SECOND READING. (Hansard, 3 February 1860)

SIR GEORGE LEWIS
said, he regarded the measure, on the whole, as a very valuable one, and thought the hon. and learned Member deserved the thanks of the House for the care and attention he had bestowed on a subject of considerable obscurity, which did not lie within the usual reading of even an accomplished practitioner at the bar. There was, however, one point in the Bill he wished to bring under the notice of the House. Although the monarchy of Great Britain was a constitutional and limited one, still the law assumed that the Crown was actually sovereign and supreme, and that no subject could sue the Crown. That, however, was merely a technical view of the matter, and, practically, the Crown submitted to be sued, but not in the ordinary way. The 546 subject must approach the Crown by the presentation of a Petition to the Home Office, which was referred to the Attorney General, who, if he approved it, wrote on it "Let right be done." Having received his sanction, the action, could be proceeded with in the ordinary way. In the measure before the House it was proposed that the reference in the first instance should be made, not to the Attorney General, but to the Lord Chancellor, for the purpose, he presumed, of having the permission given by a judicial officer. Now, there was no reason whatever why the application should be made to the chief of any court of law, and if the Lord Chancellor were fixed upon as referee this inconvenience would arise, that he might be called upon to hear as an appeal a suit which he sanctioned in the first instance. It appeared to him that the application had better be made, as at present, to the Home Secretary, and through him to the Attorney General, and he hoped, therefore, the hon. and learned Member would consent to modify his Bill with that view in Cammittec.

THE SOLICITOR GENERAL
said, he could not but admit that the proceeding by Petition of Right was somewhat cumbrous, but he doubted whether, as had been stated, it amounted to a denial of justice. He was willing, however, to give his approval to the general principle of the Bill, although he concurred with the right hon. Baronet (Sir G. Lewis) in the belief that the petition should be referred, as at present, to the Attorney General, and not to the Lord Chancellor. The privileges which the Crown possessed, such as choosing the venue in any suit with a subject, fixing the time for the trial to take place, and so on, he thought ought to be retained. At least, that was a question which would require careful consideration in Committee.

MR. MONTAGUE SMITH
remarked, that he saw no reason why an individual in a suit between himself and the Crown should not have the same right to obtain justice as in a suit with another subject, and therefore cordially supported the valuable measure of his hon. and learned Friend.

§ MR. BOVILL
said, that there were not wanting precedents for proceeding directly against the Crown. In matters connected with India a subject could bring an action against the Government as represented by the Secretary of State for India, and in the same way a suit could be instituted in Scotland against the Crown in the person 547 of the Lord Advocate. Again, great inconvenience in cases where the Crown had to be sued in connection with matters relating to the Crimeam war having arisen, the War Office, in the case of contractors, sanctioned actions against the Government in order to surmount the difficulty. He did not, however, propose to establish the power of bringing actions directly against the Crown. The form of a Petition of Right was an essential feature of the measure, and he had introduced provisions expressly to guard against frivolous and vexatious proceedings on the part of subjects. He had thought it much more desirable that the petition should he submitted to an independent judicial mind, than to a law officer of the Crown, who might afterwards be called on to take part in the trial. The Bill, as originally introduced, did not provide for a reference to the Lord Chancellor; but a clause was subsequently embodied in it making such a reference necessary in all cases—the object being that the Lord Chancellor, as the highest judicial officer of the Crown, should nominate the court in which petitions were to be tried, and exercise a control over the proceedings.

SIR GEORGE LEWIS
said, in explanation, that his objection had not been answered by the hon. and learned Member. Under the present law there was no power of suing the Crown, except by a petition addressed to the Crown, and by previous consent given through the Attorney General to the institution of a civil suit against the Crown. The hon. and learned Member, by this Bill, said he maintained the Petition of Right; but he addressed the petition, not to the Crown, but to another quarter, and gave the Lord Chancellor, who was a judicial officer, the power of saying "Let right be done," instead of allowing that power to be exercised by the Attorney General. His (Sir G. Lewis's) objection to that was, that while retaining the form of the Petition of Right, the hon. and learned Member had substantially altered its character. He would suggest that when the Bill was in Committee it would be well to consider whether it would not be desirable to replace the name of the Attorney General for that of the Lord Chancellor.