Lords Sitting of 26 June 1893

LORD KINGSALE.
Report made from the Lord Chancellor, that the right of Michael William de Courcy Baron of Kingsale to vote at the elections of Representative Peers for Ireland has been established to the satisfaction of the Lord Chancellor; read, and ordered to lie on the Table.
The Earl of Jersey—Took the Oath.

INDIAN CURRENCY.

  QUESTION. OBSERVATIONS.
  VISCOUNT CROSS: My Lords, seeing my noble Friend the Lord President of the Council and Secretary of State for India in his place, I wish to ask him a question relating to a matter which is considered of the most vital importance by all who are connected with India in
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  any way. It is understood that a Committee was formed, of which the noble and learned Lord on the Woolsack was Chairman, to consider the question of the Currency of India; that that Committee has sent in a Report which has been considered by Her Majesty's Government, and that some Despatch on the subject has gone out to the Government of India. I wish to ask the noble Earl whether the Despatch has been sent; whether an answer has been received from the Government of India; and, if so, whether he will be good enough to state it to the House?
  THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OF STATE FOR INDIA (The Earl of KIMBERLEY): My Lords, I am much obliged to the noble Viscount for asking a question on this important matter. A communication was made to the Government of India as to the Report of Lord Herschell's Committee, and a reply was received on Saturday from them on the subject upon which a determination was come to by Her Majesty's Government and by my Council. I have to-day re-

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  ceived from the Viceroy a Despatch which I will now read to the House—
  "Council has passed an Act, which takes effect at once, to carry out plan recommended by Lord Herschell's Committee. Act provides for closing of Indian Mints to free coinage of silver, from and after date of passing. Arrangements will be made to issue rupees from the Mints in exchange for gold and sovereigns, at the rate of 16d. per rupee, until further notice; and to receive sovereigns and half-sovereigns at the public treasuries in payment of Government dues at the same rate. It is intended to introduce a gold standard into India, but gold will not be made legal tender at present."
  I have laid the Report on the Table and also the Correspondence with India on the subject.
  VISCOUNT CROSS: I hope the noble Earl will endeavour to forward the printing of the Papers, because there is often, in this House, great delay.
  THE EARL OF KIMBERLEY: I have taken every possible step to have the Papers printed and the distribution made at the earliest possible period.

DISTURBANCES IN DOMINICA.
  POSTPONEMENT OF QUESTION.
  THE EARL OF STAMFORDsaid, he had hoped to be able to ask the Secretary of State for the Colonies whether he had received any further information as to the late fatal disturbances in the Island of Dominica, coincidently with the asking of similar questions in another place. Yesterday, however, the noble Marquess the Secretary of State for the Colonies informed him that he had been unexpectedly summoned to Windsor, and he therefore begged to postpone the question to Friday next.

BARBED WIRE FENCES BILL.—(No. 283.) REPORT.
Amendments reported (according to Order).
LORD STANLEY OF ALDERLEYsaid, he was sure the noble Lord in charge of the Bill (Lord Monkswell) would not dispute the value of the maxim, "Practice what you preach"; and would like to know whether he was aware that there were from 30 to 50 yards of barbed wire in one of the approaches to Battersea Park under his jurisdiction and belonging to the County Council? He saw it last Wednesday week, and it was a little height above the ground, so that persons going out
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that way in a crowd towards the Albert Bridge must get their coats torn. Perhaps the wire had been put up for the purpose of preventing people coming up from the river and stealing the large stones from Burlington House; but, at all events, the noble Lord ought to come to the House with clean hands in moving a Bill of this kind.
LORD HALSBURYsaid, he did not know whether the noble Lord intended to move an Amendment upon that, or possibly he might bring in a Bill of his own if he was one of the victims.
Clause 2.
LORD MONKSWELL*LORD MONKSWELL moved—
In page 1, line 17, after ("1878") insert ("the county council"), and after ("committee") leave out ("of a county council") and insert ("thereof").
This Amendment had been thought desirable, because there were some Councils in Scotland which had not formed District Committees. He, therefore, proposed to say "the County Council or District Committee thereof." That, he thought, would do away with the objection taken by Lord Balfour of Burleigh on the subject.
Amendment agreed to.
Verbal Amendments.
Clause agreed to.
Clause 3.
LORD HALSBURYsaid, the Amendment just moved by the noble Lord reminded him of one point which he would mention now where a question might arise if the County Council were themselves the occupiers—notice having to be given to the occupiers. However, this was not, of course, the final stage of the Bill. He had an Amendment to substitute "nuisance" in this clause for "dangerous to persons or animals lawfully using the highway." The effect of the Amendment was to strike out words which were inconvenient as regarded giving a description of the wire and to substitute what was proposed in Standing Committee, that was to say, words which were familiar to every lawyer and every Magistrate who had constantly to construe them, "nuisance to the highway." It was somewhat technical, but was a simple mode of describing what was intended to be dealt with as a nuisance.

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He had received representations from both sides of the House upon the subject since it was last under discussion urging that something should be done to render more simple the meaning of the language used. On one side it was said that a great many persons, including noble Lords and others who were fond of field sports, were very much disposed to regard the wire only, and not the nature of the wire, in reference to the use of the highway—that any wire at all was to them an abomination which they wished to get rid of. That he could well understand. The language of the Bill, certainly in regard to highways, seemed to point to the wire; whereas, if the words he suggested were adopted, it would not only be a question of the erection of the wire, but the situation, height, and position of the wire in reference to the highway. All those things would be matters for the tribunal to consider. By adopting these simple words, which were familiar to the Statute, the difficulty would be got rid of which might arise in construing the words as they stood, which seemed rather to point to the dangerous character of the wire itself than to the combined effect of the situation, height, and so on, of the wire in reference to the public highway. That was the object of the Amendment; and those who had written to him on the subject, referring to what he had stated on the introduction of the Bill, had expressed themselves as content with words which should apply to the nuisance to the highway. No doubt the noble Lord's words would make a nuisance to the highway, but the clause would be more easily construed if the familiar Common Law definition of what was intended to be abated were used instead of them.
Amendment moved,
In page 2, line 1, to leave out ("dangerous to persons or animals lawfully using") and insert ("a nuisance to").—(Lord Halsbury.)
LORD MONKSWELLsaid, he did not feel competent to express an opinion in the presence of noble and learned Lords as to whether or not the words proposed were better than those in the Bill; but he would suggest, ought not the clause to run "nuisance to persons or animals lawfully using the highway."
LORD HALSBURYsaid, the wire was not a nuisance to the persons passing along the highway. That was the object of the Amendment, because it comprehended the situation of the wire as well as the passing of the person or animal.
THE LORD CHANCELLOR (Lord HERSCHELL)said, he was not sure that this Amendment would be more readily understood than the words in the Bill, which entirely indicated what was the object in view. Though it was perfectly true that in law a nuisance was quite understood by lawyers, the first question was in regard to the Local Authorities, whether it would be always so understood by them, they not being lawyers. If this were a matter merely to be dealt with by the lawyers, he would agree to the proposal, but that definition would not be better or easier for non-legal persons.
LORD THRINGasked the noble and learned Lord whether "nuisance" would really be better in connection with highways? Nuisance to highways was generally in the nature of digging gravel, or something done to the highway itself, rather than in reference to passing along the highway. However, if the noble and learned Lord was satisfied, he would not venture to put his own opinion against his.
Amendment agreed to.
LORD HALSBURYsaid, his next series of Amendments—he mentioned them altogether because they, more or less, depended upon one another—was as to giving an appeal to Quarter Sessions in these cases and setting up a special procedure. The first was, in line 5, leave out from ("to") to end of line 8, and insert ("abate such nuisance").
LORD THRINGpointed out with great deference to the noble and learned Lord, that the legal authority directed the nuisance to be abated. The Court of Summary Jurisdiction did not abate the nuisance; what they did was to make an Order directing it to be abated.
THE LORD CHANCELLORsaid, in this particular place the Amendment was merely to get rid of the obstruction—to abate the nuisance.
Amendment agreed to.
LORD HALSBURY LORD HALSBURY moved—
In line 12, to leave out from ("is") to ("order") in line 14, and insert ("a nuisance to such highway may"); and in line 14, to leave out ("direct"), and to leave out from ("occupier to") to end of Clause and, insert ("abate such nuisance").
THE LORD CHANCELLORsaid, he was not sure that he understood what the noble and learned Lord proposed to do by leaving out the words "by summary order." He did not quite see why those words were to be left out.
LORD HALSBURYsaid, because they were provided for by a subsequent Amendment.
LORD THRINGobjected to the Amendment, because it involved the whole question. A great deal of trouble was taken by the noble Viscount opposite (Lord Cross) in passing the Act with respect to summary procedure, and by that Act rules were laid down, wherever a Court of Summary Procedure inflicted a fine or made a summary Order, how that Order was to be carried out. There was found to be some difficulty in the matter, because every single Act had a different mode of procedure, and he would submit that the noble and learned Lord was now re-introducing an old practice. It was intended that that Act should direct the whole procedure in regard to summary jurisdiction, and it would be better to leave the clause in its present form, which was perfectly well understood, than to introduce an entirely new system of procedure. He admitted that in this case it was not of great consequence; the matter did not involve any great Constitutional question, but, still, the Amendment would entirely reverse the system which that Act was intended to bring in of laying down general rules of procedure which could be understood and acted upon.
LORD HALSBURYsaid, he could claim to have had some interest in that matter, as he was Solicitor General at the time, and he thought the noble and learned Lord was under a misapprehension. It was intended to cure blunder, and to provide in future that where an Act did not enact any mode of procedure that Act should apply. It was intended to do that which, singularly enough, only three persons present in Grand Committee were aware of. Almost everbody there who spoke suggested
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that there was no mode of enforcing an Order of the Justices, except by indictment, for disobeying the Act of Parliament; and this Act was not referred to by the noble Lord; but the language of the Act itself showed what was intended. It provided for cases where power was given by any future Act requiring a person to do, or abstain from doing, anything, but where no mode was prescribed of enforcing such Order. The language of the Statute showed exactly that it was in order to provide against any blunder in passing an Act of Parliament. Everybody in Grand Committee agreed that something must be done. He did not think the House would approve of a general clause of this kind in reference to something concealed in an Act of Parliament, to which nobody referred, giving power to the Court, where no mode was prescribed of enforcing such requisitions, to annex to its Order such conditions as to the mode of action as the Court might think just; and to suspend or rescind such Order, and generally make such arrangements as it might deem fit for carrying such Order into effect. Where no other power was provided those extensive powers were to apply. It was intended to cure blunders, and to make a general regulation as to what was to be done in future. He appealed to their Lordships whether they would approve of an Act of Parliament, with no mode of procedure provided in it, and saying that the Court might, under the Summary Jurisdiction Act, make such arrangements for carrying the requisition into effect as it might think fit. That was a very great power, and he asked their Lordships' judgment upon it.
THE LORD CHANCELLORsaid, he presumed what the noble and learned Lord wished to provide was, that the Court of Summary Jurisdiction might order the proprietor to remove the nuisance, and that if he did not abate the nuisance, that they might do so themselves. The only difference would be that the Magistrates might abate it. The addition to the Summary Jurisdiction Act was that, if the nuisance had not been abated, the Magistrates might give further time, or make such conditions as they thought fit. That seemed to be very desirable, because a person might not have been

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able to do it within the time, and by further time being given the necessity might be avoided of the Magistrates taking part in abating the nuisance. Surely that was better than that the Magistrates themselves should do it, if it was not done at once. This was a matter in which the public interest was concerned, if arrangements could be made without the necessity for that extreme step by which the nuisance could be equally removed. He begged to support the Bill as it stood.
LORD THRINGsaid, he had not spoken on the occasion mentioned by Lord Halsbury, as he could not refresh his memory with regard to the terms of the Act, but he could say with confidence that its intention was to prevent difficulty of this kind; and this would be introducing a very bad precedent. Every Court of Petty Sessions and their clerks knew the Summary Jurisdiction Act by heart, and he thought the more they could adhere to the existing law and practice the better.
VISCOUNT CROSSsaid, as the author of the Act of 1879, he quite agreed that its one object was to cure blunders in any Act which might be passed afterwards, so that there should be a procedure ready to be acted upon. But it went further, and applied what was a very fair course of procedure. He certainly thought when the Act was passed that it contained a model set of clauses, and that no one would put any other procedure in a future Act unless there was good reason for considering that a different procedure should be applied.
LORD HALSBURYsaid, the previous Act not only gave power to remove a nuisance, but to inflict a fine of 20s. a day during the time the Order was not obeyed.
THE LORD CHANCELLORsaid, the proviso was that if the Order were not complied with the Court of Summary Jurisdiction might abate the nuisance, but the noble and learned Lord was putting forward another proposition. This was not an alternative that if the proprietor failed to abate he was to be liable to a fine.
On Question? that the words proposed to be left out stand part of the Bill?
Their Lordships divided:—Contents 46; Not-Contents 34.
Amendment disagreed to.
LORD MONKSWELLsaid, some provision would be necessary in this matter, as the Courts of Summary Jurisdiction in Ireland were not very satisfactory. He did not know whether the noble and learned Lord would consider this the proper time to raise the question. The Summary Jurisdiction Act of 1879 did not apply to Ireland, and he was told at the Irish Office that the provisions for enforcing Summary Jurisdiction Orders were not very good in that country. It was suggested that for Ireland the provisions of the Public Health Act (Ireland), 1878, should apply, with the necessary modifications, whore an Order was made by a Court of Summary Jurisdiction in like manner as if made under the Act of 1878.
LORD HALSBURYsuggested that the noble Lord had better move this on Third Reading. There might be a difficulty in applying the sections to Scotland.
LORD MONKSWELLsaid, noble Lords were quite satisfied, he understood, with the state of the law in Scotland.
LORD HALSBURYthought their Lordships had better have notice of the proposed provisions.
LORD BALFOURreminded their Lordships that there was only one more stage before the Bill left the House, and it would be well if the noble Lord would consider whether this, and some of the Amendments having reference to the Common Law, were really applicable to Scotland. He had some doubt about it.
THE EARL OF BELMOREsaid, in this particular case the County Surveyor would be the person to enforce the Act in Ireland. Perhaps the noble Lord (Monkswell) would look into the matter.
LORD MONKSWELLsaid, he had been in communication with the Irish Office on the mutter, and they thought special provision should be made for Ireland.
Bill to be printed as amended. (No. 179.)

NULLUM TEMPUS (IRELAND) ACT, 1876, AMENDMENT BILL.—(No. 157.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD MORRIS, in moving the Second Reading, explained that its object was to remove doubts which had arisen as to whether certain chief or quit rents payable to the Crown were within the Act of 1876, and to provide that the period of 60 years should be a bar to all claims.
  Moved, "That the Bill be now read 2a."—(The Lord Morris.)
  THE LORD CHANCELLOR (Lord HERSCHELL): My Lords, this subject was very fully discussed the other day, when I stated I was certainly quite prepared to give my assent to the Bill. I am quite satisfied that whether the Act of 1876 did or not cover these cases, it was intended to cover them; and if it does not cover them, it is, I think, quite right that it should be amended.
  Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

SUPREME COURT OF JUDICATURE BILL [H.L.]

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR (Lord HERSCHELL), in moving the Second Reading, said: My Lords, I need not detain you many moments. The main object of the Bill is to carry out the recommendations made by the Council of Judges. There can be no doubt that, although appeals have been very much discouraged by the Court of Appeal, nevertheless the mere fact that a party has a power to appeal often puts the other side to considerable trouble and expense. The 1st clause permits every legitimate appeal upon a question of real importance, but it prevents the absolute right of appeal whether there is any ground shown for the appeal or not. Clause 2 proposes to amend the practice as regards appeals from Quarter Sessions. It does not make any substantial alteration in the law, but puts such appeals on a more satisfactory footing. Clause 3 deals with another matter which has been recommended by the Council of Judges with regard to the reception in certain cases of particular kinds of evidence, Although these proposals are not
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  in the exact form recommended by the Council of Judges, they have been reconsidered by and have had the approval of the whole of that Council. There is one other clause—Clause 4—which deals with the Rules and Orders relating to those who are employed in the different Legal Departments. An Order in Council has been made with regard to Civil servants generally, dealing with the mode in which their duties are to be performed and also with the conditions of retirement. The contention has been raised that that Order applies to the Legal Departments, and, although I do not accept that view, I am aware that some provision is necessary in reference to these Departments. I have received many and weighty objections to the clause as it is drawn which satisfy me that that clause ought not to pass in its present form, but I hope to be able to remodel it so as to meet those objections. If the Bill is read a second time, I will put down my Amendment and allow ample time for its consideration. Under these circumstances, I ask your Lordships to read the Bill a second time.
  Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
  LORD COLERIDGEsaid, the noble and learned Lord on the Woolsack had correctly described the measure as framed mainly upon the recommendations of the Judges, in which he heartily agreed. He also agreed entirely with what the noble and learned Lord had said with regard to the clauses. One clause he had said required modification, and, in his opinion, it required considerable modification. He hoped the noble Lord would so amend it as to prevent the interference of the Treasury with the Executive; and, to that extent, he was glad to support the Bill.
  LORD HALSBURYsaid, undoubtedly, as to the greater part of the Bill, it would be the duty of anyone occupying the noble and learned Lord's position on the Woolsack to give effect to its provisions if he could. One of the important matters dealt with was a scandal which had grown of late years to very large proportions where persons defeated in the Courts below brought up their causes in formâ pauperis, which had practically the effect of fining many innocent people enormous sums of money, when there

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  really was no true ground for bringing an appeal at all. This Bill would be a real boon in removing that great scandal. With reference to the 4th clause, after what the noble and learned Lord had said, he did not think it necessary to discuss it, and would only add that he took the same view with reference to the effect of the Order in Council; but it was undoubtedly better that the matter should be made quite clear by legislation. He hoped, when the Bill came up with the Amendments spoken of by the Lord Chancellor, that their Lordships would agree to it.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House.

COMPANIES (CERTIFICATE OF INCORPORATION) BILL [H.L.]
A Bill to amend the law relating to the certificate of incorporation of joint stock companies—Was presented by the Lord Chancellor; read 1a; and to be printed. (No. 178.)
LOCAL GOVERNMENT PROVISIONAL ORDERS (No. 6) BILL.—(No. 133.)
House in Committee (according to Order): Amendments made: Standing Committee negatived: The Report of Amendments to be received To-morrow.

LAND TAX COMMISSIONERS NAMES BILL.—(No. 133.)
Read 3a (according to Order): Amendments made; Bill passed, and returned to the Commons.
House adjourned at a quarter past Five o'clock, till To-morrow, a quarter past Ten o'clock.