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Lord Woolf: I merely wish to record my gratitude to the noble and learned Lord and the noble and learned Lord the Lord Chancellor for being so responsive to my sensitivities.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 290B:

Page 72, leave out lines 40 to 42 and insert ("the words from "Master of the Rolls" to the end substitute "Lord Chancellor approves any rule such as is mentioned in subsection (1), the requirement of the concurrence of the Master of the Rolls imposed by that subsection shall not apply."").

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On Question, amendment agreed to.

[Amendment No. 291 not moved.]

Lord Falconer of Thoroton moved Amendment No. 291A:

Page 73, line 46, leave out ("a writ or otherwise commence").

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clause 38 [Permission to appeal]:

Lord Kingsland moved Amendment No. 292:

Page 21, line 16, after ("that") insert (", except in cases relating to the civil rights and safety of the person,").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 294. The Opposition support in principle the introduction of an extension of the requirement for leave to appeal to discourage unmeritorious appeals which take up too much time of the courts and add to the costs of litigation, including for the ultimately successful party.

The success rate of appeals, particularly in the Court of Appeal, is significantly higher in circumstances where leave to appeal is currently required. Also, the present rules on leave to appeal are rather complex and difficult for the Court Service, let alone the parties, to understand. But there should be exceptions to the requirement for leave to appeal because, inevitably, that adds an extra step and takes time, especially if leave is not immediately given by the trial judge and a separate application must be made at a later stage to that judge or a more senior judge.

The only exception to the universal requirement of leave to appeal on the face of the Bill is in relation to criminal cases. But the liberty and safety of individuals and their ability to exercise their civil rights, such as freedom of movement and freedom of expression, are issues in many civil cases such as those involving asylum seekers, domestic violence or harassment injunctions. The universal requirement for leave to appeal may also not comply with the European Convention on Human Rights.

I accept that it is not appropriate in primary legislation to include in great detail all the specific categories of case for which an automatic right to appeal should be permitted. But at least the basic principles should be enshrined therein.

Amendment No. 294 would enable a party wishing to appeal a decision who was refused permission to appeal by the first instance judge to renew the appeal before the Court of Appeal. In many cases, the parties, especially those involved in lower value claims or litigants in person, will need a little time to reflect on the outcome of the trial and the first instance judgment before deciding whether an appeal is merited. Frequently it is simply not practical to apply to the trial judge after the event, especially on circuit where the judge may not be at that court until some weeks or even some months later. There will also be a few cases where the first instance judge may be reluctant or unwilling to give permission for an appeal, even when this would be the right course of action, because it could be seen to reflect adversely on his abilities.

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A very important function of the Court of Appeal is to take an overview of the justice system and decide points of principle and resolve test cases. If the automatic right to appeal is to be significantly restricted it is vital that decisions granting permission to appeal should not remain the province only of the first instance judges. Losing parties should have the right to appeal for leave directly to the Court of Appeal. I beg to move.

Lord Goodhart: Two of the amendments in this group are in my name, Amendments No. 293 and 295. Speaking first to Amendment No. 293, there should clearly be an absolute right of appeal against the deprivation of liberty. I have to assume that the absence therefore of any reference to an automatic right of appeal where there has been a committal to prison for contempt of court is an oversight. If not, that is a point that should certainly be re-considered urgently.

Amendment No.295 raises a different point which is somewhat akin to that raised in Amendment No.294. It is that there should always be someone other than the judge who decided the case who can give leave to appeal. The judge who decided the case should of course be entitled to give leave but, if he or she refuses it, there must be some other judge to whom a further application for leave can be made. I remember one judge, now dead--indeed he was a former head of my chambers--who never suffered the slightest doubt about the correctness of his decisions. It was therefore very difficult to extract from him leave to appeal in cases where leave was needed, but counsel in such a case could always go to the Court of Appeal to get leave. It is surely wrong that one person should both make the decision and then have the sole power to decide whether leave to appeal from that decision should be given.

Lord Woolf: Perhaps I may say just a few words about the provisions of Clause 38. As the Committee will appreciate, the provisions of this part of the Bill are largely derived from the Bowman Report. The purpose of the Bowman Report was to ensure that the Court of Appeal could provide a service in the interests of justice which met the needs of litigants more efficiently and effectively than it does at present.

The present amendment deals with Clause 38. I would draw attention to the fact that this is to be subject to the rules of court. As the Committee will again be aware, there is a Rules Committee, of which I have to confess I am chairman, which looks at these matters with great independence and care. In practice that committee is best able to judge what restrictions should be made with regard to the general requirement of leave to appeal.

In principle I am not concerned about the amendments which are proposed except for Amendment No. 292. If the noble Lord, Lord Kingsland, would forgive me for doing so, I would suggest that the wording he is proposing there is dangerously wide. Some litigants would say that whenever they come to court they are exercising their civil rights. Safety of the person is also a worrying requirement. Some would say that every Factories Act case involves the safety of the person. It seems to me that that proposal would drive the proverbial coach and horses through what is being

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proposed. I would urge that, rather than put that restriction on the Rules Committee, your Lordships should have confidence that it would of course protect such things as the liberty of the subject, which I think is probably what the amendment is designed to protect.

10.30 p.m.

Lord Falconer of Thoroton: There are four amendments in this group and they all relate to Clause 38. As the noble and learned Lord, Lord Woolf, said, the purpose of Clause 38 is to introduce a rule-making power which can be used to provide that permission must be granted before an appeal can proceed in the county courts, the High Court or the Civil Division of the Court of Appeal. Perhaps I can deal with each amendment shortly.

First, Amendment No. 292 purports to make an exception for the rule-making power to apply to,"

    "cases relating to the civil rights and safety of the person".
The noble and learned Lord, Lord Woolf, made the point much more eloquently than I could about the extraordinary width and therefore the propensity for confusion that comes from the proposed amendment. It would give rise to difficulties for both practitioners and judges in establishing whether or not leave would be required. Sir Jeffrey Bowman, whose review team the noble and learned Lord, Lord Woolf, referred to in his short remarks--the exact words include,

    "examine the workings of the Court of Appeal"--
and whose report forms the basis for Clause 38, recommended that there should be a leave requirement for virtually all cases, in part because of the propensity for confusion and difficulty among practitioners as to which cases do and which cases do not require leave. Also, if we included such a provision--again for the reasons indicated by the noble and learned Lord--such an amendment would seriously detract from the aim of Clause 38 because it would bring in so many cases.

The purpose of a requirement for permission is to provide a filter to ensure that only those cases where there are justifiable reasons for questioning the first instance decision are able to proceed to an appeal. Weak appeals not only take up valuable court time, but also delay a litigant from receiving the benefit of any judgment to which he or she is entitled. The fact that a case falls into a specific category does not in itself guarantee that the appeal is a meritorious one. That is why it is vital to introduce a rule-making power which will allow a requirement for permission to appeal to be introduced at all levels of the court system. I should make it clear that I believe that there are certain restricted circumstances where it is important for a right of appeal to be automatic.

Amendment No. 293 deals with the position in relation to appeals against orders of committal for contempt of court. In a consultation paper which the Lord Chancellor issued on extending the requirement for permission to appeal to the Court of Appeal, he proposed that there should continue to be an automatic right of appeal in cases where the liberty of the individual was at stake--this was also referred to by the noble and learned Lord. Following

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the consultation exercise, rules were introduced on 1st January of this year to provide that permission would be required for all appeals to the Court of Appeal, with the exception of appeals against the making of a committal order, against a refusal to grant habeas corpus or against an order for secure accommodation under Section 25 of the Children Act 1989--all provisions which relate to the liberty of the subject.

In the consultation paper which the Lord Chancellor issued on the proposals before the Committee, he indicated that the requirement for permission to appeal should be extended to cover all types of cases in the High Court and county courts, with the exception of appeals in cases involving the loss of an appellant's liberty. However, there may well be other areas which it would be advisable to exempt from requiring permission to appeal. I understand the concern, for example, that in some interlocutory orders a requirement for permission may result in unnecessary delay because in the time it takes for a judge to hear the application for permission, he or she might just as easily consider the substantive appeal.

In my view, the listing of such exceptions is best suited to Rules of Court rather than to an Act of Parliament. It is for that reason that I resist the amendment tabled by the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The effect of the amendment has already been achieved within the Court of Appeal through the Rules of Court. It is the Lord Chancellor's intention to replicate the situation in the lower courts. Provisions describing when permission is required have hitherto been dealt with by rule, and I see no reason why that should not continue to be the case.

I turn to Amendment No. 294. I entirely agree the principle that where a court which has made a first instance decision refuses an application for permission to appeal that decision, it should be possible for a litigant to renew his application to a higher level of judge. However, the appropriate venue for consideration of that application is the tier of court which will actually hear the appeal if the application is successful. Under the proposed reforms, this will not necessarily be the Court of Appeal.

The effect of the proposed reforms to the jurisdiction of the Court of Appeal will be that some appeals previously determined by that court will be determined by the lower courts. That reflects the need for proportionality in our appellate system.

As the noble and learned Lord has said, these proposals came about following the Bowman Review, which was commissioned by the noble and learned the Lord Chancellor's predecessor--who I see in his place--against the background of an increasing number of applications and appeals and consequent delays in the hearing of appeals. The review team concluded that the Court of Appeal was being asked to deal with cases which were not sufficiently weighty or complex to require the attention of the country's most senior judiciary. The noble and learned Lord the Lord Chancellor therefore sought to include proposals in the Bill to enable him to draw away from the Court of Appeal those cases which do not need to be heard there.

I shall give an example. Currently, virtually all appeals from a circuit judge lie to the Court of Appeal. If an application for permission made to the court of first

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instance were to be refused, it would be renewable to the Court of Appeal. Under the new system, cases in the new fast track, heard at first instance by a circuit judge, would be appealable to a High Court judge. In these circumstances, where an application for permission is refused by the court of first instance, any renewed application would fall to be considered by the appellate court, that is, the High Court.

The effect of Amendment No. 294 would be to require every application for leave to appeal which is refused at level one, to be renewed to the Court of Appeal, which obviously is not in line with the proposals in relation to the new appeal system.

I should stress, however, that provisions are included in the Bill which will ensure that those cases which do merit the consideration of the Court of Appeal are able to reach that court. That might be by way of a second appeal to that court under Clause 39.

Finally, I turn to Amendment No. 295, which I think I have already dealt with. This amendment provides that rules made in pursuance of subsection (3)(b) may not provide that permission may be given only by the court which made the decision or order from which permission to appeal is sought. Once the principle is accepted that if leave is refused at tier one the application can be renewed to tier two, the point made in Amendment No. 295 is dealt with.

In those circumstances, I believe that every one of the points raised is adequately dealt with under the existing system. I therefore ask the noble Lord to withdraw the amendment.

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