HL Deb 28 July 1890 vol 347 cc1016-25

Order of the Day for the Third Reading, read.

Moved, "That the Bill be now read 3a."


Your Lordships: may remember a day or two ago when I brought forward the question whether provision should be made as to whether the Sheriffs should appear in uniform or not, the noble and learned Lord on the Woolsack considered it was too trifling a question for legislation- I am well aware that there is a legal maxim de minimis non curat lex, but I have again to urge that I hope the noble and learned Lord will not think this too small a, matter to take notice of, because I then mentioned that, on that account, a Judge had actually threatened to heavily fine a Sheriff for not appearing in uniform, and since that Debate, I have received a copy of a letter in which a learned Judge, in 1873, distinctly ordered all the Sheriffs on the Oxford Circuit to appear in uniform. I mentioned that in former years no such custom had prevailed in Shropshire or Montgomeryshire. This custom was not introduced into Shropshire until 1873, when the Judge of Assize directed the Clerk of Assize to write to all the Under Sheriffs on the Oxford Circuit in. these words— I am directed by Mr. Justice Quain to inform the Sheriff through you that the Judge will expect that high official to appear either in full dress or in uniform, the proper costume of a High Sheriff in attendance on Her Majesty's Judges, being, in his Lordship's opinion, such as would be justifiable and admissible only at one of Her Majesty's levees. Now, that is a very distinct order, upon the subject, although it is a subject upon which the Committee over which my hon. and learned Friend presided, and the two noble and learned Lords who spoke the other day, agreed that it was not within the province of the Judge to give such an order. I think this letter shows there was quite sufficient justification for me in bringing the matter forward, and in the circumstances I do not suppose your Lordships, or my noble and learned Friend, will now think the matter too small to be considered.


I will only say a few words further upon this point. I do not blame the noble Lord in the least for bringing it forward. I only protested against this House being engaged in legislation as to the particular form of garment to be worn by an official in the position of a High Sheriff. I think the House will still consider there is scarcely a necessity for an Act of Parliament to be passed in regard to the kind of coat the Sheriff should wear. I said so on the last occasion, and I am still of that opinion. I would merely now observe that the only case brought forward by the noble Lord is as old as 1873, and I am not quite certain that I do not take the same view of the orders issued on that occasion as the noble Lord. There may have been requests at one time relating to matters of etiquette issued by learned Judges which were certainly not conformable to the law. But that learned Judge only stated what he expected as to the form of dress as a matter of etiquette; the learned Judge may have been right or wrong in his opinion, but he certainly did not threaten to fine the Sheriff £500 on that account, as was stated the other night. I then said that, in my opinion, it would have been exceeding his power for him to do so, and I ventured then to express my incredulity as to such an occurrence ever having taken place. I cannot find that the noble Lord has now obtained, as he supposes, the particulars of that circumstance, and I can only call his attention to the fact that I have received a letter referring to that particular case. As I pointed out the other night, no such rule as my noble Friend imagines was laid down, but the matter to which the threat to fine the Sheriff £500 applied was one of gross contempt of one of Her Majesty's Judges, an intentional deliberate act of contempt, and it was punished accordingly. The matter had no reference whatever to the question of the dress of the High Sheriff. I still entertain the view that, whatever may be done in this matter, it would be undignified for Parliament, and I hope Parliament will not be asked, to prescribe what particular kind of dress any public official shall wear.


My Lords, at the previous stage of this Bill, I alluded to one of its provisions, and intimated that on the present occasion I should propose an Amendment, namely, to substitute the Home Secretary for the County Councils acting with the concurrence of the Lord Chancellor for the purpose of framing regulations in relation to the accommodation of and reception of Her Majesty's Judges. Since I made that statement, I have considered the matter, and I have come to the conclusion that in reality my objection goes deeper, and would not be met completely by the alteration of that proviso; that, in truth, my objection is to this Bill altogether, and, therefore, I shall move the rejection of the Bill; but inasmuch as I have given no notice of my intention to do so, I shall, of course, not press it to a Division, but merely make that Motion for the purpose of explaining the position which I take in regard to it. The object of this Bill is simply to relieve the gentleman who will hereafter be called upon to fill the office of High Sheriff from expenses to which the High Sheriffs have hitherto been put. To that I have no kind of objection Whatever. But that is the only object which will be attained by the Bill. It is only a public object in the sense that it is a right thing to enact that public officials shall not be put to expense which ought not properly to fall upon them. As regards the public, the Only effect of the Bill will be to transfer certain expenses from the shoulders of the Sheriffs hereafter to the County Councils, and thus to put upon the rates the expenses which have hitherto been borne by those individuals. I think this is really a step in the right direction, but that evil ought to be met in another way. I will shortly tell your Lordships the way in which I think it ought to be met. Let me say at once that I am not desirous of putting any obstacle in the way of removing this burden from individual shoulders. I certainly do not intend to cast any reflections upon the County Councils in the observations which I make. I have no doubt, and I thoroughly believe, they are admirable bodies, doing good work. At the same time, like some of my noble Friends, not being myself a County Councillor, it is not a necessary part of my creed to believe that all County Councils, under all circumstances, and at all times, will act with unimpeachable wis- dom, and I cannot think it an expedient thing to initiate in every County Council in England and Wales, as this measure would do, a discussion as to the proper mode in which Her Majesty's Judges should be received and accommodated, and to make regulations differing, perhaps, in all the counties in that respect. Now, this is really only part of a far larger subject. The view which I take is this, that the Sheriff's expenses are part of the expenses of the administration of Justice, which is not really a local matter at all, and ought not to be treated as a local matter. The truth is, that a large portion of these charges is now met by the Treasury. Another large portion of the expenses is met by fees. If you add together the fees and the proportion paid by the Treasury it will be found that the larger portion of the expenses of this department of the administration of justice is met now, and will in future be met without any call upon the rates. The view which I venture to submit to your Lordships is this, that the whole of those expenses ought to be dealt with as part of the expenses of the administration of justice, in the same way as the greater portion of them are now met, and that the provision made with regard to this matter should not be dependent upon the view taken in this county or in that county, but that it should be a uniform system applicable to the whole country which, therefore, should be provided for by the same Central Authority. I quite feel that if you put the burden of this upon the several counties, it is only natural they should desire to have a voice in the matter; this Bill gives them the exclusive voice, although the burden only falls partially upon them. That is natural enough, and it is, in my view, extremely undesirable that the matter should be thus dealt with piecemeal in the different counties throughout the country. What appears to me to have been lost sight of is this, that at the present time the great part of the expense of enforcing judgments and the other duties of the Sheriffs is covered by fees, and the practice has been for each Sheriff to agree with his Under-Sheriff to receive the fees, and out of the fees to bear what I may call the ordinary expenses of this part or the administration of justice, leaving to the Sheriff himself certain of the expenses connected with his attendance upon the Judges. The agreements thus made vary, even as between county and county; that is to say, in some counties it has been the practice for the Sheriff to receive in relief of the expenses, or as a portion of the expenditure, some of the money coming from the Treasury which is not received in other counties. My belief is this, that if you had the whole of this matter placed in the hands of a central authority, so that you had a permanent official in each county appointed by the Crown, and if you had the whole of the fees which are now received by the Under-Sheriff, received by the Crown, it would be found that all the legitimate and proper expenses of the Shrievalty, including those proposed to be transferred to the County Council, might be met without any demand being made either upon the County Rates or any further demand than that which is now made upon the Treasury. If that were done, and I may say that I have gone to a considerable extent into the matter, my strong conviction is that that would be the result. The expenses are now larger than they would be if a permanent official had been appointed to act. For instance, in the county of Durham, the total average of the Sheriff's expenses is now about £400. I have made some little investigation into the question of what it would be likely to be if the thing were put on a permanent basis, and I do not think it would exceed a half—I doubt if it would be much more than £200. I might illustrate the matter in the same way as regards other counties in England. My belief is that, if the whole matter were gone into throughout the counties of England, it would be possible to initiate a new system by which, without any additional burden being cast upon either the Treasury or the rates, you might have the whole matter put on a satisfactory basis, and uniformly dealt with throughout England and Wales. I do not think anybody can doubt that that would be a much more satisfactory system than the scheme which is proposed by the present Bill. My Lords, it is not likely that this Bill will pass the other House in the present Session. I do not understand that even its promoters anticipate that, but I would urge that Her Majesty's Government should in the Recess in- quire into this matter, with the view of ascertaining the facts—which certainly were not fully ascertained by the Committee of this House which inquired into the subject—as to the fees which are received in the different counties, and the surplus over expenditure which remains in the hands of those who now receive the fees. I think if that were done it would be found that, very likely, without any additional payment by the Treasury, or, at all events, with a very trifling addition, you would be able to deal with this important department of the administration of justice throughout the country on a uniform and satisfactory footing. If that is true it certainly would be inexpedient to commence by throwing this burden upon the rates in the way proposed by the present Bill. It is because I so believe that I have felt it necessary to explain] my views, and I, therefore, formally move that the Bill be read a second time this day three months.

Amendment moved, To leave out ("now") and add at the end of the Motion ("this day three months").—(The Lord Herschell.)


My Lords, I cannot help expressing my regret at what I suppose I must call the necessity for this Bill. I do not agree with my noble and learned Friend. I think the system in this country is, that public duties are to be performed gratuitously by those who are fit for them. No Member of either House of Parliament is paid as such; Magistrates are not paid; jurymen are not paid; they perform their duties gratuitously, as also do Guardians of the Poor, Churchwardens, and Constables, who are all unpaid. But I am afraid it is a necessity that these gentlemen upon whom the duty of filling the office of High Sheriff ordinarily falls should be relieved from the expense of it. I do object to the clause which makes a special provision for the arrangement being made by the County Councils, with the concurrence of the Lord Chancellor, as to the way in which the Judges shall be received. I believe the proceedings at County Councils are attended by reporters, and a very pretty discussion will occasionally take place as to the mode in which his Lordship shall be received. I cannot think that it will contribute very much to the respect which is at present paid to the learned Judges when people read the uncivil remarks which many people will, undoubtedly, take the opportunity of making. The majority of the County Councils may think otherwise, but those who are for cutting down the observances which have always been shown to the Judges will be sure to give expression to their opinions, and to express their reasons in a very unsatisfactory way. I would infinitely prefer that there should be no provision in the Bill as to the County Councils making any arrangements, either with or without the concurrence of the Lord Chancellor for the time being, as to the way in which the Judges shall be received, or that it should be simply left in the condition in which it is now, because I protest again, as I told your Lordships on the last occasion, that there is no power for any Judge to do what it has been stated was done by the learned Judge whom the noble Lord referred to. He was a popular man among his brother Judges, but he had a peculiar sobriquet among us on account of his liability to do just such a singular thing as he did on this occasion. When you come to consider it, the very fact of his issuing this general notice is a proof that it was an entirely original proceeding on his part, because, if it had not been the practice to do otherwise, why should he have given this special notice on the Oxford Circuit? For my own part, I most heartily wish that any High Sheriff who should be treated in this very erroneous way would try the question, for I am sure he would get the best of it. It seems to me it would be very much better, indeed, if there were not this provision, which would give rise to discussions of a most unpleasant character, as I have had an intimation from one who is not at all hostile to the Bill, but, on the contrary, friendly to it, would be the case. There is just one clause in the Bill to which I should like to call your Lordships' attention. It is that The expenses of the High Sheriff of a county in receiving and protecting the Judges and so forth, and in keeping order within the precincts of the Court of Assize shall so far as they are not expenses which had before the passing of this Act been customarily defrayed by the Treasury or out of the County Rate. Well, it may possibly be said that by implication what was formerly paid out of the County Rata shall not in future be so paid. I do not know whether my noble and learned Friend sees the point; but I have no doubt how the Judges would construe it, because when Judges have to construe an Act of Parliament they make sense of it, and they make sense of it by interpreting it to say what it ought to say, and very often they have no other reason for their construction. I have no doubt they would hold that what was formerly paid out of the County Rate should continue to be so paid, and that it should not be otherwise paid; although, of course, a question might be raised about it under this clause. As I have often said in the Standing Committee on Law that when we have to construe an Act of Parliament, "We must do oar best with it as it stands; but in making one, we should take care there is no ambiguity about it." I do not know whether the noble Lord who has charge of this Bill thinks that worth his attention in any way, but I can assure him it is not a captious objection on my part at all.


My Lords, with regard to the objection which has been taken to the words in the 2nd clause of the Bill, I think the noble Lord will see, at all events I think myself, there is not really any force in his objection. The words are that— The expenses so far as they have hitherto been defrayed by the Treasury or out of the County Rate shall be defrayed out of the County Rate. Of course, the meaning of that is, that the Treasury will continue to pay any portion that it has hitherto paid, and the County Rate will continue to pay any portion that it has hitherto paid, and the surplus, if any, shall be provided out of the County Rate. I think that seems pretty clear; at all events, it is so to me. I am very glad, at the same time, to hear that whether that be accurately expressed in the Bill or not there is no possibility of the Act going wrong, because, when it is placed in the hands of the Judges, they will interpret it in the way it should be interpreted. As this Motion, which is nominally hostile to the Bill, is not going to be pressed, I do not think I need detain your Lordships by making any lengthened remarks upon the Bill itself. It is perfectly true that the Bill is a small Bill, and deals with a small portion of the question only; I mentioned that to your Lordships when I introduced the Bill. The reason why it is a partial measure is because it would have been impossible for me, a private Member of your Lordships' House, to deal with the whole question; and, as the Government have not found themselves able to introduce a measure dealing with the whole subject, I thought it was better, at all events, to treat a portion of the question than not to do anything with it at all. For this reason: because the Committee upon this subject sat two years ago, and I have myself received a great many letters with regard to the matter, which is felt to be a very great hardship in many parts of the country. I have been asked frequently whether Parliament was going to do anything with regard to the Report of this Committee. It is quite possible, as has been said, I have begun at the wrong end. Perhaps I did; but it is better to begin at the wrong end than not to begin at all, and I think your Lordships will see that if this Bill passes into law, on which point I am a little more sanguine than the noble and learned Lord on the Front Opposition Bench, it will at all events, relieve the persons, who are in future to be appointed as High Sheriffs, to a not inconsiderable degree. If in a future Session of Parliament it may be found possible to go a great deal further I shall be glad. The proposal made by the noble and learned Lord is a proposal which I think deserves serious consideration. The proposal, as I understand it, is this: that in future the fees received by the Under Sheriffs shall be received by the Treasury; that the whole legal business for which the High Sheriff is at present nominally responsible, but of which he knows nothing, and can know nothing, and with regard to the carrying out of which he is perfectly unable himself to act, shall be dealt with by the Treasury also. Of course, the Sheriff has to leave everything to his Under Sheriff. Now, in future, the proposal is that those fees shall be transferred to the Treasury, and that the whole of this large legal business shall be carried on as a matter of I national concern, and through the agency of the Treasury; and then that all the expenses of the Shrievalty shall be borne by the Treasury. No doubt the noble and learned Lord is quite right in saying that if the fees received by the Under Sheriff at present were received by the Treasury, and if they were calculated on a proper scale, the whole expenses of the Shrievalty could be borne by the county, without any cost to the High Sheriff or charge upon the County Rate. If any proposal is brought forward hereafter, I shall give it the best support I can, and I think, in all probability, it is the very best way of dealing with this question. But up to the present time we have found that the Treasury has not shown any particular desire to move in this direction, and of course in the present Session of Parliament it would have been quite impossible to carry out such a proposal. However, I hope the Government will bear in mind what the noble and learned Lord has said, and will give it their best consideration.

On Question, whether ("now") shall stand part of the Motion, resolved in the affirmative; Bill read 3ª accordingly: Amendments made: Bill passed, and sent to the Commons.