Standing Committee E
Tuesday 11 May 1999
(Afternoon)
[Part II]
[Mr. Bill O'Brien in the Chair]
[Continuation from column 302].
Clause 41
Meaning of conditional interests in shares
Question proposed, That the clause stand part of the Bill.
5.45 pm
The clause introduces the principle that, in normal circumstances, there should be only one appeal to the courts in relation to any matter. The Bowman review found that many cases reaching the civil division of the Court of Appeal had already been considered on appeal by a lower court and concluded that that was inconsistent with the principles of certainty and proportionality which are at the heart of the wider civil justice reforms. It will of course remain possible to appeal to the Court of Appeal, but under more restricted circumstances.
Mr. Dismore: One of my concerns is that under the new civil justice procedure, a number of decisions made by district judges should perhaps be considered by the Court of Appeal. Looking ahead, am I right that under clause 43, leap-frogs would be allowed on points interpreting the new civil justice rules? Under the old rules, we had terrible trouble with, for example, order 17, rule 11, which could be sorted out only by mass appeals to the court of appeal. If that is the case, the clause is a welcome development.
I do not know whether my hon. Friend has seen the column by Marcel Berlins in The Guardian today; he points out the anomaly of appeals from Scottish courts of appeal to the House of Lords not having to be on points of public importance. Perhaps he could examine that at some stage, although there might not be time today.
Mr. Garnier: Clause 41 allows permission to be given only by the Court of Appeal. In many instances, the High Court judge acts as a preliminary sieve, and I wonder whether the Government are restricting the courts unduly. The High Court judge often refuses leave to appeal; he has confidence in his judgment and says in effect, ``If you think I've got it wrong, go to the Court of Appeal and ask for leave because the Court of Appeal should be allowed to control access to itself.'' Might the Government leave open the possibility that the High Court judge should be the first trigger, because the frequent refusal by that judge to grant leave to appeal to the Court of Appeal dispenses with any further thoughts about an appeal? The Government may retain that discretion to the High Court judge because they do not want to open the floodgates to appeals. I appreciate the Government's intention in regard to the clause.
Mr. Hoon: I confirm to my hon. Friend the Member for Hendon that clause 43 anticipates the leap-frog appeals to which he referred although they would not be related only to the Woolf provisions. I hope that they are not the cause of many appeals, but there may be a number of them. My hon. Friend has a considerable advantage in Scottish matters. I am exceedingly reluctant to get involved in the issue that he raised, but if he will be patient, I am sure that an answer can in due course be found and I will write to him accordingly.
On the point made by the hon. and learned Member for Harborough, he is right in what he said about the High Court judge.
The purpose of clauses 40 and 41 is to establish two of the principles that were at the heart of the findings of Sir Jeffery Bowman; that there should be only a single appeal in principle, not the multiplicity of appeals that can occasionally occur, and that there should generally be leave to secure an appeal. That need will generally be granted by the judge or court that is the next step up in the various levels of the appeal process. Under clause 40, the High Court judge will play a part in that.
The provision is therefore designed to provide a more up-to-date appeals process. Sir Jeffery Bowman found many problems with the backlog of cases in the Court of Appeal criminal division and set out in his review a number of suggested solutions that are incorporated in that part of the Bill.
Mr. Garnier: Clause 41(2) takes out criminal matters; we are talking only about civil matters.
Mr. Hoon: That is right. We will deal with criminal questions in a few moments. Essentially, Sir Jeffery Bowman concerned himself with civil procedure and the importance of ensuring that the civil division does not face the backlogs from which it currently suffers.
Mr. Grieve: In broad terms, I welcome the provisions in the clause, but I would like clarification on a number of matters. I am particularly concerned about the mechanism of appeal in administrative cases that often start in the magistrates court. For example, I occasionally dealt with street market cases, particularly in respect of one local authority in the east end of London. Those cases would commence at the market tribunal or the market committee of the council. From there, appeal would go to the magistrates court, then to the Crown court, then to the divisional court and then to the Court of Appeal. In one case, an application was even made for leave to appeal to the House of Lords.
Will the Minister explain how that process will slot into the Bill's framework? The Bill mentions county courts and the High Court, but does not deal with an area of administrative law which, although it is clearly under civil jurisdiction, starts in the magistrates court. I should be interested to hear the Minister's response.
Mr. Hoon: I have set out the proposed framework and the principles that underpin the Bowman review. We shall deal with another principle proportionality when we discuss clause 42. Essentially, the purpose is to provide only one level of appeal from whatever particular court exercising whatever particular jurisdiction. As we shall see, in the light of reforms to procedure and to different jurisdictions, appeals may be made to bodies that are different from those presently constituted. The provisions in the Bill will empower that process.
In answer to the question raised by the hon. Member for Beaconsfield, there will be an appeal from each stage. Generally, the appeal will be by leave of the next stage in the appeals process, subject to the power of the civil division of the Court of Appeal to deal with matters of public importance. Clearly, the extent of appeals will be interpretations of the law or procedure. That was Sir Jeffery Bowman's precise recommendation.
Mr. Grieve: I understand the Minister's point. I was particularly exercised by the example of a magistrates court that deals with a civil jurisdiction issue such as administration of street markets. For example, it might be felt unusual for lay justices to determine whether a right of appeal lay to the Crown court, and for the justices to withhold their consent. I appreciate that the matter is very different when it arises in respect of a district judge or county court judge.
Mr. Hoon: I apologise if I have not made matters clear. Permission will be granted by the tier above the decision-making body. With regard to the hon. Gentleman's example, it would not be the justices who would give leave but the level above them in the appeals process.
Question put and agreed to.
Clause 41 ordered to stand part of the Bill.
Clause 42
Power to prescribe alternative destination
Question proposed, That the Clause stand part of the Bill.
Mr. Hoon: As I said, the clause will introduce a further principle, proportionality. The civil division of the Court of Appeal has in recent years experienced a substantial increase in its work load, resulting in significant delays in the hearing of appeals. The Bowman review concluded that the Court of Appeal was being asked to deal with a number of appeals that were of insufficient substance for consideration by the country's most senior judges. One of the principles at the heart of the civil justice reforms is that of proportionality. In other words, the system should offer appropriate procedures as a reasonable cost. An effective system of appeals is a vital part of the civil justice system, and the principle of proportionality is equally applicable to it. Appeals should be heard at the level that is most appropriate to the nature of the case.
To address the current problems, therefore, it is necessary to take away from the Court of Appeal those cases which do not need to be heard there. That will release resources to allow the Court of Appeal to reduce its current backlog and ensure that it is better placed to deal with the further increases in its work load that are anticipated from the implementation of the Human Rights Act 1998 and the introduction of the new civil procedure rules.
To do that, it is necessary to amend the existing routes of appeal. However, these changes are occurring at a time of significant reform in the civil justice system as a whole. What is required, therefore, is the flexibility for systems to be adapted to ensure that the procedures in place are responsive to this continuing programme of reform and make the most appropriate use of the available resources in each part of the system. That will be achieved by introducing an order-making power enabling a Lord Chancellor to determine appeal routes in secondary legislation.
An effective system is of great importance to any civil justice system and there may be concern at the prospect of appeal routes being determined in subordinate legislation rather than being set out on the face of the statute. In response to those concerns, I draw the Committee's attention to the way in which the clause has been drafted. Although it allows for a Lord Chancellor to change current appeal routes, it does not allow him to remove any existing right for a case to be appealed. The intention of the clause is to ensure that appeals are heard at the level that is appropriate to their weight and complexity. It is not intended to deprive litigants who can demonstrate sufficient justification for an appeal of the right to have a higher court consider their case.
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