HL Deb 27 March 1896 vol 39 cc245-55

EARL WEMYSS, in moving the Second Reading of this Bill, said that when he had the honour of presenting the Measure to the House he briefly explained what its genesis was. It was no Bill of his own, but a Bill which was left by the late Lord Bramwell, who was one of the five Law Lords that sat in the famous case of Sharpe v. Wakefield. After hearing that case Lord Bramwell came to the conclusion that justice absolutely required that a Bill of this kind should be framed and passed into law. When he laid the Bill before the House four months ago he did so in the full hope that it would become law in the course of this Session, and he entertained that hope because the Bill met a want, and did a justice to a great, important, and influential trade in the country, and because the trade was unanimously in its favour. He himself presented a huge petition to their Lordships' House in support of it. During the last Session of Parliament a deputation from this great trade waited on the Prime Minister, and although what passed at that meeting was not supposed to be public, yet somehow or other in these days everything becomes known, and thus what took place was an open secret. He was told that the noble Lord—and he wished his Lordship was present, because he would endorse what he (Lord Wemyss) was about to say—had received the deputation very favourably, but said there was no hope of the Bill passing in the then expiring Parliament, and advised them to wait until the next Parliament. That implied a good prospect of the Bill passing in this new Parliament, and on the strength of that hope and for other reasons the trade worked heartily during the last election in order to place the present Government in power. But his own hope of the Bill passing rested on stronger ground than this—on the ground of justice. That was the state of things three weeks or a month ago, but since then a great change had taken place, and he was bound to own that he had little or no hope now of the Bill passing this Session. Still, he trusted that their Lordships would give it a Second Reading on that occasion. The cause of this change was that Her Majesty's Government had appointed a Commission to inquire into the whole licensing question. He heartily endorsed what had fallen from Lord Rookwood and Lord Norton with reference to this Commission. He believed it would do no good—that it was a great mistake, and that, Constituted as it would be, it would only lead to a stand-up fight between the teetotallers and the representatives of the trade —to a sort of Donnybrook Fair. The Government had appointed the late Speaker of the House of Commons as Chairman of that Commission, in the hope, probably, that, after his experience in the House of Commons, he would be able to preserve order among the members. What had led to the appointment of the Commission he did not know. It was rumoured that the London trade, headed by Mr. Bonsor, had induced the Government to grant it; and it was also said that the Church of England Temperance League had had a good deal to do with it; but, whatever or whoever had led to it, he did not believe much good would result from it. He was rather amused, when the subject was under discussion on the previous day, to hear the noble Lord the Secretary for Scotland urge the appointment of this Commission as necessary to legislation. The noble Lord presented in his own person an object lesson in regard to the appointment of Commissions. He had sat for two years as Chairman of a London Water Commission; and that Commission came to certain conclusions and made certain recommendations. What was the result? Why, only during the last fortnight they had seen a Cabinet colleague of the noble Lord—Lord James of Hereford—introduce into the House a Water Bill for London which absolutely ignored the Commission and took no notice whatever of its recommendations. He left his two noble Friends to settle between them the value of Commissions as bases for legislation. A Commission like this would last for three or four years and cost the country from £50,000 to £100,000. He repeated that he believed the forthcoming Commission would be a failure, and that the only result of it would be to disappoint the members of the trade and alienate their support from the Government at the next General Election. He had no wish on that occasion to enter into the question of the liquor laws, or into any of the various forms of prohibition. He hated drunkards as much as anyone; but they were a matter of police and not of legislation. What he wanted their Lordships to do was to regard the Bill as a Licensing Bill and not as a Liquor Bill, to look at it irrespective of the particular trade with which it was to deal, and to compare the licence-holders in this trade with the position of other licensees. What was a licence? It was a permission to trade or to practise. Licences were given for various purposes. Some were given by the State, many were given by the Inland Revenue, and others, like a medical certificate to practice medicine, were given by chartered or other bodies. It was not for the benefit of the licensee that the licence was given, but for the benefit and protection of the public. It was desirable, therefore, that certain businesses should be only carried on by licence, so as to insure the proper conduct of those businesses, one of the penalties of improper conduct being the forfeiture of the licence. This was done in the public interest, and it was also in the public interest that those so licensed, whether by the chartered bodies, the State, or the Inland Revenue, should be safe as regarded the renewal of their licences where renewal was required, so long as they observed the necessary conditions. Some of the licences were granted for life and renewal was not required, while others were granted for one year only and had to be annually renewed. He had a list of the persons of other occupations than that of the licensed victualler to whom the Inland Revenue granted such annual licences, and among them were appraisers, auctioneers, brewers (per sale), brewers (private), playing-card makers, game dealers, hawkers, house agents, medicine vendors, methylated spirits (makers and retailers), pawnbrokers, plate dealers and refiners, refreshment-house keepers (England and Ireland), distillers, or rectifiers or compounders of spirits, dealers in spirits, dealers in beer, tobacco vendors, vinegar makers, still (person who keeps or uses for any purpose other than the manufacture of spirits or vinegar). There was no case of forfeiture in any one of all those cases where the licence had to be annually renewed other than on the conviction of the licensee for a breach of certain specified regulations, or in the case of a pawnbroker's licence on conviction for certain indictable offences. There was only one exception in the case of the licensed victualler, and all the Bill proposed to do was to take him out of that exceptional position, and put him on the same footing as all the other licensees. The licensed victualler was not only an exception to the general rule of all licensees, under the Crown, but he was an exception in his own trade and business because beer retailers under the Act of 1869 were further entitled to a renewal of their licences. It was not often we went to Ireland for justice, particularly since 1870, but in this matter justice had been done to Ireland because the licensed victualler in Ireland was as secure in his tenure, which was to be annually renewed, as any of those on the list he had read. Besides, there was a manifest injustice about the thing in England. The English licensed victualler might lose his licence at the caprice of a bench of magistrates, supposing magistrates were ever capricious, yet at his death probate duty must be paid in respect of that for which he had no security whatever, and of which he might have been deprived at will. And that was called justice. It was for justice the licensed victuallers came to Parliament. What led to this Bill was the famous case of Sharpe v. Wakefield. That was a case where a bench of magistrates refused the renewal of a licence, not because the licensee had misconducted his business under any one of the counts which led to the forfeiture of a licence, but because there was not a policeman near his place of business. He should have thought the proper remedy was an addition to the police local force. Naturally there was appeal after appeal made in that case, and, finally, it came to their Lordships' House, the last final Court to which a man in despair came for justice and the righting of wrong. [A laugh.] He was surprised that statement should be met with a laugh, for he always thought that his friend the late James Wortley did the greatest possible service to the country and the House of Lords by the agitation he created amongst lawyers and others in favour of the retention of the appellate jurisdiction of their Lordships' House. What was it that the House of Lords had to decide in the case of Sharpe v. Wakefield? They were asked to decide whether a full licensed person who has been in possession of a licence for some years on application for renewal can be refused that renewal on grounds outside his own personal control by reference to the wants of the neighbourhood, and not to the competence of the person himself. The present Lord Chancellor, Lord Macnaghten, Lord Herschell, and the late Lords Hannen and Bramwell, were unanimously of opinion that the justices were legally justified in their action, and that the licence holder had no legal claim or right to the renewal of his licence. After the case, one of those judges, Lord Bramwell, said to him that as the case was put before them, and as the law stood, they could not possibly give any other decision than that to which they came, but he said to him:— I think the law is harsh; I think it is wrong that any trader should be put in that invidious and exceptional position, and the law ought to be amended. It was with that view that the late Lord Bramwell drafted the Bill which was now under their Lordships' consideration. They heard a great deal about justices' justice, but he believed that upon the whole, nothing could be more honourable than the general conduct of benches of magistrates throughout the United Kingdom; but what was dreaded was that upon the occasion of Licensing Sessions, the benches might be packed. It was to guard against possible hardship that it was now proposed to legislate. That benches might be packed there could be no doubt. The packing of benches was very unusual, but at Sheffield, for instance, there was a strong teetotal element amongst the licensing justices, and 12 licenses were once refused, every one of I which was subsequently granted on appeal. It was to guard against the possibility, not the probability, of such a thing that this Bill was submitted to their Lordships. He had said that what were commonly called the trade, whose case he was pleading, were very strongly in favour of the Bill. Last year he presented a Petition in support of the Measure, and that Petition was signed by the Chairmen of all the Trade Defence Associations, numbering in all 289. Such a Petition ought not to be lightly regarded by their Lordships, and in view of future elections especially by the Government. This Session strong resolutions in support of this Bill had been passed by these associations. The petitioners simply asked that justice should be done. He hoped he had made it clear that this Bill was not of his drawing. It was drawn by the late Lord Bramwell, than whom there was not in that House a man of greater acumen, courage, and legal knowledge. He had, in a good old age, been taken from them, and their Lordships' House was all the poorer for his absence from their deliberations. But, although Lord Bramwell was not there, he hoped his spirit remained, and that their strong sense of justice would lead them to give a favourable reception to the Bill. He was obliged in the interests of those for whom he spoke to go to a Division. He was told that if the Bill passed a Second Reading it would be sent into this Royal Commission wastepaper basket; but he trusted that their sense of justice would induce them to read the Bill a second time. He begged to move.


said, the noble Earl had referred to the case of Sharp v. Wakefield. That case had been taken to the highest Court of Appeal, so now it was the law of the land. He had been a magistrate himself for a great many years, and whatever the legal aspects of the case might be, the decision was a surprise to many of them. They had used their discretion, and did not confiscate licences unless some good cause was shown. The noble Earl eulogised the manner in which the magistrates exercised their discretion.


As a rule.


was surprised to hear that this was considerably qualified.


I only cited one case which I knew personally.


I am glad to hear that. Certainly, knowing what he did, he should not be very much afraid to leave the magistrates the discretionary powers which they now had, because they exercised them with judgment. The diversity of practice to which the noble Earl referred had no doubt in many cases caused inconvenience to the holders of licences, but he would point out that, if there was strong feeling on one side—and he was not surprised that there was a strong feeling that it was an injustice to take away licences where no misconduct was shown—there was also strong feeling on the other side. He asked, was that the moment for raising a question which was an extremely contentious one? He could understand, if this was a case of extraordinary urgency, that their Lordships might make the law clear, notwithstanding the Royal Commission; but there was no urgency shown, because this decision was given five years ago. They were asked to read the Bill a second time, and then refer it to the Royal Commission; but if they read the Bill a second time they would have practically disposed of the whole of the details of the Bill. There would be nothing to be discussed in the Commission if they accepted the principle, which was that this decision should be set aside, and that in future these licences should not be forfeited for the reasons stated in that decision. Under these circumstances they would be going through a solemn farce in reading the Bill a second time and then referring it to the Commission after they had already approved of the principle themselves. He trusted that under the circumstances the Bill, like the less contentious Bill of yesterday, would be withdrawn.


approved of the noble Lord's suggestion, and reminded their Lordships that the Bill of yesterday was comparatively on a minor point, whereas this Bill went to the essence of the whole inquiry. To take away from the Commission by Act of Parliament what lay at the foundation of the whole matter, was to say in plain words that the Commission ought not to inquire at all. There was hardly any point which raised a stronger feeling than this one. He thought there was something in the remarks condemning the practice of making a man pay probate duty on a licence which was an unsecured property, but on that account they could not alter the whole position of the trade at one stroke. The Bill, in fact, gave the Government a slap in the face. There was a large section of people who thought that the number of public houses was greatly in excess. If so, there could be no question that measures should be taken to reduce that number. He did not want to prejudge the question in any way, or to conceal the fact that he did not agree with what had fallen from the noble Lord who had just spoken, that this was a good thing to do but a bad time to do it. He thought it was a very bad thing to do.


said, he was afraid he must have expressed himself very badly; he certainly did not say it was a good thing to do. He did not express any opinion on the Bill itself.


begged the noble Lord's pardon, but, of course, there would be those who would think that this was a good thing to do, but even these ought to moderate their desire when they considered the actual position of the question. The thing that the Bishops and clergy wished was to find the best remedy for the terrible moral mischief which now resulted from the present working of the laws which governed this trade. Many of them believed that a great deal might be done in that direction. Their aim was to diminish the temptations which existed, but they ought not to be hampered at the beginning of their inquiry by the passing of such a Measure as this.


said, he did not suppose his noble Friend who moved the Second Reading would think that he v. as entirely opposed to the Bill when he pointed out that to force this Bill to a Division on this occasion would practically preclude the subject of the Bill from being considered by the Commission which was to be appointed. He thought it would be of advantage that the Commission should consider the subject dealt with in this Bill. He naturally felt rather strongly in favour of the proposal, because he had himself, at a time when he had legislated on the subject, applied these conditions to another section of the trade. Under the circumstances, however, he thought the wisest course would be to allow the Debate to be adjourned.


very much regretted that he could not act on the suggestion of his noble Friend, but he was pledged to divide the House on the question. This was a question of justice, and he ventured to think that that House, and not a Commission, was the proper place where a question of right and justice such as this should be dealt with. His noble Friend spoke of the inconvenience to the holders of these licences if their licences were not renewed—the inconvenience amounted to the loss of their livelihood. Could they wonder at any strong feeling on the part of these people if their living was taken away by well-meaning, but possibly capricious magistrates?


said, he was not going to oppose the proposal of the Government for the adjournment of the Debate, but he rose to enter a caveat in order that silence might not be supposed to imply assent to certain language which had been used in regard to the holders of these licences. He alluded particularly to what was said by his noble Friend as to the non-renewal of these licences being a confiscation. He was unable to agree with that view. These licence-holders were the only class of traders who received from the State a valuable monopoly without paying for it, and they had no right to insist on the renewal for all time of those licences.


said, the course which the Government recommended the House to take with reference to this Bill was neither to affirm nor reject the Motion for the Second Reading, but to adjourn the Debate in order that the subject might be considered by the Royal Commission which was about to be appointed. He rose to make, therefore, the same Motion that was made on the previous day by the Most Rev. Prelate the Archbishop of York, in reference to his Bill. If it were right to take that course in regard to the comparatively minor point raised by the Bill of the Most Rev. Prelate, it was infinitely more expedient to do so in regard to this Measure, which went to the root of the whole licensing question. ["Hear, hear!"] If this were a question solely of justice, as to which there could be no doubt at all, then there might be some reason why the House should be asked to express its opinion upon the principle without awaiting the Report of the Royal Commission; in his opinion, however, this was by no means a question of justice so much as a question of expediency. The grant of these licences conferred upon their holders exceptional privileges accompanied by certain liabilities, one of which was that the licence was liable to be withdrawn by the bench of magistrates for causes other than misconduct. Under those circumstances he did not see how it was a matter of justice that an additional value should be conferred on the licence by making it impossible to withdraw it except for misconduct. The opinion of the country was very greatly divided on the subject. He thought that everybody would concur that in the present Session, with all the work that was before Parliament, there would be very little prospect of any Measures for the reform of the licensing system being undertaken, and he did not think the country in general would consider it inexpedient that the whole question should be reviewed by a Commission which would certainly not consist wholly of partisans, but would contain a very large proportion of men who, he believed, were independent, and that all the information which could be obtained should be collated and compared. He thought that their Lordships would be in a better position to legislate at some future time if all the various proposals in connection with this subject were referred to and reported upon by a Special Commission. It would place their Lordships in a false position if, by giving this Bill a Second Reading, they were to allow it to be thought that, as a question of justice, a certain class of licensed victuallers should be exempted from the liabilities to which they were now subject by law. In these circumstances he begged to move the adjournment of the Debate.

The House divided:—Contents, 56; Not Contents, 7.

Further Debate adjourned sine die.