HL Deb 09 July 1928 vol 71 cc862-70

LORD DANESFORT rose to ask His Majesty's Government whether they can state what is the meaning of the phrase "in the first instance" in the Despatch dated 8th June, 1928, addressed to the Irish Free State by the Secretary of State for the Dominions, in which he stated that it is desirable in the first instance for the matter to be referred to the Judicial Committee of the Privy Council; whether the Irish Free State have given any assurance that the decisions of the Judicial Committee under this reference will be accepted by them as final and carried into effect; whether any further legislation is contemplated either in this country or in the Irish Free State as to the compensation to be paid to Irish civil servants transferred to the Provisional Government or to the Irish Free State who have been or may be discharged or who have retired or may retire; and to move for Papers.

The noble Lord said: My Lords, on June 21 last the Lord Chancellor, on behalf of the Government, made an important statement as regards the recent case of Wigg and Cochrane versus the Attorney-General of the Irish Free State, and the noble and learned Lord announced in effect that the decision of the Privy Council in that case, which was given in May of last year, would stand unreversed so far as regards the actual successful appellants in that case, Messrs. Wigg and Cochrane, but, as regards the other Irish civil servants, who were in precisely the same position as Messrs. Wigg and Cochrane, the question of the compensation payable to them by the Free State on their retirement should be decided by a reference to the Judicial Committee under Section 4 of the Judicial Committee Act, 1833. I should like to ask the Lord Chancellor whether it has been arranged between the British Government and the Free State Government that Messrs. Wigg and Cochrane shall immediately receive from the Free State Government the compensation to which they were declared to be entitled under the decision of the Privy Council. It may be—I do not know—that they have now been paid, but they certainly had not been paid a very short time ago. As the decision was given in their favour so long ago as May of last year, it would seem reasonable that they should be paid without further delay if they have not already been paid.

Then there are other Questions which are specifically referred to in my Notice. These Questions arise out of the terms of the Despatch dated June 8, 1928, which was sent by the Secretary of State for the Dominions to the Government of the Irish Free State, and which was read to the House by the noble and learned Lord on the Woolsack on June 21 last. That Despatch begins by referring to previous Despatches on the subject of the payment of compensation to civil servants under Article 10 of the Treaty. I may say in passing that those previous Despatches have not yet been published and I shall ask in a moment that they shall be laid on the Table. The Despatch then goes on to refer to the decision of the Privy Council of May last year, which, it is alleged, had proceeded on certain incorrect assumptions of fact. Then this passage follows:— In these circumstances His Majesty's Government in Great Britain think that it is desirable, in the first instance, for the matter to be referred to the Judicial Committee by a special reference under Section 4 of the Judicial Committee Act, 1833. I desire to ask the noble and learned Lord on the Woolsack if he will kindly tell your Lordships' House what is exactly meant by those words "in the first instance" contained in the passage that I have just read out.

I should also like to ask whether the Free State Government have given an assurance in the course of the correspondence with the British Government that they would treat this decision of the Privy Council under the new terms of reference, when it has been given, as final and binding upon the Free State and that they will act upon it and give effect to it. I presume that this is so, because this new reference to the Judicial Committee would be perfectly meaningless and futile unless it is to be acted upon but I shall be glad of an assurance from the noble and learned Lord, the Lord Chancellor, upon this point. A further Question that I desire to ask is whether it is contemplated either by the British Government or by the Free State Government that any new legislation by the Parliament of either of these two countries shall be introduced to deal with this question of compensation to civil servants, and if any such legislation is contemplated, have the British Government received any assurance from the Free State Government that this legislation will not be retrospective and shall not interfere retrospectively with the rights already approved of civil servants who were originally in the service of the British Government, who were transferred to the Free State Government and have retired or are going to retire?

It is eminently desirable, I think, that such an assurance should be obtained. I do not wish to refer to old controversies, which, perhaps, it would be better to let fall into oblivion as far as possible; but some of us cannot but remember the character of the legislation introduced by the Free State into their Parliament and passed in the year 1923—legislation of a character calculated to deprive a number of men in Southern Ireland of rights which had already accrued to them. I hope that the questions as to the retrospective legislation and the other points I have raised have already been referred to, and that a satisfactory settlement has been come to, in those previous Despatches which are mentioned in the Despatch of the Secretary of State to which I have already referred. I trust that those points were not lost sight of, as I venture to think they ought not to be in the course of the correspondence and in the settlement of this long outstanding question with regard to which litigation has been going on, I think, for four or five years or more. In view of what I have said, that there is no reference to the points I have raised in the Despatches which have been published, I venture to think it is important to see those previous Despatches which have been referred to and I therefore beg that they be laid upon the table. I beg to move.

THE LORD CHANCELLOR (LORD HAILSHAM)

My Lords, the noble Lord in moving this Motion began by asking me a question as to what had happened with regard to Messrs. Wigg and Cochrane. As that was a question of which he had not given me any notice and which does not appear on the Paper, I am afraid that all I can say is that I have not the faintest idea. I have no doubt the Dominion Office have this information and that it can be ascertained, and I will endeavour to find it out for my noble friend. But as he has asked me without any notice at all he will not be surprised if I cannot answer him at the moment.

Then I come to the Questions which are on the Paper. The first Question my noble friend asks me is what is meant by the expression "in the first instance." My only difficulty in answering that is that the words "in the first instance" mean exactly what they say—in the first place, before doing anything else, or before considering whether any, and if so what, further action may or may not be necessary. If your Lordships will recall the history of this matter, I think you will see that really the phrase is incapable of any ambiguity or doubt as to its proper meaning. Your Lordships will remember that in April last there was a debate in your Lordships' House upon the decision in the Wigg and Cochrane case. What had happened was that a decision was given last year in the case of Wigg and Cochrane in the Privy Council, and that thereafter it appeared that the principle of the decision as explained by the Privy Council had not apparently been given effect to in the actual decision itself because of a mistake of fact into which the Privy Council apparently had been misled. Statements to that effect were made in your Lordships' House by three noble Lords, I think, who had taken part in the decision.

It was at that time contemplated that legislation would be necessary in order to put right what was apparently a mistake of fact, and in the course of the discussion your Lordships will remember that a view was expressed, I think by my noble friend Lord Danesfort himself, to the effect that this would involve a hardship upon the persons affected since they would not have an opportunity afforded them of arguing their case. My noble friend Lord Reading then threw out a suggestion that it might be possible to overcome that difficulty by referring the question back to the Privy Council for re-judgment. Your Lordships will remember that I undertook to consider that question and to see whether it could be carried into effect. On June 21 last, as the result of the consideration which was given to the question, I was able to inform your Lordships that the precise plan which the noble Marquess had suggested was not practicable at any rate without express legislation, but that I had come to the conclusion that the purpose which he desired to reach and attain could be reached by another method—namely, by a reference under Section 4 of the Act of 1833 to the Privy Council of the questions involved for inquiry and report, and I was able to tell your Lordships that the Irish Free State Government had assented to that proposal.

Accordingly, that reference has been made, and I am glad of this opportunity of informing your Lordships that the hearing is expected to take place on July 23, that the Board which, as I hope, will be able to hear that case is to be presided over by the noble Marquess, Lord Reading, himself, and that the other members of the Board will be Lord Phillimore, Lord Hanworth (Master of the Rolls), Lord Alness (Lord Justice Clerk), and the Right Hon. F. A. Anglin, Chief Justice of Canada. I should like, if I might be allowed to do so, to say that I think your Lordships' House and the country are very much indebted to those noble Lords whose names I have mentioned, for many of them have other duties and obligations which render it very difficult for them to find the time necessary to undertake this task. On none of them have we any claim, yet they have all cheerfully, at considerable inconvenience, agreed to undertake this important task. I think we are very fortunate to be able to constitute a Board of such strength as that which I have indicated.

My noble friend goes on to ask whether the Irish Free State Government have given an assurance that the decision will be accepted at once and carried into effect. If by that my noble friend means whether they have given an assurance that the Irish Free State will accept, the decision of the Privy Council as final upon the law, no such assurance is needed, because they are already bound by Treaty to accept that view and the fact that they are willing to appear before the Board and to argue their case before the Board shows that they appreciate their position. There is no doubt in the minds of any one that the decision of the Privy Council once given will be a decision which declares the law, and finally declares it. If my noble friend means whether we have asked for an assurance from the Irish Free State that whatever the law may be as laid down by the Privy Council they will not seek to make any change in that law, then I answer that most certainly we have not asked for such an assurance, we do not desire them to give such an assurance, and, so far as His Majesty's Government are concerned, we are ourselves quite unable to state whether or not we should desire any amendment of the law till we know what the law is. We have neither considered nor contemplated whether any amendments will be desired to the law, because we do not at present know what the law may ultimately be declared to be. I venture to submit to your Lordships that, since there are a number of possible decisions or possible conclusions at which the Privy Council may arrive when they come to consider the case, and since they are to sit in a fortnight to hear the arguments, it would be, to say the least of it, inconvenient that we should have a debate in your Lordships' House as to what the possible result may be of all the various decisions at which they may conceivably arrive.

LORD DANESFORT

May I ask the noble and learned Lord, if he will pardon me for interrupting him, whether we have got or asked for any assurance from the Free State that they will not bring in retrospective legislation which would interfere with the practice already approved?

THE LORD CHANCELLOR

We have not asked the Free State, and we do not propose to ask the Free State at this stage, for any assurance of what they will or will not do when the decision has been given by the Privy Council as to what the law is. His Majesty's Government will consider the result and the effect of that decision. I have no doubt the Irish Free State will equally consider the effect of that decision, and I have no doubt that, if either Government considers an amendment of the law necessary, there will be the necessary discussions between us as to the desirability of any amendment and as to the scope, effect and extent of any such amendment.

I will remind my noble friend and your Lordships that it is Parliament which determines whether amendments of the law shall take place and whether, if they are to take place, they shall be, as my noble friend puts it, of a retrospective character.

We all agree that as a general rule retrospective legislation is undesirable. We all agree also that there may be exceptional cases in which retrospective legislation may be needed. We all agree, because we have in our minds instances in which such legislation has taken place. Whether, in any particular case, an amendment of the law is necessary, whether, if so, it is right there should be retrospective legislation, must necessarily depend upon what the law is and what the circumstances are and whether Parliament on mature consideration considers that a case has been made out for such an exceptional course as retrospective legislation undoubtedly is. I hope your Lordships will not understand me as suggesting that we are proposing to introduce any retrospective legislation. I say quite frankly, so far as I know no part of His Majesty's Government—certainly His Majesty's Government as a whole have not considered at all what legislation will be required, and we think it eminently undesirable and unprofitable to do so till we know what the law is. The object of this reference has been to ascertain what the law is, and, until the law has been ascertained, we have no desire to do anything.

The only other question which my noble friend put to me was a question as to what Despatches there were before the 8th of June. So far as I know there are no documents which have not already been published, but I will certainly cause further inquiry to be made, and, if there are any documents in addition to those which are given in full in the OFFICIAL REPORT I am prepared to lay those Despatches on the Table of the House, but I think all the previous Despatches have been already published. However, I will cause inquiries to be made whether there are any others which can be published, and if there are any others certainly there is no objection to putting them on the Table. I cannot give any further assurance than that. I think I have answered as fully as I can the Questions which have been put to me and I suggest that a discussion on this topic at this time is neither a desirable nor a proper course to pursue.

LORD DANESFORT

My Lords, I am much obliged to the noble and learned Lord for his statement. I must apologise to him for not having given notice of the question which I put to him as to payment to Wigg and Cochrane of the compensation to which they were declared entitled by the Privy Council. It was an oversight of mine in drafting the Question. Perhaps the noble and learned Lord would kindly suggest to the Secretary of State for the Dominions that he should find out whether they have been paid, and, if not, would he represent to the Irish Free State Government that they ought to be paid as soon as possible? As regards the other points which I raised, to which the noble and learned Lord has replied, I should never have asked the question as to whether the Free State would treat this new decision of the Privy Council as final if it had not been that in the case of a previous decision of the Privy Council the Free State refused to treat it as final, and in fact proposed to override it by legislation in their own Parliament. However, from what the noble and learned Lord, the Lord Chancellor, said to-day, it seems exceedingly probable, to say the least of it, that the Free State will treat it, as it is intended to be, as final.

The only other point which I raised was as to retrospective legislation. Of course I do not expect the noble and learned Lord to tell us what legislation might be found necessary in future. What I did feel anxiety about was that on former occasions the Irish Free State have passed retrospective legislation of the most injurious character to the persons whose rights had already accrued. I do not wish to go into that at any length. In 1923 they passed retrospective legislation depriving persons of the right which they already possessed under Statute to compensation for malicious injury. It would have had a reassuring effect with those civil servants if they had been assured that the Free State had promised His Majesty's Government in this case, that whatever legislation became necessary it would not be of such a character as to deprive civil servants of the rights which they already possess. Unfortunately, the noble and learned Lord on the Woolsack has been unable to give us that assurance, but he has made some remarks about the general character of retrospective legislation, from which I gather that he does not approve in general of retrospective legislation which deprives people of rights to which they already have become entitled. I do not think I am misrepresenting him there. Indeed, it would be astonishing if one of his great knowledge and experience should have expressed any other view.

As regards the Papers for which I moved, I am very much obliged to the noble and learned Lord for what he has promised. The Papers I had in mind were the Papers referred to in the Despatch which was read by the noble and learned Lord on the Woolsack on June 21, the Despatch from the Secretary of State to the Irish Free State Government, in which reference was made to previous Despatches on the subject of compensation. If those previous Despatches have been published already I need hardly say that I do not want them published again, but if they have not been published I would respectfully venture to ask the noble and learned Lord, as indeed I think he has agreed, to have them published. In those circumstances and after what the noble and learned Lord on the Woolsack has said, I beg leave to withdraw my Motion for Papers.

Motion, by leave, withdrawn.