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Session 1999-2000
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Delegated Legislation Committee Debates

Draft Access to Justice Act 1999 (Destination of Appeals) Order 2000

Fourth Standing Committee on Delegated Legislation

Thursday 6 April 2000

[Mr. John Butterfill in the Chair]

Draft Access to Justice Act 1999 (Destination of Appeals) Order 2000

4.30 pm

The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I beg to move,

    That the Committee has considered the draft Access to Justice Act 1999 (Destination of Appeals) Order 2000.

I welcome you to the proceedings, Mr. Butterfill. I hope that we can be brief. Although this is a legal matter, none of us is being paid by the word, sentence or hour and I hope that our proceedings will be reasonably concise.

The order is made under section 56(1) of the Access to Justice Act 1999 and makes amendments to existing routes of appeal.

In his report, ``Review of the Court of Appeal (Civil Division),'' which was published in September 1997, Sir Jeffery Bowman made recommendations for the same principles of proportionality and efficiency inherent in the civil justice reforms generally, to be applied equally to the workings of the civil appeals system.

Appeals affect three sets of rights. First, they affect the rights of the party who wishes to appeal. Secondly, they affect the rights of the other party or parties to the litigation who have received judgment and wish to resist the appeal. Finally, they affect the interests of other court users and the public interest in the finality of litigation. An effective appeals system needs to balance those three sets of rights by ensuring that appeals are dealt with in ways that are proportionate to the grounds of complaint and the subject matter of the dispute. So far as is practical, the system should also ensure that uncertainty and delay are reduced to a minimum. A fundamental part of the drive for proportionality is the need for appeals to be heard at the level most appropriate to the nature of the case. This order implements that sensible, and I hope laudable, objective.

It is proposed to bring the order into force at the same time as new rules for civil appeals are introduced on 2 May. The new rules strip away the existing confusing patchwork of appeal provisions and replace them with a common procedure.

The order does not apply to family proceedings. They are the subject of a separate consultation exercise, which will end in late April. Amendments to family routes of appeal will then be considered in light of that exercise.

The changes that the order will introduce were proposed in a consultation paper, ``Reform of the Court of Appeal (Civil Division): Proposals for Changes to the Constitution and Jurisdiction'', published in July 1998. The proposed routes of appeal were described during the passage of the Access to Justice Bill and were set out in the explanatory notes. The order reflects those proposals.

Articles 2 and 3 provide for the following routes of appeal: from a decision of a district judge to a Circuit judge; from a decision of a master, registrar or district judge of the High Court to a High Court judge; and from certain decisions of a Circuit judge to a High Court judge.

The first two routes of appeal reflect existing practice set out in rules of court. Those rules will be revoked from 2 May by the Civil Procedure (Amendment) Rules 2000. It is necessary, therefore, to provide for those in the order. The third route of appeal mentioned is new and provides the proportionality within the appeals structure, which will ensure that appeals are heard at the correct level. Appeals that are heard at too high a court result in greater expense for the parties and more delay both to the parties and to other cases that ought to be heard by the higher appeal court.

The introduction of a new route of appeal from the Circuit Bench to the High Court Bench means that some appeals previously disposed of by the Court of Appeal will in future be dealt with by the High Court. That is in line with the recommendations of the Bowman report that found that the Court of Appeal was being asked to consider numerous appeals, which were not of sufficient weight or complexity to merit the attention of some of our most senior judges.

So as not, immediately to overload the High Court, some appeals from the county court will continue to be heard by the Court of Appeal. This is the result of article 4, which provides that final decisions in multi-track cases and certain specialist proceedings are to be appealed to the Court of Appeal irrespective of the court of first instance. Although the majority of those cases will be determined either by a High Court judge or a Circuit judge, the article will also embrace decisions of district judges and masters of the High Court, for example, where the parties consent to a master or district judge hearing a multi-track case. The flexibility provided by the use of an order-making power will enable the Lord Chancellor to keep under review the appropriateness of such appeals to the Court of Appeal and to make any further necessary changes in due course.

Other provisions of the Access to Justice Act continue to ensure that those matters that merit the attention of the Court of Appeal will continue to receive it, irrespective of the designated route of appeal. These are set out in section 57 of the Act. That section provides that the Master of the Rolls or a court may direct that an appeal that would otherwise lie to a county court or High Court should be heard instead by the Court of Appeal.

Article 5 makes it clear that, irrespective of the above routes, an appeal from any decision that was itself made on appeal to a county court or a High Court must be made to the Court of Appeal, thus providing for the stricter test for second appeals in section 55 of the Act and ensuring that will apply. That should ensure that, save in wholly exceptional circumstances, there should be only one appeal.

Articles 7 and 8 of the order make consequential amendments to sections 16 of the Supreme Court Act 1981 and section 77 of the County Courts Act 1984. Those sections set out general provisions for appeals from the High Court and county courts. The order, however, is subject to any other enactment that provides a different route of appeal.

In accordance with section 56(4) of the 1999 Act, the Lord Chancellor has consulted with the four judicial heads of division, namely, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. They are all content with the order.

Finally, I would add that in my view the order is compatible with the European convention on human rights. On that basis, I commend the order to the Committee.

4.35 pm

Mr. Nick Hawkins (Surrey Heath): I echo the Minister's welcome to you as the Chairman of these proceedings, which I am sure will be brief as the hon. Gentleman said. I have had the pleasure of serving with you on a number of Committees, but it is the first time that I have been on the Opposition Front Bench under your chairmanship, which is a particular pleasure as you are nearly a constituent of mine.

The Minister was right to set out the need to arrange appeal mechanisms so that they no longer resemble a patchwork quilt. He is well aware that in the debates on the Access to Justice Bill we quoted the strong views of the Law Society of England and Wales, the Bar Council and many other organisations that the legislation was misnamed. It should have been called the ``Denial of Access to Justice'' Bill. Nevertheless, it has been enacted. We recognise that the senior judiciary are happy with what is being proposed in the order. Now that we have the 1999 Act, it would seem sensible to take the opportunity to clarify some of the routes of appeal. Although we had grave concerns about the Bill, there is no point going back over those as it has been enacted.

Undoubtedly, the order will achieve some useful simplification. We hope that it will work in practice. We are always a little concerned when Ministers say that everything in the garden is rosy, but we have not identified any weaknesses in the order and we hope that it will work in practice as well as the hon. Gentleman has said. If it does not, he will hang by his own words.

4.37 pm

Mr. John Burnett (Torridge and West Devon): I join my colleagues in welcoming you to the Committee, Mr. Butterfill. It is always a pleasure to have you chair our proceedings.

We have High Court judges of great learning and integrity. Therefore, we have no objection to the order. However, perhaps the Minister could clarify two or three matters. First, how long will a High Court judge have to serve before he or she can hear appeals? Secondly, will High Court judges sit alone in this appellant role, or will they sit together with another judge, or perhaps two others?

Finally, it is important that appeals are heard at the right level. The Minister alluded to that in his speech. It is vital that certain cases, for example those that clarify the law or aspects of the new civil procedure rules-perhaps, cases under the impending Freedom of Information Act and, of course, the Human Rights Act 1998-are heard by judges of sufficient experience and tenure of office.

I look forward to hearing the Minister's comments on those questions.

4.39 pm

Mr. Gerald Bermingham (St. Helens, South): I have never heard such clap-trap in my life as the speech by the Opposition Front-Bench spokesman the hon. Member for Surrey Heath (Mr. Hawkins). I could not let it pass.

Appeal procedures in the civil courts lie up a chain. This sensible measure defines the chain so that we no longer have the grey areas between appeals for various district judges. As to whether a High Court judge is capable of sitting on his own, he often does. As I understand it, when it is an appeal from a master, he will continue to do so, which is right. I think that an official is nodding sagely in agreement, which shows that I remember a little civil law from my days as a criminal lawyer. I declare an interest, Mr. Butterfill, as a practising criminal lawyer who would not go near a civil court even if I were paid a fortune, simply because I do not know enough about the law.

The order is extremely simple. I would be equally happy if we could have an expedited system in the criminal division, but I will raise that with Mr. Justice Auld when I see him next week. Accordingly, I suggest that the measure is extremely sensible and should pass quietly into law.

4.40 pm


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