CLAUSE 204.—(Rules of court, etc.) (Hansard, 2 April 1935)

§ The SOLICITOR-GENERAL
I beg to move, in page 115, line 20, after "rules," to insert: as to the persons practising before the court. This is a drafting Amendment to make it clear that the rules which the Federal Court may make with the approval of the Governor-General shall include rules as to the persons practising before the court. Rules will obviously have to be made as to that, and to remove all doubts I am moving this Amendment.

§ Mr. CHURCHILL
We quite understand that it is a drafting Amendment, but what is the point of particularly defining the application of this Clause to the persons practising before the court? Does the learned Solicitor-General consider that undesirable persons may want to practise, or that seditious persons will utilise the court as a means of exposing the so-called grievances of the locality. What is the point of making rules as to persons practising before the court? Is there to be picking and choosing between persons, although duly qualified in a legal sense? Are people who vote with one party or another, Congress people or others, or people who have fallen within the ban of the law to be excluded? I am not saying that they ought to be included, but we ought to know the purpose of putting these words in. My hon. and 215 learned Friend has explained what his Amendment does. We can all see that. It enables the authorities to make rules about people who may appear before them. Ought not these rules, if any, to be merely rules governed, on the one hand, by the ordinary common law, and, on the other hand, by any special arrangement which may govern the procedure of the legal bodies which exist in India similar to those that exist at home?

§ The SOLICITOR-GENERAL
My right hon. Friend's question is capable of a very short answer. Every court must have power to make rules as to who shall have the right of audience, whether a fully qualified barrister or a solicitor, and what barristers shall have that right, for in India there are different bars in every Province. Rules will clearly have to be made, therefore, as to who shall have the right of audience. There is no question of distinguishing between individuals. It might be said that a power of controlling the right of audience is so inherent in the court that these words are unnecessary. The Clause, however, contains the words for regulating generally the practice and procedure and it specifies certain matters as to which there must be rules. It is desirable, therefore, that this matter, as to which there must be rules, should also be specifically referred to.

§ Mr. MACQUISTEN
It seems to me to be giving very wide powers. I hope that it will not in any way take away the independence of the Bar, because we at home have our own rules which keep up the general standard of professional conduct. This looks as if the judiciary might step in and interfere with the independence of the Bar in India. The Clause seems to be capable of interpretation so that the Federal Court might in some way or other take away from the independence of the profession, which is one of the main guardians of public liberty.

§ Mr. CHARLES WILLIAMS
I wonder if I might ask for an assurance from whoever is going to reply that it is not the intention to make these rules too 216 stringent, so as to ensure that there is not an abuse, but that they will be kept fairly wide, and reasonable protection will be given to the public to get sufficient lawyers.

§ The SOLICITOR-GENERAL
I will certainly give that assurance. There is no intention to have any abuse of that kind. With regard to what my hon. and learned Friend said, it is not, of course, the Bar who make rules in this country, but the Courts, and that provision is covered by this Amendment giving this power to the court.

§ Mr. CHURCHILL
The learned Solicitor-General described this Amendment as purely a drafting Amendment. I do not think that that is quite a comprehensive statement of the scope of the Amendment, which, obviously, is one of substance. But let that be. Let us examine it purely from the point of view of a drafting Amendment overlooked until this moment. It is not correctly drafted. If the learned Solicitor-General will direct his gaze upon the earth, he will see that the Amendment which he is taking the responsibility of commending to the Committee will not even read. You must insert the word "and" after this Amendment to make it read. [HON. MEMBERS: "A comma."] The Clause will read: the Governor-Genera] in his discretion, make rules of court for regulating generally the practice and procedure of the court, including rules as to the persons practising before the court.

HON. MEMBERS
Comma.

§ Mr. CHURCHILL
I beg pardon—yes, a comma. But where is your comma? It is all very well, but I remember the Leader of the Opposition raising a long Debate and getting the Government into an awful hole about a comma. Let us not be contemptuous of commas.

§ Mr. C. WILLIAMS
May I point out that the Amendment has a full stop, which is more than a comma?

§ Mr. THORP
I beg to move, in page 115, line 26, after "vexatious," to insert "or of a champertous nature."
217 I do not want to be dogmatic, but perhaps I may be allowed to say that the word "champertous" means, in popular language, dividing the proceeds of the litigation. It has been, I believe, for many hundreds of years a criminal offence in this country to make a champertous agreement, and I am given to understand it is a very common sort of agreement, that people will undertake litigation in consideration of dividing the swag as a result of the litigation. As the Sub-section is now drawn the rules allow the court of appeal to deal summarily with frivolous or vexatious appeals, but a champertous appeal might certainly not be frivolous or vexatious. It might be a perfectly genuine appeal, that would not ordinarily be put in, by one of the parties being encouraged to appeal by having been induced to make a champertous agreement.

§ The SOLICITOR-GENERAL
The law of champerty, to which my hon. and learned Friend has referred, is, I am told, unknown to the law of India and indeed, I think, it is unknown to any legal system but our own.

§ Mr. MACQUISTEN
In America it is the common way in which you undertake. litigation

§ The SOLICITOR-GENERAL
It would, therefore, be quite wrong to put into an Act applying to India a branch of law which does not exist in the Indian legal system. In so far as the kind of transaction to which my hon. and learned Friend has referred results in an appeal being frivolous or vexatious, the court can deal with that under the law as it stands, and it would be a pity to pick out one element not frivolous or vexatious and specify it, instead of leaving the court, with the wide discretion it has in these words, to deal summarily with an appeal which is frivolous or vexatious, and which ought to be summarily dealt with.

§ Sir WILLIAM DAVISON
The difficulty of the argument of the learned Solicitor-General is that in some of the districts in India this method of dealing with disputes is not considered to be frivolous or vexatious. I have it on very high authority that it is by no means 218 uncommon when a case has been tried for the plaintiff to put an envelope on one side of the judge, and a defendant to put an envelope on the other side of the judge, and for the judge to count the number of rupees—

§ The CHAIRMAN
I do not think that that is champerty.

§ Mr. RAIKES
I am very much disappointed by what the learned Solicitor-General has said. It may, indeed, be that champerty is unknown to the law of India, but surely the learned Solicitor-General might consider translating the word into language which could be understood. Does "vexatious" cover champerty? I do not think it does. My hon. and learned Friend has pointed out that champerty means making an appeal in order to divide the swag. That is not frivolous. It may be that the appeal is not frivolous, and it certainly is not vexatious to those lawyers who are going to be employed on the appeal, but if you insert "champerty" or some such word, it does lay down that that type of thing will not be allowed, and so the question of whether it is vexatious or frivolous will not come in. It will be illegal. As we have heard, there is a great deal of that type of financial action at the present time. If the Government do not like that word, at any rate let them give us something that means champerty.

§ Mr. MACQUISTEN
If this is the practice in India, and I believe it will be the practice there, because Indians are particularly fond of litigation, there will be champerty no matter what you do. As the learned Solicitor-General has pointed out, the illegality of champerty is a peculiarly English rule of law. We have something similar in Scotland where we call a man who finances and takes charge of litigation to which he does not belong and has no real interest in the dominus litis, or the master of litigation, and if the case is lost, he is liable to the expenses if the principal does not pay up. If the case is won, what does it matter to the man who has lost whether there was champerty or not? He was in the wrong and was found to be in the wrong and that is all there is to it. There may be a bad judgment against him, and somebody else comes along and takes it 219 up as an ordinary speculation saying, "I will finance the thing so far, and 1 will share the plunder," or the profits, or whatever it may be. What harm has been done? That is universal in the United States of America. It is the way lawyers work there. They come to a client and say," Look here, I think you have a very good case." The client says, "I will not spend any money upon it." The lawyer then says, "The case is so good that I will chance my hand, and take 10, 20 or 50 per cent." The client gets justice—if you can get justice in the United States. The Indians do the same and see nothing wrong in this.
Champerty is an English rule. It is the strong, successful and prosperous people who can pay their expenses if they lose who do not like to see a fellow pursuing a case further than he has the money to pay for, on the off-chance, and so this law of champerty was invoked to keep the man of little or no account from getting much benefit out of the law. He was not, at any rate, going to be allowed to appeal. That is the very opposite of the law of-Scotland, because long ago we expressly provided that poor people should get the benefit of the law courts free of charge, and if they won their cases they could then get their costs against the other side. Since 1425, members of our Bar have been conscripted to conduct these cases for poor people, and get nothing for it unless successful. Great American jurists have described the Scottish as the only people who have found the ideal system, for in all parts of America, unless you can find money to get civil justice, they cannot get it, whereas in Scotland they can. Therefore, we should be very careful about putting in a word like this, because we are dealing with a vast race of people with different ideals from our own. Why then should we put in our stiff-necked English legalities, and impose them upon these Orientals? That, of course, is the fault of the whole Bill. The English, with their incredible vanity, will insist on foisting their institutions on Orientals who have wholly different ideas.

§ The CHAIRMAN
I hope the hon. and learned Gentleman will not discuss the Bill.

§ Mr. CHURCHILL
My hon. and learned Friend has made a very fertile contribution to our discussion, but as he reached the closing period of his remarks I found that he was arriving at a different conclusion from my own. I am in favour of "champertous" being inserted in the Bill. The decision before the Committee is whether they will inflict upon India the Scottish or the English conception of the law in this particular. I must proclaim myself a partisan of the English conception. Champertous actions are banned with the idea of preventing litigation being fomented—although it may sometimes help some small person—by interested parties who are to be paid their fees out of the proceeds of the judgment if it should go in their favour. English opinion has always been opposed to champerty and, after all, England does still exist, although its nationality is submerged. For many generations that has been one of the essential propositions of our jurisprudence.
Why should we not extend this benefit to India? Why should we not give them the whole of our message? "Champertous" is certainly part of the British message. Why should it not be included in this India Bill? Is there any portion of the earth in which it is more necessary that a prohibition against champertous transactions should exist than in India? China is a vast Asiatic country, but in China there is anarchy. Russia also is Asiatic; and there may be other parts of Asia which are under various forms of tyranny. But in India we have at present peace and order and legality, and we have this vice of Asiatic races, which the English themselves, inventing this word "champertous," have discovered is a matter to be corrected, and therefore why should we not confer this prohibition against champerty upon India together with all the other benefits which the hon. Member for Bodmin (Mr. Isaac Foot) wishes to bestow.

§ Mr. ISAAC FOOT
The right hon. Gentleman has just said that in India there is a condition of law and order. They have no prohibition of champerty at present, and why should he desire to change the position?

§ Mr. CHURCHILL
There is a condition of law and order because the judiciary 221 of that country is influenced and dominated at the present time by English traditions, and inherent among those English traditions is this hatred of champerty; but now we are reaching to a new regime, another dispensation. Gradually English control of the judiciary will fade, and in consequence it is all the more necessary to bequeath to them our full inheritance while we are about it. I should have thought the hon. Member for Bodmin would have been the very first to have supported this proposal. He is surely not going to confer upon India all the blessings of modern democracy and deny them this English provision against champerty. Let them have the whole dose. It is a terribly dangerous thing to give a very strong and severe medicine to a whole nation and yet to leave out some essential element in the prescription I appeal to the Government to prohibit champerty in India just as they have put down dacoity, suttee and other vicious practices.
Why should the Government not accept this Amendment? What harm does it do? It is sound of itself. It will be beneficial to India. It would make no difference to the Bill, only the Government have got into such a habit of refusing everything and of thinking that all they have to do is to ring the bell and bring in the crowd that they will not even address themselves to a proposition seriously put forward upon careful and reflecting legal authority? Why cannot the Government accept this Amendment? I do not suppose they will, having said that they will not. If they had said they would it would have been in the Bill. Now that they are cutting the painter, now that India is drifting apart, surely they might leave India with this principle of the law. I think I see that the Attorney-General is moved. He and his learned brother are consulting together. May I hope that some consideration will be given to this point? If not, I really think the House has a right to feel ill-used, not because the Government are not courteous and polite, but because they pay no attention whatever to anything that is said. No reason whatever has been given to us. What is this statement that the language is not the same? If they put the word "champerty" into Tamil or Hindustani or any other dialect the people would not understand it, it is said. What nonsense! They will gulp 222 down the word "champerty." If the Government imagine they will not understand what "champerty" means they are under a delusion. It is a real link of Empire between ourselves and them. If the Government insert the word "champerty" they will not need to translate it. They have only to tell the Indian people what it means in simple terms, and the Indian people will see the immense significance of it, and all over that vast sub-Continent there will be appreciative thanks.

Marquess of HARTINGTON
With all respect it seems to me that both my right hon. and learned Friend the Attorney-General and my right hon. Friend the Member for Epping (Mr. Churchill) have misread the Clause. The Clause and the Amendment do not deal with the question of whether we shall or shall not prevent champerty in the future, but with a much narrower point, and that is whether we shall allow the Federal Court, if it so wishes, to make rules against champerty. We are leaving it to the discretion of the Federal Court. If this Amendment is rejected, the Federal Court will have no power to make rules against champerty. We in this country found, many hundreds of years ago, that it was highly desirable to make rules against champerty, and I confess to a certain feeling of astonishment when I heard the learned Solicitor-General say that because the rules against champerty in our own system of law were unique, therefore they should not be applied to India. My belief has always been that our legal system was the envy and admiration of the world, and I was astounded when I heard him say that anything which was unique in our legal system should obviously be avoided. But, as I say, we are not dealing with the question of whether champerty is desirable or not desirable, but with the simple issue of whether or not it is desirable to allow the Federal Court to make rules against champerty if it so wishes. Champerty may or may not be a very desirable thing. In spite of the law against it I have had some considerable experience of it myself, and have been the victim, so I am thoroughly convinced, of a champertous action. I am sorry if I say anything which will upset my hon. and learned Friend the Member for Argyll- 223 shire (Mr. Macquisten), but agreements are entered into by which a lawyer undertakes to fight an action—

§ Mr. MACQUISTEN
The Noble Lord is under a misapprehension. The lawyer in Scotland is not entitled to make a bargain for a. share of the proceeds of a litigation. The pactum de quota litis is illegal. But a stranger may do so, which is champerty in England.

§ The CHAIRMAN
We are not discussing the law of Scotland.

Marquess of HARTINGTON
There have been cases in which a champertous action was brought by an unscrupulous lawyer in the hope of gaining a rich reward; but if the action is unsuccessful he tries in vain to secure his costs, because champerty does not extend to dividing the loss if a loss ensues. I have myself been a victim of a case of that kind. It was hoped to derive some benefit from the action, but the benefit was not there, because I won the day, and costs were not forthcoming. In my view that kind of litigation is undoubtedly undesirable. It may be that our legal system is unique in making it illegal, but it seems desirable that the Federal Court should at any rate have the power to make rules.

§ The CHAIRMAN
I must point out to the Noble Lord that even he is making the issue too wide. The Amendment only deals with the making of rules for the summary determination of any appeal. It is not a case of making rules against champerty at all.

Marquess of HARTINGTON
I think, with all respect, that this Amendment applies to the rules which the court has power to make, and not to any general enactment against champerty.

§ Mr. CHURCHILL
; But the whole issue is raised on the question of whether the Federal Court shall make rules against champertous transactions.

§ The CHAIRMAN
I think, with all respect, that view is wrong, and that many of the speeches on this Amendment have been made, apparently, before hon. Members had read the Clause with sufficient care to understand what would be the effect of amending it as proposed. The matter is perfectly clear. If the Amendment were inserted, there would. 224 be power to make rules for providing for the summary determination of any op-peals which appear to have been of a vexatious or of a champertous nature, or brought for the purpose of delay.

§ Mr. WISE
I have had some small experience of litigation between Asiatic subjects, and particularly British-India subjects, and I would assure the learned Solicitor-General that this Amendment is an attempt to stop a practice which is extremely undesirable. It gives a court power summarily to determine an appeal in which the lawyer and his client may have made an agreement that the lawyer should reimburse himself out of the proceeds of the action, and I can assure my hon. and learned Friend that that is an extremely common practice with Indian lawyers. There were very few cases indeed in our East African dependencies in which such bargains were not made, and the effect of them is undoubtedly to cause longer and more tedious litigation.

§ The CHAIRMAN
I think the time has now come to say that we cannot continue this Debate on the impropriety or the wickedness of champerty.

§ Mr. CHURCHILL
No, Sir, but might we hear from the Government some reasons why, in this matter of making rules, together with the words "frivolous or vexatious" we should not also insert the word "champertous" The only reason we have heard from the Government is that the word "champerty" is not familiar in India, but the practice is all too familiar there, and, if we are conferring upon India our British system of democratic government, we ought not to deny them this extremely valuable element in our system. We have had no answer from the Government, and the Debate has been prolonged because the answer given by the Solicitor-General was so utterly inadequate. He merely said that there was not a native word for "champerty," or something like that. It is because they have not given us any reason for not adopting these words or have not accepted the Amendment which would have been a reasonable course which almost any other Government wishing to associate the House of Commons with their legislation would have 225 adopted, that this discussion has been, perhaps, protracted beyond the particular point. The responsibility rests with the Government. Let the Solicitor-General give some reason other than the difficulty of translating the word "champerty" into the Indian language, or let the Government accept the Amendment. We can then immediately proceed to the next Clause upon which further important points arise.

§ The SOLICITOR-GENERAL
The right hon. Gentleman the Member for Epping (Mr. Churchill) said that I did not anticipate in my answer a question which does not and could not possibly arise, either on the Amendment or on the Clause which we are discussing. The whole of this Debate has proceeded upon the question whether or not the subject of champerty should be introduced into the Indian Code. [HON. MEMBERS: "No!"] I think I am within the recollection of the Committee. The right hon. Gentleman said he thought tint this was a desirable ingredient, and he proceeded to tell us its advantages. The Clause merely deals with cases in which the Federal Court may make rules for the summary determination of appeals. You would not get any champertous proceedings there. In answer to what the Noble Lord said, if it is desirable to deal with champerty, the rules of court would be quite the wrong place to do so. The Clause deals with one very simple matter, which is to make rules by which the Federal Court can deal summarily with appeals which are considered frivolous or vexatious.

§ Mr. CHURCHILL
In. what way are "frivolous" or "vexatious" separated, in the category which the Solicitor-General is now examining, from "champertous"?

§ The SOLICITOR-GENERAL
They are separated. If the proceedings before the court are frivolous or vexatious, the court is entitled to deal with them.

§ Mr. CHURCHILL
Why not champertous?

§ The SOLICITOR-GENERAL
A champertous case may be of the utmost importance, and it would be highly derivable that the court should deal with 226 it and decide it at length. The question whether there should or should not be a Clause against champerty is entirely outside the scope of the Clause with which we are dealing. I press upon the Committee to realise that the Clause with which we are dealing here is whether there should be power to deal summarily before the court with appeals which are frivolous or vexatious. When I spoke originally, I based my arguments on the fact that it would be wrong to accept the Amendment, because it would be inappropriate to attempt to introduce a new element which is not an offence in Indian law. I hope the Committee will now come to a decision.

§ The SOLICITOR-GENERAL
I beg to move, in page 115, line 28, after "may," to insert: and if the Federal Legislature make such provision as is mentioned in this chapter for enlarging the appellate jurisdiction of the Federal Court shall. This Amendment, and the next—in page 115, line 33, to leave out "shall compose that division," and to insert. "are to sit for any purpose,"—make two small alterations relating to the question as to whether the Federal Court shall, in certain instances, sit in two divisions. The Committee will remember that there is power in Clause 196 for the Federal Legislature to enlarge the appellate jurisdiction of the Federal Court by allowing the appeals to go there in other than what we may call constitutional cases. This Clause, as at present drafted, provides that rules may be made for the court to sit in two divisions, and the first of the Amendments provides that, if the power in Clause 196 is exercised, there shall be two divisions. That will ensure that there will be a division free to deal with constitutional matters and another division free to deal with matters which will come to the court under Clause 196. The first Amendment makes it imperative that there shall be two divisions in the event of the powers under Clause 196 being exercised, and the second is a drafting Amendment, so that the Clause shall read: fix the minimum number of judges who are to sit for any purpose

§ Mr. CHURCHILL
Is that merely consequential?

§ The SOLICITOR-GENERAL
Yes.

§ Lord EUSTACE PERCY
I hope the Government will not press this Amendment and will reconsider the wording of the Clause. The point is raised in the report of the Joint Select Committee and the Clause does not correspond—nor does the Amendment—with the recommendation of that Select Committee. The Federal Court will start with a bench of not more than six judges, charged with the duty, broadly speaking, of dealing with constitutional cases. In so far as their function is to deal with cases involving the interpretation of the Constitution, it is of the utmost importance that all such cases should be dealt with before the full court. It is the universal experience of every country with a fixed constitution, especially of every federal country, that you must have one and the same tribunal dealing with constitutional cases. The principle is accepted, for instance, by every constitutional lawyer in the United States that the Constitution of the United States would become completely unworkable if the inter-State commerce clause had been interpreted now by one division of the supreme court and now by another division. It is agreed to be essential that all such questions should be heard before the full court, as the Federal court will first be constituted.
The Clause gives the Chief Justice power to divide the Federal Court, even while it is concerned only with constitutional cases. Under the Government Amendment, the Chief Justice will have power to divide the court, with the approval, of course, of the Governor-General, and then arises the second point. Suppose that the new powers of the court of appeal should go to the Federal Court and the Federal Court were enlarged. It is unlikely that it would be enlarged to more than nine members, which is the size of the Supreme Court of the United States. There is no reason why they should not sit as a full court. I agree that it might be perfectly proper to divide the court so that there should be a supreme court division dealing with appeals and a federal division dealing with constitutional cases. There are arguments in favour of that, but this Amendment, while obliging the court to sit in two divisions, which has never been 228 recommended, so far as I know, by anyone as a mandatory necessity, does not prescribe that the two divisions shall consist of a Federal Court and of a Supreme Court, and that one division shall deal with constitutional cases and one division shall deal with appeals. Under the Amendment, it would become mandatory upon the chief justice to make these rules, and it would be perfectly open to him to make a rule saying that constitutional cases involving certain points should go to one division and that constitutional cases involving certain other points should go to the other division, in other words, the Amendment makes what I regard as the mistake of the present Government worse confounded. I press upon the Government to think again and before the Report stage to consider how we can ensure in the drafting of the Clause, which is the only thing which is important, that all constitutional cases shall be dealt with by the full court, as the full court is originally set up under the Bill, namely, the original Federal Court of not more than six judges.

§ The SOLICITOR-GENERAL
I appreciate, and indeed I agree with, a great deal of what my Noble Friend said, although I think he put the case a little more rigidly than I should be inclined to put it. It is obviously desirable that the court, that decides constitutional issues, should have a substantial continuity of personality, the chief justice always presiding and the bulk of the other judges being the same. I am not sure that I go quite to the extent that he does, when he suggests that it is undesirable to have any latitude within which say a judge who, when Clause 196 operates has been doing other work, might come on to the constitutional panel. You might, for instance, having extended your court, and having set up, as my Noble Friend would, a separate division to deal with the other appellate work, find in your second division, if I may so call it, a man, or two men, obviously of outstanding ability, who would be useful in the constitutional section. Obviously that might happen, just as to-day you might have in your Court of Appeal in England the kind of mind which would be extremely useful on the Judicial Committee of the Privy Council. But we 229 think it might be undesirable to introduce too rigid a provision.
There is another aspect of the matter. We believe that the considerations which my Noble Friend has urged would be as present to the Chief Justice of the Federal Court as to my Noble Friend or to anybody else. He will be as alive to the vital importance of continuity of personnel in dealing with these constitutional matters as anyone could be. He will be the person responsible for the general working and prestige of the Federal Court, and all those matters to which my Noble Friend referred will obviously influence him in the rules which he makes and in the manner in which he arranges for the judges who will be associated with him in the Federal Courts. We do not, therefore, want to tie him up too much, nor do we think there is any real danger in allowing him a useful latitude within which to work, but we are at one with my Noble Friend on what I may call the main lines of the condition which he has made.
While believing that the Federal Court will work best if those lines are followed, we would ask the Committee to accept this Amendment, which I think will take its place in my Noble Friend's scheme, in that if you do not provide for two divisions, assuming that the powers of Clause 196 are exercised, you will have one or other of these results—either the ordinary non-constitutional appeals will have to go to the whole bench or you will never be able to hear a constitutional case while an appellate case is being heard. That surely would be undesirable. My Noble Friend says, what is quite right, that this Clause does not say in terms that one of the two divisions will try constitutional cases and one of the two divisions will try appellate cases. On behalf of my right hon. Friend, I will certainly say that we will consider again the point which my Noble Friend has raised and see whether, without making the machine too rigid, and by placing a reasonable confidence in the Chief Justice to arrange work in the best possible way, we can put in words which will go some way in the Bill to safeguard the results which both my Noble Friend and the Government have at heart.

§ Sir ROBERT HAMILTON
Supposing the Court was divided into two divisions, would there still be anything to prevent 230 the Chief Justice in any particular case directing that it should be heard by a full bench?

§ The SOLICITOR-GENERAL
Nothing whatever.

§ Mr. CHURCHILL
May I venture to ask whether my Noble Friend the Member for Hastings (Lord E. Percy) is satisfied with the answer he has received? After all, my Noble Friend sat on the Joint Select Committee, whose report on this subject, I gather, differs from the action of the Government. [An HON. MEMBER: "No!"] He said so, at any rate, but you must fight that out among yourselves. We are not usually associated with the Noble Lord, who is a most vehement supporter of the Government in these matters, but now he differs from the Government. There is a length to which, I trow, Colonial bishops cannot go. I did not mean to refer to his pontifical qualities; but the Noble Lord has now pulled up. He has gone thus far with the Government, but he has now entered a serious caveat. I could not gather whether his objections were to the Amendment or to the whole Clause. I rather think he objected to both. He asked the Government to withdraw its Clause or to remodel it, and the point he raised was one of substance. He pointed out what confusion worse confounded would have resulted in the United States if there had been two Supreme Courts which might have given divergent rulings on, for instance, the gold dollar question. This is part of the amazing policy that you are constructing for India. There are to be two supreme courts, or the supreme court is to divide itself into two tribunals, which may give opposite opinions, but all is to be entrusted to the good sense of the chief justice, who will naturally' divide the business as he may choose.
I must say that my part in this matter will be determined by the Noble Lord. He has raised the issue; he has opposed the Government and taken the responsibility—I admit he has the Joint Select Committee at his back—of confronting the National Government with a very definite point of divergence. He has been given an answer which, as anyone who has listened to it will agree, is no answer at all. He has been fobbed off with. This 231 vague and airy assurance, which I must say the learned Solicitor-General does in a most skilful manner, that "perhaps at some future time, before the Report stage, we will bear the matter in mind and see if some words cannot be inserted which will perhaps go a little nearer to meeting the point of view advanced by my Noble Friend," etcetera, and so on. Is be satisfied with that? Will he accept the rebuff which he has received? I think it is a rebuff. The mocking cheers of my right hon. Friend the Member for West Birmingham (Sir A. Chamberlain) do not at all alter my view that it is a rebuff. When a Member who has followed all the process of the Government for two or three years with the faithfulness of a hound for his master, and who suddenly asks for a bone, has something flung to him, however small—and he has a legitimate and substantial point—and is told by the learned Solicitor-General to go off and eat his own tail, I must say that I think that constitutes all the elements of a parliamentary rebuff. At any rate, I shall hold my judgment in suspense as to what I do on this Amendment until I have heard further from my Noble Friend.

§ Lord E. PERCY
I was about to give expression to my attitude when my right hon. Friend the Member for Epping (Mr. Churchill) thought it necessary to get up and to give me a pat on the back; or was it to give me a little courage? If that was the object, I confess he has not succeeded. If any hon. Member of this House raises a point of argument of some specific importance, my right hon. Friend the Member for Epping is sure to drown any meaning there may be in the point by a sea of oratorical soapsuds, so that no one any longer knows what the discussion is about.

§ Mr. CHURCHILL
Just repeat it, will you?

§ Lord E. PERCY
Let me at least thank my right hon. Friend for one thing. It is a high privilege to receive a lecture on proper political behaviour and on the principles of political consistency from my right hon. Friend.

§ Mr. CHURCHILL
You are welcome.

§ Lord E. PERCY
I have one complaint to make against my hon. and learned 232 Friend the Solicitor-General. He used the expression, which is too commonly used in these Debates, "that, of course, the Amendment does not say in terms that" so and so. Well, you cannot say anything except in terms. If you do not say it in terms, you do not say it at all, and the real trouble is that my hon. and learned Friend does say in terms something which he says he does not want to say, for he says that these rules may specify the division in which in cases of any specified class the jurisdiction of the court is to be exercised. "Any specified class" in terms gives to the chief justice liberty to divide the court at any point that he may wish, and clearly, if there is one obvious principle of construction of a piece of legislation, it is that if you go out of your way to specify, in the first place, that he must do a certain thing when a certain contingency arises, and then go out of your way to say that what he then shall do need bear no necessary relation to the contingency out of which his action has arisen, you obviously give him the strongest reason for supposing that he may divide the court, not at the point between constitutional and supreme court cases, but at any point which he thinks fit.
I quite agree with the learned Solicitor-General. Nobody is asking for an impossible continuity of personnel in your Federal Court. Judges die, and judges are appointed, and, of course, the Supreme Court of the United States today is not the Supreme Court, of 10 years ago. In the same way, I agree, it might be very desirable to appoint an additional judge of the Federal Court by transferring him from the Supreme Court. It would be no different from taking a judge and appointing him from outside. I am not asking for any impossible continuity of personnel of that kind. I am asking that there shall be a division of the court, and that that division shall be identified with the hearing of constitutional cases; and, unless that Amendment is made, the Amendment which we are now discussing is worse than useless. I am not going to argue as to whether this Amendment should be accepted now and the thing reconsidered on Report, or whether the Amendment should be withdrawn now and the whole thing reconsidered on Report. It is not worth while wasting time by arguing that, but I would like an 233 assurance that the whole question, from the point of view which I have stated, will be reconsidered by the Government before Report.

§ Sir S. HOARE
We were under the impression that the Amendment was making more clear the intention of the Joint Select Committee. That intention undoubtedly was that there should be a division between constitutional and appellate cases, and it was to make that clear that we proposed this Amendment. My noble Friend is not satisfied with the wording of the Amendment, and I suggest that probably it will be most convenient if we pass the Amendment now, and I give him an undertaking that we will look into the question further, keeping in mind the fact that he and I are agreed that the division should be between constitutional and appellate cases.

§ Mr. CHURCHILL
I do not think this matter ought to be settled in this fashion. Here is the Secretary of State doing a private deal with the Noble Lord, keeping in mind, as he said, the fact that they were agreed. After all, we are dealing with the Committee of the House of Commons, and I do not think that these transactions should be of such an extremely selective character as all that. I quite understand that a Member who presses a point with a great deal of knowledge, as the Noble Lord did, has the right to an answer specially by the Secretary of State. But I should have thought that when the Secretary of State intervened at the end of the discussion on this particular point he would have given his pledge to the Committee rather than make it one of these many compliments which he extends to those who have supported his fortunes so long.

§ Sir AUSTEN CHAMBERLAIN
I was proposing when my right hon. Friend the Member for Epping (Mr. Churchill), to rise in support of the point made by my noble Friend. I am as satisfied as he is with the assurance which the Secretary of State has given, but I must admit that I was not satisfied with the arguments which my hon. and learned Friend the Solicitor-General used. I am not very much impressed by his plea against too much rigidity. I think this is a matter in which a certain amount of 234 rigidity is desirable; and that the dangers of leaving the matter open to the discretion of the chief justice are much greater than the losses that would follow from the fact that at some particular time a particular judge was not available in the Federal Court to try a constitutional issue. I only wish, therefore, to urge upon the Government that their consideration of this matter should be a really frank and candid consideration of the case put by the Noble Lord and that it should lead to a real desire to meet us. I hope my right hon. Friend and his colleagues will not be deterred by the attitude of my right hon. Friend the Member for Epping. We must remember that he is very much in the position described by one of the characters in "Alice through the Looking Glass": The fact is,' said the Red Queen, 'she wants to deny something and she doesn't know what to deny.' A nasty, vicious temper, I call it,' said the Red Queen.

§ Major HILLS
Would not the real solution be to make all constitutional appeals go as a matter of course to the full Federal Court of six judges? These will be the most important appeals. There will not be many of them, and it is quite reasonable that the full court should share these decisions. For the ordinary appellate jurisdiction of the court, split up your court into two or even three divisions if you like. Those appeals will be by far the most numerous and they could be very well taken by a smaller court than the full court. If you split the court up into two divisions and apportion one to the constitutional appeals, I think you lose something in a smaller court. The Supreme Court of America is certainly much larger than three judges. I think you may have a difference of personnel which would affect a smaller body more than it would affect a bigger body. For those reasons, I hope the right hon. Gentleman will consider whether he could not in the amended Clause consent to constitutional appeals going to the full court of six judges, making two divisions for the purpose of dealing with the ordinary appellate jurisdiction of the Federal Court.

§ Mr. CHURCHILL
Is not that possible? Here is a practical suggestion. I am most anxious to preserve the accord 235 for the time being between representatives of the Joint Select Committee and the Secretary of State, and here it seems to me that my right hon. and gallant Friend has come forward with a perfectly practicable—and as it seems to me prima facie; I do not commit myself—a thoroughly reasonable and sensible proposal. What is the answer to that? After all, the Government may be prepared to deal with those who oppose the Bill with all the roughness and rigour of Parliamentary power, but here are their faithful supporters,! Here are men with deep anxieties, though with them in the general purpose of handing over the sovereignty of India. Surely the Government will answer their own supporters. What is the answer to what they have said,? Here are three Privy Councillors who have spoken against the Government case. They are three supporters of the Government who are all members of the Privy Council—and senior members, long established. Two out of the three have sat all through the discussions of the Joint Select Committee. They have put their proposal. What is the answer of the Government? Will they accept the proposal made by the right hon. and gallant Gentleman who has just spoken, or will they give a specific assurance that on the Report stage a definite statement will be made on this point with a view to trying to give satisfaction? After all you are giving away our Indian Empire, and you may as well be agreed one with another about the proposals. At least be solid. Do not be breaking up at this stage; otherwise, one cannot tell how far the rot will spread. What is the answer to my right hon. and gallant Friend, who seems to have contributed a point of substance and one helpful to the House? It is a point on which the Government might at any rate tell us whether this would be the kind of thing they would be likely to favour and embody in the Bill when we get to the Report stage.

§ Mr. CHURCHILL
Are we to have no answer?

§ The CHAIRMAN
I am afraid I cannot compel Ministers to speak. I to put the Question, and I must put it.