jury book, much uneasiness will be removed by the certainty that every special jury panel has been fairly and impartially chosen. That is what was recommended as long ago as 1913, and not one of those recom- mendations has been carried out. That was a Departmental Committee which came to the conclusion that there were obviously grave objections to the special jury system as it existed at that time but that it might be made tolerable if quite radical changes were made in the practice in regard to it and if the qualifications for service upon it were very considerably widened. That was not done, and now the matter has come before the House and we have to review the whole situation in the light of existing circumstances, one of which, hon. Members on both sides will agree, is that in the intervening 36 years the standard of general education over the country as a whole has very materially improved. I mention the history of the matter in order to try to destroy the impression which seems to have arisen in some quarters that this is in any sense a political matter, and I hope very much that in future hon. Members opposite will not lend themselves to the rather partisan propagandist suggestion that the case against special juries is based on any political prejudice on this side of the House. That is not so. These matters were very fully considered before and exactly the same objections were raised as are being raised to the special jury today.

The real question—here I largely agree with what the right hon. and learned Gentleman said—is whether on the whole—and I add an additional test to the one he posed—justice is not only the better administered in fact but also has the manifest appearance of being the better administered when we have these two classes of juries, this division based upon a property qualification between the different jurors. That is a very important consideration to be borne in mind. It is well recognised now, and I am not going to repeat what was said about it by the late Lord Chief Justice Hewart, that it is really important not only that we should have what is in fact an efficient and satisfactory system for the administration of justice but also that everybody should be satisfied that it is manifestly in its appearance a satisfactory system.

Whatever one may say, in applying the first of these two tests to the existing jury system with its division based upon a property qualification, I do not think anyone in this House would be bold enough to say—courageous as hon. Members opposite often are in putting forward surprising propositions—that the appearance of justice is in any way assisted by having two different classes of jury, the distinction between which is based solely and exclusively upon either a property title or the right to call one's self a banker or an esquire, or to use some other title which has now become completely meaningless.

Now I go back to the first test. Everybody would like to ensure that juries were adequately experienced and intelligent. I agree with the right hon. and learned Gentleman that, when one refers to the desirability of a jury being intelligent, one does not mean simply that they are well-lettered, full of book learning, or familiar with the classical languages; what one wants to find in a jury is not so'much that they are specialists in regard to any field of experience, but that they have native shrewdness and intelligence and are good judges of men. Because that largely is their ultimate function in court, to decide between the different witnesses on the different sides which is the more reliable.

If anybody could suggest—and nobody has yet suggested—any form of intelligence test or experience test which might be applied to juries that was not based upon a property qualification, I would be not unwilling to consider it. Certainly, I would not attempt to defend for a moment the property qualification, whether for a special jury or for a common jury. It may be that we shall have an opportunity of discussing that aspect of the matter later, and that we shall be able to say how else the jury list might be composed, but I must not anticipate the discussion which may take place on a later part of our Order Paper.

However desirable it might be to try to evolve some new test in order to secure the best possible jury, it is a little late in the day to suggest that the rateable value of a man's house is any longer, if it ever was, a reliable guide as to the occupier's qualities of shrewdness and intelligence. The rateable value of a man's house is not based upon the intelligence of the occupier. Of course, there may be occasional exceptions to that. I once occupied a cottage which was rated at £18 per year, and immediately after I had become the occupier and had gone down on the list, the rateable value was put up to £100 for no reason at all, so far as I was able to judge, except that I had become the occupier. Fortunately that is not a practice which usually guides the actions of valuation committees; they do not base the assessment either on the intelligence or the experience of the occupier, in whatever field it may be.

I put this to the Committee quite seriously as a view that I have formed on such experience as I have had of appearing in cases before juries in the civil and criminal courts; on the whole I would have thought that the best probability of securing the existence of these qualities of intelligence and experience on a jury is to make sure that the jury represents a good cross-section of the community. As the right hon. and learned Gentleman pointed out in the course of his remarks, nobody suggests that the abolition of the special jury list will in any way abolish the obligations of those gentlemen now upon it to sit upon juries. They will remain on the jury list, they will be called from time to time, and they will be sitting along with their colleagues who do not happen to enjoy the same property qualifications.

7.15 p.m.

That is how we have empanelled juries in both civil and criminal courts for a long time past, and although juries, like judges, occasionally make mistakes, I would have thought on the whole that they have turned out to be an exceedingly satisfactory tribunal. I know there are two views about it. The hon. Member who represents the city of Oxford (Mr. Hogg) said that he thought juries were perverse—

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

—sometimes perverse, and he went on to cite one or two particular cases on which he based his general argument.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

The right hon. and learned Gentleman is not reporting me correctly. If he will study the Debate on the Second Reading he will see that I was answering an argument by the right hon. and learned Gentleman himself to the effect that special juries did not operate in criminal cases, and I pointed to certain cases in criminal matters which I said would have been much better tried by a special jury, and that was the limit of my remarks.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I read the hon. Gentleman's speech this morning in order to refresh my memory, and I think he will find, if he imposes upon himself the melancholy task of reading it later on, that my recollection of it is a little more accurate than his own. He made some rather sweeping generalisations, based on a reference to one or two cases, that juries are perverse. However, he was followed by a view expressed by the hon. and learned Member for Brighton (Mr. Marlowe) who said that almost always the jury is fundamentally right. Of the two views, I think that is perhaps the better one. One often comes away from court with the feeling that the jury has behaved disgracefully but, on thinking it over and after calming down a bit, one frequently comes to the conclusion that fundamentally the jury was probably right, taking a broad view, in the decision to which it came.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Would the right hon. and learned Gentleman say in what sense he is using the word "right"?

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

That it came to a conclusion which, broadly, accorded with the requirements of justice. I think that is a fair way of putting it. Juries often overlook technical niceties and generally they are quite right in doing so. They come to a broad conclusion on the merits, and although they sometimes make mistakes, just as other courts do—there are four Divisions of the Court of Appeal working hard at the moment to correct mistakes made—on the whole they are generally a satisfactory tribunal. This was what the Departmental Committee said about them a long time ago: We may say at the outset that, as regards intelligence, we have nowhere met with any traces of a feeling that an ordinary jury of today is not as a rule a competent tribunal. Then they referred to the position in Wales where there are special difficulties because of the language question, and continued: If, however, as we imagine to be the case the amount of education to be found among all classes is steadily and progressively increasing, it is obviously permissible to anticipate a corresponding advance in the standard of intelligence of the average juror. And on the whole they say, quite rightly, that the jury is a satisfactory tribunal. I would have thought that it would be difficult to find, and that one cannot find in the jurisprudence of any other country, a better tribunal than the ordinary, common jury instructed by a trained High Court judge.

Whilst I take that view, and I put it forward with some confidence, I also put forward with complete conviction the view that the possibility of insisting upon the empanelling of a special jury, whose only qualification is the rateable value of the house they live in—and that is the only question before us now, because no other qualification has been suggested—is wholly inimical both to the fact and to the appearance of justice. Let me develop that by reference to two particular classes of case. I want to do so, Mr. Bowles, without transgressing your Ruling earlier in our discussions about criminal cases, and I think I can do so. Some of the most difficult cases—the right hon. Gentleman referred to one class of case—long-firm frauds, cases which sometimes last for many weeks in the courts; some of the cases of criminal conspiracy, complicated issues as to commercial transactions involving some illegal element; cases of that kind are commonly tried, and on the whole, I think, quite efficiently tried, by the ordinary petty jury in the criminal court.

I think it is a valid argument, when one is considering both the actuality and the appearance of justice, to say that if that tribunal is efficient, satisfactory and just where questions of life and liberty are at stake. It is most difficult to understand how it can possibly be said that they are an inefficient tribunal in the comparatively small number of comparatively simple human issues which alone remain triable nowadays in the civil courts as of right by juries.

The point which was advanced on Second Reading by the hon. Member for Oldham (Mr. Hale), on the attitude of a litigant's legal adviser when a question as to the right of trial by jury arises, was one of the very greatest importance. I am coming to the limited number of cases in which juries are at present available as of right. In those cases where they are available, the litigant's adviser immediately asks himself, "What sort of a jury shall we have? If we are rocky on liability, then we will have a common jury, because it is commonly supposed that common juries are inclined to be more sympathetic towards plaintiffs. If we want very high damages, and we are quite sure of getting home, then we will have a special jury, because special juries think in rather higher figures. If we are being sued by a pedestrian who has been run down on a pedestrian crossing, then we will have a special jury, because we will get more motorists on that than on a common jury." And so on.

In every case in which a legal adviser has to consider what he is going to do, where a jury has been asked for or demanded by the other side, he has regard to considerations of that kind. I really find it extraordinarily difficult to justify that situation. We have got now to put an end to this juggling with justice, this tampering with tribunals, this gerrymandering with justice. What would be the reaction if parties were to say, "We will not be tried by Mr. Justice So-and-so. We do not like the way he deals with this type of case. We will insist on being tried by another Mr. Justice So-and-so"? That is what they cannot say.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

They say that, but they have no choice.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

That may be, but hon. Members opposite would be ill-advised to attempt to discriminate between His Majesty's judges in the way I have suggested. They have no right to do so. They have to take, one way or the other, the judge who comes along to a particular assize. They cannot choose, they cannot say, "We will have this one because he will do better for us from one point of view, and we will avoid that one because we think he has some special bias in another direction." Each side must accept the same standard of justice administered by the same tribunal, and a distinction such as has existed heretofore, based on these property grounds, which are both antiquated and illusory, ought now to be swept completely away.

Finally, I want to point out this, which is in relation to the last point made by the right hon. Gentleman. It was said that there are some cases of special difficulty, cases involving technical matters of one kind or another, which are particularly suitable for trial by special jury; that the facts are complicated and people of experience are more likely to be able to deal with them properly, and that the judge ought to have discretion whether or not to order a special jury in such a case. I am not quite sure what that proposal is and whether it involves enlarging the existing right to trial by jury. It it were, one would have to consider it from that point of view.

But what, I think, has not been sufficiently recognised, if I may say so, in the course of our discussions, is that the present right to trial by jury—in civil cases, of course—is an exceedingly limited right. The judge can order a jury in other cases but, the only cases, in fact, in which there is any right to trial by jury are not those with complicated and technical issues of fact but cases in which there is some broad human issue in regard to which witnesses on one side or the other are, perhaps, less likely to be speaking the truth than in the ordinary run of litigation. Those cases are fraud, libel and slander, false imprisonment, seduction and breach of promise of marriage. I attach great importance to technical knowledge and experience and it may be—I do not know—that technical problems are involved in cases of seduction and breach of promise of marriage and that, possibly, experience has something to do with these cases; but I really do not see that matters of that kind are necessarily better dealt with by the special jury empanelled in the way that is appropriate now than by a common jury.

It is wholly beside the point to say that special juries are better for dealing with cases of complication and technical difficulties, because it is not in those cases that the right to a jury exists at all. If in those complicated, long and difficult cases the learned judge, on appeal from the Master, comes to the conclusion that a common jury—the only kind of jury which will be available if the House accepts the Bill—would not be a proper tribunal to try the case, he will not order a common jury. But under the law as it stands today, and as it will remain, the only cases in which there is a right to a jury are these simple, human issues arising in the cases I have just mentioned; and in those cases, I venture to submit, the common jury is just as well qualified to reach a just and sensible decision as one whose property qualifications may be slightly higher.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

Disarming as the Attorney-General has been in his plea for us not to make the charge that there is a political issue involved in this question, I do not myself intend to be beguiled by his request. In spite of what he has said, I still adhere to my original view that this is a political ramp, and I believe it is the consequence of the experiences which some people have had in the courts in the last few years. Since the right hon. and learned Gentleman the Member for Derby made such a devastatingly powerful defence of the special jury there is little more for us to say.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Let me say, in fairness to the hon. Member for Derby, that the hon. and learned Gentleman is referring. I think, to the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe).

7.30 p.m.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

I am much obliged to the right hon. and learned Gentleman. I cannot help feeling that this matter has to be approached in this way. The right hon. and learned Gentleman and those who sit with him are making out a case for the abolition of the special jury and, as I said on Second Reading, the onus is on them. Is it, or is it not, suggested that special juries have been guilty of injustice? That is the fundamental point to which we have to address ourselves. If hon. Members opposite are prepared to say that and to establish it by producing cases showing that special juries have been guilty of in justice, that would go a long way towards discharging the burden of proof. If they cannot establish such a case, what is the reason for what I assert to be the truth, that it is a vindictive Measure as a result of actions being lost before special juries?

If, on the other hand, any hon. Member opposite is prepared to bring forward a case in which he says that a special jury has done an injustice, of course I should be glad to hear of it. If any hon. Member does so he will be relying on those political cases and thereby substantiating the very charge I am making. The hon. Member for Oldham (Mr. Hale), in an interruption a little earlier in the Debate, gave voice to the opinion that the special jury in the case, for instance, between the pedestrian and the motorist, was unfair to the pedestrian. That was the sense of what he said and I think those were the very words he used.

Photo of Mr Charles Hale Mr Charles Hale , Oldham

They were certainly not my very words. I said that in a case between a pedestrian and a motorist the insurance company would prefer to have a motoring jury. I did not say it was unfair to prefer that but that it was bad that either side should select which jury they wished.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

The hon. Member used words to the effect that in such a case a special jury were likely to be unfair. I accept his correction, if he says he did not say anything of the kind, but I understood that to be the case. I understood his case to be that a special jury would be more likely to find in favour of the motorist. That assumes that all motorists are now people of great wealth who are vindictive towards pedestrians, but that is not so at all. Nowadays, while a great number of people may be pedestrians and not motorists, the vast majority of motorists are pedestrians also. The hon. Member is living a long way in the past and putting forward a policy which is rather like his party's policy on nationalisation which has roots back in the past, but which bears no relation to the present.

The truth is that in the great majority of cases tried by juries of any kind in this country they have no political flavour at all. I suppose 99 per cent. could be put into that category. The case that hon. Members opposite do not like to be tried by a special jury is a case where they think the special jury is more likely to have the political flavour of the Opposition rather than that of the Government side. That is the view they are supporting. I have not yet known them make out a case for it, except that the Attorney-General rather indicated how his mind had worked when he referred to the 1913 Report, which, he said, accepted that there was a tendency for a special jury to be composed of publicans and small tradesmen. It has become manifest, of course, in the last few weeks that the party opposite is not friendlily disposed towards publicans as they have been proceeding with a Licensing Bill and it has been well known for many years that they are not in favour of small tradesmen—

Photo of Mr Charles Hale Mr Charles Hale , Oldham

I can well understand that these remarks are not causing very much interest to the Chair, but are references to publicans, small tradesmen and the attitude of a party to nationalisation completely relevant to the question of the abolition of special juries?

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

I do not think you, Major Milner, were in the Chair when the right hon. and learned Gentleman the Attorney-General referred to the 1913 Report, in which he dealt with the manner in which special juries were made up at that date and the classes from which it was the tendency to draw them. In that Report those were the precise words which were used. I was praying in aid what the Attorney-General said and pointing out that that reinforced my argument that the party opposite are against special juries, not for the work they do in a court, but because of the people who go to make them up. If it is right—and I have found no proof of it at all—that one political party find that by reason of a special jury the dice are loaded against them or they think they are, what is the argument? Is it suggested that if, say, a Socialist is proceeding against a Conservative a special jury is more likely to find for the Conservative? Is the argument that if special juries were abolished there would only be a common jury and that a common jury is more likely to find for the Socialist? I cannot believe that hon. Members really put forward such an argument.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

It is a non sequitur.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

Yes and I cannot believe that hon. Members opposite would put it forward. But if not, what is the case for putting the common jury in the place of the special jury? What will be the result if the special jury is abolished. If there is any case at all for cutting down the extent to which a special jury is used, what is the objection to meeting that by making new rules for their employment? What is the objection to adopting some such procedure as that suggested by an Amendment on the Order Paper for putting the matter in the control of a judge to determine whether a special jury should be employed or not?

I shall put a case which I think hon. Members opposite would find very difficult to contest. Suppose both parties want a special jury. Is there any reason why they should not have it? If this Bill proceeds, in the case in which two parties want a special jury they will be precluded from having it. What is the justice in that? In another case where one party wants a special jury and another wants a common jury, there would be nothing to prevent rules being made that any person insisting on having a common jury could have a common jury. That would take away any peremptory right to a special jury. I cannot help feeling that it would be better to deal with these things in a practical way and if there is any case for a reform, let it be dealt with by making the necessary rules, so that special juries are not used where they are not desirable, but are available when they are required.

It certainly is a very remarkable thing—I do not know whether hon. Members opposite realise it—that by taking away the right of the special jury they are taking away something to which, in spite of the experiences some of them have had in the courts, they themselves have resorted. I understand that in the Laski case, Professor Laski himself applied for a special jury. He evidently believed that that was the jury which would give him most substantial justice.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I can tell the hon. and learned Gentleman that that was not so.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

I understood that it was so. I was so instructed, but if the hon. and learned Member for Northampton (Mr. Paget) tells me it was not so, I accept his correction. I was so informed. I am sure there have been political cases in which that situation has arisen and the special jury has been at the instance of the plaintiff. Of course, if the hon. and learned Gentleman tells me that was not so in that case, I accept it and I was obviously misinformed. But it does not affect the argument at all. The point is that there should be such a jury available for those who want it, and I cannot see why because these experiences have been undergone by hon. Members opposite they should deprive others who may take quite a different view and believe themselves entitled to a special jury, from having one. It would surely be best, if there is any case at all for modification of the system, to modify it by making the necessary rules, and not by proceeding in this way to sweep away an old and well-tried institution, and preventing special juries from being available to those who want them.

Photo of Mr Charles Hale Mr Charles Hale , Oldham

There are four possible explanations of the remarks of the hon. and learned Member for Brighton (Mr. Marlowe) with reference to the interjection which I made. I find it impossible to adjudicate or select between them. The first is that the hon. Member was not present when I made the interjection. The second is that he was present but failed to hear my words accurately. The third is that he heard them accurately and failed to understand them. The fourth is that he heard them accurately, understood them but deliberately misrepresented them. I find it impossible to adjudicate between those explanations. I do not propose to make any other observation on the very garbled account of my interjection which the hon. and learned Member gave.

The right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe) made a perfectly constructive, perfectly moderate observation upon this matter, in which he introduced certain things which I had said, and represented them perfectly fairly.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

Will the hon. Member allow me to say that if I misunderstood him, I assure him I certainly did not intend to misrepresent him? I was only repeating the spirit of what the hon. Member said on Second Reading, when he stated that one asked for a special jury in a case in which a pedestrian was concerned against a motorist. He said: It is quite a standard line for them to take, that for thirteen guineas they can get a jury of motorists who will strongly disapprove of a pedestrian walking across a pedestrian crossing at night without wearing a rear light."—[OFFICIAL REPORT, 1st February, 1949; Vol. 460. c. 1564–5.] That was how the hon. Gentleman, I think humorously, expressed himself on the previous occasion upon which we discussed this Bill, and I think that I was only conveying to the House the sense of what he said then.

Photo of Mr Charles Hale Mr Charles Hale , Oldham

I am much obliged to the hon. and learned Member. I would repeat what I said then. It is precisely what I say now. When the hon. and learned Member interrupts me to say that he did not intend to misrepresent me I accept that, but he must have the melancholy reflection that by exculpating his honesty, he reflects upon his intelligence.

7.45 p.m.

I was dealing with the right hon. and learned Member for West Derby. I wish to make my position clear. I believe that tonight we are reaching the culmination of a great and very important historical and constitutional process. I appreciate that the proceedings today are somewhat desultory, almost informal, but I could wish that the ghosts of many of those who suffered in the cause of juridical liberty in the years that have gone by were here watching our proceedings tonight. I believe that we have come near to the end. I hope that in an hour or two, when the Government accept a later Amendment, which it would be out of Order for me to refer to now, we shall come completely to the end of that process.

Lord Brougham was a great law reformer in spite of the many eccentricities which he undoubtedly had. He said that one could summarise the whole of the constitutional struggle, the whole of our libertarianism, by saying that when we got twelve good men and true in the box we got the fundamental of the whole thing. I believe it. I referred to this struggle when I intervened in the Second Reading Debate. I referred to the battles of the juries to be judges of fact and to be able to record their decisions. The trials of Nicholas Throcmorton and William Penn were great battles in our constitutional history. Then there came the second battle, which curiously enough had to do with libel cases. I do not know how libel has got into the mind of the hon. and learned Member for Brighton. I do not recollect the case to which he refers, but there was a much more important case—that of the Dean of St. Asaph—where Erskine had his famous and historical battle with his old chief, Mr. Justice Buller, to establish the fact that juries were the judges of fact.

Now we come to the end of this important democratic constitutional process. We want to have a jury which is a jury for everybody, without consideration of money, purse or power. We want to have a man tried by his peers. The hon. and learned Member for Brighton said that the onus of proof was upon us but this battle was fought out and won at Runnymede. We are now merely carrying out the end of the process after so many years of Tory Government in which these things have been ignored. The matters which we are discussing today are of great and real importance. I had not intended to intervene. I have tried in a purely non-controversial way to put simply what I feel about this matter, and to try to show that we are discussing something of importance. I hope that we shall not hear any more speeches like that of the hon. and learned Member for Brighton but that we shall approach this matter as one of fundamental importance to the democratic tradition, deal with the matter on that basis, pass this Clause, and come to the more important one which we are to consider later.

Photo of Mr Selwyn Lloyd Mr Selwyn Lloyd , Wirral

I have no complaint to make about the approach of the Attorney-General to this matter, but I rather agree with my hon. and learned Friend the Member for Brighton (Mr. Marlowe) that it did not lie in the mouth of the right hon. and learned Gentleman to impute in this matter political prejudice to our side of the Committee. That was rather borne out by the interjection of the hon. and learned Member for Northampton (Mr. Paget), when he asked for a definition of the word "right." I do not think that class prejudice really enters into this matter. From my own experience of trials, when one of the parties has tried to introduce class prejudice into a trial it has usually not been to the advantage of that party, but if neither of the parties has sought to bring class prejudice into the matter, the jury has certainly not done so. That applies equally to a special and a common jury.

I sometimes have difficulty in deciding, in the case of the hon. Member for Oldham (Mr. Hale), whether his head is ruling his heart or his heart his head. I think that his sentimental intervention tonight was one of the instances when clearly his heart was ruling his head. We have to approach this matter from a practical point of view, each of us in the light of his own experience. I believe in trial by jury. I should confess to the Committee that I have only attempted to direct a jury on two occasions and on each occasion the jury has disagreed. Therefore, I think that I can at least claim not to have indicated any undue bias. The Attorney-General was rather naive when he talked as though only juries could be perverse. With all respect to the Bench, judges do vary. The right hon. and learned Gentleman said that it was quite impossible to avoid a particular judge. I do not think that his memory could have gone back very far. Certainly, in regard to circuits it is easy to avoid setting down a case for trial if one does not want a particular judge to try it.

The practical point is what we believe to be the most suitable instrument to try a particular sort of case, in other words, whether there shall be grade 1 and grade 2 juries. I concede at once that it may be necessary to amend the practice. It may be that the method of selection and the circumstances under which the right to have a special jury arises, require amendment. It may be that the qualifications should be altered. This Clause, however, deals with the total abolition of special juries. I am not for a moment putting it forward as my opinion that the present system of selecting special juries is 100 per cent. right, but I do not think that, as a matter of practical justice, they should be totally abolished. The case which has not been met at all, that there are certain cases which require special experience and special knowledge, which at the same time it is desirable should be tried by jury, was put forward by my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe). The hon. Member for Oldham (Mr. Hale) talked about the plaintiff in a running-down case whose adviser thought his chances of establishing liability were rocky, and advised him to have a common jury. That in itself is a condemnation. That shows that in a case of rocky liability he is going to sacrifice the accurate and just estimate of damages which he would get from a special jury. So far from advancing the point of the hon. Member in the argument, I consider that it directly confirms that in a serious case, a special jury is the better tribunal.

It was the Attorney-General who spoke of common juries having dealt very successfully with long and complicated criminal cases. It is difficult in a criminal case to know exactly what the jury is thinking. I should have thought, however, that the impression formed by those of us who have appeared in long and complicated criminal cases, dealing with commercial matters, was that the great majority of common juries have been completely at sea throughout almost the whole of the case; that it would have been better and in the interests of justice that there should have been persons trying the case capable of dealing with the complicated matters presented, and doing justice to the issues involved. Therefore I take the point of the Attorney-General about justice appearing to be done and I say that there is a class of case in which justice would be done, and would appear to be done, if it was tried by a rather specialist class of jury, and I support my right hon. and learned Friend the Member for West Derby in refusing to agree to the total abolition of special juries.

Photo of Mr William Brown Mr William Brown , Rugby

I was very interested in the argument just advanced, and I should like to extend it a little further. If it be true that there are certain types of cases where a special jury—because its members are supposed to be better equipped with knowledge and experience than members of a common jury—are likely to be more adequate to deal with a particular case, we cannot stop there. There are many other cases in which a special jury is at least as inadequate, by comparison with a judge, as a common jury is with a special jury. If the logic of the argument which has been advanced is that we are to relate the mechanism to the character of the case, there are many cases where we ought to abolish the jury altogether and rest the decision with the judge.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

We already do that.

Photo of Mr William Brown Mr William Brown , Rugby

That may be, but the logic of the argument would ultimately lead us to the situation where we only had judges and no jury at all.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

That is very nearly the situation we have now.

Photo of Mr William Brown Mr William Brown , Rugby

I beg the pardon of the hon. Member, but it is not the situation that we have now, otherwise this Debate would not be going on at all.

I take the view that whether we have a common jury or a special jury we do not eliminate political prejudice. It is idle to suppose that a special juryman or a common juryman, when he goes into the jury box, immediately becomes com- pletely impersonal, forgetting the whole of his past, his associations, his politics and everything else.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

Purely in a political case.

Photo of Mr William Brown Mr William Brown , Rugby

No, I do not think that is true. It does not apply only to political cases. Our political outlook affects our outlook on every kind of thing. I think it was Cardinal Manning who once said that all human differences were ultimately religious ones. In other words, one's mental background in considering any question produces an effect. I cannot say that that is true in the case of the hon. and learned Member for Gloucester (Mr. Turner-Samuels), but I think that it is broadly true of most of us that our backgrounds do affect our attitude to political cases. Therefore we cannot abolish political prejudice. But we can, or we can try, to ensure that one political prejudice cancels out another. We can try to ensure that we shall not construct juries in such a way that their whole composition is of such a kind that they are likely collectively to lean one way rather than another.

If we have a common jury nobody knows what the twelve good men and true will consist of when we have them in the box. It is likely that they will be a fairly mixed bag. They are not likely to be drawn from one social strata. They will probably be mixed in politics, mixed in income and mixed in social outlook, Therefore it is more likely that one political prejudice will cancel out another. That is less likely to be so where the composition of the jury is so devised as to eliminate certain income brackets and only to include income brackets up to a given level. For that reason I think that the Government are right and that the Opposition are wrong.

I apologise for quoting a truism, which has been quoted before, that it is not enough that justice should be done; it should manifestly appear to be done. There is no doubt at all that any workman believes that he is likely to get a squarer deal from a jury composed entirely of people of different income brackets and social outlook. He does not believe that he is so likely to get a just verdict from a special jury as he is from a jury taken out of a hat. I agree with the hon. Member for Oldham (Mr. Hale) that this is the logical culmination of Runnymede. The right was established there for the barons that they should be tried by their peers.

Photo of Mr Charles Hale Mr Charles Hale , Oldham

There were no trade union representatives.

Photo of Mr William Brown Mr William Brown , Rugby

They were the most effective organisation of vested interest at the time, and like all vested interests, they brought pressure to bear in what they thought was the proper quarter. It has been broadened down now until this is the last anomaly left, and I think it ought to go. I hope we shall stand by the Government in this matter, and resist any effort to preserve a piece of legal mechanism which, in my view, belongs to a social past in a Britain which is gone.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

In general the hon. Member for Rugby (Mr. W. J. Brown) is always plausible, but not always very well informed. I could not help thinking that much of what he has just said would not have been said if, in addition to his very lively intelligence, he had brought to bear a little experience on this matter. His first point was that the logical conclusion of the argument presented by my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) was that we should eliminate juries in a large proportion of cases. But that is precisely what has happened to our judicial system over the last 35 years.

Photo of Mr William Brown Mr William Brown , Rugby

I am loth to interrupt the hon. Member, but what I said was that the logical conclusion of the argument advanced by the hon. and learned Member for Wirral was that ultimately we should have no juries at all, and that is what we have in Russia.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

I heard the hon. Gentleman the first time and I do not think he has improved it the second time. In fact that is what has happened to our civil juries over the last 35 years. I could not help feeling that the mind of the hon. Gentleman, like that of the hon. Member for Oldham (Mr. Hale) was unconciously drifting into the idea that we were here discussing the right of the subject to be tried by a jury of his peers in criminal cases. That, at any rate, was very manifest in the case of the hon. Member for Oldham, who discussed a long line of precedents, every one of which was a precedent in a criminal case. What we are discussing here is not the right of the subject to be tried by a jury of his peers, but the right of a litigant to have his rights determined by the civil courts. The question which has to be considered is what type of tribunal amongst those available is the most suitable for the purpose of determining his rights.

8.0 p.m.

The hon. Member for Rugby, not for the first time in this Debate, misquoted the well-known remark of the late Lord Hewart to the effect that it was desirable not merely that justice should be done but that justice should be seen to be done. The trouble is that those of us who oppose the proposal of the Government on this occasion, whatever we may think about the question whether justice would be seen to be done if the special jury was abolished, are quite certain that in a number of cases justice would not be done. When I hear hon. Members opposite and the hon. Member for Rugby quoting the old saw, I am perfectly sure what they have got in their minds is not what the late Lord Hewart said. They really do not think it matters very much whether justice is done or not, so long as justice is thought to be done. That is a very different question in civil litigation. My judgment has always been that the special jury in the limited number of cases where it is ordered, is a useful instrument of justice, one which ought to be retained and one as to which only one or two legitimate criticisms can be levelled in practice, most of which can be easily dealt with.

The Attorney-General was anxious to prove that this was not a political Measure. I do not know what the Attorney-General thought about it, but he cannot have listened to the speeches made in support of this proposal either on the Second Reading or on this occasion. Whatever else those speeches have established beyond doubt, they have established that this measure is supported by everybody else except the Attorney-General, on strongly political grounds. I am prepared to believe that the Attorney-General, if he so assures me, was actuated solely by motives of a judicial or juridical character. If so, he was the only Member on his side of the Committee who has even pretended to that degree of impartiality. The speakers on Second Reading included the hon. and learned Member for North Hammersmith (Mr. Pritt) and the hon. Member for Hornchurch (Mr. Bing), both of whom frankly asserted their desire that cases should be decided, in part, upon political grounds. They thought, and they told us that they thought, that everybody is subject to political prejudice and, therefore, it was much better that people should try cases who had political prejudices similar to their own. The hon. Member for the Exchange Division of Liverpool (Mrs. Braddock) complained of a jury which had convicted her husband, and the hon. Member for South Ayrshire (Mr. Emrys Hughes) complained of a jury which had convicted him—

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

That is the soundest reason.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

I am satisfied that the hon. Gentleman would have his objections to such a jury. It is not for me to say whether it was right or wrong, but no one pretends that these reasons are either impartial or objective. Apart from the legal advisers to the hon. Member for the Exchange Division, Liverpool, I know of no one other than the Law Officers who spoke from the opposite side of the House during that Second Reading Debate. That rather tends to speak for itself. This proposal is supported on political grounds by those who have strong personal reasons for disliking the special jury system.

The Attorney-General on each occasion made very strong play with the existing qualification. Nobody will pretend that the existing qualification can be supported as an ideal qualification for any tribunal. Nobody has sought to support it on those grounds. What is said by those of us on this side of the Committee who earn our living in the courts is that as a rule of thumb, it has turned out, and is turning out, tribunals which are doing justice more satisfactorily in a limited class of case than either a judge alone or a common jury. If there were a question before the Committee as to whether the qualification could be improved or modified, the right hon. and learned Gentleman certainly would not find me opposing him. But that is not what it offered. What is offered is the total abolition of this instrument of justice, and it is that to which we are opposed.

The hon. Member for Rugby appeared to be unduly perturbed lest juries should be influenced by political motives. He said with that air of omniscience which only he knows how to command—

Photo of Mr William Brown Mr William Brown , Rugby

And the hon. Member for Oxford (Mr. Hogg).

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

Nobody is less capable of pretending omniscience than I. The hon. Member for Rugby said with that air of omniscience which only he knows how to command, that none of us can rid ourselves of our political or social background. I could not help thinking that he was suffering from the handicap not of want of intelligence but of a certain want of experience in the courts. There may be cases where the political prejudices of the tribunal stand in some danger of influencing the result, but in the main that is not so. The ordinary business of the courts is far removed from any question of political prejudice and from any type of case in which political prejudice could be the dominant chance of a miscarriage of justice.

Photo of Mr William Brown Mr William Brown , Rugby

Again I hate to interrupt, but the hon. Gentleman is imputing to me a lack of experience in this matter. Perhaps I am entitled to say that on the only occasion when I appeared in the High Court on a charge of libel it was before a special jury, and it was only the circumstance that I defended myself and was not defended by a lawyer, which enabled me to get away so well.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

Now I see why the hon. Gentleman intervened in this Debate. He comes into the category of those who have grudges against juries—

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

The truth of this matter is that the main obstacle to justice in contested litigation is the danger that the wrong party should be believed. In litigation of the kind which juries try, the main danger to justice is that they should not find out the truth. The danger that, having discovered the truth, they should then come to a wrong decision on political grounds, is, relatively speaking a remote one. The real difficulty is how to get at the truth and the question of what tribunal is most likely to do it. I have absolutely no doubt that a special jury is a better instrument for that purpose in a certain limited class of case than the common jury.

When I find hon. Gentlemen opposite not answering my arguments on any opinion based on experience, even when they do it like the hon. Member for Oldham, but giving us a long rigmarole about Runnymede and Throcmorton and Fox, and asking us to come to the conclusion on democratic political grounds that this is a proposal which ought to be passed, then my heart sinks because I know that this case is not being tried by an impartial tribunal. As long as I have any force in me to oppose a proposal which is actuated, as far as I can see, solely by motives of political prejudice, I shall continue to do so on grounds which I conceive to be objective. That is why those of us on this side of the House propose to vote against the inclusion of this Clause in the Bill.

Photo of Major Geoffrey Bing Major Geoffrey Bing , Hornchurch

I am sure the hon. Member for Oxford (Mr. Hogg) will not think me discourteous if I do not deal immediately with the argument which he put forward, but, since the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe) is here, I should like to apologise to him in case he thought I was discourteous in going out when he was speaking, but I had to do so.

It appeared to me that, in the preliminary remarks which the right hon. and learned Gentleman made, he did not refer to what is the classic authority on questions of juries and special juries, and that is "The Elements of the Art of Packing As Applied to Special Juries," which is a familiar book by Jeremy Bentham. It may be that the right hon. and learned Gentleman had not had the opportunity of consulting that work, because, although we are fortunate in possessing here a first edition, the pages remain uncut. I had to decide between the difficult task of refuting his argument and destroying what might be the collector's value of the book in the Library. However, I have been fortunate in securing a part of the passage which is referred to in another work, and I think that in a few words it disposes completely of the argument which has been put forward from the other side of the House. Bentham's book is by an old law reformer and takes the form of a dialogue between people who may be taken to be representatives of a special jury and of a common jury. The Gentleman on the special jury says: We are in possession of having a jury of our own sort at pleasure; that possession we claim to have preserved to us. That is the argument of the right hon. and learned Gentleman opposite. Then, Yeoman says: More shame for you. On no principle either of natural justice, or of the English constitution, can we defend this so recently usurped advantage. … On your side is the superiority of intellectual force in all its shapes; knowledge, address, habit of taking the lead. On your side is the whole force of that influence which exerts itself on the understanding. On your side is every element of what is called respectability: education, opulence, power, rank, connexions. On no other occasion does this your superiority ever find you backward in the assertion of it; asserting it on every other occasion, and to every other purpose—on this occasion alone, to this purpose alone, you will not surely take upon you to deny it. This argument against the use of special juries was put forward 120 years ago. Is it not time that we in this House put into force a reform which was put forward and advocated by one of the greatest law reformers of the nineteenth century?

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

The hon. Member for Hornchurch (Mr. Bing) dealt with the position of special juries under enactments which were repealed long before anything was passed which this Bill proposes to repeal.

Photo of Major Geoffrey Bing Major Geoffrey Bing , Hornchurch

I am sure the hon. and learned Gentleman would not like to mislead the Committee. It is quite true that this was before the Juries Act, 1825; the principal provisions are dealt with later, but he will see that Bentham mentioned just the same arguments against the Act of 1825.

8.15 p.m.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

I think it is more relevant to consider the position today than anything which was dealt with by Jeremy Bentham at that time. Nearly everything that I wished to say has already been said by my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) and so I shall be extremely brief. I should like to apologise for my absence, which I could not avoid, during the speeches of my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe) and the right hon. and learned Attorney-General, and, if I do not give sufficient force to their arguments, I apologise to the Committee.

I can understand the position of those hon. and right hon. Gentlemen opposite who think that there should be no property qualification for juries at all. I do not say that I agree with them, but I understand them. That proposal is the subject of a later Amendment which I cannot discuss now, but, for the purpose of discussing the present Amendment, we must take the Bill as it stands at present that is to say, that there are still to be property qualifications of juries in civil cases, and, therefore, the question is solely whether or not we should abolish the special jury. I can see no case at all for abolishing special juries forever and in all cases for, as we know in many cases, both parties to civil litigation desire that their cases shall be tried by special juries. It would be wrong even to suggest any conscious prejudice in the Bench, but there may be at times unconscious prejudice in the Bench, and it may be that both parties will think that a special jury may be the best tribunal for standing up to a judge whom they would not like to try their case alone or with a less qualified jury.

It is sometimes assumed by hon. Members who have spoken in this Debate that there has been no case in which a working man, if there were to be a jury at all, would want his case to be tried by a special jury. I honestly do not think that they are right. I can think of many cases in which, if a jury is to be allowed at all, the professional advisers of a plaintiff, who, we will say, has lost his earning power and has been very seriously injured, would prefer a special jury to any other. What the Committee has to consider is not the present qualifications of special jurors, on which it is quite possible to cast ridicule, but whether there are any cases in which the sort of people who are in fact empanelled on a special jury will help in the administration of justice.

The name of Mr. Harold Laski has been mentioned as a litigant. I am not going to mention him as a litigant, but I remember once going into a very interesting case and seeing Mr. Laski as foreman of the jury, and, if my memory is correct, he was the foreman of a special jury in a very celebrated case.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

It was the O'Dwyer case, which was tried by the late Mr. Justice McCardie.

Photo of Mr Hector Hughes Mr Hector Hughes , Aberdeen North

Was the verdict in that case upset on the grounds of being perverse?

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

No, the verdict stood. I do not suggest that where special juries are set up political prejudice can never be there, but I do suggest that they are at least not liable to show political prejudice when properly directed. I agree with my hon. Friend the Member for Oxford (Mr. Hogg) that the difficulties which juries have is found where there is a conflict of evidence and they have to decide where the truth resides. Of course, I would never make the claim that any tribunal of any kind is incapable of prejudice in its task of arriving at the truth. I am only saying that, in my experience of the courts, such as it is, that has not been the trouble. I am speaking of well-known facts which anybody can establish for himself. There are cases where both parties to civil litigation desire a special jury. There is no denying that. They both desire a special jury because they believe that it will procure justice. They think that the case tried by a judge and special jury will have a better result than if it is tried by a judge alone, or by a judge and a common jury.

Limiting oneself to that class of case alone, is one to say that, notwithstanding the wishes of both parties and the belief that it will lead to justice, they shall not have the tribunal they want? I cannot see what good purpose is served by that. I agree with the hon. and learned Member for Wirral (Mr. Selwyn Lloyd) and with my hon. Friend the Member for Oxford that various other reforms may be desirable. I aim a believer in the jury as judge of fact. There may be reforms desirable in the details of property qualifications, but I confine myself to the simple fact that no good reason has been shown for the total abolition of the special jury.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

We have heard quite a number of prominent lawyers opposite who have endeavoured to put forward a case against the abolition of the special jury. One complaint made by the hon. Member for Oxford (Mr. Hogg) was that we on this side had put our case for the abolition of the special jury on political grounds only. As far as one has been able to gather from the speeches, hon. Members opposite have not put their case on any grounds whatever. I would point out to the hon. Member for Oxford that he made a very sweeping statement when he said that everyone on this side of the Committee had advanced political reasons for not retaining the special jury. I also spoke in the Second Reading Debate, and I did nothing of the sort. On the contrary, I was very careful to point out that I thought it was rather unfortunate that personal reminiscences and certain cases to which we listened were brought forward in the Debate at all.

Photo of Mr Quintin Hogg Mr Quintin Hogg , Oxford

When I made that statement, I did not have the hon. and learned Member in mind; I had in mind those hon. Members to whose speeches referred.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

I, of course, accept that explanation. There are one or two matters to which I wish to refer, in particular one point mentioned by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe). His contribution was undoubtedly a very careful and reasoned one. He began his observations by saying that the test which he applied was whether the retention of the special jury was going to be better for the administration of justice or not. Of course, the decision on this matter should rest, and rest alone, on the test whether by retaining the special jury the administration of justice is going to be strengthened or whether, by taking it away, it is going to be weakened.

The position in the first case is clearly that, as far back as 1913, although there was a Departmental Committee on the question the special jury was retained, but there was nevertheless no one who attempted to say a word in its defence. Anyone who reads the Report of the Departmental Committee will see that fact is made very plain indeed. On the other hand, the Chief Master of the King's Bench made it very clear that the function of the special jury was having one effect, and one effect only, namely, that it was working an injustice because it was based on class distinction. In my submission, we have heard nothing that justifies the retention of that class distinction, and unless there were a very strong case indeed to show that the application of that class basis contributed to betterment in the administration of justice, then there could be no justification for retaining it in those circumstances.

The right hon. and learned Gentleman gave an example which I should like to examine because it is not right that it should get abroad that there is any validity in the point at all. The right hon. and learned Gentleman said that the main function or, at all events, one of the main functions of a jury was the question of making a "valuation." I quite agree, of course, that that is a function which a jury has to perform. He then said that because that was so, it was essential, in all cases where the principle of making a valuation applied, that there should be a special jury because the character of the constituent elements in that special jury gave them a certain qualification which a common jury did not possess, and that, therefore, they could do their work better.

That cannot be a valid point for this reason. First of all, the judge who is trying the case has the function of directing the jury. It is immaterial whether the jury is specially qualified, expert, special or common jury; it is essentially the function of the judge to direct the jury on matters of valuation, and on all other matters connected with the case. It is the duty of the jury to listen to the judge and to follow him so far as they consider that the direction given by him is sound.

There is another element which the jury has to take into consideration. If it is a substantial matter of valuation, then there will be usually expert evidence. The idea that merely because someone on that jury happens to be a surveyor or has special qualifications that juryman can go off on a frolic of his own and decide the issue solely in that way is quite wrong and not in accordance with practice or the administration of justice. There is a further point which defeats the case that the right hon. and learned Gentleman was trying to make under this head. He said that if there were a surveyor or a business man on the jury there was more advantage of getting the benefit of such a person's qualification to bear on the decision reached. But the qualification of a special juror is not only that of a business man or a surveyor; it is based upon rateable value, and really means administering justice on a rateable value basis. There may, however, be a man who is an esquire, but who is not a surveyor at all and who does not understand a thing about business or valuation. There may, for instance, be a special jury whose complexion is based purely on a property qualification or their social status and which has none of the qualification to which the right hon. and learned Gentleman referred. Therefore, that does not accomplish the end which he put forward as being the ground upon which the special jury ought to be retained.

It was said by the hon. Member for Oldham (Mr. Hale) that this matter had been settled as far back as Runnymede. One or two people have tried to scoff at that, but, in my submission, there is great force in that statement, and for this reason. Until 1825 there was very real doubt whether the High Court had power to empanel a special jury at all. It was because of that that the Jury Act of 1925 was passed. The Statute itself said expressly that, doubts having been expressed about the power of the Court to empanel special juries, Parliament was asked to pass that Act. I do not want to go into the full history of the matter but the reason why that Act was passed was that at the time there were a lot of industrial strikes. Another Act was in fact passed with it at the time restricting the power of combination on the part of working men. There is no doubt about it that The Juries Act of 1925 was deliberately introduced in order to restrict and hold down demands of the working class of this country at that time.

This question of the right to a special jury is, therefore, surrounded with considerable dubiety. It is very doubtful indeed whether it is something which should ever have been allowed in the administration of justice. I do not want to keep the Committee longer but I felt that that should be said. I think the case is undeniable that the special jury should be abolished and that the Bill in its present form to secure that result should be accepted.

8.30. P.m.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

We have had today another exhibition of shadow boxing by heavyweight legal luminaries and it seemed to be far too polite for me. As the hon. Member for Oxford (Mr. Hogg) has referred to me, perhaps I may give my own experience of a special jury and, as I happened to be the defendant, I can look upon the matter objectively.

We have had a great deal of argument in this Debate that special juries are better qualified to assess the valuation of damages than the ordinary juror. I do not understand how the hon. Member for Oxford came to that conclusion. After all, although I am prepared to agree that the Attorney-General looked at this from the point of view of purely legal detachment, when we come to think in terms of the law of libel, we cannot dismiss the idea of political prejudice. When a gentleman like Mr. Harold Laski appears before a special jury I think it is quite obvious that weight is very much against anyone who has occupied such a prominent part in Socialist politics as he has.

I turn to the point about valuation. I was the unfortunate defendant in a libel action before a special jury in the City of London. As I pointed out to the House on Second Reading, I had a special judge as well and, of course, there was a special verdict. This case might help the House to form a judgment as to how far special jurors, selected by property qualification from the City of London, are able to assess damages in a libel action. I was accused of writing an article libelling a gentleman who had written an article describing Zinoviev's Arctic prison. This particular article appeared in the "Daily Express" and was a vivid description of Zinoviev's Arctic prison.

He had originally submitted this script to the B.B.C. and for some reason or other the B.B.C. had turned it down. It appeared in the "Daily Express" the next day and the following week I made certain comments which this journalist argued were dangerous to his reputation as a journalist. I was brought before a special jury in the City of London because the solicitors for this particular newspaper knew very well that if the case were tried in Scotland before a Scottish court, the damages would have been very insignificant indeed. The solicitors, I believe, deliberately gambled on the fact that this case would be tried in the City of London before a special jury composed overwhelmingly of anti-Socialists and that they would stand a far better chance of getting a favourable verdict if tilt case were heard before a special jury.

Ultimately, without a very great deal of discussion, damages amounting to £600 were given to the journalist I criticised on the grounds that his reputation as a contributor to the "Daily Express" had been damaged. I had never seen an article published by that gentleman in any paper before and I have never seen one published in any paper since. Yet that special jury came to the conclusion that his journalistic reputation was worth £600. I fail to see how they arrived at that decision. It was purely an arbitrary decision by people whose outlook was dictated, frankly, by class and political prejudice. If that case had been tried in Scotland, that gentleman would have been lucky if he had got £6, instead of £600. I need hardly say he did not get the £600.

My considered judgment as a result of coming before a special jury of the City of London was that one simply cannot escape the conclusion that they were definitely actuated by political prejudice and that any jury whose qualifications must be that of licensed victuallers, esquires, or bankers, should be abolished. I suggest that the Government are taking a very wise step in inserting this Clause in the Bill, and I for one shall support them very enthusiastically in the Lobby.

Several Hon. Members:

Several Hon. Members rose

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

I hope the Committee will soon come to a conclusion. Mr. Manningham-Buller.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I agree with the view you have just put before the Committee, Major Milner, but before the Committee comes to a conclusion, I would like to say a few words upon this matter which has now been the subject of discussion for some little time. It was said by the Attorney-General, in reply to my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe), that the question of the abolition of the special jury was in no sense a political matter. I should have thought that he had not to wait long before he heard the answer to that observation in the speeches of his own supporters who have made it abundantly clear, both on this occasion and on Second Reading, that this is indeed a political matter.

I have listened, I think, to most of the speeches which have been made in this Debate and in my view the case has certainly not been made out that the abolition of the special jury will result in better justice. It is true, in my belief, that there had been little it any public criticism of the actions of special jurors, apart from that coming from the hon. Member for South Ayrshire (Mr. Emrys Hughes), dating in time at any rate since I have been practising in the legal profession, before two libel actions which have occurred since 1945.

The criticism that we have heard seems to be based upon a proposition that because of the property qualifications there is some difference in political flavour of a special jury as opposed to a common jury. It is true that there is a little difference in the property qualifications, but there is little force in that contention, in view of the recent observations of the hon. Member for Central Bradford (Mr. Webb) when, I understand, he drew attention in a newspaper to the wealth and so, presumably, to the property qualifications of members of the Socialist Party. That fallacy and that argument seemed to be shared by the hon. Member for Rugby (Mr. W. J. Brown), who thought that the views of members of a jury depended upon their income brackets.

In my belief, it is quite wrong to say that in the vast majority of cases any regard is had to political views by any member serving upon a jury. Politics enter into very few cases. We have heard a bit, of course, about political cases today, quite naturally perhaps because Members of Parliament have certain experiences of that type of case. I do not believe it to be true, as the hon. Member for Rugby said, that no workman believes that he is likely to get justice from a special jury. I am sure that is not true. I am sure that on many occasions a special jury has been applied for by the workman on the advice which he has received.

We on this side do nor defend the existing qualifications of a special jury, but the fact that the qualifications can be attacked, is no reason for abolishing the special jury. It is rather a reason for considering what the qualifications should be, and I should have thought that was a reason for referring that matter to one of the committees now considering kindred legal matters. I believe that there is a real need for special juries. Indeed, in my opinion, the right hon. Gentleman in his Second Reading speech, when moving, "That the Bill be read a Second time," really gave away the case for the abolition of special juries in his argument in favour of the retention of a City of London special jury. He said that to deal with the commercial cases arising out of the transactions of merchants and traders it was desirable that these matters should be dealt with by jurors who had special technical qualifications. Once we admit that, then the case for the abolition of special juries is completely destroyed.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Would the hon. and learned Member for Daventry (Mr. Manningham-Buller) help the Committee by suggesting what technical qualifications would be appropriate for a special jury in a case of seduction, which is one of the other cases in which there is a right for trial by jury?

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I was dealing with a particular class of case—commercial cases arising out of the transaction of merchants and traders. I am not saying that in every case of seduction the right to have a special jury should be preserved. That again should be considered. Because a special jury may not be desirable in a case of seduction in future, that is no argument for saying that if both parties to the litigation want a special jury they should be deprived of having one. That will be the effect of the abolition of the special jury.

8.45 p.m.

Going back to the question of commercial cases arising out of transactions of merchants and traders, it is by no means every case of that kind which is entered in the commercial list. We may

have actions against stockbrokers for fraud and then, in the words of the right hon. Gentleman, there will be simple human issues to be determined; actions against doctors or surgeons for negligence. In all such cases it is surely right to preserve the desirability at least of determining all difficult questions of fact by a special jury. The abolition of the special jury is not, it is quite clear, put forward by the Government with the object of improving the administration of justice, but solely to satisfy political prejudice, and for that reason we on our side will certainly vote against the abolition.

Photo of Mr Hector Hughes Mr Hector Hughes , Aberdeen North

There is one point which I wish to make and which. in my submission, is a conclusive one, showing that this distinction is out of date. It has long been out of date because a special juror may serve on a common jury. If that is so, it shows that the distinction which is sought to be made by the Opposition in maintaining the special jury as against the common jury is an artificial one and completely out of date. In order to make my point clear, I will read the rule, which is very brief: No person is exempted from serving on a common jury by reason of his being marked as a special juror in a juror's book, or being qualified to serve as a grand juror, and it is the duty of the sheriff or summoning officer to extract a panel of common jurors indiscriminately from the juror's book. The grand jury has long been abolished. The special jury has become diminished in value and in effect and, in my submission, this Bill is bringing into legislative effect what has long been the tendency in legal affairs. I had a number of other points to put, but I shall content myself with that, because it has not been put by anyone else in the Debate and it seems to me to be a conclusive argument

Question put, "That the Clause stand part of the Bill."

The Committee divided: Ayes, 200; Noes, 59.

Division No. 50.]AYES[8. 48p. m.
Adams, Richard (Balham)Barstow, P. GBlyton, W. R.
Albu, A. H.Barton, C.Boardman, H.
Allen, A C. (Bosworth)Battley, J. R. Bowden, Flg. Offr. H. W.
Attewell, H C.Bechervaise, A. EBraddock, Mrs. E. M. (L'pl. Exch'ge)
Austin, H. LewisBenson, G.Brook, D.(Halifax)
Awbery, S. S.Berry, H.Brooks, T. J. (Rothwell)
Ayles, W. HBeswick, FBrown, George (Belper)
Ayrton Gould, Mrs. BBing, G. H. C.Brown, T. J. (Ince)
Bacon, Miss A.Blackburn, A. RBruce, Maj. D. W. T.
Balfour, ABlenkinsop, A.Burden, T. W.
Butler, H. W. (Hackney, S.)Hughes, H. D. (W'lverh'pton, W.)Reeves, J.
Cobb, F A.Hutchinson, H L. (Rusholme)Reid, T. (Swindon)
Cocks, F. S.Hynd, J. B. (Attercliffe)Richards, R.
Collindridge, F.Irving, W. J. (Tottenham, N.)Ridealgh, Mrs. M.
Colman, Miss G. M.Isaacs, Rt. Hon. G. A.Robertson, J. J. (Berwick)
Cooper, G.Jenkins, R. H.Rogers, G. H. R.
Corbet, Mrs. F. K. (Camb'well, N. W.)Jones, Elwyn (Plaistow)Ross, William (Kilmarnock)
Cove, W. GJones, P. Asterley (Hitchin)Royle, C.
Crawley, A.Keenan, W.Scott-Elliot, W.
Daggar, G.Kenyon, C.Shawcross, C. N. (Widnes)
Daines, P.Kinghorn, Sqn.-Ldr. E.Shawcross, Rt. Hn. Sir H. (St. Helens)
Davies, Rt. Hn. Clement (Montgomery)Kinley, J.Silverman, J. (Erdington)
Davies, Harold (Leek)Kirby, B. V.Simmons, C. J
Davies, R. J. (Westhoughton)Leslie, J. R.Skinnard, F. W.
Deer, G.Levy, B. W.Smith, S. H. (Hull, S. W.)
de Freitas, GeoffreyLindgren, G. S.Soskice, Rt. Hon. Sir Frank
Delargy, H. J.Longden, F.Sparks, J. A.
Diamond, J.Lyne, A. W.Stamford, W.
Dobbie, W.McAdam, W.Steele, T.
Dodds, N. N.McEntee, V. La T.Strachey, Rt. Hon. J.
Donovan, T.Mack, J. D.Sylvester, G. O.
Driberg, T. E. N.Mackay, R. W. G. (Hull, N. W.)Symonds, A. L.
Dumpleton, C. W.McLeavy, F.Taylor, R. J. (Morpeth)
Ede, Rt. Hon. J. C.MacPherson, Malcolm (Stirling)Thomas, D. E. (Aberdare)
Edwards, Rt. Hon. N. (Caerphilly)Mainwaring, W. H.Thomas, I. O. (Wrekin)
Edwards, W. J. (Whitechapel)Manning, Mrs. L.(Epping)Titterington, M F
Evans, E. (Lowestoft)Mathers, Rt. Hon. GeorgeTolley, L.
Evans, John (Ogmore)Messer, F.Tomlinson, Rt. Hon. G.
Evans, S. N. (Wednesbury)Middleton, Mrs. L.Turner-Samuels, M.
Fernyhough, E.Millington, Wing-Comdr. E. R.Ungoed-Thomas, L.
Follick, M.Morgan, Dr. H. B.Vernon, Maj. W. F.
Foot, M. M.Morris, P. (Swansea, W.)Warbey, W. N.
Freeman, J. (Watford)Moyle, A.Webb, M. (Bradford, C)
Ganley, Mrs. C. SMurray, J. D.Weitzman, D.
Gibbins, J.Naylor, T. E.Wells, P. L. (Faversham)
Gibson, C. W.Nichol, Mrs. M. E. (Bradford, N.)Wells, W. T.(Walsall)
Glanville, J. E. (Consett)Noel-Baker, Capt. F. E. (Brentford)Wheatley, Rt. Hn. John (Edinb'gh, E.)
Grey, C. F.Oliver, G. H.Whiteley, Rt. Hon. W.
Grierson, E.Paget R. T.Wigg, George
Griffiths, D. (Rother Valley)Paling, Rt. Hon. Wilfred (Wentworth)Wilkes, L.
Gunter, R J.Paling, W. T. (Dewsbury)Wilkins, W. A.
Guy, W. H.Pargiter, G. A.Willey, F. T. (Sunderland)
Hale, LeslieParker, J.Willey, O. G. (Cleveland)
Hall, Rt. Hon. GlenvilParkin B. T,Willams J. L. (Kelvingrove)
Hamilton, Lieut.-Col. R.Paton, Mrs. F. (Rushcliffe)Williams, Ronald (Wigan)
Hannan, W. (Maryhill)Paton, J. (Norwich)Williams, W. R. (Heston)
Harrison, J.Pearson, A.Willis, E.
Hastings, Dr. SomervillePeart, T. F.Wills, Mrs. E. A.
Henderson, Joseph (Ardwick)Piratin P.Woodburn, Rt. Hon. A.
Hewitson, Capt. MPopplewell, E.Woods, G. S.
Hobson, C. R.Porter, E. (Warrington)Yates, V. F.
Holman, P.Porter, G. (Leeds)Young, Sir R. (Newton)
Holmes, H. E. (Hemsworth)Pritt, D. NYounger, Hon. Kenneth
Horabin, T L.Proctor, W T.Zilliacus, K.
Hoy, J.Pursey, Comdr. H.
Hudson, J. H. (Ealing, W.)Randall, H. E.TELLERS FOR THE AYES:
Hughes, Emrys (S. Ayr)Ranger, J.M. Snow and Mr. George Wallace.
Hughes, Hector (Aberdeen, N.)Rees-Williams, D. R.
NOES
Boles, Lt.-Col. D. C.(Wells)Hogg, Hon. Q.Pitman, I, J.
Bossom, A. C.Howard, Hon A.Ponsonby, Col. C. E.
Bower, N.Hulbert, Wing-Cdr. N. J.Poole, O. B. S. (Oswestry)
Boyd-Carpenter, J. A.Hurd, A.Prior-Palmer, Brig. O.
Buchan-Hepburn, P. G. T.Keeling, E. H.Raikes, H. V.
Carson, E.Lancaster, Col. C. G.Ropner, Col. L.
Challen, C. Lennox-Boyd, A. T.Smithers, Sir W.
Channon, H.Linstead, H. N.Spearman, A. C. M.
Clarke, Col. R. S.Lipson, D. L.Stanley, Rt. Hon. O.
Conant, Maj. R. J. E.Lloyd, Selwyn (Wirral)Strauss, Henry (English Universities)
Crosthwaite-Eyre, Col. O. E.Lucas-Tooth, Sir H.Sutcliffe, H.
Crowder, Capt. John E.Mackeson, Brig. H. R.Touche, G. C.
Darling, Sir W. Y.Manningham-Buller, R. E.Vane W. M. F.
Digby, S. W.Marlowe, A. A. H.Walker-Smith, D.
Dodds-Parker, A. D.Marshall, D. (Bodmin)Wheatley, Colonel M. J. (Dorset, E)
Drewe, C.Morrison, Maj. J. G. (Salisbury)Williams, Gerald (Tonbridge)
Erroll, F. J.Morrison, Rt. Hon. W. S. (Cirencester)Willoughby de Eresby, Lord
Fyfe, Rt. Hon. Sir D. P. M.Nicholson, G.
Gage, C.Orr-Ewing, I. L.TELLERS FOR THE NOES:
Grimston, R. V.Peto, Brig. C. H. M.Mr. Studholme and
Hannon, Sir P. (Moseley)Pickthorn, K.Lieut-Colonel Bromley-Davenport.

Clause ordered to stand part of the Bill.