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Lord Meston: My Lords, although the noble and learned Lord describes these as drafting amendments I suggest that they are perhaps a little more than that and that we ought to spend a moment looking at them. I welcome the change of language proposed which goes some way towards reducing the stringent restrictions on second appeals within the Bill. However, I know I am not alone in retaining misgivings about the whole concept of additional restrictions on second appeals, particularly now that almost all appeals will require leave or permission in any event. It is doubtful that those who will be responsible for granting permission to appeal will need the extra restraints stipulated in the Bill in respect of second appeals. I remain of the view that there may at least be an argument for distinguishing between cases where the first appeal has been successful and where it has been unsuccessful. That is a distinction recognised in a recent practice direction.
At Committee stage, the noble and learned Lord, Lord Falconer, said that he did not believe that a justice system should be predicated on the assumption that decisions of the lower court are wrong. That is quite correct. But, equally, it must be questionable whether an access to justice Bill should impose these restrictions on second appeals, particularly when permission to appeal is now to be required in almost all categories of case.
Lord Falconer of Thoroton: My Lords, I think that the noble Lord's points are more pertinent to Amendments Nos. 181B, 181C and 181D, which deal with the circumstances for a second appeal. I will reserve my reply until I move those amendments.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 181B:
The noble and learned Lord said: My Lords, you will recall from the discussions in Committee, to which the noble Lord, Lord Meston, has just referred, that Clause 38 will introduce into legislation the principle that, in normal circumstances, there should be only one appeal to the courts in the same proceedings. The clause contains a safeguard to ensure that those cases which merit the consideration of the Court of Appeal on appeal are able to reach it.
In Committee, the noble Lords, Lord Kingsland and Lord Phillips of Sudbury, sought an amendment, the effect of which would be to enshrine in primary legislation the right of an appellant to invite the Court of Appeal to consider whether a second appeal should proceed. As I have said, it has always been the Lord Chancellor's policy that second appeal applications should be considered by the Court of Appeal, although the noble and learned Lord the Lord Chancellor had intended to make the specific provision for this in secondary legislation. I therefore undertook on his behalf that he would consider an amendment of this nature and return to your Lordships' House on the point today. I hope that noble Lords will agree that Amendments Nos. 181B and 181C meet the concerns about who will hear not only the applications for second appeals but the second appeals themselves.
Amendment No. 181B makes clear the destination of any substantive second appeal which is permitted by specifying that such appeals will be made to the Court of Appeal.
Amendment No. 181C directly answers the concerns about whether applications for a second appeal will reach the Court of Appeal. I should draw attention here to a slight, but important, distinction between the current amendment and the amendment tabled in Committee by the noble Lords, Lord Kingsland and Lord Phillips of Sudbury. While it may not have been the intention of those noble Lords, prior to any Court of Appeal consideration of the merits, the Committee amendment as drafted would have allowed the lower court to make the initial decision as to whether a second appeal should proceed to the Court of Appeal. Such a situation would open the door to inconsistency in the cases which proceed to second appeals, and see cases before the Court of Appeal which it would not itself have considered appropriate for a second appeal. Amendment No. 181C, in naming the Court of Appeal as the body which will consider all applications for a second appeal, avoids these potential pitfalls.
As to Amendment No. 181D, in Committee a number of your Lordships were supportive of the concern raised by the noble Lord, Lord Meston, about the use of the word "special" in Clause 38(1)(b). This subsection, together with subsection (1)(a), establishes the criteria which must be satisfied in order for a second appeal to proceed.
The noble and learned Lord the Lord Chancellor has given careful consideration to the points which were made on this issue in Committee. On his behalf I now recommend to your Lordships the use of the word "compelling" in place of the word "special". This not only accords with his own earlier inclinations but, as your Lordships would expect, pays due regard to the views of the Court of Appeal judges, so effectively given voice in Committee by the noble and learned Lord, Lord Woolf. We are satisfied that the phrase "compelling reason" provides an appropriate indication of the circumstances in which there should be a further appeal to the Court of Appeal.
These three amendments provide an assurance to litigants that their application for a second appeal will be considered and, if, successful, heard substantively by the Court of Appeal, regardless of how far down the court structure the original appeal was decided. This will also enable the Court of Appeal to determine itself the cases which are most appropriate for it to hear. It therefore provides, overall, a structure by which there are second appeals in appropriate cases and by which in all appropriate cases the Court of Appeal will hear such an appeal; and, further, that there is someone other than the judge of first instance or tribunal of first instance that made the decision who will have some say in whether leave to appeal should be given. I hope that that lays to rest the legitimate concerns of the noble Lord, Lord Meston. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 181C to 181E:
On Question, amendments agreed to.
Clause 39 [Power to prescribe alternative destination]:
Lord Falconer of Thoroton moved Amendment No. 181F:
On Question, amendment agreed to.
Clause 40 [Assignment of appeals to Court of Appeal]:
Lord Falconer of Thoroton moved Amendment No. 181G:
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 182:
Page 21, line 38, after ("made") insert ("to the Court of Appeal").
Page 21, line 38, at end insert ("the Court of Appeal considers that").
Page 22, line 1, leave out ("special reason for the appeal to be made") and insert ("compelling reason for the Court of Appeal to hear it").
Page 22, line 4, leave out subsection (3).
Page 22, line 33, leave out subsection (8).
Page 23, line 6, leave out subsection (3).
After Clause 46, insert the following new clause--
(".--(1) The Lord Chancellor may appoint one of the ordinary judges of the Court of Appeal as vice-president of the Queen's Bench Division and any person so appointed shall hold that office in accordance with the terms of his appointment.
(2) In section 4 of the Supreme Court Act 1981 (composition of High Court)--
(a) in subsection (1) (membership), after the words "the Senior Presiding Judge;" insert--
"(ddd) the vice-president of the Queen's Bench Division;", and.
The noble and learned Lord said: My Lords, it has been the practice for some time for the Lord Chief Justice to appoint a senior member of the Court of Appeal to assist him in his administrative duties as President of the Queen's Bench Division of the High Court. The Lord Chancellor's predecessor decided, after consultation with the Lord Chief Justice, that this appointment should be formalised as Vice-President of the Queen's Bench Division.
It was always the former Lord Chancellor's intention that the appointment should be put on a statutory footing when the opportunity arose to do so, an intention which the present Lord Chancellor has fully supported. The present Lord Chancellor is grateful to his predecessor for pointing out to him that this Bill afforded him precisely that opportunity.
The amendment as drafted echoes the provisions made in the Courts and Legal Services Act to put the appointment of the senior presiding judge on a statutory footing and also reflects the provisions in the Supreme Court Act for Vice-Presidents of the divisions of the Court of Appeal. I commend it to your Lordships, and I beg to move.
On Question, amendment agreed to.
(b) in subsection (6) (vacancy in offices not to affect constitution), at the end insert "and whether or not an appointment has been made to the office of vice-president of the Queen's Bench Division."
(3) In section 5 of that Act (divisions of High Court), in subsection (1)(b) (Queen's Bench Division), after "thereof," insert "the vice-president of the Queen's Bench Division".").
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