SECOND READING. (Hansard, 4 April 1892)

§ THE LORD CHANCELLOR
My Lords, the Bill of which I have to move the Second Reading has but one object,—that is to ascertain more precisely what the law is upon the subject of those instruments which are known as bills of sale. It happens somewhat curiously that your Lordships' House has been judicially engaged the greater part of the day in determining that question; and the difficulty that has arisen, which is sought to be cured by this Bill, is to make the different definitions in the earlier Acts appropriate to the intended objects of those Acts. There have been three Acts of Parliament passed with totally different objects, in 1854, 1878 and 1882. The object of the first two Acts was to protect execution creditors against the fraud of their debtors, and, accordingly, the Legislature with great foresight provided that in order to protect the rights of such creditors the goods should pass out of the hands and out of the apparent possession of their debtors. That was a very wise and useful piece of legislation. In 1882 another Act was passed having a totally different object, which was to preserve impecunious and illiterate debtors from the machinations of the money-lenders. With that object the Legislature provided that any instrument which was given to secure a loan should be in a particular form, which was intended by the Legislature to be so clear that any person executing it would understand what it was and to what property it applied; and any instrument executed with that object in a different form was to be absolutely void. Your Lordships will see at once that those were totally different objects, but unfortunately the draftsman of that Act thought proper to apply the same provisions to the whole code of legislation, without having regard to the particular Acts of Parliament or to their different objects. The result has been an amount of liti- 533 gation and confusion which it is impossible to exaggerate. The object of the Bill is not to alter the law but to make clear which set of provisions should apply to each particular class of instruments. The Bill is divided into two parts; the first part deals with bills of sale generally, while the second part relates only to bills of sale intended as security for money,—so as to ascertain and make more clear and render it possible for the Courts to come to something like a unanimous conclusion as to what is the meaning of the instrument and what its legal effect shall be, having reference to that which ought to be the key to all instruments, namely, the intention which the parties actually have when they execute such instrument. That is the main principle of the Bill, and I think your Lordships will consider that if it is properly arranged and defined in the Bill it will be a useful addition to present legislation.

§ LORD THRING
My Lords, I know nothing of this Bill; but I only want to address myself to one particular expression the noble and learned Lord has used, namely, that it was the fault of the draftsman who put these Bills together that any confusion has arisen. I have not the slightest wish to defend the Bill; but, my Lords, I submit that under no circumstances is the blame to be thrown in this House upon the draftsman. The draftsman is not here to defend himself; he is instructed by the Minister; and I say deliberately that every word in a Bill which is brought in here, down to the dotting of the "i's" and the crossing of the "t's," is done upon the responsibility of the Minister and not of the draftsman who drew the Bill. The draftsman is the servant of the Minister, he receives his instructions from the Minister, no discretion is given him, he is not allowed to make any alteration except under the superintendence of the Minister, and I say that the Minister who brings in the Bill is responsible for the faults of the Bill. He may of course blame the draftsman if he does not follow his instructions, but the draftsman, I repeat, is not responsible to this House or to the other House in the slightest degree.

§ THE LORD CHANCELLOR
Perhaps your Lordships will allow me to say to my noble and learned Friend that he appears to have in his mind some particular draftsman who has been assailed by the words I used, and that that person occupies some kind of official position. The noble and learned Lord is entirely mistaken. When I spoke of the draftsman I did not mean the Government draftsman; as a matter of fact the Act that I have most reason to complain of was introduced by a private Member, and when I spoke of the draftsman I used a convenient phrase for the purpose of referring to the person under whose superintendence it was drafted and whose drafting was deficient. I have no doubt that the Government draftsmen are extremely useful; some of them have invented an ingenious system, to which I think my noble Friend at the head of the Government referred the other day when he said that it rendered legislation more expeditious,—I am not convinced that it is to the benefit of the Houses of Parliament that they should not always understand the legislation that they pass, although I admit that it facilitates legislation,—whether it improves it or not is another question. I only rose, however, to assure the noble Lord that I was not speaking of any particular draftsman,—the author of the Bill would be equally good for my purpose; and I assure the noble Lord that what I said had no personal application to any particular draftsman.

§ LORD THRING
My Lords, I did not for a moment imagine that the noble and learned Lord was attacking the noble Lord now addressing your Lordships; on the contrary, I have never experienced anything but the greatest courtesy from the noble and learned Lord. Far be it from me to think that he would condescend for a moment to attack me. But what I did say and what I again repeat is, that it has been the custom of late years to say that the draftsman has done so and so,—and whether you use the term "the draftsman" or "the author" of the Bill it is immaterial. If the noble and learned Lord means by the author of the Bill the Minister in charge of the Bill then it is right; but if he means by the author of the 535 Bill the subordinate gentlemen, one of whom I was, who drew the Bill, I say it is wrong. I recollect some 25 years ago Sir Cornewall Lewis said in the House of Commons when the draftsman was attacked, what ought to be said on every occasion: "I do not know what you mean by the draftsman; he acts under my orders and I am responsible for every word he draws." But, my Lords, I had not the slightest idea that the noble Lord intended to attack me—such a thought never entered my mind.