HL Deb 24 July 1900 vol 86 cc1010-24

Second Report from the Select Committee considered.

THE CHAIRMAN OF COMMITTEES (The Earl of MORLEY)

moved "That the House do agree with the said Report."

* LORD TWEEDMOUTH

My Lords, I want to say a very few words upon the last paragraph of this Report, which says that after considering the letter addressed to the Clerk of Parliaments by the Clerk Assistant and certain proposals made by the Lord Chancellor, it was resolved— That the Committee, having heard the proposals of the Lord Chancellor, have no recommendation to make to the House. Now, my Lords, though perhaps it is very discreet of the Committee to have come to this conclusion, I do not think it really represents the mind that was in the minds of members of the Committee. I think I am not misrepresenting the views of large bulk of the Committee if I say the that they were very strongly inclined to the view that the recommendation of the Committee of 1889 was a very reasonable recommendation, and one that it was in the interest of the House to have carried out. The whole question, of course, refers to the appointment of a Reading Clerk to fill the third seat that has been so long vacant at the Table of your Lordships' House. The subject has not been a new one before the House of Lords Offices Committee, and, indeed, if I am not misinformed, it has been much discussed by even a more august body. The facts are these: Prior to the year 1824 the appointment of the Assistant Clerk and of the Reading Clerk was in the hands of the Clerk of Parliaments. It was then transferred to the Lord Chancellor, and since then the Lord Chancellor has had the exercise of the patronage of the two seats at the Table. It has been realised of recent years that the sittings of your Lordships' House are not usually very prolonged, and that therefore the actual work in the House that the Reading Clerk has had to do has not been excessive, and at any rate is not such as to require the full time that a competent man could give to the work. At the same time I think it has been brought very clearly before the House of Lords Offices Committee, both recently during the present session and also on former occasions, that it is desirable that there should be a third clerk at the Table; that great inconvenience might occur through one of the other two clerks being absent, and that though the absolute work of the Reading Clerk is not very great, yet he is able during the sittings of the House to give great help in other respects to the other two clerks, and that really it is in the interests of the House that a third clerk should be sitting at the Table. Now the difficulty is this, that you have got a certain amount of work, not a great deal of work, but yet work that it requires an experienced man to perform, and a man who is acquainted with the procedure and Standing Orders of the House. The Committee has, on more than one occasion, held the opinion that such a man could be found amongst the higher clerks already in the service of your Lordships' House, and that it was a very reasonable and convenient arrangement that one of the higher clerks of the House should have added to his duties the duties of the Reading Clerk at the Table. In the year 1889 the Committee reported, and your Lordships' House adopted the Report— The Clerk Assistant and the Reading Clerk were formerly appointed by the Clerk of Parliaments. Since 1824 the Lord Chanellor has appointed these offices. The Committee strongly recommend that the appointment of at least one of these clerkships should revert to the Clerk of Parliaments, and that he should promote one of the senior clerks of his department whom he shall consider most fit for the post. The clerk could combine with his duties at the Table the office of chief clerk or headship of a department. This change would, in the opinion of the Committee, conduce to efficiency no less than economy. Owing to the unfortunate vacancy that took place in the Reading Clerk's appointment, this question came again this session for consideration before the Committee. I think the Committee's opinion, though not expressed, was, after all, very much in accordance with the resolution of 1889: and in the Committee I ventured to move the reassertion of that resolution. Some conversation ensued, and eventually the noble and learned Earl who sits on the Woolsack suggested that the whole matter might be referred to a Sub-committee of the Committee, consisting of the very eminent Peers, Lord Salisbury, Lord Kimberley, and the Duke of Devonshire. In face of that proposal, on the advice of the Lord Chairman, I withdrew my proposal. These noble Lords met. I understand that the Leader on that Bench and the Leader on this Bench agreed to leave the whole decision of the matter to the Duke of Devonshire, who now sits on the Front Bench. Well, the noble Duke, I am afraid, did not give the Committee any very great assistance by the recommendation that he made, because, so far as I am able to understand it, all the noble Duke decided was that the Lord Chancellor had the most complete right to appoint whom he liked.

THE LORD CHANCELLOR (The Earl of HALSBURY)

That is not quite an accurate statement of what occurred.

LORD TWEEDMOUTH

That was the impression left on the minds of many of us. We received no formal report, and that was the idea left in my mind, at any rate. That, of course, was a power not in the least in dispute, and we most gladly assent to the fact that the power does lie with the Lord Chancellor to appoint whom he chooses. Now, unfortunately, I think rather a personal tone has been given to this question. I am very sorry for it, because I am sure that the very last thought that is the minds of any of us is to cast any reflection whatever on the noble and learned Lord on the Woolsack, and that all we are anxious to do is in the most friendly and considerate way simply to represent to him what our views are. After the Committee sat, the noble and learned Earl then suggested to the Committee that he was quite ready to appoint one of the senior clerks on this occasion to the seat at the Table, which is now vacant, on condition that a Bill should be brought into Parliament for the future transferring the appointment to the Clerk of Parliaments with the further condition that whoever the Clerk of Parliaments should appoint should be a lawyer. Well, that was giving a very new and somewhat unexpected turn to the discussion, because we had not up to that time been informed that the legal service of your Lordships' House had been inefficiently performed under existing arrangements. My Lords, further, I have to point out that when the position of Assistant Clerk was vacant not very long ago, and when the Lord Chancellor made, as we all know, the most excellent appointment in the person of the gentleman who now occupies that position, the noble and learned Lord did not choose a lawyer for that position. Therefore at that time it would seem that there was no great necessity for a further appoint- ment in the legal division; but I must say I think the noble Earl on the Woolsack rather gave his own case away in saying that on this occasion he was prepared to appoint to the seat here the clerk now in the service of your Lordships' House. It seems to mo that by offering to do that —and I quite accept and welcome the concession that was made to our views in that offer—yet in making that offer surely the noble and learned Earl did give away his case of the extreme necessity of further legal assistance in respect of the clerks at the Table. As I say, I repudiate any idea of any personal reflection. I am only anxious to see this matter settled in a manner which will be conducive to the efficiency of the service of the House, and also which will prevent any ill-feeling arising between this House and the other House of Parliament. I do hold that we are bound so far as we can to combine economy with efficiency, to endeavour as far as possible to meet the views that have been again and again expressed by the other House, which have also been insisted upon by the Executive, by the Treasury, that as far as possible economy should be exercised with regard to our appointments. I propose to move, as an addition to the motion that this Report be adopted, the following words— But this House is of opinion that the appointment of Heading Clerk should revert to the Clerk of Parliaments, and that he should promote one of the senior clerks of his Department whom he shall consider most fit for the purpose. That is taking practically the words of the recommendation which your Lordships adopted in 1889, applying it only to the Reading Clerk, and I think it is one which your Lordships would do well to accept. It would not at all fetter the action of the noble and learned Earl on the Woolsack, who would be perfectly free to appoint whom he liked; but I hope that were such a resolution carried, the noble Earl would be willing to assent to the wish so expressed—a wish expressed, I can assure him, with every desire to recognise his great abilities and the admirable manner in which he has always discharged his duties in this House.

THE LORD PRESIDENT OF THE COUNCIL (The Duke of DEVONSHIRE)

I do not know whether the noble and learned Lord on the Woolsack will think it necessary to make any explanation or reply to the speech delivered by the noble Lord opposite. I only rise for the purpose of explaining the very small part which I have had in the matter to which the noble Lord has referred. With regard to the motion which the noble Lord has announced his intention of moving, it seems to me it would be a very inconvenient proceeding that such a motion as this should be moved without any notice whatever having been previously given. The House is scarcely in a condition to pronounce a decision on this subject, which has come before the greater part of those Members of the House who are present in an entirely unexpected manner. With regard to the noble Lord's statement, however, my part in this matter has been simply this. I will state it as clearly as I can, although, not knowing that this matter was coming on, I have not the correspondence to which I should have liked to be able to refer. I was not present at the meeting of the Offices Committee when the consideration of the question was delegated, as has been stated by the noble Lord, to the noble Earl opposite and the Prime Minister and myself; but what I understood was that the reference to that sub-committee was to consider what advice should be given to the noble and learned Lord on the Woolsack in the matter. That was the question which I think at the only time we met was to a certain extent discussed. As has been stated, however, the noble Earl opposite and the Prime Minister agreed to delegate their functions to me, and I proceeded—I admit after some interval—to consider as well as I could how I was to discharge this rather difficult duty, and what advice I should suggest should be given to the noble and learned Lord on the Woolsack. After some conversation with the noble and learned Lord and others, I came to the conclusion that although it was perfectly true that the duties of the Reading Clerk at this Table are not extremely arduous, and could be performed by some other clerk in the Parliamentary offices, who would discharge other duties, yet some inconvenience was considered by the noble and learned Lord to exist through the absence, in what I believe is called the judicial department of those offices, of any official possessing the acquirements of a trained lawyer; and the noble and learned Lord considered that in the discharge of its duties as the highest court of appeal, it would be of great advantage that such assistance should be provided to the House. What I understood the noble and learned Lord proposed to do if he made the appointment was to appoint a qualified barrister, whose time certainly would not be wholly occupied by his duties at this Table, but whose services would be available for the judicial department of the offices. I therefore informed the Prime Minister and the noble Earl opposite that, as there was no question of the right to the appointment belonging to the noble and learned Lord, he might be advised to exercise his right if he was prepared to do so, having regard to the necessity of additional legal assistance on the part of the House. The noble and learned Lord, I believe, saw the letter in which I communicated to the Prime Minister that opinion of mine. He did not act directly upon it in making the appointment, as I suggested he might do, but he made the proposal which has been stated by the noble Lord. As to that proposal of the noble and learned Lord, I have nothing to say. I merely wanted to state exactly the nature of the part which I took in the matter, which was simply to advise that if the noble and learned Lord thought that the judicial business of the House required additional legal assistance he would be perfectly justified in exercising his right to make this appointment.

THE EARL OF KIMBERLEY

My Lords, as I was deputed, in conjunction with the noble Duke opposite and the Prime Minister, to consider this question, I feel bound to say a few words. In the first place, the whole of what the noble Duke has stated appears to me to be perfectly and entirely accurate. It is a matter of fact that when we met Lord Salisbury suggested to me that inasmuch as the noble Duke was the only one of us three who had not taken some part in the matter before, and therefore was not in any way pledged to certain views, it would be convenient, as we had a colleague in the noble Duke who had had nothing to do with the matter before, that we should refer the matter to him to give us his advice. You have heard what was the result. Now I will state my own view. In the first place, I was, with Lord Salisbury, a member of a sub-committee in the year 1889 which considered very carefully indeed the whole question of the officers of the House, especially with reference to the very unpleasant disputes which had been going on with the Treasury, and which had found their echo in the other House, as to the want of economy in these appointments. We recommended to the Committee of Black Rod a variety of changes, all of which, I believe, have been carried into effect, and which, I believe, have in no way impaired the efficiency of the House, and have conduced to very considerable economy. Amongst other changes we suggested that the appointment which is by law vested in the noble and learned Lord on the Woolsack should in future, if the Lord Chancellor would consent, be transferred to the Clerk of Parliaments, and that the post of Reading Clerk should be combined with the duties of one of the general establishment. That certainly seemed to mo at the time a very reasonable proposal. The Lord Chancellor, who undoubtedly possesses the power by Act of Parliament to make the appointment of Reading Clerk, did pursue that course upon the occasion of the vacancy then occurring; but when another vacancy occurred a difficulty arose, and that is the difficulty we are now considering. Certainly my opinion as to the advantages of the change which was recommended by the Committee which sat in 1889 has never changed, except upon this point, which I wish to explain exactly. When we came to consider the point which was referred to the noble Duke and the noble Marquess and myself, we learnt from the noble Duke that after consulting with the Lord Chancellor he had to tell us that the Lord Chancellor was of the opinion that there was not sufficient assistance to the House in the discharge of its very important duties as a Court of Appeal, and that it would be very desirable that the post of Reading Clerk should be held by a trained lawyer. We had the advantage on the Committee of hearing the opinions of the noble and learned Lord on the Woolsack, and if I understood him rightly he based his view upon this—of which, as it seems to me, he is by far the best judge—that with the amount of business which now comes before the House as a Court of Appeal, and looking to the whole conduct of that business, he had satisfied himself that it was desirable for the proper con-duct of that very important branch of the business of this House that a trained lawyer should be appointed who should combine with his duties in the House as a Court of Appeal the duty of Reading Clerk. I would just repeat that I entirely agree with the noble Duke that it has been shown that, although there is not sufficient work to be done by the Reading Clerk to occupy the whole of his time, it would be extremely inconvenient to the House that there should not be a third clerk. That, I think, must be very obvious. Our clerks may, like the rest of us, be for a time subject to be absent from illness, and it is obvious that extreme inconvenience might result to the business of the House if there were not a third clerk to take the place of one of the other gentlemen during temporary absence. But, at the same time, it Is also perfectly clear that there is not sufficient business attached to the office of the Reading Clerk to occupy the full time of a competent person. Then when the Lord Chancellor, who, of course is, above ail men in this House, competent to judge what is necessary for the service of the House as regards the discharge of its duty as a Court of Appeal—when the Lord Chancellor states that he has satisfied himself that it was necessary for the proper discharge of those duties that there should be a trained lawyer appointed, then my advice to the Committee was this: Here is a matter of which the Lord Chancellor is above all the best judge. If he informs this House upon his responsibility and with his knowledge that it is desirable, nay more, that it is necessary, for the discharge of the business of the House as a Court of Appeal, that a trained lawyer should be appointed, and that that trained lawyer in his opinion may also properly discharge the duties of Reading Clork, it seemed to me that it was beyond my competence to oppose the Lord Chancellor in taking the course which he thought necessary to provide the House with proper assistance. But as I have personally no knowledge of the Court of Appeal, as I am not myself in any way qualified to judge of the assistance the Court of Appeal may require, I considered that it should be left to the Lord Chancellor upon his responsibility to exercise his statutory power to appoint a clerk, who would also discharge the duties of Reading Clerk. Beyond that I was not disposed to go, and I informed the noble Duke that I practically concurred in his view after full consideration, and I also suggested to the Committee that, the state of affairs having been now for a very long time in suspense, it was not desirable that the dispute which had arisen should be pursued further—that although the Committee might some of them have the opinion that the arrangement which was originally proposed was the best one, it was much better for them to leave the Lord Chancellor to take the course which to him seemed to be best, and that therefore we should abstain from expressing any further opinion. That, my Lords, is a complete account of the part I took in this matter, and I have nothing to add except this, that never in the whole course of the business have I had the smallest wish or desire or reason to attribute any evil motives to the Lord Chancellor, or to find fault with any view he may hold if he holds it on his own judgment and responsibility.

* THE EARL OF MORLEY

My Lords, I was not aware that there was to be a discussion upon this matter tonight, but as I was Chairman of the Committee I can hardly allow the debate to pass without saying a very few words on the subject. I very much agree with what the noble Lord (Lord Kimberley) said in his last remarks. I certainly have not the means of judging what is required for the discharge of the duties connected with this House as a Court of Appeal, and I quite agree with the noble Earl that there is nobody in this House so capable of judging of those requirements as the noble and learned Lord on the Woolsack. But I do want to lay very great stress upon this, that if an extra officer is required for the Court of Appeal he should be appointed by the Lord Chancellor him self on his own responsibility, and that there should be no transfer to the Clerk of Parliaments or anyone else any patronage connected with that appointment. That I feel very strongly indeed. I always understood that the Clerk of Parliaments, who is a trained lawyer, was a Registrar of the High Court, and that the clerical duties connected with the judicial business were performed by Clerks of the House, who had done their work with ability and with great industry. The late Mr. de Burgh was a very able head of the Judicial department, and I was under the impression that the present department have done their work well, but on that I desire, of course, to defer to the judgment of the noble and learned Lord on the Woolsack. But this I do say: that our proposal of 1889 was that a clerk at the head of the establishment of clerks should take the duties of Reading Clerk upon him in addition to his ordinary duties. I wish it to be distinctly understood that we never proposed to add to the patronage of the Clerk of Parliaments. We merely gave him an opportunity of recommending to the Lord Chancellor a clerk who should, in addition to his existing duties, perform the duties at the Table, which, as everyone must admit, are not sufficiently onerous to occupy the whole time of a gentleman of ability. Under those circumstances we consider that as the appointment was limited to the establishment of which the Clerk of Parliaments is the head, it would be reasonable and obviously desirable, he knowing the gentlemen who are comprised in that establishment, that he should have that patronage—well, I will not say patronage, but should nominate the gentleman who should perform those duties. But if it comes to appointing for an absolutely different purpose an extra officer—for such he will be—to perform important duties in the Court of Appeal, then I think the Lord Chancellor himself should have, as he has at present, the statutory power of appointing that officer. That is all I wish to say on the subject. Placing aside the opinion which the Lord Chancellor has given as to the needs of the Court of Appeal, I have always considered that the recommendation of the Sub-committee of 1889-—which was composed of the noble Earl opposite. Lord Kimberley, and the noble Marquess the Prime Minister, and other distinguished Peers—was a very reasonable one, and I would remind the House that it has been communicated with our Reports to the House of Commons and to the Treasury. I am not inclined to change my mind as regards that recommendation, but the point I do lay great stress upon is this: I think it is of very great importance that we should have a third Reading Clerk at the Table. The work, though it is not onerous, requires extreme care. Sometimes we have sixty or seventy notices on the Paper, and the keeping of the Minute requires a very great deal of care, and any little disturbance to the clerk who is keeping the Minute renders the duty very difficult. I do most sincerely hope that however the matter is decided we shall be left no longer in suspense, and that the matter will be decided once for all.

THE EARL OF HALSBURY

My Lords, I cannot help feeling that this matter has been sprung upon me by surprise. The documents that I should have wished to refer to are not here, but I think I can sufficiently trust my memory to say what I have to say on the subject. In the first place, I am glad to learn that no personal object of mine is suggested in the course I pursued. The view which I take and which I must say I very strongly take is this: that the highest court in the kingdom ought not to be without one of those auxiliary persons or some of those auxiliary persons who are known in the courts of law as chief clerks or masters, or what not. The House of Lords as a Court of Appeal is the only court that has not one. I am not forgetting that at this moment the Clerk of Parliaments happens to be a lawyer. He need not be, and sometimes the Clerk of Parliaments has not been a lawyer; but as a matter of fact the present Clerk of Parliaments is a lawyer. But, my Lords, it is not the Clerk of Parliaments that is to be considered, it is the judicial staff which is required for the House as a Court of Appeal; and certainly I am very deliberately of opinion that it is something approaching a scandal that the highest Court of Appeal should not have those officials which every other court, down oven to the county court, possesses; and I have been desirous, notwithstanding the Report which was made so long ago as 1889, that that scandal, as I do not hesitate to term it, should be removed. After the conciliatory tone of the speech of the noble Lord who introduced the subject I do not wish to say anything that would conflict with the harmonious spirit in which the matter has been discussed; but for the purpose of informing your Lordships I am obliged to say that the Committee, as it originally sat, thought it right to proceed without the slightest notice to me, and my first notice that such a resolution had been passed, although I was Chancellor at the time, was the fact that I received a notice of the passing of the resolution. I am quite sure it was from no intentional disrespect, but I doubt very much whether any of your Lordships would desire to alter the patronage of an office that belonged to a person without thinking it necessary to ask him to attend, so that you might form some judgment after hearing him. I venture to think that the fact of this House being a great court of law was not present to the minds of the Committee. Your Lordships who meet here at half-past four for public business are not aware—at least, it does not occur to you—that some of us have been here since a quarter or half-past ten o'clock in the morning, and it is forgotten that besides its functions as a great legislative body this House is the most important court of law in the kingdom. Certainly, having regard to the business now being done here, and to possible changes that there may be hereafter, I myself am very reluctant that the opportunity should be lost of stregthening the legal part of the House by the appointment of a lawyer to the vacant clerkship. I believe it will be a misfortune if advantage is not taken of that opportunity. Suppose one of these days a question arises as to the staff of the House of Lords as a court of law compared with the staff of other courts of law. Just imagine what would be said when it was shown that the Court of Queen's Bench or the Court of Appeal had trained lawyers as masters or chief clerks, while the highest court of all did not have that assistance. I very much object, however, to be called upon to exercise the power given to me by statute if at the same time I am to be limited in the choice that I am to make, and I thought, and I think still, that the proper course would be to repeal the statute, and, so far as I am concerned, I should not offer the smallest objection to' this patronage being taken from the Lord Chancellor and transferred to the Clerk of Parliaments. But I did object, and I do object to be called upon to exercise the power which the statute gives me and yet be told that my choice is limited. Certainly if anyone were to propose to repeal that statute in the way I have suggested he will not find me opposed to it; but at the same time I have given my deliberate judgment, and I think the opportunity ought to be taken to appoint a lawyer. After what has passed, if your Lordships should confirm the view that I have expressed, I will take uncommonly good care that no one shall suggest that I have any interest in the matter of this appoint- ment. It has occurred to me that it would be a very good course to ask the Lord Chief Justice of England to select some person whom I should appoint. I have nothing further to say to your Lordships except this, that I think that those who advised originally in this matter must feel that they made a mistake in not consulting me before that resolution was come to.

THE EARL OF MORLEY

I cannot help reminding the noble and learned Lord that he was a member of the Committee who passed this Report after a great deal of deliberation.

THE EARL OF HALSBURY

The noble Earl is speaking of a subsequent period, because at the time that Report was agreed to I had never heard of there being such a Committee at all. Although I was Chancellor for a short time in 1885 and came in again in 1886, the Committee was never called to my attention. I certainly think that they ought to have asked me to attend, and have called my attention to what was being done. That, as it appears to me, was the error that they committed. However, I have nothing further to say upon the matter.

THE EARL OF KIMBERLEY

I was a member of that Committee, and I am quite free to say that I think it would have been much better if a communication had been made to the Lord Chancellor. But at the same time I must say that I am considerably astonished to hear that the noble and learned Lord, who had then presided over the House for two or three years, was not aware that there was a Black Rod Committee, and was not aware that he was a member of that Committee. I believe notices of the meetings are always sent to every member. No doubt it would have been better if special notice had in this case been sent to the Lord Chancellor, but I suppose that did not occur to any member of the Committee, and unfortunately it was not done. However, my Lords, that is a matter which occurred a very long time ago, and I think it is scarcely necessary or desirable to bring up again anything which occurred then.

LORD TWEEDMOUTH

After the conversation that has taken place I certainly shall not think of troubling your Lordships with the motion. I can only say that, so far as the former Committee was concerned, no blame can very well rest upon my shoulders, because I was not a member of your Lordships' House at that time.

On Question, Report agreed to.