LICENSING (REMOVAL OF DOUBTS) BILL. (Hansard, 4 December 1906)

§ * THE ATTORNEY-GENERAL (Sir JOHN WALTON, Leeds, S.)

in asking leave to introduce a Bill to remove doubts as to the manner in which the powers and duties of justices acting in and for a borough may be exorcised under the Licensing Acts, 1828 to 1904, said:—I have to ask the leave of the House to introduce a Bill which has for its object the removal of an ambiguity which has arisen in the construction of the Licensing Act. 1904. The House will remember that this measure furnished a method of reducing the number of licensed houses and compensating their owners. Perhaps I may remind the House of the machinery which that statute provided. The justices were authorised to select from among their own number a committee, who were empowered to report houses which they thought were superfluous and ought to be suppressed. That report was to be considered by the body of justices of whom the committee formed a part. In indicating the justices as a body the statute uses the expression "the whole body of justices," and I should have thought it reasonably clear that the form of that phrase was due to a desire to distinguish between the whole body of justices and the part of that body which had been set aside for discharging the functions of a committee But a different view of the meaning of that phrase has been taken by a Court of the King's Bench Division, presided over by the Lord Chief Justice, and they have attributed to the phrase "the whole body of justices," a meaning which will primarily include every justice upon the commission of the peace for the borough. And as that construction would load to the patent absurdity that to obtain a lawful order it would be essential that every justice, although infirm or ill or beyond the seas, should attend, it was necessary that some modification of the construction of that 778 phrase in its severity should be arrived at. It has therefore been held that "the whole body of justices" means a majority of one at least of the justices on the commission. Why a majority of one should be tantamount to the whole body rather than a majority of three-fourths, or perhaps a majority with which we are still more familiar, four-fifths, is not explained by the Court which pronounced this judgment. The case was not argued, and it did not apparently occur to the Court that probably Parliament meant by the expression "the whole body of justices" something entirely different. I do not think there is any doubt in the House itself that what was meant was the justices as a body. And the justices as a body have acted from the earliest periods of our licensing law through a majority of these present, after all | had been cited. What would be the consequences of this decision one does not need an active imagination to foresee. In the first place, the Act of 1904 is to a large extent made a dead letter. I do not suppose that in a single borough in England the justices have acted in the way held to be alone legal in the administration of that Act. As a consequence, the funds which they have collected have not been lawfully collected, the licences which they have suppressed have not been lawfully suppressed, and the compensation which they have awarded has not been lawfully awarded. But possibly the results are still more grave, for not merely is the administration of the Act of 1904 involved, but the administration of the whole of our licensing law from 1828 up to the present time is thrown into confusion. The Act of 1904 in creating a licensing committee which is to act within the limits of the borough clearly comtemplates, in fact, uses the phrase, that the whole body of justices are to take part in the constitution of the Committee. I do not suppose that in any borough in England the whole body of justices, in the sense in which the Court has used that expression, have taken part in constituting, in the terms of the section, the licensing committee to whom the administration of the various Licensing Acts is, by terms, entrusted. The result, therefore, probably is that, certainly since 1904, the suppression of licences, the renewal of licences, the whole administration of the law is penetrated 779 by an invalidity the full operation of which it is exceedingly difficult to gauge. It may be said that this error might easily be corrected on appeal, but the situation is too urgent, the consequences are too grave, to admit of any delay. As the result of the very grave liability which they have incurred and which they are incurring, the justices in some boroughs have refused to act any further in the administration of the licensing laws, and, inasmuch as Brewster Sessions are very shortly to take place, it is essential that the law should be authoritatively declared before the interests of the very large number of persons who are involved in this branch of our legal administration are put in further peril. I am not surprised that there is a feeling amounting to something like consternation as to the consequences in which they may be involved. In fact, this matter is so grave that it can only be regarded with equanimity by the legal profession, for whom an era of litigation is opening which only their trained nerves can regard with a cool head. There was another reason why this kind of legislation should be introduced. One cannot, having regard to the fact that the Court has pronounced this judgment, come to any other conclusion than that some ambiguity does arise owing to the language which Parliament has used, and if doubts are created with reference to the intentions of a statute, the proper mode for removing those doubts is to appeal to Parliament, who was responsible for the ambiguity, and ascertain what was its real intention in using the phraseology employed. The alternative is to hand the legal puzzle on from tribunal to tribunal, but past experience has shown that that operation seldom leads to a satisfactory result. You may have different solutions of the puzzle by each tribunal, all varying one from another, and all inconsistent with the real intentions of Parliament, and therefore I trust that the House will assist the Government in putting an end to a difficulty in the administration of one of the most important parts of our licensing law. The Bill is entitled "Removal of Doubts," but I do not think there is any doubt whatever in this House. I have had the opportunity, not merely of considering the language myself, but of conferring with those who are responsible for the use of this phraseology, and the 780 construction which I should have myself put on these words, and did put on these words before I conferred with them, does, I am satisfied, truly interpret the intention which Parliament had in framing the section to which I have referred. I need only add that we are protecting, as I think we ought to protect, rights which may have been acquired under judgments already pronounced, and subject to that protection I shall ask the House to adopt the Bill, which has the retrospective effect of declaring the law as from the date of the statute of 1904.

§ SIR E. CARSON (Dublin University)

said that, having had something to do with the passing of the Licensing Act of 1904, and taking on himself all the necessary responsibility of the law officer who was concerned in its framing, no one was more startled than he when he read the decision of the Lord Chief Justice and his colleagues in the King's Bench Division. He had really come to the conclusion that it was almost impossible to put words in an Act of Parliament which might not by some tribunal receive a totally different meaning from what, he thought, every layman and every lawyer in the House in 1904 attached to them. It was not a new phrase. He supposed that during the last fifty years there had been quite a number of Acts of Parliament in which the word "justices" had been used, and it had never entered into the minds of any one, until this decision, to attibute to the word anything more than a majority of those sitting. If any one would take the trouble to look at the section in this Act of Parliament, it would be seen that it was made particularly clear, because it was put directly in contrast with the committee that was to be set up by the body of justices itself. But, the Court of King's Bench having come to the conclusion referred to by the hon. and learned Attorney-General, without, it was fair to say, any argument as to the probable view that prevailed in the House, it became 781 absolutely necessary to carry out the intention of Parliament. As a rule, he would be opposed to an amending Act under these circumstances. He did not think that either the Courts, or anybody else, ought to get the idea that they could rectify these matters immediately by Act of Parliament rather than by the appeal which was given in ordinary cases to litigants. He thought it would be a bad precedent to 1ay down that every time a Court made a decision of this kind the House of Commons was to be asked to rectify it. They ought to proceed under the full responsibility of knowing that there was another tribunal that could settle these matters. But the present case involved matters far too grave and far too urgent to allow of that appeal being made, and to continue any longer than was necessary the state of commotion that existed amongst those concerned, both in the trade and the public generally, in the reduction of licences. So far as he was concerned, and he thought he could speak for his hon. friends behind him, he would give the Attorney-General every possible assistance in passing the Bill into law.