HL Deb 14 March 1853 vol 125 cc131-43
LORD LYNDHURST

requested the attention of his noble and learned Friend on the woolsack to a question of which he had given notice, respecting the course it was the intention of the Government to pursue with regard to the amendment of the law, and also with regard to the amendment of the statutes. He had learnt when his noble and learned Friend at the beginning of the present year made his statement with respect to the measures which the Government meant to pursue on the amendment of the law, and from what had appeared in the usual sources of intelligence, that one of those measures related to a revision of the statutes; that it was the intention of his noble Friend to strike out without qualification from the Statute-book a great variety of Acts; that he further intended to classify the remainder, and to purify them to a certain extent from those ambiguities and defects to which they were subject. Their Lordships must be aware of the importance of this matter before they entered upon the consideration of any amendment of the law. The learned Gentleman who had been selected for the performance of that task, or rather who had been proposed to take the superintendence of it, was certainly not much to be envied. It was a laborious and certainly not a very inviting duty which he had undertaken to perform. But it was fair he (Lord Lyndhurst) should state, that in his opinion, and in the opinion of other noble and learned Lords, no other individual could be selected for the purpose of performing this task more satisfactorily for the public than the Gentleman in question, from his long experience and habit of dealing with this subject, from his general acquirements, and from his extensive attainments in the studies of the law. It appeared, however, that the object of the noble and learned Lord on the woolsack related principally or almost entirely to the past—to the correction of past legislation and past errors—and that he passed over the question what steps might be taken for the purpose of preventing the recurrence of those errors, and of avoiding such irregularities and inconsistencies in future. If that were the course about to be pursued by his noble and learned Friend, he (Lord Lyndhurst) ventured to say that that course and the measure his noble and learned Friend thought to carry into effect, would not be quite satisfactory, either to the profession or to the public. No man accustomed to the proceedings of our courts of justice—and no person was better informed on that subject than his noble and learned Friend on the woolsack—no person could attend to those proceedings without having noticed from time to time complaints made by learned Judges of the defective and careless manner in which our legislation was conducted. It habitually occurred that courts of justice were occupied for hours, and sometimes for days, in attempting to reconcile inconsistencies, to clear up obscurities, and to produce, as it were, light out of darkness; and often with a very unsatisfactory result. Not only so, but counsel were employed at great expense to the suitors to conduct subtle and intricate arguments directed to the same object. It was remarkable that these evils were continually accumulating without any attempt to apply a remedy. Many of their Lordships might happen to recollect that this subject was brought prominently forward by a late noble and learned Lord, Lord Langdale, who pointed out with great particularity the evils and inconveniences which attended the present system, and stated, without the least exaggeration, that it constantly happened that Acts of Parliament were so framed as almost to defy interpretation. In 1848 a noble and learned Lord now present, in an able and comprehensive speech, drew attention to the same subject, assigning many instances of the existing evils, and forcing conviction on the mind of every one who heard him; but, unfortunately, that also was attended with no practical effect. A day or two since he (Lord Lyndhurst) happened to turn over a volume of reports of the Court of Chancery, and he was struck by the statement of one of the Judges in that court, of high character and of great learning, that it was almost impossible to form a satisfactory opinion on the construction of a particular Act, so full was it of ambiguities and inconsistencies. Now it appeared to him that it was impossible to proceed further with the measures which his noble and learned Friend proposed without attempting to unite with it some remedy for the evils of which he (Lord Lyndhurst) complained. If he were asked what was the principal cause to which those errors were to be attributed, he should say that it was to the way in which amendments were introduced into Bills in their progress through both Houses of Parliament. An amendment was proposed by a noble Lord, or a Member of the other House, who, very probably had not taken the pains to read the enactment to which the amendment applied. The amendment was, perhaps, inconsistent with the general scope of the Bill, or not in accordance even with that particular clause on which it was engrafted. Was it surprising that under such circumstances errors of construction and inconsistencies of various kinds should arise in their legislation? Errors in an Act of Parliament might often be ascribed to the careless manner in which it was originally framed on its first introduction to Parlia- ment, either in that or in the other House of Parliament. If their Lordships would allow him for a few moments to refer to one or two instances, he thought he should be able to show what was the inconvenience and evil arising under one Act of Parliament, to show that it was an evil that was still undiminished, and was continued in an aggravated form. By the Act to which he was referring, which had reference to the County Courts, and was passed a few years ago, it was provided that where the sum sought to be recovered was under 20l., and the plaintiff and defendant resided more than twenty miles apart, it was declared that the Judge of the Court before which the cause was tried "may" award the plaintiff costs. What was the result? An action was brought not long ago in the Court of Exchequer. It might have been brought in the County Court, as in this case the Courts had concurrent jurisdiction. The plaintiff recovered 13l. odd, and a question arose as to the meaning of the Act with reference to costs, whether it was imperative or at the discretion of the Judge to give costs. The question was argued at great length in the Court of Exchequer, one of the learned Judges having stated that he doubted with respect to the construction of the clause. The result was, that it was decided that the word "may" must receive its ordinary interpretation, and that it was at the discretion of the Judge to give costs or not, as he thought proper. The same question came before the same Court two or three weeks after. There was the same argument with the same result. Again, after a short interval, another cause came before the Court of Common Pleas. The question was again elaborately argued; the decisions in the Court of Exchequer were cited and commented on at great length; the discussion lasted almost for an entire day; the Court took time to consider its judgment, and the Chief Justice delivered an elaborate judgment, entering on the subject at great length, and deciding that "may" was not to be used in its discretionary sense, and was to be used in its imperative sense. How easy, he asked their Lordships to mark, would it have been to avoid such a difficulty! The word "shall" was always imperative; "may" was power to do something—gave a discretion; and the introduction of the words "at his discretion" would have obviated all the difficulty, and would have saved that waste of time and unnecessary ex- penditure. The errors were sometimes of a ludicrous character. He would state what took place some years back on a statute with reference to the insertion of words which applied to a forged register of baptism. A heavy pecuniary penalty was at first proposed as the punishment for the offence; and, according to a subsequent clause of the Bill, it was provided that one-half of the penalty should go to the person giving information, and the other half to the parish. In the progress of the Bill through Parliament it came to be thought that a pecuniary penalty was not a proper punishment for the offence, and fourteen years' transportation was substituted. But the party who had charge of that Bill, as a legislator, either in that House or in the other, omitted to strike out the other clause of the Bill by which the penalty was to be divided; and the result was, that the whole parish became entitled to seven years' transportation, and the other half was to go to the informer. The absurdity was obvious, but he cited it as a striking instance of the carelessness with which Acts of Parliament were framed, and as showing how little attention or supervision was exercised during the passage of the statutes through Parliament. He should refer to one more instance. It related to a particular Bill, which passed two or three years ago, originating in that House, which also had reference to the County Courts. That Bill consisted of twenty-five clauses on its first introduction. Their Lordships passed it without alteration, and it went down to the other House of Parliament; sixteen clauses were struck out, and eighteen others inserted; the Bill occupied five months in its progress through Parliament; it came up to their Lordships' House again at the close of the Session, and was passed into a law without inquiry. The result was, that there was not a single clause of that Bill free from error. One object of the Bill was to give the Judge of a County Court power to execute process out of his own district under certain forms. That was the evident object of the party who proposed the amendment; but the measure, so far from effecting that object, effected directly the reverse, and left the law precisely as it had found it; the lengthened clause which had been introduced proved entirely inoperative. In another clause some directions were given as to making provision with respect to the Treasurers' accounts; and to the County Courts trea- surers the same powers were given as had been given by "the last-mentioned Act." On looking to the "last-mentioned Act," it appeared that the subject of it was en-entirely different, for there was nothing at all in that Act which related to the matter out of which the reference arose, and there had been no previous Act upon the subject. Again, there was a clause giving compensation to persons whose offices were abolished; and there was a provision at the end that, where a party received compensation, and was afterwards appointed to an office, the compensation should abate pro tanto so long as he should hold that office. All that was reasonable enough, and in accordance with what was the usual course. But in the progress of the Bill through the other House of Parliament another class of persons claimed to receive compensation, and a clause was introduced to that effect; but the party who had charge of the Bill, seeing that there was already a general clause of compensation, thought that all he had to do would be to add the particular offices to that clause; but he omitted adverting to the provision that the parties should not be paid in the event of their holding office; so that here were two provisions of an Act of Parliament entirely at variance with each other. He (Lord Lyndhurst) would repeat that he did not think there was in that Act a single clause which was not, more or less, in discordance with others. He might multiply these cases almost without limit. The cases to which he had referred were not nearly so strong as those pressed on their Lordships' attention in 1848 by his noble and learned Friend; but he (Lord Lyndhurst) had selected the cases on account of their recent occurrence, for the purpose of showing their Lordships the continuance of an evil which was of the gravest kind; and he called on their Lordships—he exhorted them in the strongest manner—to provide some remedy against the continuance of that evil. It had always appeared to him that it would not be difficult to provide a remedy; that they ought to have some person of competent information appointed by the Government—with such assistance as might be necessary—to make himself master of every Bill, to watch it in its progress, and to communicate, from time to time, to some authorities in either House any observations that might occur to him with reference to the Bill, either in its original or amended state. By these means, if the evil were not entirely got rid of, it would be very much diminished. But it was not for him (Lord Lyndhurst) or for a mere private individual to go into detail on this subject; it was a subject for the consideration of the Government; and he would take leave to conclude the short statement he had made by asking his noble and learned Friend on the woolsack whether, in regard to his measure for the revision of the statutes, it was his intention to follow or accompany it by any measure or proceeding for the purpose of remedying the evils to which the attention of their Lordships had now been called?

The LORD CHANCELLOR

said, that he was sure their Lordships always listened to any statement made by his noble and learned Friend with much pleasure and attention; and he could not but rejoice at the circumstance that the announcement which he (the Lord Chancellor) had to make at the opening of the present Session had led to the inquiry which his noble and learned Friend had just addressed to him. He could assure their Lordships that he felt as strongly as his noble and learned Friend could feel, the absolute necessity of coming to some arrangement whereby their legislation for the future might be made more perfect than it now was; and when he announced, on the first day of their meeting, the intention he had formed of endeavouring to consolidate the existing statutes, he stated then, and he had not the least difficulty in repeating now, to his noble and learned Friend, that one of the main objects which he should always have in view so long as he had any connexion with the work of consolidating the statutes, would be not only to devise the best mode of consolidating the legislation that was already passed, but also to provide a better mode of legislating for the future. At the same time he did not wish to mislead his noble and learned Friend or the House, by inducing them to believe what was not the truth, that he had in his mind at that moment any definite plan with regard to this subject. He had stated, on the first day of their meeting, that the best chance of arriving at such a result was not to speculate any longer as to what was the best mode of proceeding, but to proceed at once to do something. With that view he had, since he announced his intention a month ago, secured the services of a very learned gentleman, to whom his noble and learned Friend had alluded, and who to his general qualifications added the peculiar qualification upon this subject, that he was, practically, the only remaining Commissioner who framed the report suggesting the mode in which the statute law should be consolidated. Being necessarily unable, from his other avocations, to attend to the practical details of the matter himself, he (the Lord Chancellor) had secured the services of a few efficient men to devote themselves exclusively to the task. He had not wished that it should commence before the Easter recess, because he could not, till then, give his personal attention continuously to the subject; but he had put the matter into such a train, that he believed in the first week of next month the work would be commenced, and an attempt would be made, as he previously intimated, in the first place, to ascertain precisely and exactly of what the Statute-book consisted—for he believed there were thirty-eight quarto volumes printed, not above six or seven of which were now in force. That being done, he would take one or two rather easy subjects, and consolidate the statutes relating to them first, and turn them into better language and form, and then lay them before the House as a specimen of what could be done in that respect. When that had been completed, whether it would not be right to extend the work further, and engage a larger staff for its execution, he would not now speculate. One direction, which be should always give to every person engaged on this subject, and upon which he would always fix his own attention, was, not only to endeavour to render in a more definite and intelligible form the statutes that were already passed, but to discover and suggest a practical mode of reforming all prospective legislation likewise.

The EARL of ELLENBOROUGH

said, that when it fell to his lot, some years ago, to have the charge of measures in their passage through Parliament, it was his practice to have the Bills reprinted with the amendments that were made in them, and then give the House time to consider them fully, and he found that course to be one that was attended with very great advantage. He wished also to observe, that if their Lordships' House was to continue to have a great number of Bills thrown upon its attention at once at the end of a Session, no arrangement that they could make could by possibility save them from the discredit of passing Acts which nobody could comprehend.

LORD REDESDALE

observed, with reference to the first instance adduced by the noble and learned Lord (Lord Lyndhurst), upon the subject of the language of Acts of Parliament, that it showed that the Judges as well as the Legislature had something to do in the matter. If the Court of Exchequer on the third occasion had adhered to the two former decisions—[A PEER: It was another Court.]—If the other Court had also held that "may" was permissive, and that Parliament would use the word "shall" when it meant to make a thing imperative, they would have come to a conclusion which would have facilitated the proceedings of the Legislature. If that was understood to be the rule, it would be very convenient, and avoid such unnecessary expletives as "if they shall think fit."

LORD LYNDHURST

remarked that it was no new thing; for these hundred years there had been doubts upon the word "may"—whether it was to be considered permissive or not.

LORD ST. LEONARDS

must confess it was with some alarm that he had heard his noble and learned Friend say that he intended to alter the language and form of the statutes which he proposed to digest and classify. The moment you touched an Act of Parliament in its form and language you made a new statute, which must receive its construction according to the language you used. Men's titles might depend upon the old Act; and, from what had been stated of the difficulty in settling whether "may" should be considered imperative, the House might easily suppose how Very extensive might be the operation of the slightest alteration made in an Act of Parliament. The moment you attempted to alter the language of your Acts of Parliament it was no more a digest or a classification, but a code; and if we were to have a code, it must embrace both common and statute law. In Committee they had been trying the operation of what might be considered a code; and if all their Lordships had had the experience which some of them had had on that Committee, they would have some notion of the difficulties in the way of codification. The alteration of a single word would vary, to a great extent, the proposition of law. With regard to the shape in which Bills passed the Houses of Parliament, nothing but a careful perusal by a competent person taking a Bill as a whole could give the slightest chance of its being passed in anything like a perfect shape; and here lay the true remedy for errors—that every important Bill should be framed by a competent person, and that no one should be allowed to introduce an alteration which was not afterwards submitted to the person who framed the Bill. In Committee an alteration was often proposed and adopted, the effect of which was not seen at the moment; and it was hopeless to expect Bills to be free from gross errors unless such alterations were looked at by a person who understood the whole measure, and the bearing of the different clauses. He (Lord St. Leonards) was afraid that House must take some blame to itself for many of these errors. In Committee of the whole House, Bills did not receive that consideration which very often the importance of the subject demanded. They were not discussed in Committee of that House; and, if clauses had to be considered, it became a conversation across the table which the House generally could not hear. Their Lordships had it in their power to remedy much of the evil as far as concerned Bills in that House, by taking care that in Committee of the whole House amendments and alterations should be openly mentioned and understood, and, if necessary, regularly discussed, before being passed. But no man or set of men could be answerable for Bills brought up at the end of a Session in great numbers, and thrown upon the table of the House. The Government of the day, however, must always have great power in regard to the bringing up Bills to that House. There were many that might be introduced there which were unnecessarily introduced in the other House; and so their Lordships, left with scarcely any business to transact at the commencement of a Session, found Bills brought up at its close in such quantities as to make them utterly unable to perform the business properly. He believed that with a little care a great many of the evils which had been pointed out might be remedied.

The EARL of ABERDEEN

believed that much the same complaint had been made for 40 years, and every Government had professed their anxiety to find a remedy, but none of them had been able to do so. He could say for the present Government that they desired to facilitate the progress of legislation as much as they could by introducing into that House such measures as could properly be introduced there; and he hoped the House would find itself able to give due consideration to the measures that came before it.

LORD BROUGHAM

need hardly say, that the manner in which laws were made was a matter of the utmost importance. He recollected once, when he had urged the subject upon the House, and proposed a remedy for the admitted evil; a most honoured Friend, the late Lord Ashburton, said— Of all the changes and amendments in the law which you are proposing, this is by much the most self-evident, and it is the clear and undeniable duty of the Parliament to adopt the measure you propose; and yet you may depend upon it you will find it far less difficult to carry any or all of the rest of your proposed amendments than to obtain the sanction of Parliament to this, which is the most urgently necessary and the most clearly easy to be adopted. He (Lord Brougham) agreed with his noble and learned Friend (Lord St. Leonards) that in altering the language of Acts of Parliament which you were digesting, as well as in framing a new law, you must have regard to the judicial interpretation already put upon certain language; but he thought the task, though difficult, was anything rather than impossible. He was convinced that means might be taken to put matters on such a footing that gross errors should be avoided, and that some course might be pursued to make it not only probable, but absolutely certain, that the House should not fall into such mistakes as his other noble and learned Friend (Lord Lyndhurst) had given a few samples of—and he might have multiplied them almost without end. But though he thought that might be done, and he hoped would be done, he doubted whether they would be doing enough if they only prevented these gross errors from getting into their Statute-book. He agreed that great care must be taken in the original framing of each Act, and in the changing of its clauses during discussion, and that still greater care was necessary when it came back from another place with alterations not always in the nature of amendments; but that this could be done by the superintending care of any one individual he must entirely deny. The best security against oversight was in more minds than one being applied to the matter. His noble and learned Friend (Lord St. Leonards) had said most justly that it would be better if more care were bestowed by their Lordships in working out the details of measures in Committee and subsequent stages; but though he would not say he was hopeless that their Lordships would ever bestow such care—though he would not say he despaired of ever seeing such a goodly assemblage as he had the honour then to address attending in all the stages of a long and elaborate measure, remaining not only through the next critical half-hour, not only sitting through that difficult time (six to seven o'clock), but through four or five hours more, to go over a whole measure—though he would not say he entirely despaired of this, his hopes were moderate indeed. While he did not think that a substitute could be found for the exercise of the discretion and wisdom of the House—Heaven forbid that the idea should cross any man's mind of attempting to find a substitute for that!—he thought it by no means impossible, and most highly desirable, that they should take advantage of help, of other labour, and skill, and knowledge, in aid of their own—what civilians called as to evidence an adminiculum. Some years since he had laid before the House Resolutions of this kind with regard to Private Bills, proposing the formation of a Board of five permanent officers acting in conjunction with the two Houses of Parliament, and in all respects ancillary—not substituted for them, but aiding them—and performing parts of their labour which it was impossible for them satisfactorily to perform. A board of this description, under the Great Seal, under the Lord Chancellor as Minister of Justice, acting under that superintendence and in communication with the Government, would enable them to secure the due preparation of Bills, and to watch their progress through the Houses, and ascertain whether by alterations introduced at any stage error was committed, obscurity or inconsistency introduced, thus giving a measure as nearly as possible approaching to perfection. He had always thought that the appointment of a Minister of Justice would be an highly expedient measure. Men would often agree to a thing who objected to the name, and he thought the late changes in the law, the appointment of two Lords Justices in addition to more Vice-Chancellors, had—he would not say substantially converted the Lord Chancellor into a Minister of Justice—but had given him power to act as a Minister of Justice incalculably more easily than ever before. Let those who apprehended prejudices against a useful measure to be so powerful as to forbid the hope of ultimate success, remember these memorable words of a dear and lamented and truly venerable friend of his, and of many present, Sir Samuel Romilly, uttered by him after failing for the third or fourth time to obtain the assent of Parliament to some of those enlightened measures of amendment of the law which he so often proposed:—"I am not so unacquainted with the nature of prejudice as not to have observed that it strikes deep root and flourishes in all soils, and spreads its branches in every direction; but I have observed also that, flourish as it may, it must, by laws sacred and immutable, wither and decay before the powerful and repeated touch of truth." He added that he should again propose the same measure, if spared through another year; but, said he, "whatever my fate, the seed which is scattered has not fallen upon stony ground." And it had not; and let the judicious and prudent and moderate amender of the law take comfort to himself from this fact—every one of those measures which that illustrious man propounded—defeated at first, so that he, unhappily, did not live to see his own triumph—had now become the law of the land, together with an amount of other improvements which even he, sanguine as he was, hardly dared to expect.