§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 3 (Rent of £17,500 to be paid out of fees in respect of Royal Courts of Justice).
§ SIR HARDINGE GIFFARD
said, he hoped the Committee would consider that it was a matter of sufficient importance to wade through the long Preamble to see the effect of the 3rd clause; but it had exercised the ingenuity of the draftsman to conceal, with as much verbiage as possible, the real and extended operation of the measure. The history of it was this. When the building of the Royal Courts of Justice was decided upon, a communication was made by the Government that it would cost£l, 500,000; 1188 deduct from that, the site of the then existing Courts of Justice, which was taken, for the purpose of the Act then in operation, to be worth £200,000—that reduced the cost of the building to £1,300,000; and, in order to payback to the Exchequer that amount which was to be advanced in the first instance, the first thing the Government were to do, was to lay hands on £1,000,000 of the Suitors' Fund in the Court of Chancery—
§ SIR HARDINGE GIFFARD
continued: It was absolutely essential, he thought, that the Members of the Committee should have the history of these transactions before them, to understand the clause under discussion. The first thing, as he was saying, was to lay hands on £1,000,000 belonging to the Suitors' Fee Fund in the Court of Chancery; and, in consideration of that, suitors in Chancery were to be released, for all time, from the necessity of contributing to the fees for the rent of the Court. This was the first thing the Bill sought to violate; because, notwithstanding in consideration of having got that £1,000,000, suitors were to be relieved in future from all contributions to the Court, this Bill proposed to get rid of that, and, in future, all suitors in the Courts of Justice were to pay, whether they were on one side of the Court, or on the other; because, as an incident in the changes which put all the Courts together, suitors were to be deprived of the benefit of that provision. Then, the next provision was a very remarkable one indeed. The rent was assumed to be a proper charge—that was to say, suitors ought, when they came to have justice done, to pay rent for the building in which justice was administered. That seemed a strange notion; but that lay at the root of the Bill. People were actually to be called on to pay, as suitors, for the rent of the Court in which justice was administered. The legal authorities had, it might be said unknown to Parliament, gradually acquired the right to fix fees in the Courts for certain things 1189 done therein; what they were he would describe in a moment. They were, by the 3rd section, to have the power to raise £17,500 as rent, which was assumed to be the rent of the Courts; and then, by the 4th section which followed, and which must be read with the 3rd, to be able to understand fully the operation of the latter, as the average of the fees taken increased or decreased to the amount of £10,000, then the fees were to be raised or decreased, in proportion as they fell short of, or exceeded, that amount; so that it was to be treated as a sort of commercial concern. If the rent of the Courts of Justice could not be raised by fees then existing; then, providing they fell short to the amount of £10,000, it was obligatory on the authorities to raise the fees accordingly. It was upon this clause the judgment of the Committee was asked, and he submitted, both in principle and as a matter of practical justice, it was one of the most extraordinary proposals ever made. The effect he would describe by a few instances; but one of the difficulties of discussing a question of this sort was, that it was very much a question of detail. People who spoke generally of the increase of fees, or the increased expenses of litigation, hardly made any way, unless they brought instances before a competent tribunal, and discussed particular increases, and the effect upon suitors; and that could only be done by an enormous amount of detail, that would fritter away the attention of the Committee. He could only give a few examples to show what the effect had been, and what the effect would be, should the Committee permit this clause to pass. The Committee would remember that he tried to alter certain rules of the Judges, which would remain unalterable, except by Parliament, if for 40 days those rules had lain on the Table of the House. The effect of what had been done was, that certain fees were now fixed; and, by statute, it would be irrevocably fixed, that unless the rent was raised out of the unfortunate suitors, fees might be raised to such an extent as to amount to a complete denial of justice. For example, one of the rules, which it was his misfortune unsuccessfully to contest, had relation to the administration of interrogatories. It was provided that the person demanding an interrogatory 1190 should pay into Court £5, as a deposit and guarantee that the power should not be wantonly and vexatiously used. Now, to raise this rent, and as one of the expedients for extorting money from suitors, would the Committee believe that, under the operation of this clause, when a man had paid his £5 deposit, to show his bona fides, he would have to pay £2 10s. to get it out again, and he would never get back the £2 10s at all? This was one example. But there were one or two things more startling still in their operation on the poorer class of suitors. He hoped the hon. and learned Attorney General would not deny that one of the most useful Acts of Parliament with which they were familiar was the power of challenging the legality of a decision by an appeal to a Superior Court; it had operated usefully in more ways than one. It had always been a protection to poorer suitors, that they had this power of appealing to a Superior Court; and, under the system of fees—the Committee would remember he was dealing only with the question of Court fees—this could be done for 9s.; but, under this clause, unless enough was raised to meet the charge of £ 17,500, the fees might be raised from 9s. to £4. It was impossible to go into all the examples; but these two startling examples would show the effect on suitors least able to afford fees of this description. What possible defence was there for suitors, if those extortionate fees were demanded as a condition of their getting into Chancery at all? They had to pay their own costs— their legal advisers; but this was a tax for the administration of justice on every suitor who went into Chancery. There was one protest which he desired to make, and it was against the hour at which the Committee stage of this Bill was taken. He was very much disappointed that such a discussion as this should have been taken at half-past 1 o'clock in the morning. The question, was one which was not alone for lawyers to consider; it was a matter for the public. It was not the least in the world a matter of technicality. They who were lawyers knew all about it, and were able to deal with the facts and put them before the general public; but instead of taking the question at half-past 1 o'clock in the morning, when it was almost impossible for them to have 1191 their observations disseminated all over the country, they should have brought it on at a reasonable hour. The only conclusion he could come to, from the hour at which the Government had allowed this question to come on, was that they did not want all the facts to be known and publicly debated. He knew it was said that the error which had occurred was owing to previous Acts of Parliament; and he was aware it was argued that the Courts of Justice had been provided partly on the credit of the future suitor. Probably, that error had been committed, and the Bill embodying it had passed without discussion—in fact, he knew it had. But the theory was that the Suitors' Fee Fund should pay a portion of the expense. The estimate had fallen far short of the actual expenditure, so that the sum now due, in round numbers, was £1,000,000. He believed the fees of 1875 were, in themselves, a very serious and a very improper increase on those which had existed before; and if they compared the present fees, with those which existed before 1875, they would find that the increase was simply enormous. So far as the question of Party government was considered, therefore, neither Party was to blame. He thought, however, the Committee should refuse to adopt so monstrous a system of taxation as was proposed in the Bill, and decline altogether to have a measure passed into law for the purpose of hanging round suitors for the next half-century fees of so extravagant an amount.
§ MR. COURTNEY
said, that he need not assure the Committee that he very much regretted the necessity which had compelled the Government to allow this Bill to come on at so late an hour. The hon. and learned Gentleman, who had just sat down (Sir Hardinge Giffard) know that if it had been arrived at sooner, the Government would have been glad to bring it on, and that nothing but pressure of Business had delayed it to so late an hour. That being the case, he would proceed at once to the single issue raised by the hon. and learned Gentleman. The hon. and learned Gentleman had said, fairly enough, that there was no particular blame as between the two Governments. The matter had originated in 1865, when the New Courts of Justice were decided upon, and when it was thought that an 1192 expenditure of £1,500,000 would suffice. £1,000,000 had accumulated in the Court of Chancery, and that had been very fairly described by the hon. and Gentleman as public money, though it had come from the suitors. A question as to whether or not that was public money was discussed at the time; but there could be no doubt that it was rightly regarded as public money. That £1,000,000 was devoted to the New Courts; and the residue of £500,000 was to be defrayed, partly by the sale of the materials of the Old Courts of Justice, and partly by a Suitors' Fee, which was to last 50 years. He did not wish to discuss the propriety of that arrangement. The Courts of Justice had cost a great deal more than was originally contemplated, and the matter had come before the late Government in 1879, or probably at an earlier period. In. 1879 the Government presented to the House of Commons a Bill in its essential particulars identical with the present Bill. The Bill recited what the present measure recited—namely, the fact that the cost of the Courts of Justice very much exceeded the estimate; and it then proposed to defray the excess by levying a special rent of court fee which was to be calculated at 6 per cent per annum, for 25 years on the unliquidated balance, which would make the rent of court fee very much higher than was now proposed. He was not charging the late Government with anything, but was merely putting before the Committee the fact that the principle contained in the present Bill was a principle sanctioned by Parliament in 1865, and taken up by the late Government, although their Bill, when it had passed a second reading, had to be abandoned through stress of circumstances. The issue now raised was, whether the principle of the settlement of 1865 should be maintained—that settlement having been to raise the necessary fund by rent of court fee. This Bill merely proposed that the balance required should be raised by rent of court fee. The proposal of the Bill was a composition, and a very considerable composition, because the Treasury were by no means insisting on all they would be entitled to insist on if they adhered strictly to the terms of the agreement of 1865. The unsettled balance was something like £900,000, and the amount the 1193 Treasury were going to accept in liquidation of that was an annuity of £17,500, which did not represent two-thirds of the amount. [Mr. INCE: An annuity for how long?] For ever; unless redeemed by surplus fees. It represented, at the outside, £600,000, instead of the £900,000—the unsettled balance. With regard to the hon. and learned Gentleman's criticism of the particular fees imposed, he (Mr. Courtney) confessed himself not prepared to meet the special charges which had been made. The fees were drawn up originally by a committee consisting of experts of great character and ability, well acquainted with the facts and circumstances of the Courts, and a committee, he should have thought, hardly liable to err in the direction of charging high or unduly excessive fees. These fees had been approved by the Judges, and were now legally in force, which was a fact hardly appreciated by the Members of the Committee. Fundamentally, the question raised by the hon. and learned Gentleman was whether it was proper to make the suitors in our Courts contribute anything; and, if so, how much, to the expense of the Courts? The principle which had been acted upon hitherto by the Legislature and the Executive Government was this—that the expense of the Courts, other than the salaries of the Judges, should be met by charges levied on the suitors. Those salaries were met by payments out of the general Exchequer; but the expenses of the offices and accommodation of the suitors and Court officials was defrayed by the suitor, which appeared to him to be a very fair and reasonable compromise. He should like, at all events, those who opposed the principle to say what share, if any share, of the cost of the Courts and the expenses of their maintenance should be defrayed by the suitor; or whether they thought that the suitor should be wholly exonerated from all share of the burden thrown on the taxpayers of the United Kingdom? Both in principle and equity, it appeared to him to be desirable that the moderate allocation of the costs of the Court mentioned in this Bill should be defrayed by the suitors. He did not put this forward as a matter originated by Her Majesty's Government, but simply as the carrying out of an arrangement originated in 1865. He was not aware of any circumstances that 1194 should induce the House of Commons to depart from the principle the House and Parliament had acted upon 19 years ago, and which had recommended itself to the late Government.
§ MR. INDERWICK
said, that with regard to these fees, he only wished to point out that the sum to be charged was settled by the officials of the Courts, who might be supposed to be interested, or, at any rate, to be anxious to do everything they possibly could to provide the Government with the necessary funds; and it did not seem to him that the suitors were at all adequately represented in the transaction. However, it was not on the question of fees that he wished to speak, but on the principle involved in the clause. The principle was one which most of them would adhere to. In fact, he should not be surprised if the Secretary to the Treasury himself gave his adherence to it—possibly in a modified form. It was that, so far as might be, the administration of justice in this country should be untaxed. The hon. Gentleman referred to the arrangement made in 1865. The principal reason the clause was opposed — the clause being really an embodiment of the Bill—was that the proposition made was in contravention of the understanding come to in 1865. When this matter was before the House there was considerable discussion, not only in this but the other House of Parliament, as to the propriety of charging suitors with the cost of the administration of justice. The estimated cost of the Courts at that time was £1,500,000, which was raised by the application of certain funds. The charges of 1s. 6d. for each writ issued, and 6s. or 7s. for each probate or letter of administration, were made, and the Attorney General of the day said that charges such as these were infinitesimal, and would operate for only a short period of time. The hon. and learned Gentleman contended that they would not be felt by the suitors. On another occasion the charges were referred to as almost imperceptible, and the result was that they were agreed to, both by this and the other House of Parliament. A limited assent was given to the principle, simply because Members believed they were only making a small charge which was really imperceptible, and that might, to some extent, be justifiable. When the Bill was before 1195 the House of Lords, the Lord Chancellor, in introducing it, referred to this matter himself, and said the charge he proposed to put on suitors was of a very trifling character; in fact, he used the phrase "that it was so small that it would be hardly felt by the suitors." Lord Cranworth had objected to anything at all being charged to the suitors for the purpose of building the Courts of Justice, and had said that the tax on litigation was now as high as it could reasonably and properly be made. It was only on the Lord Chancellor reiterating the statement, that the tax was so small as to be hardly perceptible, that it met with an unwilling assent, and was passed by both Houses of Parliament. What was proposed to be done now? Why, it was proposed to increase the fees on the suitors. The measure would put on a diminishing number of suitors, who came to the Royal Courts of Justice, an increased burden of £17,500 a-year. He said a diminishing number of suitors; and in this he was perfectly accurate, for the number of suitors was larger the year before last than last year, and larger last year than this year. The number was decreasing, and would continue to decrease, and the amount that was taken in fees would also decrease. The fees were less last year than the year before, and there was very good reason for this diminution, because a large amount of work was now done in the Country Registries and in the County Courts that, at one time, used to be brought before the Superior Courts. They must reflect, therefore, upon the desirability of placing increased burdens upon the people, who were bound to resort to Her Majesty's Courts in London for the purpose of obtaining justice. It seemed to him it was their duty to endeavour to diminish, as much as possible, the charges levied upon the suitors, rather than the reverse. It was on that ground, therefore, that he thought the principle of the Bill was bad, and in contravention of the understanding come to in 1865. He objected to the Bill as strongly as he could. The Secretary to the Treasury and the Government would say that they had incurred an expenditure of £2,000,000; and the excess of expenditure over the original estimates must be made up some way or other. They contended this was the best mode of raising it; and they probably did so be- 1196 cause individual suitors could not personally complain. It was not for hon. Members to say to the Government how they should obtain the money they required; but he would suggest that, when the matter was discussed in 1865, the re was a sum of £3,000,000, which was described as "Suitors' Money," which it was agreed, in the course of the discussion, could not be in any way touched. It was said that, for some reason which was not very obvious, the capital sum could not be touched, though the Government could deal as they chose with the interest that accrued upon it, because the State held the money as bankers. At that time there was a large amount of profit upon that sum; and what he wanted to say was, that if this £3,000,000 was in existence at that time, it should be in existence still. Some of the interest, no doubt, had been used for the purposes of the Government; but there must still remain a large amount, and he would suggest that it should be applied to the purpose of discharging the debt under discussion. That money existed somewhere in the Public Treasury, and the Courts of Justice were perfectly entitled to it, as it was primarily applicable to the reduction of litigation. If the Government had not applied it to that purpose, hon. Members had a perfect right to say that, until they had accounted for it, it was impossible to come upon the unhappy suitors, as they did in 1865, and put upon them a heavy taxation in the shape of fees. But, as he had said before, he did not wish to indicate the source from which the money which was required should necessarily be drawn; he simply mentioned the existence of a certain sum which was available, and asked for a reply from the Government.
§ MR. INCE
said, he had listened to the explanation of his hon. Friend the Secretary to the Treasury (Mr. Courtney) with great regret, seeing that it had contained no reason whatever for the introduction of the measure other than that something had been done in 1865, the principle of which the hon. Member had not attempted to justify. But the matter did not end there, because what it was now proposed to do was to intensify what was done in 1865—to increase, to a very considerable extent, the charge on the suitor. He should like to remind the Committee of what the Act of 1865 did. 1197 It sought to make up the sum of £300,000; but this Bill dealt and proposed to burden the suitor with a sum of over £900,000. The Act of 1865, in the next place, proposed a repayment by means of what were called "Redeemable Annuities," which were not to last more than 50 years, whereas this Bill would make the charge of £17,500 perpetual. [Mr. COURTNEY: No; it will be redeemable.] Yes; but redeemable how? The Lord Chancellor and the authorities who dealt with the fees would have power to increase them or decrease them as they saw fit. They, by increasing the fees, could form a fund to redeem the charge. But the Bill contained no such clause as was contained in the Act of 1865, under which a demand for fees could not last for a longer term than 50 years. In the next place, the former Act kept the Court fees imposed in respect of rent distinguished, so that everyone knew what was being done. Again, under a succeeding Act, which he saw it was proposed by the Schedule of this Bill to repeal, Returns were to be placed before Parliament yearly, showing precisely how these fees had been applied, and what amounts they produced. So that while, in the first place, the Committee was asked to continue the objectionable system of enabling Judges to tax the suitors as they saw fit, they were, in the next place, asked to deprive themselves of any means of knowing what the amount of that taxation was. In addition, to what his hon. and learned Friend (Mr. Inderwick) had said, there was one other matter which he should like the Committee to bear in mind. The throwing of the charge of £17,500 upon the fees of Court prevented those fees being turned to the very object which his hon. and learned Friend said was the principal object of the fees— namely, the maintenance of Court expenses; and the result was, that the Court, instead of having the money applied to its services, was being crippled in every sort of way. He was told that within the last few weeks the Judges had been deprived of one of their clerks. He knew there were various improvements necessary in the internal arrangements of the wretched rooms forming the New Courts; but, he was bound to say, there appeared to be no money with which to make improvements. Under such circumstances, there was an 1198 additional reason why there should be no fresh charge thrown on the Fee Fund. If there was any fresh imposition on the suitors, it should be kept down to the lowest level, and should not be made by judicial officers. He considered that the Fee Fund was already insufficient for the purposes to which it might be turned, and, therefore, it was inexpedient to throw upon it this larger charge.
§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)
did not mean to say anything upon the general question, which was one of old standing; but he wished to say one word in reference to the question of fees. The omission of the clause would not affect the fees, because they would still go on. Attention had been called to one or two matters which, quite apart from the view which might be taken as to the desirability or otherwise of omitting the clause, deserved consideration. For instance, he thought that £2, though it might be a reasonable hearing fee for the Court of Appeal, or for the trial of an action, was an excessive fee in a case stated by magistrates. He thought, too, the filing fee of £1 in such a case was a very serious matter, and that if an alteration were made it would not result in any great loss to the Revenue. He assured the Committee that this and other matters which had been raised should receive attention.
§ Question put.
§ The Committee divided: — Ayes 47; Noes 71: Majority 24. — (Div. List, No. 133.)
§ MR. COURTNEY
said, that after the result of the Division, perhaps the Committee would allow Progess to be reported, and would not be surprised if he made the Motion.
§ Motion made, and Question, "That the Chairman do report Progress, and ask leave to sit again,"—(Mr. Courtney,) —put, and agreed to.
§ Committee report Progress; to sit again upon Monday next.