CLAUSE 20.—(Expenses of Federal Court.) (Hansard, 2 April 1935)

§ Mr. BAILEY
I beg to move, in page 116, line 18, to leave out Sub-section (2).
At first sight this Clause seems to be of a somewhat harmless and, I was almost going to say, meaningless character, and one of my objects in moving this Amendment is to obtain some elucidation of the exact meaning of the Clause. I am bound to say, however, that a certain amount of reflection has left one not quite so certain as to whether Sub-section (2) is as harmless or meaningless as it looks. One would like to know definitely why it should be necessary for the sanction of the Governor-General to be given to the expenses of the Federal Court being put in an estimate. Surely it should be self-evident that the expenses of a Federal Court should be allowed without question in any circumstances, and the question whether such expenses are to be allowed or not should not depend upon the individual judgment of the Governor-General. It seems to me that this Clause is going to introduce into the relations between the Federal Court and the Executive in India just that element which we have tried to keep out of the relations between the judiciary and the Government in this 238 country. It is most undesirable that the members of the Federal Court should feel that they are dependent for their salaries in any way upon the good will of the Executive, or at any rate that the administrative expenses of the Court, or the finances of the Court, should be dependent upon the good will of the Executive. It seems to me that under Sub-section (2) of Clause 206 such a position might very easily arise, because the phrase is used: The Governor-General shall exercise his individual judgment. At an earlier stage we were told that that meant that he would in practice consult with his ministers before acting, and, in the view of those of us who are opposing the Bill, it is most undesirable that the Governor-General should consult with his ministers before allowing the expenses of the Federal Court.

§ The CHAIRMAN
The hon. Member does not seem, if I may say so, to have read the Clause sufficiently carefully. The whole of his speech appears to me to have been made under a, misapprehension, and to be irrelevant. The first part of the Clause deals with payment of salaries, but, in the case of the Subsection with which he is dealing, it is only a question of including certain salaries and expenses in an estimate. It has nothing whatever to do with the Governor-General having power to decide what the salaries are to be, or to reduce them.

Duchess of ATHOLL
I think it is easier to understand the import of Subsection (2) if one has read Record 3 presented to the Joint Select Committee, or that chapter in Record 3 which explains that the Government propose that, whereas at present the administrative expenses of the High Court are entirely votable by the Legislature, in future the Governor should have the power to certify what are the necessary administrative expenses of the Court. Clause 217 of the Bill appears to me to carry out that intention. Clause 206 appears to me to be modelled on Clause 217 with respect to the Federal Court and the Governor-General, and therefore Sub-section (2) raises a rather important point. Sub-section (1), if it stood alone, would mean, I gather, that 239 the whole of what the Court asks for as administrative expenses would be charged upon the revenues of the Federation; but Sub-section (2) requires that the Governor-General shall be satisfied that the administrative expenses asked for are reasonable, and therefore throws upon him the responsibility of fixing the sum which is to be charged on the revenues of the Federation.

§ Sir B. PETO
It is noticeable that Sub-section (2) says that the Governor-General shall exercise his individual judgment; and therefore, presumably, if the amount asked for appeared to him to be in excess of the amount that should be expended, he could reduce it. Does not that mean that in other cases the Governor-General cannot in his individual judgment reduce expenses? If that be not so, it seems rather dangerous to specify this particular matter of the expenses of carrying on the duties of the Federal Court as one in which the Governor-General can intervene and reduce the sum that can be asked for from the Legislature.

§ The SOLICITOR-GENERAL
I think there is a little misunderstanding as to what the procedure is. The Noble Lady rather suggested, but I think on consideration she will agree that it would not be possible, that in connection with all administrative expenses the court should finally decide what the figure should be. Suppose, for instance, that a question arises as to the upkeep of buildings, or an enlargement or reconstruction in one particular year or another. Part of the object of this Sub-section is to ensure that, if that is a proper and necessary thing to do, there shall be no question about its being done. But you could not put on the judiciary the executive responsibility of deciding whether, say, rebuilding should be done in any particular period. The necessary procedure is, that the High Court knowing what they require—and in passing I may mention that this, of course, does not deal with the salaries of the judges—for the salaries of their staff and for necessary expenses in connection with the upkeep or reconstruction of buildings, the construction of new buildings, and so on, the responsibility for expenditure of that 240 kind must be on the Executive. Otherwise you would have the judges being criticised for spending public money and so on. An executive minister must be responsible. The object of the Sub-section is to safeguard the demand, in this case of the Federal Court, and similar provision is made for the corresponding case of the High Court, for all proper and reasonable expenditure, and to prevent ministers from seeking to cut down such expenditure and starve the Court of money which it needs for its purposes; so that should it unfortunately happen, which we do not anticipate, that ministers suggest that expenditure which the Governor-General has said was reasonable is excessive, it will be the Governor-General who has the last word as to what figure shall be put in the estimate when the matter comes into the Budget.

Duchess of ATHOLL
I would point out to my hon. and learned Friend that, as I understand it, the expenses of the courts in England are borne on the Consolidated Fund, and I do not think—

§ The SOLICITOR-GENERAL
I did not say that. The expenditure for upkeep and so on is votable. It is the salaries of the judges that are borne on the Consolidated Fund.

Duchess of ATHOLL
But is there not a distinction between the cost of building, say, new Law Courts, which, as the Solicitor-General rightly says, would have to be voted by Parliament, and the salaries and so on of the servants of the court—the staff of the court? I would like, before we part from this Clause, to tell the Committee that the High Courts in India have been faced with very real difficulties in more Provinces than one because their administrative expenses have had to be voted by the Legislative Council, and memorials on that subject were presented by several High Courts to the Simon Commission, in which they spoke of the criticism to which they had been subjected and the extent to which their independence was threatened in consequence. The High Court at Bombay, in particular, expressed anxiety about being subject to the Government of Bombay as regards their administrative expenses. We recognise, of course, that it is much better if the Governor-General—

§ The CHAIRMAN
The Noble Lady will realise, in the first place, that this Clause does not relate to the High Courts, and, secondly, that the very Clause to which this Amendment is related deals with that point in the first paragraph, to which I have already called attention. The salaries are, under that first paragraph, to be charged on the revenues of the Federation.

Duchess of ATHOLL
I am well aware that the judges of the Federal Court and of the High Courts—

§ The CHAIRMAN
The Noble Lady mentions salaries, and I did so too, but I was not speaking of the salaries of the judges, which are not in question here, but the salaries of the servants of the court.

Duchess of ATHOLL
I was only using the High Court as an illustration. No Federal Court has yet been established, and, therefore, it is not possible to express an opinion based on experience with regard to the procedure in the case of a Federal Court, because there is no experience on which to base it. One can only base it on the experience which the Provincial High Courts have already had. I recognise, however, that the position under the Clause is an improvement on the existing provision, and I was just drawing attention to the fact that the Governor-General might find himself in a difficult position—

§ The CHAIRMAN
I am very sorry, but I do not seem to be able to explain the matter to the Noble Lady. There is no doubt that these moneys about which she is so troubled are not moneys which are votable, but moneys which are charged on the revenue. In the particular case provided for in this Clause, they are charged upon the revenues of the Federation under this particular Clause.

Duchess of ATHOLL
It will rest with the Governor-General to cut down estimates which may have been presented by the Federal Court, and the Governor-General may find himself in a rather difficult position. The Federal Court may present to him a demand for a sum which criticism of the Federal Court, or possibly of the Federal Legislature or of Ministers, may make it 242 difficult for him to grant. I wish to say before we pass from the Clause, that the Committee should realise that this is one of the many instances in which the Bill imposes a very heavy, and possibly a very difficult responsibility upon the Governor-General, but I recognise that from the point of view of the Federal Court, it ought not to be placed in a better position relatively than that in which the High Court has been placed and, therefore, I do not propose to ask my hon. Friend to proceed further with his Amendment.

§ Mr. BAILEY
After giving very careful consideration to the courteous reply of the learned Solicitor-General, I would like to withdraw the Amendment, but, before doing so, I wish to say that we on these benches have given much anxious labour in considering the exact meaning of these Clauses. I am happy that we have been reassured at any rate to some extent by the reply of the learned Solicitor-General, and I have great pleasure in asking leave to withdraw the Amendment after a discussion o which, I am sure, has been of great value to the Committee in trying to ascertain the exact meaning of the Clause.

§ Major-General Sir ALFRED KNOX
Before we pass this Clause finally, I should like to ask the Secretary of State a question. Has he or his financial advisers arrived at any estimate of the actual cost of the Federal Court? What will be the salaries of judges and the staff and the cost of the buildings? We have been told that the extra cost of Federation will be about £560,000. How many items are included in the £560,000? I should like the right hon. Gentleman to tell us if possible, the cost of the Federal Court, and whether it is included in the £560,000?

§ Sir S. HOARE
I cannot tell my hon. and gallant Friend the figure off-hand. I will see if there is an estimate and let him have it, if there is one. There must be an estimate, because it has been included in the £500,000 odd of extra 243 expenditure, but what it is exactly I cannot say off-hand.