§ 5.37 p.m.
§ Mr. CAMPBELL KERI beg to move, in page 117, line 17, to leave out "Governor," and to insert, "Governor-General."
May I ask for Ruling, Sir Dennis, as to whether this Amendment raises the 245 general question of the control of the High Courts, or whether that question should be postponed to Clause 217?
§ The CHAIRMANMy view is that this particular Amendment is the first one which deals with, and is probably the most convenient occasion for discussing, the main question, or the whole principle of whether the supervision of the High Courts, that is, the Courts in the Provinces, should be under the Federal Government or under the Provincial Government. I will ask hen. Members to bear that fact in mind, and to confine the discussions to that particular principle, and upon matters falling within that principle.
§ Mr. BAILEYOn a point of Order, and for my guidance, may I ask you, Sir Dennis, whether, in discussing this Amendment it will be in order to discuss the various points as to the constitution of the High Courts which are raised in other Amendments?
§ The CHAIRMANNo, I think definitely not. That is why I pointed out that I hoped hon. Members, in taking as wide a discussion as possible on the principle of whether supervision should be by the Federal Government or the Provincial Government would confine themselves to that principle. The hon. Member and other hon. Members have Amendments down to this Clause in connection with qualifications of the judges, which is an entirely different matter, and must arise on one or more of those Amendments.
§ Mr. KERThe general case raised by the Amendment is the principle that the administrative control of High Courts in the Provinces should rest with the Federal and not with the Provincial Government. The principle has been agreed upon by all authorities who have studied the question, namely, the Statutory Commission and the Joint Select Committee, that the High Court in the Provinces ought to be independent both of politics and of the executive government of the Provinces. The Bill itself carries out that principle to a large extent, and the object of the Amendment is to carry it still further. It is important, as everyone has agreed, that the High Courts in India should not only be free from political or executive control, but that they should seem to be free from 246 it. It must be apparent to the public that they are not in any way under the domination of the Executive. In other words, the High Court in India, like Caesar's wife, should be above suspicion. At present the position in India is that in the High Court in Bengal the administrative control is in the hands of the Government of India. The administrative control in other High Courts in India remains in the Provinces, as it has from the start, but in Bengal the High Court has grown up along with the Governor-General of India, and the control of the High Court has always been in the hands of the Central Government. When the change from a single Province to two Provinces took place that control remained, and in 1911, when the Province of Bengal was reunited into a single Province, which was the time when any change ought to have been made, the High Court was still left under the Government of India. The reason was that public opinion in Bengal, both European and Indian, would have been strongly opposed to any proposals to remove the control from the Government of India to a new government of Bengal.
The Secretary of State will remember that during the sittings of the Joint Select Committee this question was raised with considerable force both by the European and Indian public of Bengal, and a large number of questions were asked in connection with it. I think my right hon. Friend would be glad if he could find that all the questions in this Bill received the same kind of European and Indian support as has been received by the proposal which I am now putting forward. One of the chief reasons why the control should be with the Federal Government and not the Provincial Government is, that these Provincial High Courts try cases not between the Federation and the Provinces, but between the residents of the Provinces, among themselves, and between the public in the Provinces and the Government of the Provinces. Therefore, it is important that the control should remain with the Government, which has no direct interest in the cases to be tried by it. It has been suggested that the control of administration means that the courts are in some way connected with the controlling government. In that ease the argument for the Amendment is even stronger, because the 247 Federal Government is not interested in the great majority of cases, indeed, has no interest at all in the cases which the Provincial High Courts will try, but the Provincial Governments may have very considerable interest in those cases, particularly in criminal cases, which are cases between the Provincial Government and the residents in the Provinces. That argument is strongly in favour of the Amendment.
Another point which falls to be considered is the financial question. The administrative control if it remains with the Provinces means that the Provincial Governments will have to find the money for the expenses of the High Court. It is well known to Members of the Committee that in India the finances of the Provinces are notoriously fluctuating. You may have in one Province a famine or a scarcity which lasts for one season only and is very local in its effect. The result of that may be that the finances of that particular Province suffer for that year, but it does not mean that the Federal finances are necessarily suffering to the same extent. If in a Province there is a scarcity one year and difficulty with regard to the financial position, there will be every encouragement for the local government to try to bring about economies, and perhaps make undesirable economies in the case of the High Court, whereas under the Amendment the expenses will fall on the Federal Government and the adjustments which are necessary can be made with the Provincial Governments so as to carry over from a year of scarcity to a year when there is no difficulty.
In Bihar, for instance, the Government last year might have found great difficulty in finding funds for the High Court on account of the earthquakes. A similar catastrophe has occurred in other Provinces, and great difficulties have been found. Under the Bill as it stands the expenses of the High Court fall to be discussed by the Provincial Councils. It is true that the salaries of the judges do not fall on the Provincial revenues but the expenses of the High Court, the buildings and the expenses of the staff, although they are not voted by the Provincial Councils, fall to be discussed by them, and experience has shown that in the past that has led to very undesir- 248 able discussions in the Provincial Councils. The Joint Select Committee were given several examples of that kind, where discussions reflected on the judges of the High Court and did very much to spoil the prestige in which they were held in that particular Province.
If the Amendment were accepted, these expenses would have to be met by the Federal Government and the Federal Legislature where there would be no room and no time for detailed discussions about the particular judges of any particular High Court. The Joint Select Committee considered this question very carefully and came to a different conclusion from the Statutory Commission. The Joint Select Committee came to this conclusions for two reasons, one being that the High Court would be regarded as connected with the Federation and therefore an outside body in the Province. There are two answers to that. The first is that that feeling has not so far been felt in Bengal. At the time I was in India public opinion in Bengal would have been strongly opposed to the removal of the High Court of Bengal from the Government of India, and public opinion would still be opposed to that change. When I say "public opinion" I mean both European and Indian opinion in Calcutta and Bengal. The second answer is that the High Courts do not decide Federal cases except under very exceptional circumstances, so that the interest of the Federal Government in the decisions of the High Courts is very small.
The second argument used by the Joint Select Committee against this proposal is that the financial difficulties would be very great, and that if we placed the High Courts under the Federal Government the financial adjustments would cause considerable difficulty. To that again there is an answer, and that is that the question would not be so much a financial question as one purely of accounting, because the High Courts are very largely self-supporting; the revenue derived is usually equal to the expenditure. If the financial question is to be taken into account, it rather tells in favour of the Amendment, because the finances of the Provinces are fluctuating and may be applied with considerable difficulty. For these reasons, therefore, because it is wanted by the people who are mostly affected by it, especially in 249 Bengal, and because it will make the High Court independent, I move the Amendment. This Amendment and the subsequent Amendments form part of the same proposal, namely, to place the High Court of the Provinces under the control of the Federal Government and not under the Provincial Governments.
§ 5.52 p.m.
§ Sir S. HOAREMy hon. Friend the Member for Stirling and Clackmannan (Mr. Campbell Ker) speaks with great experience upon any Indian question, and I am sure that we have all listened to him with great interest. I rise to put before the Committee the reasons that led the Joint Select Committee to make the recommendation that, administratively, the High Courts should be Provincial rather than Federal. I admit that in making that recommendation the Joint Select Committee were taking a line different from the line recommended by the Statutory Commission. My answer in a sentence to any hon. Member who asks why they went contrary to the recommendation of the Statutory Commission is that the Joint Select Committee were really considering a different system of government. I suggest to my hon. Friend that there are considerable differences between a state of affairs in which a Government becomes a Federal Government, with the Federal and the Provincial fields delimited by Statute, and the state of affairs contemplated by the Statutory Commission, under which the unitary government at the Centre still continues to exist.
It is true, as my hon. Friend has stated, that opinion in Bengal has been definitely in favour of continuing the present arrangement, under which the Bengal High Court at Calcutta is centrally administered, and not administered by the Province of Bengal. The Joint Select Committee went into the question in some detail and came to the view that, whatever may have been the historical reasons that led to this special treatment of the High Court at Calcutta, the system in actual practice is not working well. What is happening is that the Central Government is little more than a letterbox for administrative questions connected with the Bengal High Court. All that is really happening is delay in getting questions settled in connection with the High Court, the Central Gov- 250 ernment playing little more than the part of a letterbox, communications going from Bengal to Delhi and back from Delhi to the Province for the purpose of getting an action recommended taken, and as a result, taken after considerable delay. In the view, therefore, of the Joint Select Committee the present system in Bengal is not working well.
Be that as it may, let us look at the two alternative proposals and dismiss from our minds any idea that there is any difference of principle between one section of opinion and another. I remember very well that in the Joint Select Committee, at the outset of our discussion of this question, opinion was mobilised in two very distinct camps. On the one hand, there were the strong adherents of Provincial autonomy represented particularly by the Moslem community, taking the view that the High Courts ought to be Provincial. On the other hand there was the Hindu community, supported by other sections of opinion in India taking the view that the courts ought to be Federal. When we went further into the question we came to the conclusion that there was not a great gulf of principle between those two points of view. In fact, the extremer views on both sides seemed to us to be based on a series of misunderstandings. They were, first of all, based on anxiety as to the appointments of the judges. We were easily able to disabuse the minds of the Indian delegates and the members of the Joint Select Committee on that point. There need be no anxiety in regard to that, for the very simple reason that we are making these appointments Crown appointments, that is to say, neither Federal nor Provincial. So far as that particular controversy is concerned it has ceased to exist.
Secondly, there was anxiety as to the salaries of the judges and the expenses of the courts, one side taking the view that the salaries of the judges and the expenses of the court were more likely to be met if the charges were Federal charges. There, again, I think we were able to remove difficulties in the minds of certain of the Indian delegates by making it clear, as we make it clear in the Bill, that the salaries of the judges and the administrative expenses of the courts are non-votable. My hon. Friend the Member for Stirling and Clackmannan seemed 251 anxious as to whether even though they are non-votable, there might not be a risk in the case of the Provinces of not having sufficient money to meet the charge. He need not be anxious on that point for the very good reason that in the principal provinces the cost of the administration of the courts is more than paid for by the fees. In the Province of Bengal I believe the Provincial Government makes a considerable profit out of the courts. That shows that there is no risk in the Provinces of the charges not being met.
§ Sir B. PETOHas the Secretary of State noticed that the amendment is to the proviso which says:
any additional judges appointed by the Governor.That seems to imply that the Governor deals with the appointment of additional judges, whereas the right hon. Gentleman says that the question is entirely removed, and that they are to be appointed by His Majesty.
§ Sir S. HOAREThey are to be appointed by the Crown in every case.
§ Sir B. PETOThen what does the proviso mean? It says:
Provided that the judges so appointed together with any additional judges appointed by the Governor.
§ Sir S. HOAREIn the case of additional judges the appointment is to be made by the Governor acting as the agent of the Governor-General and the Secretary of State.
§ Sir B. PETOThat is what we do not want.
§ Sir S. HOAREI hope that the hon. Baronet will not attach too much importance to that difference. There is very little difference between the two. The Governor or the Governor-General will act as the agent of the Secretary of State and the Imperial Parliament as a matter of convenience in the case of additional judges, who will presumably be appointed in a case of emergency. It is better that the appointment in that case should come from the Governor, but even if the Governor-General was substituted for the Governor, the Governor-General would inevitably act on the recommendation of the Governor of the Province. Turning to the larger issues on this question, there was evidently a feeling that 252 less pressure would be likely to be exercised by the executive upon the High Courts if they were controlled by the Federal centre. That is not the view of the local governments. We have received no indication that pressure of this kind will be exercised by local executives, and in my view, if there is likely to be pressure—we have a number of safeguards against it—I think you are as likely to get pressure exercised at the centre as you are in the local governments. That argument is not a valid one in favour of federalising the High Courts.
But what is the real difficulty if we adopt the Amendment? The hon. Member will agree that the subordinate judiciary must be provincial. In India there is not the distinction in the lower ranks between the executive and the subordinate judiciary, and it is quite inevitable whether you federalise the High Courts or keep them provincial, as they are now, with the exception of the High Court of Calcutta, that the subordinate judiciary will have to be provincial. I suggest that there is every objection against taking the higher ranks of the judicature and making them federal while maintaining the lower ranks under provincial administration. All sorts of administrative difficulties will at once occur, and, apart from those, it seems to me that there will be a grave danger of the Provinces regarding the High Court as isolated and insulated from the Province itself, as something imposed by the Federation from outside, with the result that there will be much more likelihood of friction between the local government on the one hand and the High Court on the other, and, within the Province, between the subordinate judiciary, which is to remain part of the administration, and the federalised High Court. I suggest to the Committee that the Joint Select Committee was wise in making the recommendation that these courts should remain part of the provincial administration, accompanied by the safeguards that they are to be Crown appointments and that the expenses are to be non-votable charges on provincial budgets. I think that we should be wise to accept the recommendation of the Joint Select Committee.
§ 6.7 p.m.
§ Sir B. PETOI want to investigate a little further the question which I put to 253 the Secretary of State. I have had representations made to me from European associations who attach great importance to the Amendment. One of the reasons why they want to substitute the Governor-General for the Governor is that they want to preserve the outward appearance of a complete severance of the supreme judiciary of a province from the executive of the province. The Secretary of State says that if an additional judge should be required and the Amendment was in operation, under which the Governor-General would be the person to appoint the additional judge, it would not make any difference, because the Governor-General would act on the advice of the Governor. I do not know whether the right hon. Gentleman is right or not, but, apart from that point of view, all those who will have to live and work under these high courts, who will have their cases decided by them, think that it will make a great difference, perhaps not actually in practice, if we remove all appearance of the high court being closely connected with the executive of the Province.
There are even more substantial reasons than that. They want the Amendment because they desire to maintain, as they regard it, the absolute independence of the courts from all political influences. If we take out the reference to the Governor of a Province and substitute the Federal Legislature, which is far removed, we are doing something which is in accordance with the ordinary understanding of the Indian people generally. They regard a thing which is remote and afar like the Governor-General and appreciate the power and independence of such an authority, but when you bring it nearer to them and give the legislature the government of their own Province, whom they elect by their votes the power to make these appointments you are bringing in an element which is undesirable in connection with the high court of a Province. There is a great deal more to be said on this matter than what the Secretary of State has said. It may be true that the question has been carefully considered and that a new decision has been arrived at, but I am not satisfied that it is better than the old decision. The more you remove the administration of justice from the actual legislature of a Province, the more you are likely to 254 have it respected. I hope that the Government will be willing not only to listen to the admirable exposition which has been given of this matter by the hon. Member who moved the Amendment, but that they will allow the Committee to consider whether the decision which has been arrived at is better than the one which was previously given, and decide that it is not wise to bring the administration of the high courts under the government Of a Province.
§ 6.12 p.m.
§ Mr. CROOM-JOHNSONOn the general question as to whether the High Court in a Province should be administered by the Province, it seems to me that the Secretary of State has made an unalterable case for the programme which is proposed, but the Amendment with which we are dealing, which refers to the appointment of the judges in the High Court—
§ The CHAIRMANI am not sure whether the hon. and learned Member was in the Committee when the Amendment was moved, when I gave an indication as to the limits of the Debate.
§ Mr. CROOM-JOHNSONI was addressing myself to the question as to whether the appointment of judges in the High Court should, as a matter of form, be the appointment of the Governor-General. My only object in rising was to point out one or two considerations which strike me, as to whether it would not add to the status of High Court judges in the Provinces if the formal appointment were made by the Governor-General.
§ The SOLICITOR-GENERALThe High Court judges ordinarily are to be appointed by the Crown.
§ Mr. CROOM-JOHNSONI am dealing with the additional judges referred to in the Amendment now before the Committee. I am very much obliged to my hon. and learned Friend for correcting me in the language that I used. It occurs to me that the status of these additional judges might be increased by the fact that the formal appointment comes from the Governor-General. I do not think that these matters of form are sometimes quite sufficiently appreciated, in the effect that they are likely to have on the people who litigate and have to act under the judgments and orders of the particular judges. I do not wish to say a single 255 word on the general principle that is involved, and I merely throw out this suggestion as one which perhaps the Secretary of State might think worthy of a little further consideration.
§ 6.16 p.m.
Duchess of ATHOLLI should not venture to intrude into a discussion on a point that might seem only to concern people of legal experience if it were not that I have devoted a little time to studying the evidence on which the Statutory Commission made their recommendation; and because I was extremely impressed by that evidence I have taken considerable interest in this question, and I am afraid I must say that I feel that my right hon. Friend's answer to the Amendment was not very convincing. His first reason for not accepting the Amendment was that the form of government proposed in the Bill is something different from what the Statutory Commission contemplated. But if we are all agreed that desire to keep the executive and the judiciary as independent of each other as possible, is that really a very valid argument? The independence of the judiciary is something of such fundamental importance that there can be very few arguments, if any, that can stand against it.
My right hon. Friend's second point was that the Joint Select Committee have said that the Bengal system is not working well. With great respect I ask what judicial evidence the Joint Committee heard on this point. Did they call before them any representative of the Bengal High Court to give an account of how the system was working from the point of view of the judges of the High Court Themselves? Did they question any judge of any other High Court on this point? Did they consider the memoranda presented to the Statutory Commission by no fewer than three High Courts showing how greatly, in their view, the independence of the High Courts was already being threatened by a system which required them to depend for administrative expenses on the votes of provincial councils? It would be interesting to hear a reply to these questions. Then my right hon. Friend spoke of the interest taken by Hindus and Moslems in this question, Hindus favouring the courts being under federal government and the Moslems favouring the present system, 256 and he indicated that this interest largely centred round the question of appointments.
§ Sir S. HOARE indicated dissent.
Duchess of ATHOLLI am sorry if I misunderstood my right hon. Friend, but if he looks to-morrow at the OFFICIAL REPORT he will see that after mentioning the interest of Hindus and Moslems he quickly referred to the question of appointments, and knowing what interest is taken in appointments on communal grounds—
§ Sir S. HOAREI never mentioned it or went near it.
Duchess of ATHOLLI hope my right hon. Friend will look carefully at that part of his speech to-morrow. Even if I am wrong, surely we know that both these great communities do take great interest in appointments of all kinds from the communal point of view. It is a recognised thing. My right hon. Friend yesterday mentioned it as something that had to be taken into account in another connection. That fact and the interest taken in it by representatives of these communities do indicate the danger that if you have a court too near to, the community that may hope to get appointments, not so much as judges themselves as of the personnel of the court, you may have a. very undesirable interest taken in the courts.
Then my right hon. Friend stressed that the administrative expenditure of the Courts would no longer be votable, or anyhow such part of it as the Governor felt that he could recommend to the Provincial Legislature; but he omitted to remind us that it would still be possible for the Provincial Legislature to discuss and criticise the expenditure. That is admitted in Record 3, where the change of procedure now embodied in the Bill is outlined. It is admitted in Record 3 that, though the expenditure or as much of it as is certified by the Governor would be non-votable, the Courts would not be spared the criticism of the Provincial Legislature. If you once admit that there may be a continuance of criticism which has been found hampering to several of the High Courts, you may have a continuance of a system which some of these High Courts definitely said would threaten their independence.
257 The Secretary of State went on to say that he thought less pressure would be exercised on a High Court by the Federal Government than by a Provincial Government and he said that that was not the view of the Provincial Governments themselves. But can we expect the Provincial Governments to admit that they might be ready to put pressure on the High Courts of their Province
§ Sir S. HOAREI wish my noble Friend would make her statement on her own thoughts and not quote me.
Duchess of ATHOLLAgain I hope that my right hon. Friend will look very carefully at what he did say. He used the phrase "local government" instead of "provincial government" That is a phrase which is misleading to people in this country and as I did not use it I plead guilty to having paraphrased my right hon. Friend's speech to that extent, We have to bear in mind that the pressure which may occur in the case of a High Court is pressure in regard to the minor appointments, of clerks and various officials of the Courts. Quite obviously that is pressure which is more likely to come locally than from a central source. As a matter of fact I have been informed by an ex-Judge of a High Court that if any person who wanted an appointment of this kind in a High Court did not get it he was very apt to become "an enemy of the High Court"—those were the very words my informant used—and then the High Courts would be opposed and criticised in the Provincial Legislature. I do feel that the danger is very real. May I read to the Committee one or two extracts from the Memoranda submitted to the Statutory Commission on which the Commission based their opinion? Here is a brief extract from the Memorandum of the Bengal High Court:
The Court reviewed the history of this Court for a period of nearly 60 years and pointed out how, on several occasions the head of the local government had attempted directly to interfere with the independence of this Court and of the courts over which this Court had superintendence.Therefore they gave a strong expression of opinion against being transferred to the Provincial Government. They quoted the opinion of the late Mr. Justice Mukerjee, who, on 1st September, 1921, wrote as followsIn my opinion the continuance of the present state of things is impossible, as it 258 is harmful in the highest degree and is calculated to impair very seriously the prestige and efficiency of the court. The present position is that in all financial matters we are subject to the control of the Government of Bengal, that is, of the Bengal Legislative Council. The dangers inseparable from such a position have been well illustrated by recent events.Then the Punjab High Court also sent in a very strong statement:The judges in their administrative functions find their proposals and actions exposed to public debate and criticism in the Legislative Council … In the event of greater power being granted to the Council and the Ministers, they cannot view with equanimity the possibility of the Council adopting measures designed to harass the judges in their administrative functions or calculated to lower the efficiency of the judiciary.We must bear in mind that, though the administrative expenditure will be non-votable as certified by the Governor, the Court is still to be open to the criticism of the Provincial Legislature. They go on:When the reforms are extended in British India there will probably arise many questions of importance affecting the constitution and the rights and liberties of the people which will require determination by the highest tribunals of the land. Political parties or political leaders may bring their disputes before the courts of law and the decisions of the courts may not he liked by them.They therefore expressed their approval of the recommendation made by the Associated Chambers of Commerce, that the High Courts should be put under the central Government. The Commission wrote to the Chief Justice of the High Court in Madras and got from him an equally strong statement of this view. The Bombay High Court also spoke of the fear of loss of independence, though they said they had been more fortunate than other courts. Therefore, the weight of evidence submitted to the Statutory Commission in favour of this change was very great. From what I have been able to see of the evidence submitted to the Joint Committee, I cannot recollect that they had any evidence so weighty or so specific recommending them to take the opposite course. Unless my right hon. Friend the Secretary of State can tell us on what evidence, weighty and specific evidence, it was that the Joint Committee overturned the recommendations of the Stautory Commission, I hope that my 259 hon. Friend will press his Amendment to a Division.
§ Mr. CAMPBELL KERAfter the statement of my right hon. Friend the Secretary of State I beg to ask leave to withdraw the Amendment.
§ Question put, "That the word 'Governor' stand part of the Clause."
§ The Committee divided: Ayes, 277; Noes, 44.
261| Division No. 135.] | AYES. | [6.30p.m. |
| Acland, Rt. Hon. Sir Francis Dyke | Duncan, James A. L. (Kensington, N.) | Lamb, Sir Joseph Quinton |
| Adams, Samuel Vyvyan T. (Leeds, W.) | Dunglass, Lord | Lambert, Rt. Hon. George |
| Addison Rt. Hon. Dr. Christopher | Eastwood, John Francis | Lansbury, Rt. Hon. George |
| Agnew, Lieut.-Com. P. G. | Edmondson, Major Sir James | Law, Sir Alfred |
| Albery, Irving James | Ellis, Sir R. Geoffrey | Lawson, John James |
| Allen, Lt.-Col. J. Sandeman (B'k'nh'd) | Emrys-Evans, P. V. | Leech, Dr. J. W. |
| Amery, Rt. Hon. Leopold C. M. S. | Entwistie, Cyril Fullard | Leighton, Major B. E. P. |
| Anstruther-Gray, W. J. | Essenhigh, Reginald Clare | Leonard, William |
| Aske, Sir Robert William | Evans, Capt. Arthur (Cardiff, S.) | Lewis, Oswald |
| Attlee, Clement Richard | Evans, David Owen (Cardigan) | Liddall, Walter S. |
| Baldwin, Rt. Hon. Stanley | Evans, Capt. Ernest (Walsh Univ.) | Little, Graham-, Sir Ernest |
| Balfour, Capt. Harold (I. of Thanet) | Fermoy, Lord | Liewellin, Major John J. |
| Banfield, John William | Fielden, Edward Brocklehurst | Lockwood, John C. (Hackney, C.) |
| Barclay-Harvey, C. M. | Foot, Dingle (Dundee) | Loder, Captain J. de Vere |
| Batey, Joseph | Foot, Isaac (Cornwall, Bodmin) | Loftus, Pierce C. |
| Beauchamp, Sir Brograve Campbell | Fox, Sir Gifford | Logan, David Gilbert |
| Bennett, Capt. Sir Ernest Nathaniel | Fremantie, Sir Francis | Lovat-Fraser, James Alexander |
| Bernays, Robert | Ganzoni, Sir John | Lunn, William |
| Bilndell, James | Gardner, Benjamin Walter | Mabane, William |
| Boulton, W. W. | Gauit, Lieut.-Col. A. Hamilton | MacAndrew, Lieut.-Col. C. G. (Partick) |
| Bowyer, Capt. Sir George E.W. | George, Major G. Lloyd (Pembroke) | MacAndrew, Capt. J. O. (Ayr) |
| Braithwaite, J. G. (Hillsborough) | George, Megan A. Lloyd (Anglesea) | Macdonald, Gordon (Ince) |
| Brass, Captain Sir William | Gillett, Sir George Masterman | MacDonald, Rt. Hon. J. R. (Seaham) |
| Briscoe, Capt. Richard George | Gilmour, Lt.-Col. Rt. Hon. Sir John | MacDonald, Malcolm (Bassetlaw) |
| Brocklebank, C. E. R. | Glyn, Major Sir Ralph G. C. | Macdonald, Sir Murdoch (Inverness) |
| Brown, C. W. E. (Notts., Mansfield) | Goff, Sir Park | Macdonald, Capt. P. D. (I. of W.) |
| Brown, Col. D. C. (N'th'l'd., Hexham) | Goldie, Noel B. | McEntee, Valentine L. |
| Brown, Ernest (Leith) | Grattan-Doyle, Sir Nicholas | McEwen, Captain J. H. F. |
| Buchan-Hepburn, P. G. T. | Greenwood, Rt. Hon. Arthur | McKie, John Hamilton |
| Bullock, Captain Malcolm | Grenfell, David Rees (Glamorgan) | McLean, Major Sir Alan |
| Burghley, Lord | Grenfell, E. C. (City of London) | MacLean, Nell (Glasgow, Govan) |
| Butler, Richard Austen | Griffith, F. Kingsley (Middlesbro', W.) | McLean, Dr. W. H. (Tradeston) |
| Butt, Sir Alfred | Griffiths, George A. (Yorks, W. Riding) | Macmillan, Maurice Harold |
| Campbell, Vice-Admiral G. (Burnley) | Grimston, R. V. | Magnay, Thomas |
| Campbell-Johnston, Malcolm | Groves, Thomas E. | Mainwaring, William Henry |
| Caporn, Arthur Cecil | Grundy, Thomas W. | Mallalieu, Edward Lancelot |
| Cayzer, Sir Charles (Chester, City) | Gunston, Captain D. W. | Manningham-Buller, Lt.-Col. Sir M. |
| Cayzer, Maj. Sir H. R. (Prtsmth., S.) | Hacking, Rt. Hon. Douglas H. | Margesson, Capt. Rt. Hon. H. D. R. |
| Cazalet, Thelma (Islington, E.) | Hall, George H. (Merthyr Tydvil) | Mason, David M. (Edinburgh, E.) |
| Chamberlain, Rt. Hn. Sir J. A. (Birm., W.) | Hamilton, Sir R. W. (Orkney & Zetl'nd) | Mason, Col. Glyn K. (Croydon, N.) |
| Chamberlain, Rt. Hon. N. (Edgbaston) | Hanbury, Cecil | Mayhew, Lieut.-Colonel John |
| Chapman, Col. R. (Houghton-le-Spring) | Hannon, Patrick Joseph Henry | Milne, Charles |
| Chapman, Sir Samuel (Edinburgh, S.) | Harvey, George (Lambeth, Kenningt'n) | Mitchell, Sir W. Lane (Streatham) |
| Choriton, Alan Ernest Leofric | Harvey, Major Sir Samuel (Totnes) | Morrison, G. A. (Scottish Univer'ties) |
| Christie, James Archibald | Haslam, Henry (Horncastle) | Morrison, William Shepherd |
| Cleary,. J. J. | Headlam, Lieut.-Col. Cuthbert M. | Muirhead, Lieut.-Colonel A. J. |
| Cochrane, Commander Hon. A. D. | Hellgers, Captain F. F. A. | Munro, Patrick |
| Cocks, Frederick Seymour | Heneage, Lieut.-Colonel Arthur P. | Nation, Brigadier-General J. J. H. |
| Colfox, Major William Philip | Herbert, Major J. A. (Monmouth) | O'Neill, Rt. Hon. Sir Hugh |
| Colville, Lieut.-Colonel J. | Hills, Major Rt. Hon. John Waller | Ormsby-Gore, Rt. Hon. William G. A. |
| Conant, R. J. E. | Hoare, Lt.-Col. Rt. Hon. Sir S. J. G. | Orr Ewing, I. L. |
| Cook, Thomas A. | Hore-Belisha, Leslie | Paling, Wilfred |
| Cooke, Douglas | Hornby, Frank | Parkinson, John Allen |
| Cooper, A. Duff | Horsbrugh, Florence | Patrick, Colin M. |
| Cripps, Sir Stafford | Howitt, Dr. Alfred B. | Peake, Osbert |
| Crooke, J. Smedley | Hudson, Capt. A. U. M. (Hackney, N.) | Pearson, William G. |
| Croom-Johnson, R. P. | Hunter-Weston, Lt.-Gen. Sir Aylmer | Peat, Charles U. |
| Cross, R. H. | Hurst, Sir Gerald B. | Percy, Lord Eustace |
| Cuiverwell, Cyril Tom | Inskip, Rt. Hon. Sir Thomas W. H. | Peters, Dr. Sidney John |
| Daggar, George | Jackson, Sir Henry (Wandsworth, C.) | Petherick, M. |
| Davidson, Rt. Hon. J. C. C. | James, Wing-Com. A. W. H. | Pickthorn, K. W. M. |
| Davies, David L. (Pontypridd) | Jamieson, Douglas | Pownall, Sir Assheton |
| Davies, Maj. Geo. F. (Somerset, Yeovil) | Jenkins, Sir William | Procter, Major Henry Adam |
| Davies, Rhys John (Westhoughton) | Jesson, Major Thomas E. | Ramsay, Alexander (W. Bromwich) |
| Davies, Stephen Owen | Joel, Dudley J. Barnato | Ramsay, T. B. W. (Western Isles) |
| Denman, Hon. R. D. | John, William | Ramsbotham, Herwald |
| Denville, Alfred | Jones, J. J. (West Ham, Silvertown) | Ramsden, Sir Eugene |
| Dickle, John p. | Jones, Morgan (Caerphilly) | Rathbone, Eleanor |
| Dobble, William | Kerr, Lieut.-Col. Charles (Montrose) | Reed, Arthur C. (Exeter) |
| Doran, Edward | Kerr, Hamilton W. | Reid, William Allan (Derby) |
| Duckworth, George A. V. | Kirkpatrick, William M. | Rickards, George William |
| Dugdale, Captain Thomas Lionel | Kirkwood, David | Rothschild, James A, de |
| Ruggles-Brise, Colonel Sir Edward | Soper, Richard | Ward, Lt.-Col. Sir A. L. (Hull) |
| Russell, Albert (Kirkcaldy) | Sotheron-Estcourt, Captain T. E. | Wardlaw-Milne, Sir John S. |
| Russell, R. J. (Eddisbury) | Spencer, Captain Richard A. | Warrender, Sir Victor A. G. |
| Rutherford, Sir John Hugo (Liverp'l) | Stanley, Rt. Hon. Lord (Fylde) | Waterhouse, Captain Charles |
| Salt, Edward W. | Stanley, Rt. Hon. Oliver (W'morland) | Wedderburn, Henry James Scrymgeour |
| Salter, Dr. Alfred | Stevenson, James | West, F. R. |
| Samuel, Rt. Hon. Sir H. (Darwen) | Stewart, J. Henderson (Fife, E.) | White, Henry Graham |
| Samuel, M. R. A. (W'ds'wth, Putney). | Stones, James | Whiteside, Borras Noel H. |
| Sandys, Duncan | Strauss, Edward A. | Williams, David (Swansea, East) |
| Sassoon, Rt. Hon. Sir Philip A. G. D. | Strickland, Captain W. F. | Williams, Edward John (Ogmore) |
| Savery, Samuel Servington | Sueter, Rear-Admiral Sir Murray F. | Willoughby de Eresby, Lord |
| Shaw, Helen B. (Lanark, Bothwell) | Sutcliffe, Harold | Wills, Wilfrid D. |
| Shaw, Captain William T. (Fortar) | Thomas, James P. L. (Hereford) | Wilmot, John |
| Shute, Colonel Sir John | Thomson, Sir Frederick Charles | Winterton, Rt. Hon. Earl |
| Simmonds, Oliver Edwin | Thorne, William James | Womersley, Sir Walter |
| Simon, Rt. Hon. Sir John | Tinker, John Joseph | Wood, Rt. Hon. Sir H. Kingsley |
| Smith, Bracewell (Dulwich) | Titchfield, Major the Marquess of | Worthington, Dr. John V. |
| Smith, Louis W. (Sheffield, Hallam) | Todd, A. L. S. (Kingswintord) | |
| Smith, Sir Robert (Ab'd' & K' dine, C.) | Tree, Ronald | TELLERS FOR THE AYES— |
| Smith, Tom (Normanton) | Tryon, Rt. Hon. George Clement | Sir George Penny and Dr. Morris |
| Smithers, Sir Waldron | Wallace, Captain D. E. (Hornsey) | Jones |
| Somervell, Sir Donald | Wallace, Sir John (Dunfermilne) | |
| NOES. | ||
| Acland-Troyte, Lieut.-Colonel | Erskine-Bolst, Capt. C. C. (Blackpool) | Sanderson, Sir Frank Barnard |
| Applin, Lieut.-Col. Reginald V. K. | Fuller, Captain A. G. | Taylor, C. S. (Eastbourne) |
| Atholl, Duchess of | Goodman, Colonel Albert W. | Taylor, Vice-Admiral E. A. (P'dd'gt'n, S.) |
| Bailey, Eric Alfred George | Gretton, Colonel Rt. Hon. John | Templeton, William P. |
| Bracken, Brendan | Hartington, Marquess of | Thorp, Linton Theodore |
| Broadbent, Colonel John | Hunter, Capt. M. J. (Brigg) | Todd, Lt.-Col. A. J. K. (B'wick-on-T.) |
| Brown, Brig.-Gen. H. C.(Berks., Newb'y) | Ker, J. Campbell | Touche, Gordon Cosmo |
| Burnett, John George | Keyes, Admiral Sir Roger | Turton, Robert Hugh |
| Clarke, Frank | Knox, Sir Alfred | Wayland, Sir William A. |
| Cobb, Sir Cyril | Lees-Jones, John | Wells, Sidney Richard |
| Courtauld, Major John Sewell | Lennox-Boyd, A. T. | Williams, Herbert G. (Croydon, S.) |
| Craddock, Sir Reginald Henry | Macquisten, Frederick Alexander | Windsor-Clive, Lieut.-Colonel George |
| Croft, Brigadier-General Sir H. | Makins, Brigadier-General Ernest | |
| Davison, Sir William Henry | Maxton, James. | TELLERS FOR THE NOES— |
| Donner, P. W. | Mills, Major J. D. (New Forest) | Mr. Raikes and Mr. Wise. |
| Emmott, Charles E. G. C. | Peto, Sir Basil E. (Devon, Barnstaple) |
§ 6.38 p.m.
§ The DEPUTY-CHAIRMAN (Captain Bourne)Before I call upon the hon. and learned Member for Moss Side (Sir G. Hurst) to move the next Amendment may I suggest that it would be convenient if on that Amendment we also discussed the Amendment standing in the name of the hon. and learned Member for Nelson and Colne (Mr. Thorp)—in page 118, line 11, to insert:
(4) Provided that not less than one-third of the judges of a High Court, including the Chief Justice but excluding additional judges, must be such barristers or advocates as aforesaid and that not less than one-third must be members of the Indian Civil Service."—and also the point raised in a manuscript Amendment which has been handed in by the Noble Lady the Member for Perth and Kinross (Duchess of Atholl). That Amendment would, I think, be too long and complicated to put to the Committee without having it on the Order Paper.
§ Mr. BAILEYOn a point of Order. Would it be in order also to discuss in connection with these Amendments the manuscript Amendment which I handed in earlier and which is also concerned 262 with the constitution of the High Court?
§ The DEPUTY-CHAIRMANI gather that the Chairman does not propose to select the hon. Member's manuscript Amendment.
§ 6.40 p.m.
§ Sir GERALD HURSTI beg to move, in page 118, line 10, at the end, to insert:
Provided that not less than one-third of the judges of any High Court including the chief justice must be barristers or advocates as aforesaid.It would be impossible, I think, to exaggerate the importance of having a first-class personnel manning these tribunals in India. The well-being of a country is always associated with the independence, integrity and ability of its judges. India has enjoyed the services of independent and able judges, and it is particularly important that they should be endowed with those qualities, because there is no other part of the world where litigation is mare indulged in or more enjoyed by the inhabitants. Anybody who is interested in the law must have been struck by the manner in which Indian opinion has been stirred 263 by the decision of the Government to do away with that Section of the Government of India Act of 1915 which provided that the Chief Justice should be a barrister. The matter does not appear to have been canvassed very much in public, but since the proposals of the Government have found expression in this Bill, a great volume of opinion has manifested itself in India, not only among lawyers but also among laymen, to the effect that there is no apparent ground for having as the chief justices of these High Courts persons who are not barristers.It seems fairly obvious that if you were appointing, say, a physician to the Sovereign, or an accountant to act for the Government, you would select a highly skilled and highly trained medical man in the one case or a highly qualified accountant in the other, and there is a natural prejudice in favour of maintaining in India the existing practice by which the chief justice in that country for 150 years past has always been a barrister of at least 10 years standing. I hope Members of the Committee will not think that this Amendment is brought forward or supported here by lawyers acting from any trade union point of view. The number of English barristers practicing in India is infinitesimal and the stream of Englishmen going out to man the judicature or the Civil Service in India is likely to become more and more in the nature of a very small rivulet. We are only concerned in this matter with what is best for India and the peoples of India in the future.
The view expressed in this Amendment is that there is no ground for departing from the existing system in force since 1774, by which the chief justice has always been a barrister. That practice was confirmed in the Act of 1915 under which the qualification was extended to include Scottish advocates. When the Bill was under discussion yesterday the Secretary of State, in reply to one of my hon. Friends who moved an Amendment in regard to the Chief Justice of the Federal Judicature, said he would sympathetically consider the idea that only a barrister or an advocate should act in that capacity. The same reasoning applies to the Provincial Constitutions. The work to be done by a chief justice 264 of the High Court of a Province will be work of the utmost importance affecting the lives and interests of a great mass of people—probably a great many more than those who are directly concerned in the cases which come before the Federal court. Moreover, in the case of the Federal Court we are dealing with a new office. As regards the High Court in a Province it is an old office with an existing system under which the chief justice has, since 1774, been a man who has practiced at the Bar.
I urge upon this Committee that the burden of proof in this case rests upon those who wish to show that a change is necessary. There is no evidence that this system has not worked well. I looked in the report of the Joint Select Committee to see the recommendation upon which this proposal had been founded, and I will come to their argument later, but there is no suggestion that the work of the chief justice or of the judges has not been performed well, or that there is any marked need for a change, nor is there anything in that report to say that there is any movement either among the legal profession or among the public in India in favour of a change. But I do not want to base my case only on the fact that the burden of proof rests on the Government. I wish to submit grounds on which, in my submission, it is desirable to have as chief justice a man who has had considerable experience at the Bar. I contend that a man who has practised at the Bar is best qualified to fulfil the high functions with which the office of chief justice is associated.
I do not dream of reflecting on the ability or the conduct or the experience of members of the Civil Service. They possess many qualities which a judge or a chief justice is less likely to possess to the same degree; they have local knowledge, and know a great deal about local customs; but the work of a chief justice requires something more than a knowledge of local customs and languages. He has to deal with questions of equity, of constitutional law and of commercial law of first rate importance, for which legal knowledge and legal training are essential requisites, and in the nature of things a judge who has acted as a civil servant, although on many sides of his work he enjoys great advantages, and 265 has very great experience, cannot compete with a trained and experienced barrister on those points of law with which he has to deal as a. chief justice and with which a local judge is much less likely to come into contact. That is one reason why it is desirable that the chief justice should be a barrister. The second is that we are dealing here with what will be an Indianised Bench and Bar, and I suggest that it is an advantage for a judge never to have been a civil servant, never to have acted as an employé of the Executive Government and never to have acquired the mentality which, consciously or unconsciously, a, civil servant may easily acquire in matters which come before him in a court of law. I am not in the least reflecting upon India in saying this. It is our English principle which I am supporting in moving this Amendment.
In England, as distinguished from the Continent of Europe, the Bar supplies the Bench with its personnel. The Bench is not a branch of the Civil Service. In my submission the English principle is better than the Continental principle. It certainly makes for a more independent Bench, more independent in action and more independent in mind. Where we have, as on the Continent, judges who are civil servants we are much more likely to get that disciplined and docile type of judge who is perfectly willing, as we have seen recently in one great country, to see a purge made of persons whom the Government for the time being consider undesirable persons to act as judges. I cannot conceive that our English judicature would tolerate the things done with the judicature in other countries where judges are simply civil servants. The English principle makes for independence of judges, and stimulates also the view, which I was always taught to regard as a good one, that in England our constitutional law has been beaten out by decided cases. It is a curious thing that at a time when we in England are more and more in favour of having the judicature well separated from the Civil Service—not out of any disrespect for or dislike of the Civil Service as such, but because we consider the separation of the functions a good thing, and that is the burden of the report of the committee which dealt with the question of Minister's Powers—it is a curious thing that at a time when the 266 Lord Chief Justice of England is denouncing the new despotism of the Civil Service we should be introducing into India a system under which the chief justice in India need not have been a practising barrister at all and may simply be a civil servant who may not even have been called to the Bar.
To those like myself who are loyal supporters of the Government and admirers of this Bill, and who support it and champion it in the country as being the consummation of our promises to give self-government and self-governing institutions to the people of India, one of the attributes of freedom has been the idea that the judicature should be entirely separate from the Civil Service, and we do not want to see the opposite system introduced into India. So far as the chief justice is concerned the case for the retention of a system which has Already been the established order in India for 150 years, against which there has been no agitation and from which there is no reason to depart, is very strong. The Committee will, I am sure, be curious to know why the Joint Select Committee suggested that there should be this change. I have very carefully read the paragraphs which deal with the point. The only suggestion the Joint Committee make is that it is an invidious distinction that a barrister alone should be entitled to be a chief justice. To me that is an unconvincing argument. It is not an invidious distinction that in England a barrister can become a judge after having practised at the Bar for 10 years and that a solicitor or civil servant cannot. All we say is that all experience proves that the system of having as chief justice a man who has been at the Bar for 10 or 15 years has succeeded, and that there is no ground for giving it up.
Now I have a few words to say on the other portion of the Amendment, which is borrowed from the Government, of India Act, 1915. It leaves two-thirds to be allocated among a. class which would include native advocates, who are becoming more and more important in India, and who undoubtedly have turned out many good men well qualified to be judges, although they have not come to the Inns of Court in London to qualify. It leaves two-thirds vacant for the members of the Civil Service and for those advocates in India who are not barristers in England. Let 267 me make it clear that what I speak of barristers I am not talking about English barristers. Barristers connotes persons, whether Indian or British, who have been called to the Bar, and in 999 cases out of 1,000, so far as this section is concerned, they are Indians. The proposal also has the advantage of holding out an inducement for Indian students to come to the Bar in England. Many of them make great sacrifices to come here in order to be brought into touch with English practice and procedure and with English legal tradition, I think to their advantage, and I feel that if they do go to the trouble to come here and are qualified in other respects they ought to have their fair share of judicial office.
There really are no practical difficulties in the way, except that one-third is a fraction and it might be awkward to apply it sometimes, but it has not been found an insuperable difficulty in the past. I am not concerned with what the fraction is. If it were thought preferable to put it into figures we could say "one member on each tribunal of three," and that would meet our case. The point is that we do leave a margin for the Civil Service and for those Indian advocates who do not come to England to he called to the Bar here but are able and distinguished enough to be rightly entitled to hold judicial office. The one solitary argument advanced in the report of the Joint Select Committee in favour of the change—I am resisting the change—is that the existing system which has worked so well since 1774 makes an invidious distinction. I submit that there is no force or persuasion in that argument, and I think every legal Member of the House has received a large number of appeals from persons in India, from members of various branches of the legal profession and societies and associations in India, in favour of the view I have tried to put forward. Holding the view we do about the importance of having the very best men to fill the highest posts in the Indian law courts, it would be less than our duty not to support the Amendment.
§ 6.58 p.m.
§ Mr. MALLALIEUI hope the Committee will not think that this is a sort 268 of lawyers' "thieves' kitchen." I was in the Committee yesterday when a similar Amendment was discussed, and I was pained to note that the hon. Member for Caerphilly (Mr. Morgan Jones), who was watching the point on behalf of his party, to say that he was unable at that stage to give a decision on the point in view of the fact that the Amendment had been proposed by a lawyer, that lawyers had spoken to the Amendment and that the Solicitor-General had replied rather favourably to it. I was sorry to see the legal member of the Labour party leave the Chamber just now, because I am sure that even he would have supported the views so ably put forward by my hon. and learned Friend the Member for Moss Side (Sir G. Hurst). The object of this Amendment is to ensure, as far as practicable, the separation of the executive from the judiciary. It is a proposal which would not need the slightest arguing in this country. No one would suggest that there should be the connection between the executive and the judiciary in this country which there has been in India and which it is suggested should be increased. The suggestion of this Amendment is that there should be at the head of every High Court a man trained in the legal profession. Centuries of experience in this country have shown that that is a desirable state of affairs, and now that we are setting up a Constitution for India surely it is important that we should do our best to hand on to India at the outset of her career under these new reforms the benefits of that experience.
Under the Bill, as I understand it, all the judges of the High Court, including the Chief Justice, may be Civil Service judges and not have legal training in the ordinary way. The learned Solicitor-General, when he replied to the Debate about the Chief Justice of the Federal Court, said that Indian Civil Service Judges had considerable judicial experience. They have, but that is not to say that they have ever practiced in any court or have legal training in the ordinary sense, and I should put that in inverted commas, because those are the words of the Solicitor-General. He however, later said there is a difference between a judge of the ordinary Civil Service who has served as a magistrate and graduated through the various courts until he becomes a district judge 269 and a barrister who has actually practised.
This Amendment asks only for an ordinary training. These Indian Civil Service judges do, of course, have very wide judicial experience, going through a magistrate's court and becoming district judges; but 90 per cent. of their work is criminal, and the remaining 10 per cent. deals with such matters as insolvency. When they come to deal with vast matters of constitutional importance, it may be that they may not be the right men to have in that position—excellent men, no doubt, but not trained as legal men should be. The most important thing, to my mind, is that having been brought up in the Indian Civil Service, they must unconsciously become executive-minded. Unconsciously, there must be with them a considerable bias in favour of the executive. When the judge knows of the difficulties that the executive have to cope with, and what effect his judgment will have on the difficulties of his friends, he will be thinking all the time of that position, rather than whether his judgment is in accordance with the law.
I read the Amendment to this effect, that if it were passed then Indian barristers called in India would not be classed as barristers "as aforesaid" as in this Amendment. I hope the Attorney-General if he replies will not be put off by the words of this Amendment as drafted, because for my part I feel it would be impossible to maintain a connection with this country to the extent of insisting on white judges, or even that they should be those called to the Bar in this country. I hope that the learned Solicitor-General will not reject the Amendment out of hand on the ground that members of the Indian Bar called in India, many of whom are distinguished men, are not covered by this Clause, but that he will include them by widening the Amendment. It does seem to me a matter of real importance to give to India the best constitution we can, ensuring that the judiciary is as free and independent as possible. It seems to me that the way to make it independent is to ensure that it shall not be executive-minded, but drawn from the independent legal profession.
§ 7.5 p.m.
§ Mr. THORPI wish, if I may, to move the Amendment standing in my name, for 270 I understood, Captain Bourne, that you decided to take the two Amendments together.
§ The DEPUTY-CHAIRMANThe hon. and learned Member cannot move his Amendment at this moment because there is another Amendment before the Committee. He can, however, discuss the points raised.
§ Mr. THORPI am very grateful to you. The Amendment that appears in. my name is designed with the same objects as those that the hon. and learned Member for Moss Side (Sir G. Hurst) had in mind, to preserve the existing state of things, one-third of the judges to come from practicing members of the Bar. I do not wish to delay the Committee by attempting to improve on the argument of the hon. and learned Member for Moss Side, but I should like to anticipate what may be one of the answers in opposition to the apparent rigidity in these appointments. It might be said that at times it will be somewhat difficult to find a person from the Civil Service available at the moment to fill any vacancy that may occur. In Clause 212 the Governor is enabled to appoint temporary people pending appointments, and no such difficulty therefore ought to arise. I do hope that this system which has worked so well will be preserved as it is now, because of the extremely valuable training that the rough-and-tumble of actual practice really gives.
§ 7.9 p.m.
Duchess of ATHOLLI am very grateful to you, Captain Bourne, for saying that I may discuss the Amendment I handed in in manuscript. I thought it was handed in yesterday, and I was disappointed not to find it on the Order Paper to-day. I regret therefore that hon. Members have not got what is a complicated Amendment in front of them. It seeks to preserve a definite and adequate number of barrister judges, Indian Civil Service and pleader judges in every Court, and to ensure that the Chief Justice shall be a barrister judge. Instead of fixing at least one-third barristers, at least one-third Indian Civil Service judges, it proposes a numerical basis, which would mean in the case of a High Court bench which consisted of a multiple of three, that one-third would be barristers, Indian Civil Service, and Indian pleaders respectively. Where you had a 271 High Court bench of 10 or 11, you would have a proportion more favourable to pleaders than under the present system. At present, if you have a High Court consisting of 10 members, not less than one-third are barristers and one-third come from the Indian Civil Service. That means that out of 10 you must have four barristers and with the Chief Justice five, four Indian Civil Service judges, and that leaves only one pleader. In the case of a. High Court Bench of 11 you have two pleaders.
I understand that this is regarded as a grievance by the pleaders, the Indian-trained lawyer. My plan provides that in a High Court Bench consisting of nine you would have three barristers, three Indian Civil Service judges, and three pleaders. In a High Court Bench of 10 you would still continue with three barristers, three Civil Service judges, but you would have four pleaders, which would give a larger proportion of pleaders. This would therefore secure what is desirable, a definite and substantial number of barristers and Indian Civil Service judges, and yet would go some way to meet the claims of pleaders for a better proportion in High Courts, while ensuring the retention of a definite and considerable proportion of barristers and civilians in every High Court. That does seem to me of very great importance. My hon. and learned Friend the Member for Moss Side spoke strongly of the importance of retaining a proportion of barristers, but I think he was inclined to under-value the retention of a proportion of Indian Civil Service judges. The Select Committee stressed the value of these judges. It was important for them to do so, for any one who read the evidence before the Joint Select Committee would know that Indian delegates showed a good deal of hostility to them. It is important that in view of this hostility, the Joint Select Committee should have expressed appreciation of them, though I thought they failed in not asking for a definite proportion of these judges in the High Court.
I quite recognise the possibility that some of the Indian Civil Service judges might be rather executive-minded—one has to recognise that. Their great value, however, is, I understand, their knowledge of the people, of their languages, of their ways, of their customs, of the customs in one particular locality as com- 272 pared with another. Where the importance of that comes in is that by means of their knowledge they are able to test the credibility of witnesses in a way that no barrister judge coming from home could, who would not know the ways and customs of the people and might be completely taken in. Much evidence is available to the effect that it is not difficult to buy witnesses in India, so that it is important to have people on the Bench who can put witnesses through acid tests. For this reason I do regard my Amendment or that of the hon. Member for Colne Valley (Mr. Mallalieu) as of great importance. I would prefer my own Amendment because it does redress what I understand is a grievance. It has been impressed upon me by more than one ex-judge of the High Court how greatly these courts have won the confidence of the people. I have even been told that in one Province there is a saying that justice is not obtained until you reach the High Court. It seems of the utmost importance that you should not leave the question of proportion, the continuance of two very valuable elements, in the air in this way, but that you should try to ensure a definite and adequate proportion of barristers and Indian Civil Service judges in every court.
§ 7.14 p.m.
§ Mr. MACQUISTENI do not believe with the last speaker that the judges should have local knowledge. It is the last thing wanted. You should have as they had in the Middle Ages, in Genoa, Venice and Rome, the practice of taking their chief justice from other towns, because they did not want these men to have any local knowledge, wanting them just to judge the cases before them. That is the advantage of having men who are members either of the Faculty of Advocates or the English Bar, who are trained barristers, who may be Indians trained in India, because, once they have become members of that great profession, they develop a code of conduct which you cannot breed anywhere else. They get an idea of what is right. We all look back with pride to English history, because it was the members of the Bar, the barristers and judges, who vindicated English liberties against the tyrannies of the executive in the old days. They were the one citadel where the Englishman could stand safe from executive tyranny. The hon. and learned Member for Moss 273 Side (Sir G. Hurst) ought to be astonished at his own moderation in stipulating for one-third.
Where would we be in England or Scotland if all our judges were not properly trained for their business? It is all very well for the hon. Member for Caerphilly (Mr. Morgan Jones) to make cheap jests, as he did yesterday, at this profession. I would like to ask him, as a member of the teaching profession, how he would like the suggestion to reserve the most important posts in the profession to people who had not been trained as teachers. This is a question of trained barristers who have had a considerable court practice, who have been in the rough and tumble of the court and who know how to sift and judge evidence in a way that the executive civil servant and business man cannot do. In ordinary business affairs such as they deal with complete proof is not required to be sought in the painstaking and laborious way in which the court must conduct cases if they are to do justice. They are apt to jump to conclusions, for they have not had an analytical training.
If we are to present Indians with courts of justice, the least we can do is to give them courts which are as well equipped as our own in respect of legal training. It is, of course, said that these people may have had some training as magistrates in small cases. The cases with which magistrates have to deal, however, are mainly small criminal cases and matters of no special moment; but when we come to questions which come before the High Court we must have a properly trained judge. I appeal to Members of the Opposition; I appeal to the hon. Member for Dumbarton Burghs (Mr. Kirkwood), who is a good trade unionist. He would not like to see somebody in the engineering trade put in a high position if he had not served an apprenticeship.
§ Mr. KIRKWOODIt has been done.
§ Mr. MACQUISTENI admit that it has been done, and that is all the more reason why it should not be repeated. I have no interest in this matter. I have shot my bolt in regard to the legal profession, and I am only speaking for the good of the public and of the Indians, because I regard the whole of this Bill as a dubious experiment in governing Orientals by the unimaginative Anglo- 274 Saxon race. If we are to give them courts of justice, let us see that at least they are courts staffed by men with the necessary legal training and juridical skill.
§ 7.20 p.m.
§ Sir R. CRADDOCKWith regard to these Amendments, I have not the slightest idea why it is necessary to change the existing law which has been in force with perfectly satisfactory results for a large number of years. The suggestion was that the possibility of an Indian Civil Service judge being Chief Justice was invidious and should no longer continue. As a matter of fact, however, the selection of the Chief Justice will depend on the people who appoint him. It is very unlikely that any judge of the Indian Civil Service would be selected as Chief Justice. Under the existing practice in law, when a Chief Justice goes on a long vacation to England, or is put on other duties, or when there is a vacancy owing to illness, it may happen that an Indian Civil Service judge of experience—he must be very senior before he can be appointed—may fill the place for a short time. There is no objection to that under the existing law. It was unnecessary to alter these proportions. I will dwell mostly at the moment on the question of the Indian Civil Service judges. These judges are not people who have been trying petty cases such as come before the ordinary magistrate. They have been magistrates and have many times acted as district magistrates; they have had powers to deal with important cases, and have full experience and that judicial frame of mind to which so many hon. Members have referred.
The Indian Civil Service man goes through a probation in England. In my time it used to be two years, but I am afraid it is shorter now. That probation included considerable studies of law and a long time spent in the courts. He went round the courts from the magistrate's court up to the King's Bench and the Old Bailey, and made notes of cases and submitted full reports on them. He saw the methods by which British justice was conducted, and it was most valuable help thereafter, not only if he were a judge, but if he had ordinary executive work. A certain amount of judicial training is important in executive work. These officers have their training as magistrates, and the usual rule is that 275 after seven or eight years the members of the Indian Civil Service are expected to choose whether they will be transferred, as it were, to the judicial side of the service or whether they will remain on the executive. If they decide to go to the judicial side, they are put in appointments which give them special experience in judicial business. They have to pass severe departmental examinations when they are young men and they have every encouragement and desire to improve their law. When they come home and study, some of them get called to the Bar and others work up those sections of the law with which they are less familiar.
It is absurd to surmise that these gentlemen will have an executive mind. After all, if a man is put on judicial duties, and if he is an Englishman, he will, from his very characteristics as belonging to that race, require to be independent and to feel independent, and he will resent any attempt by outsiders to influence his decisions. I have always found from my experience—and I have had many of these judges working under me in the Central Provinces and Bombay; in fact I had to appoint them all—that when you make an experienced magistrate into a judge the one thing he insists upon is that he is independent, and that, whatever may be his position as executive officer, he now adopts an entirely different attitude. I can assure the Committee that the cases in which any subservience to the executive can be detected in the work of the Indian Civil Service judges are almost negligible; I might even say nil. One sees very strongly the way in which the change in employment impresses itself on the man and evokes from him those qualities which make for independence in political work.
Another point is the value of the Indian Civil Service judges as an adjunct to the High Court. It is necessary to have a certain proportion because they have great experience of the country, the people, the value of evidence and the language. Therefore they have a much better understanding of the people of the country—I am not talking about the urban population—than any of the pleader and barrister judges. If they come out from home, not knowing a word of the language, they can never get into 276 real contact with the people of the country. The evidence has to be interpreted to them, and it is extraordinarily difficult to judge of the value and sincerity of a witness if his evidence has to be given through an interpreter. If you understand a man in his own language, you can tell much better whether he is a witness of truth or not.
We get all these advantages among the Indian Civil Service judges. You may ask any barrister Chief Justice of any High Court who is retired in England whether he wishes to have the contribution of the Indian Civil Service judges, and with one voice they will say, "Yes" Another way in which the Indian Civil Service judges are important is that they are the only people who ever inspect subordinate courts. They are selected by the Chief Justice to do all such inspections. In every High Court one of the Indian Civil Service judges is selected as an administrative judge, that is to say, he is the judge who, in the first place, deals with all the many administrative points which come before the Chief Justice. He is also the man who in the first place is 'called upon to select subordinate judges for promotion.
There is no need to change those conditions. I have never yet heard, although I have been in India for 40 years, and have studied these matters—I have been the Home Member in the Government of India dealing with the Calcutta High Court and with judges of other High Courts—that that system ever caused any inconvenience. The suggestion that it causes inconvenience comes from barristers who are making their living at the bar and who have sons and nephews who are doing the same. It is quite natural, and I am not blaming them, that they should catch at any argument to get rid of the Indian civil service judge. The examinations for pleaders are extremely stiff. We have all heard of the man who has sat for those examinations and has failed, and has then come straight away home and passed all the examinations for the English Bar. It would be nothing short of disaster if the Indian civil service judges did not contribute their quota to the High Courts and were not available to help in the burden of criminal work and on the administrative side of the court. These are matters in which the chief justice or any other barrister judge may not for the time 277 being have the materials or the knowledge necessary. The Indian civil service judges are likely to be as honest and impartial as any you can get in the matter of the promotion and appointment of the subordinate judiciary.
There is another point I want to stress, and that is that the district judges, who are mostly entirely Indian, and who preside in the Civil Courts, are not subject to any pecuniary limit of jurisdiction in the suits they try. Subordinate judges can take suits up to 5,000 or 10,000 rupees. District civil judges have specialised on civil cases. I am sure that every hon. and learned Member will appreciate that men who have been engaged all their lives in civil cases, whether as judges or as barristers on the civil side, are much less at home with the ordinary criminal case, and that considerable practice is necessary in the Indian criminal law to make a good criminal judge. It is a great advantage that a judge who is to preside at the Old Bailey should have experience at other sessions throughout the country. It is that great knowledge that we have in India which has resulted in the system of appointing men of experience in the work, men who have studied the country. Other judges are quite good enough for the ordinary civil work of the country, for work under the Contract Act, the Transfer of Property Act and other Acts which define the ordinary relations of members of the community towards one another, but they have not the same experience in relation to commercial and maritime questions, and complicated questions of Admiralty jurisdiction and so on.
I would therefore like to see the ordinary law remain as it is, with the ordinary courts of the judges, without specially permitting the civilian judge to be made chief justice, but as at present letting him act in short vacancies. He is never appointed a permanent chief justice, and I do not think the Indian Civil Service, after all these years, would have either a good case or would themselves wish for that new privilege. There is one limitation in respect of these judges, and that is that in the smaller Provinces the character of the litigation is not so complicated. We do not get maritime cases and complicated commercial cases there. Everything is comparatively simple. In such cases the court is presided over by 278 the Judicial Commissioner, or it may be by the Chief Judge of a chief court, as still exists in Oudh, and did until quite recently in Rangoon. It, has never been held necessary to have a barrister Chief Justice in these courts because the judicial commissioner fulfilled the functions of Chief Justice arid was a man selected as a rule from the Indian Civil Service. In many cases that I know personally these were men who occupied that position with as good a reputation for ability as many of the ordinary High Court judges.
I do not want to take up too much time talking about these judges, but I would ask the Government to consider the question of the statutory proportion. There is one argument which I introduced before and which I should like to have time to introduce again, and that is in regard to the proportion of the Indian Civil Service judges. The new recruits to the Indian Civil Service now have a reasonable hope of becoming High Court judges—I do not say certainty, because naturally the number of Indian Civil Service judges is greater than there are vacancies in the High Court, but if the inducements are reduced, the judicial side, being not nearly so attractive and far more sedentary than the executive side, it may become difficult to get men for that side. If that position arises, they are afraid of political pressure if there is no statutory protection as to the proportion. They themselves dread it, and they say that they will gradually be pushed out on one pretext or another unless they are protected with this statutory percentage. It would be very serious for us if we lost these experienced men, who bring a valuable contribution to the general wisdom and knowledge of the courts for the sake of altering a law which has long been in force, and which alteration will make very little difference in practice. The system has always worked conveniently and well, and was designed to give diversity to the various High Courts.
The Noble Lady the Member for Kinross and Western (Duchess of Atholl) has suggested a manuscript Amendment which it appears to me would meet any doubt that the Government may have as to the statutory percentage. It would leave scope for pleaders and subordinate judges who may be promoted. I have known a man 279 who was a Munsiff, a lower sub-ordinate judge, and who was promoted straight to the High Court bench. I am afraid that I have take up a long time, but I am asking the Government to reconsider the Clause in regard to the proportion of the several classes of judge, and to restore the present statutory limit, with the slight modification necessary. If the percentage comes to a fraction, you take the lowest whole number and adopt it.
§ 7.43 p.m.
§ The SOLICITOR-GENERALTwo points have been raised in this discussion. The first is as to whether the Indian Civil Service judges should be eligible for the position of Chief Justice, and the second is as to the percentage rule which, under the Amendment of the hon. and learned Member for Moss Side (Sir G. Hurst), which we are now discussing, takes the barristers' third. I think a later Amendment on the Paper in the name of the hon. and learned Member for Nelson and Colne (Mr. Thorp) covers the Civil Service third as well as the barristers' third. It is the object of everybody in the Committee to make the best provision for ensuring that by their qualifications, their method of appointment, and the field which may be open, the best High Court may, be provided for the Provinces of India.
I will deal with these matters in the order in which my hon. and learned Friend the Member for Moss Side dealt with them, but I would preface my remarks by thanking my hon. Friend the Member for the English Universities (Sir R. Craddock) for the extremely interesting manner in which he put before the Committee, much more authoritatively than I could, the actual legal work that is done by these civil servants. From the very outset of their career they are trying cases. They elect, in about four or five years from going out, whether they will or will not go on to the judicial side, and in about seven or eight years from going out to India, if they have opted for the judicial side, they will be either district judges or session judges, or performing the work of district or session judges.
The work that they do in that capacity is not, as my hon. and learned Friend the 280 Member for Argyll (Mr. Macquisten) suggested, dealing merely with petty, small cases. They have complete power to deal with all kinds of cases, and they are practically in the position of High Court judges in this country. The High Court in India is really the Court of Appeal for nearly all purposes, and the work which these Indian civilians are doing in the eighth or ninth year of their service is really the work of a High Court judge. They are eligible now, and nobody suggests they should not be, for positions in the High Court, where, as I think the Noble Lady the Member for Kinross and Western (Duchess of Atholl) pointed out, their work has earned a well deserved tribute, in which everybody would join, from the Joint Select Committee, and it cannot be right to say that men who have devoted their lives to the administration of justice to the extent and in the way which I have described have not had legal training. In intention and effect you admit them to deal with and judge cases up to any amount and crimes of any degree of gravity, but under the present system you say to them, "You can sit in the High Court, but however well you do that, whatever aptitude you show, however you may in fact have shown the qualities which normally only come after practical work at the Bar, still you never can even be considered for the presiding position in one of these High Courts." We do not feel that it is right that there should be this statutory bar. It may be that the appointing authority will not be likely at any rate to select a Civil Service candidate to a chief justiceship, but both as a recognition of the work which they are being asked to do and also in order that the field may be open, so that if the best man really is a Civil Service judge he can be named, we think it is right to make this change.
Duchess of ATHOLLMay I remind the hon. and learned Member that the opportunity for Indian civilians to become judges of the High Court will be very much restricted under Clause 243?
§ The SOLICITOR-GENERALI do not think that has anything to do with the point with which I was dealing. We do not think it right, in principle, that this bar should remain. On the other hand, of course, we do not contemplate that a Civil Service judge would normally be 281 selected for a chief justiceship. My right hon. Friend is certainly prepared to consider putting in a provision of this kind, that those described in paragraph (b) i.e., members of the Civil Service should not be eligible for a chief justiceship until after some period, say, three or four years, of service as judges of the High Court. That would ensure that they had had that experience, but that if, having that experience, they are, in the opinion of the appointing authority, the best men, the Crown would be free to give them that position. That deals with the first matter which my hon. and learned Friend and others have raised, and we feel it is right to make this change. I may also point out that, as the hon. Member for the English Universities said, in the Judicial Commissioners Court, which do exactly the same kind of work, this bar has never existed, and if the Amendment were accepted, or if we accepted the principle of ruling out the chief justiceship, the Bill, by turning these courts into High Courts, would preclude the Civil Service judges from presiding in courts where they at present in fact preside.
With regard to the second point, namely, the question of percentage, my hon. Friend the Member for the English Universities, in giving us his Indian experience, said he had not come across any inconvenience caused by the percentage rule, but that is an inconvenience, I think I can convince him, which has been felt, and felt increasingly, in recent years; and the nature of it is clear. If you have a fixed percentage for certain members of a court, it very much restricts your choice when a fresh appointment has to be made, and there is this further undesirable rigidity, that if one, say, of your third of barristers retires or dies, you have to fill up his place with someone of the same category. It may be that you have an unusually large number of men of a certain standing among the Indian Civil Service ranks, and you want to take the opportunity of getting the right man, but you cannot do it because this percentage rule hampers you, in that you have to replace the man who has died or retired by a man of the same class.
There are other reasons against the percentage rule. If you took the existing statutory provision of a third barristers, a third Indian civil servants, 282 and so on, you would have to add the Indian pleaders. Why should not they have their percentage? They are as much entitled to it as anyone else, but if you did that, you would have to increase the aggregate. They may be something to be said for something of that kind, but it could not be right to take one of the interested groups, if I may use the term without offence, and to give them a statutory safeguard, while leaving everybody else at the mercy of the appointing authority. Therefore, dealing at first with my hon. Friend's proposal, I say that it could not be accepted because it is one-sided. If you make a percentage, as the Noble Lady suggests, that has given rise to great administrative inconvenience, and when the scheme is definitely rigid, whenever one category drops out, you have to appoint someone of the same category.
Duchess of ATHOLLBut it meets the. difficulty which arises when your total number of judges is not a multiple of three.
§ The SOLICITOR-GENERALI think the Noble Lady's Amendment meets that point, but the great objection to it is its rigidity. There is a table showing exactly how many judges must be barristers, how many pleaders, and how many Indian civilians in courts of all possible numbers, and I am sure it cannot be right to hamper the appointing authority in that way. In conclusion, may say that, after all, the real safeguard for proper appointments is the nature of the appointing authority. Whatever qualifications are laid down in the Bill, unless the appointing authority exercises its duties with a sense of responsibility, and with care, you will not get good men. If it does exercise its duties with a sense of responsibility, courage and independence of mind, you will get the best. We have provided in this Bill that these appointments are to be by the Crown, and we think it is impossible to over-emphasise the importance of that provision, having regard to the matter which we are now considering, because that matter is whether the best appointments are going to be made to the office of chief justice, whether a proper proportion of barristers are going to be appointed to the Indian courts, and whether a proper proportion of civil ser- 283 vants are going to be appointed to the courts. These will be the duties of the appointing authority, and, having made that provision, we have no fear that these duties will not be properly and responsibly exercised. We think that the changes we propose are right and proper.
Duchess of ATHOLLMay I ask a question? The Crown must, of course, have nominations made to it. Will those nominations be made by the Minister, or
§ will they be put forward by the Governor acting in his discretion?
§ The SOLICITOR-GENERALI do not think there is anything to fetter the Secretary of State in making inquiries from the Governor-General, the Governor, or anybody he thinks proper. I think it is a. perfectly unfettered duty.
Question put, "That those words be there inserted."
§ The Committee divided: Ayes, 55; Noes, 220.
285| Division No.136.] | AYES. | [8.5 p.m. |
| Acland-Troyte, Lieut.-Colonel | Foot, Dingle (Dundee) | Peto, Sir Basil E. (Devon, B'nstaple) |
| Alexander, Sir William | Fuller, Captain A. G. | Raikes, Henry V. A. M. |
| Applin, Lieut.-Col. Reginald V. K. | Goodman, Colonel Albert W. | Rathbone, Eleanor |
| Atholl, Duchess of | Greene, William P. C. | Sanderson, Sir Frank Barnard |
| Balfour, George (Hampstead) | Gretton, Colonel Rt. Hon. John | Spens, William Patrick |
| Bernays, Robert | Griffith, F. Kingsley (Middlesbro', W.) | Taylor, C. S. (Eastbourne) |
| Blaker, Sir Reginald | Gritten, W. G. Howard | Taylor, Vice-Admiral E.A.(P'dd'gt'n, S.) |
| Bracken, Brendan | Hartington, Marquess of | Templeton, William P. |
| Broadbent, Colonel John | Haslam, Henry (Horncastle) | Thorp, Linton Theodore |
| Burnett, John George | Hurst, Sir Gerald B. | Todd, Lt.-Col. A. J. K. (B'wick-on-T.) |
| Chamberlain, Rt. Hn.Sir J. A. (Birm., W.) | James, Wing-Com. A. W. H. | Turton, Robert Hugh |
| Courtauid, Major John Sewell | Keyes, Admiral Sir Roger | Waterhouse, Captain Charles |
| Craddock, Sir Reginald Henry | Knox, Sir Alfred | Wayland, Sir William A. |
| Croft, Brigadier-General Sir H | Lees-Jones, John | Wedgwood, Rt. Hon. Josiah |
| Davison, Sir William Henry | Lennox-Boyd, A. T. | Wells, Sydney Richard |
| Donner, P. W. | Little, Graham-, Sir Ernest | Williams, Herbert G. (Croydon, S.) |
| Doran, Edward | Lovat-Fraser, James Alexander | Wise, Alfred R. |
| Erskine-Bolst, Capt. C. C. (Blackpool) | Macquisten, Frederick Alexander | |
| Fleming, Edward Lascelies | Mills, Major J. D. (New Forest) | TELLERS FOR THE AYES.— |
| Mr. Bailey and Mr. Emmott. | ||
| NOES | ||
| Adams, D. M. (Poplar, South) | Clayton, Sir Christopher | Grimston, R. V. |
| Adams, Samuel Vyvyan T. (Leeds, W.) | Cleary, J. J. | Grundy, Thomas W. |
| Addison, Rt. Hon. Dr. Christopher | Cochrane, Commander Hon. A. D. | Gunston, Captain D. W. |
| Allen, Lt.-Col. J. Sandeman (B'k'nh'd) | Colfox, Major William Philip | Hall, George H. (Merthyr Tydvil) |
| Amery, Rt. Hon. Leopold C. M. S. | Cook, Thomas A. | Hamilton, Sir R. W. (Orkney & Zetl'nd) |
| Anstruther-Gray, W. J. | Cooke, Douglas | Hannon, Patrick Joseph Henry |
| Aske, Sir Robert William | Cripps, Sir Stafford | Harbord, Arthur |
| Assheton, Ralph | Crooke, J. Smedley | Harvey, George (Lambeth, Kenningt'n) |
| Attlee, Clement Richard | Crookshank, Capt. H. C. (Gainsb'ro) | Hellgers, Captain F. F. A. |
| Baldwin, Rt. Hon. Stanley | Culverwell, Cyril Tom | Herbert, Major J. A. (Monmouth) |
| Balfour, Capt. Harold (I. of Thanet) | Daggar, George | Hoare, Lt.-Col. Rt. Hon. Sir S. J. G. |
| Balniel, Lord | Davidson, Rt. Hon. J. C. C. | Hornby, Frank |
| Banfield, John William | Davies, Edward C. (Montgomery) | Horsbrugh, Florence |
| Barclay-Harvey, C. M. | Davies, David L. (Pontypridd) | Hudson, Capt. A. U. M. (Hackney, N.) |
| Batey, Joseph | Davies, Rhys John (Westhoughton) | Hudson, Robert Spear (Southport) |
| Beauchamp, Sir Brograve Campbell | Davies, Stephen Owen | Hunter, Dr. Joseph (Dumfries) |
| Bennett, Capt. Sir Ernest Nathaniel | Denman, Hon. R. D. | Hunter-Weston, Lt.-Gen. Sir Aylmer |
| Blindell, James | Dickle, John P. | Inskip, Rt. Hon. Sir Thomas W. H. |
| Boulton, W.W. | Dobble, William | Jamieson, Douglas |
| Bower, Commander Robert Tatton | Duckworth, George A. V. | Jenkins, Sir William |
| Bowyer, Capt. Sir George E.W. | Dugdale, Captain Thomas Lionel | Jesson, Major Thomas E. |
| Braithwaite, J. G. (Hillsborough) | Duncan, James A. L. (Kensington, N.) | John, William |
| Brass, Captain Sir William | Dunglass, Lord | Jones, Morgan (Caerphilly) |
| Briscoe, Capt. Richard George | Eastwood, John Francis | Ker, J. Campbell |
| Brown, C. W. E. (Notts., Mansfield) | Edmondson, Major Sir James | Kerr, Lieut.-Col. Charles (Montrose) |
| Brown, Col. D. C. (N'th'l'd., Hexham) | Ellis, Sir R. Geoffrey | Kerr, Hamilton W. |
| Brown, Ernest (Leith) | Essenhigh, Reginald Clare | Kirkpatrick, William M. |
| Buchan-Hepburn, P. G. T. | Evans, David Owen (Cardigan) | Kirkwood, David |
| Burghley, Lord | Fielden, Edward Brocklehurst | Lamb, Sir Joseph Quinton |
| Burgin, Dr. Edward Leslie | Foot, Isaac (Cornwall, Bodmin) | Lansbury, Rt. Hon. George |
| Butler, Richard Austen | Fox, Sir Gifford | Lawson, John James |
| Cadogan, Hon. Edward | Fremantle, Sir Francis | Leech, Dr. J. W. |
| Campbell, Vice-Admiral G. (Burnley) | Gardner, Benjamin Walter | Leonard, William |
| Campbell-Johnston, Malcolm | Gauit, Lieut.-Col. A. Hamilton | Lewis, Oswald |
| Caporn, Arthur Cecil | Gilliett, Sir George Masterman | Liddall, Walter S. |
| Cassels, James Dale | Gower, Sir Robert | Lister, Rt. Hon. Sir Philip Cunliffe- |
| Cayzer, Maj. Sir H. R. (Prtsmth., S.) | Grattan-Doyle, Sir Nicholas | Loder, Captain J. de Vere |
| Cazalet, Capt. V. A. (Chippenham) | Greenwood, Rt. Hon. Arthur | Loftus, Pierce C. |
| Chapman, Col. R. (Houghton-le-Spring) | Grenfell, David Rees (Giamorgan) | Logan, David Gilbert |
| Chapman, Sir Samuel (Edinburgh, S) | Grenfell, E. C. (City of London) | MacAndrew, Capt. J. O. (Ayr) |
| Christle, James, Archibald | Griffiths, George A. (Yorks, W. Riding) | Macdonald, Gordon (Ince) |
| MacDonald, Malcolm (Bassetlaw) | Pownall, Sir Assheton | Strauss, Edward A. |
| McEntee, Valentine L. | Ramsay, Alexander (W. Bromwich) | Strickland, Captain W.F. |
| McEwen, Captain J. H. F. | Ramsay, T. B. W. (Western Isles) | Sueter, Rear-Admiral Sir Murray F. |
| McKie, John Hamilton | Ramsden, Sir Eugene | Summers by, Charles H. |
| McLean, Major Sir Alan | Reed, Arthur C. (Exeter) | Sutcliffe, Harold |
| Maclean, Neil (Glasgow, Govan) | Reid, William Allan (Derby) | Thompson, Sir Luke |
| McLean, Dr. W. H. (Tradeston) | Rickards, George William | Thomson, Sir Frederick Charles |
| Magnay, Thomas | Ross Taylor, Walter (Woodbridge) | Thorne, William James |
| Mainwaring, William Henry | Ruggles-Brise, Colonel Sir Edward | Tinker, John Joseph |
| Manningham-Buller, Lt.-Col. Sir M. | Russell, Albert (Kirkcaldy) | Titchfield, Major the Marquess of |
| Margesson, Capt. Rt. Hon. H. D. R. | Russell, R. J. (Eddisbury) | Todd, A. L. S. (Kingswinford) |
| Martin, Thomas B. | Rutherford, Sir John Hugo (Liverp'l) | Train, John |
| Mason, Col. Glyn K. (Croydon, N.) | Salt, Edward W. | Tree, Ronald |
| Maxton, James | Salter, Dr. Alfred | Tryon, Rt. Hon. George Clement |
| Mayhew, Lieut.-Colonel John | Samuel, M. R. A. (W'ds'wth, Putney). | Wallace, Captain D. E. (Hornsey) |
| Mills, Sir Frederick (Leyton, E.) | Sandys, Duncan | Wallace, Sir John (Dunfermilne) |
| Milne, Charles | Shaw, Helen B. (Lanark, Bothwell) | Ward, Lt.-Col. Sir A. L. (Hull) |
| Milner, Major James | Shaw, Captain William T. (Forfar) | Ward, Sarah Adelaide (Cannock) |
| Monsell, Rt. Hon. Sir B. Eyres | Shute, Colonel Sir John | Wardlaw-Milne, Sir John S. |
| Morris-Jones, Dr. J. H. (Denbigh) | Simmonds, Oliver Edwin | Warrender, Sir Victor A.G. |
| Morrison, G. A. (Scottish Univer'ties) | Smith, Sir J. Walker-(Barrow-In-F.) | Wedderburn, Henry James Scrymgeous |
| Munro, Patrick | Smith, Louis W. (Sheffield, Hallam) | White, Henry Graham |
| Nation, Brigadier-General J. J. H. | Smith, Tom (Normanton) | Whiteside, Borras Noel H. |
| Nicholson, Godfrey (Morpeth) | Smithers, Sir Waldron | Williams, David (Swansea, East) |
| O'Neill, Rt. Hon. Sir Hugh | Somervell, Sir Donald | Williams, Edward John (Ogmore) |
| Ormsby-Gore, Rt. Hon. William G. A. | Soper, Richard | Willoughby de Eresby, Lord |
| Orr Ewing, I. L. | Sotheron-Estcourt, Captain T. E. | Wills, Wilfrid D. |
| Paling, Wilfred | Spencer, Captain Richard A. | Womersley, Sir Walter |
| Palmer, Francis Noel | Spender-Clay, Rt. Hon. Herbert H. | Worthington, Dr. John V. |
| Parkinson, John Allen | Stanley, Rt. Hon. Lord (Fylde) | |
| Patrick, Colin M. | Stanley, Rt. Hon. Oliver (W'morland) | TELLERS FOR THE NOES.— |
| Pearson, William G. | Stevenson, James | Sir George Penny and Major |
| Petherick, M. | Stewart, J. Henderson (Fife, E.) | George Davies. |
| Powell, Lieut.-Col. Evelyn G. H. | Stones, James |
§ Mr. BAILEYI beg to move, in page 118, line 17, at the end to insert:
(4) Provided that not less than one-third of the judges of a High Court, including the Chief Justice but excluding additional judges, must be suet barristers or advocates as aforesaid and that not
§ less than one-third must be members of the Indian Civil Service."
§ Question put, "That those words be there inserted."
§ The Committee divided: Ayes, 44; Noes, 215.
287| Division No. 137.] | AYES. | [8.12 p.m. |
| Acland-Troyte, Lieut.-Colonel | Foot, Dingle (Dundee) | Sandys, Duncan |
| Alexander, Sir William | Fuller, Captain A. G. | Spens, William Patrick |
| Applin, Lieut.-Col. Reginald V. K. | Greene, William P. C. | Taylor, C. S. (Eastbourne) |
| Atholl, Duchess of | Griffith, F. Kingsley (Middlesbro', W.) | Taylor, Vice-Admiral E.A.(P'dd'gt'n, S.) |
| Balfour, George (Hampstead) | Gritten, W. G. Howard | Templeton, William P. |
| Blaker, Sir Reginald | Hartington, Marquess of | Thorp, Linton Theodore |
| Bracken, Brendan | Jones, Sir G. W. H. (Stoke New'gton) | Turton, Robert Hugh |
| Broadbent, Colonel John | Keyes, Admiral Sir Roger | Waterhouse, Captain Charles |
| Burnett, John George | Knox, Sir Alfred | Wayland, Sir William A. |
| Courtauld, Major John Sewell | Lees-Jones, John | Wells, Sydney Richard |
| Craddock, Sir Reginald Henry | Lennox-Boyd, A. T. | Williams, Herbert G. (Crevdon, S.) |
| Croft, Brigadier-General Sir H. | Little, Graham-, Sir Ernest | Wise, Alfred R. |
| Davison, Sir William Henry | Lovat-Fraser, James Alexander | |
| Donner, P. W. | Macquisten, Frederick Alexander | TELLERS FOR THE AYES— |
| Erskine-Bolst, Capt. C. C. (Blackpool) | Raikes, Henry V. A. M. | Mr. Bailey and Mr. Emmott. |
| Fleming, Edward Lasceiles | Sanderson, Sir Frank Barnard. | |
| NOES | ||
| Adams, D. M. (Poplar, South) | Bower, Commander Robert Tatton | Chapman, Col. R. (Houghton-le-spring) |
| Adams, Samuel Vyvyan T. (Leeds, w.) | Bowyer, Capt. Sir George E. W. | Chapman, Sir Samuel (Edinburgh, S.) |
| Addison, Rt. Hon. Dr. Christopher | Braithwaite, J. G. (Hillsborough) | Christie, James Archibald |
| Allen, Lt.-Col. J. Sandeman (B'k'nh'd) | Brass, Captain Sir William | Clayton, Sir Christopher |
| Anstruther-Gray, W. J. | Briscoe, Capt. Richard George | Cleary, J. J. |
| Aske, Sir Robert William | Brown, C. W. E. (Notts., Mansfield) | Cochrane, Commander Hon. A. D. |
| Assheton, Ralph | Brown, Col. D. C. (N'th'l'd., Hexham) | Colfox, Major William Philip |
| Attlee, Clement Richard | Brown, Ernest (Leith) | Cook, Thomas A. |
| Balfour, Capt. Harold (I. of Thanet) | Browne, Captain A. C. | Cooke, Douglas |
| Balniel, Lord | Burgin, Dr. Edward Leslie | Cripps, Sir Stafford |
| Banfield, John William | Butler, Richard Austen | Crooke, J. Smedley |
| Barclay-Harvey, C. M. | Cadogan, Hon. Edward | Crookshank, Capt. H. C. (Gainsb'ro) |
| Batey, Joseph | Campbell, Vice-Admiral G. (Burnley) | Croom-Johnson, R. P. |
| Beauchamp, Sir Brograve Campbell | Campbell-Johnston, Malcolm | Culverwell, Cyril Tom |
| Bennett, Capt. Sir Ernest Nathaniel | Caporn, Arthur Cecil | Dagger, George |
| Bernays, Robert | Cassels, James Dale | Davies, Edward C. (Montgomery) |
| Blindell, James | Cayzer, Maj. Sir H. R. (Prtsmth., S.) | Davies, David L. (Pontypridd) |
| Boulton, W. W. | Cazalet, Capt. V. A. (Chippenham) | Davies, Rhys John (Westhoughton) |
| Davies, Stephen Owen | Lamb, Sir Joseph Quinton | Russell, Albert (Kirkcaldy) |
| Denman, Hon. R. D. | Lansbury, Rt. Hon. George | Russell, R. J. (Eddisbury) |
| Dickie, John P. | Lawson, John James | Rutherford, Sir John Hugo (Liverp'l) |
| Dobble, William | Leech, Dr. J. W. | Salt, Edward W. |
| Doran, Edward | Leonard, William | Salter, Dr. Alfred |
| Dugdale, Captain Thomas Lionel | Lewis, Oswald | Samuel, M. R. A. (W'ds'wth, Putney). |
| Duncan, James A. L. (Kensington, N.) | Liddall, Walter S. | Shaw, Helen B. (Lanark, Bothwell) |
| Dunglass, Lord | Lister, Rt. Hon. Sir Philip Cunliffe | Shaw, Captain William T. (Forfar) |
| Eastwood, John Francis | Lockwood, John C. (Hackney, C.) | Shute, Colonel Sir John |
| Edmondson, Major Sir James | Loder, Captain J. de Vere | Simmonds, Oliver Edwin |
| Ellis, Sir R. Geoffrey | Loftus, Pierce C. | Smith, Sir J. Walker- (Barrow-in-F.) |
| Essenhigh, Reginald Clare | Logan, David Gilbert | Smith, Louis W. (Sheffield, Hallam) |
| Evans, David Owen (Cardigan) | Macdonald, Gordon (Ince) | Smith, Tom (Normanton) |
| Fielden, Edward Brocklehurst | MacDonald, Malcolm (Bassetlaw) | Smithers, Sir Waldron |
| Foot, Isaac (Cornwall, Bodmin) | McEntee, Valentine L. | Somervell, Sir Donald |
| Fremantle, Sir Francis | McEwen, Captain J. H. F. | Soper, Richard |
| Gardner, Benjamin Walter | McKie, John Hamilton | Sotheron-Estcourt, Captain T. E. |
| Gauit, Lieut.-Col. A. Hamilton | McLean, Major Sir Alan | Spencer, Captain Richard A. |
| Gillett, Sir George Masterman | Maclean, Neil (Glasgow, Govan) | Spender-Clay, Rt. Hon. Herbert H. |
| Goff, Sir Park | McLean, Dr. W. H. (Tradeston) | Stanley, Rt. Hon. Lord (Fylde) |
| Gower, Sir Robert | Magnay, Thomas | Stanley, Rt. Hon. Oliver (W'morland) |
| Grattan-Doyle, Sir Nicholas | Mainwaring, William Henry | Stevenson, James |
| Greenwood, Rt. Hon. Arthur | Margesson, Capt. Rt. Hon. H. D. R. | Stewart, J. Henderson (Fife, E.) |
| Grenfell, David Rees (Glamorgan) | Martin, Thomas B. | Stones, James |
| Grenfell, E. C. (City of London) | Mason, Col. Glyn K. (Croydon, N.) | Strauss, Edward A. |
| Griffiths, George A. (Yorks, W. Riding) | Maxton, James. | Strickland, Captain W.F. |
| Grimston, R. V. | Mayhew, Lieut.-Colonel John | Sueter, Rear-Admiral Sir Murray F. |
| Grundy, Thomas W. | Mills, Sir Frederick (Leyton, E.) | Summersby, Charles H. |
| Gunston, Captain D. W. | Mills, Major J. D. (New Forest) | Sutcliffe, Harold |
| Hall, George H. (Merthyr Tydvil) | Milne, Charles | Thompson, Sir Luke |
| Hamilton, Sir R. W. (Orkney & Zetl'nd) | Mliner, Major James | Thomson, Sir Frederick Charles |
| Hannon, Patrick Joseph Henry | Monsell, Rt. Hon. Sir B. Eyres | Thorne, William James |
| Harbord, Arthur | Morrison, G. A. (Scottish Univer'ties) | Tinker, John Joseph |
| Harvey, George (Lambeth, Kenningt'n) | Munro, Patrick | Titchfield, Major the Marquess of |
| Haslam, Henry (Horncastle) | Nation, Brigadier-General J. J. H. | Todd, A. L. S. (Kingswinford) |
| Hellgers, Captain F. F. A. | Nicholson, Godfrey (Morpeth) | Train, John |
| Hoare, Lt.-Col. Rt. Hon. Sir S. J. G. | O'Neill, Rt. Hon. Sir Hugh | Tree, Ronald |
| Hornby, Frank | Ormsby-Gore, Rt. Hon. William G. A. | Tryon, Rt. Hon. George Clement |
| Horsbrugh, Florence | Orr Ewing, I. L. | Wallace, Captain D. E. (Hornsey) |
| Hudson, Capt. A. U. M. (Hackney, N.) | Paling, Wilfred | Wallace, Sir John (Dunfermilne) |
| Hudson, Robert Spear (Southport) | Palmer, Francis Noel | Ward, Lt.-Col. Sir A. L. (Hull) |
| Hunter, Dr. Joseph (Dumfries) | Parkinson, John Allen | Ward, Sarah Adelaide (Cannock) |
| Hurst, Sir Gerald B. | Patrick, Colin M. | Warrender, Sir Victor A. G. |
| Inskip, Rt. Hon. Sir Thomas W. H. | Pearson, William G. | Watt, Major George Steven H. |
| James, Wing.-Com. A. W. H. | Penny, Sir George | White, Henry Graham |
| Jamieson, Douglas | Petherick, M. | Williams, David (Swansea, East) |
| Jenkins, Sir William | Powell, Lieut.-Col. Evelyn G. H. | Williams, Edward John (Ogmore) |
| Jesson, Major Thomas E. | Ramsay, Alexander (W. Bromwich) | Willoughby de Eresby, Lord |
| John, William | Ramsay, T. B. W. (Western Isles) | Wills, Wilfrid D. |
| Jones, Morgan (Caerphilly) | Ramsden, Sir Eugene | Womersley, Sir Walter |
| Ker, J. Campbell | Reed, Arthur C. (Exeter) | Worthington, Dr. John V. |
| Kerr, Lieut.-Col. Charles (Montrose) | Reid, William Allan (Derby) | |
| Kerr, Hamilton W. | Rickards, George William | TELLERS FOR THE NOES— |
| Kirkpatrick, William M. | Ross Taylor, Walter (Woodbridge) | Major George Davies and Dr. |
| Kirkwood, David | Ruggles-Brise, Colonel Sir Edward | Morris-Jones. |
Question, "That the Clause stand part of the Bill," put, and agreed to.
§ Clause ordered to stand part of the Bill.
§ Clauses 211 and 212 ordered to stand part of the Bill.