§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Birkenhead.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clauses 1 to 3 agreed to.
§ Clause 4:
§ Decisions of doubtful points of law.
§ 4.—(1) If on the representation of the Central Valuation Committee, made after consultation with such associations or bodies us appear to them to be concerned, it is made to appear to the Minister of Health that a substantial question of law has arisen in relation to the valuation of hereditaments or of any class of hereditaments for the purposes of rating and that, unless that question is authoritatively determined, want of uniformity or inequality in valuation may result, the Minister may submit the question to the High Court for its opinion thereon, and the High Court after hearing such parties as it thinks proper shall give its opinion on the question.
§ (2) The Central Valuation Committee may appear as parties on the hearing of any such case for the purpose of supporting any contention with respect to the question at issue and may, if they think fit so to do, contribute such amount as they think proper towards the costs of any persons appearing on the hearing for the purpose of supporting the contrary contention.
§ LORD HANWORTH
If it is in order I propose to move that this clause be 757 omitted. The Amendment is down in the name of Lord Carson and I had hoped he would have been in his place, but, if I am in order, I desire to move that the clause be omitted.
THE LORD CHAIRMAN
We must take the Amendments first and at the end the Question is put. Does the noble and learned Lord move his own Amendment?
§ LORD HANWORTH had given Notice to move, in subsection (1), after "rating," to insert "by reason of the determination or decision by Quarter Sessions of an appeal thereto." The noble and learned Lord said: I will move this Amendment until I hear what position is taken up by the Government I want to recall shortly the position that arises upon Clause 4, because it will be within the recollection of your Lordships that criticism from all parts of the House was directed to it on Second Reading. The clause is a specious one. It purports to give an opportunity to the Central Valuation Committee, who are charged with most responsible and difficult duties, to obtain the solution of intricate points which may arise in the course of the rating of certain properties, and this clause would, as it stands, propose to solve problems that may arise and explain certain difficulties. It was pointed out, when this clause was under consideration on the Second Reading that it will not affect that purpose without impinging upon the rights of a great number of persons who may be interested.
§ It is all very well to declare that the Minister of Health may, in difficulties which are abundantly explained in the opening part of the clause, submit a question to the High Court for its opinion thereon, and, to the layman, it might be supposed that it is perfectly legitimate for the Minister to obtain an opinion and that that opinion would be of value. It would be of value, but it might be of great injustice to many others who are not bound by it. The effect of this clause is to enable a Minister to submit a question to the High Court and to obtain an opinion. When that opinion is obtained the Minister will be armed with an authoritative declaration which, it might be said, he could apply in all cases. A judgment of the Court is binding upon the parties and it is of authority where the facts are similar and in analogous cases, but it is quite a new 758 thing for the Minister to be able to secure an opinion which can afterwards be held in terrorem over others who may have cases somewhat similar. For my part—and I think all lawyers will agree upon this—it is quite irregular and unwise that this power should be given to the Ministry, because it might be used (and there is a danger of it being used) in cases where it does not apply, thus preventing those who desire to have their matters decided on their own proper facts from bringing those matters to the attention of the Court in the ordinary way. Personally I am absolutely against the clause altogether.
§ THE EARL OF BIRKENHEAD
If the noble and learned Lord will permit me to intervene might be enabled, in one matter at least, to shorten these proceedings. The noble and learned Lord has frankly said that he is against the clause as a whole. In no conceivable circumstances could I accept the Amendment of the noble Lord, for reasons which I believe I could persuade him were good. So, if the Amendment were carried, I should think the clause was so unworkable and so injurious that in any event I should drop it. It seems to me, therefore, that it might be more convenient if we took the decision on the major question, whether or not the House is prepared to accept the clause. I hope the noble and learned Lord does not think I have spoken too abruptly, but his Amendment would in no case be adopted by the Government, and if the Amendment were adopted we should think the clause unworkable. Therefore—I speak under the guidance of the Lord Chairman—I think it might be convenient if we took the major decision.
§ LORD HANWORTH
I am much obliged to the noble Earl for having intervened, and I am glad to be able to reserve what I have to say upon the major question. I may, however, now add that if the proposal I have made, which is made sympathetically, would make the clause unworkable in the opinion of the Government, and if my Amendment cannot be accepted, then my opposition to the clause is increased tenfold. I should be glad when opportunity arises to say that if so sympathetic an Amendment cannot be accepted, it 759 shows that the clause is even worse than I had thought.
§ LORD PARMOOR
I should like to ask the noble and learned Earl one question. Do I understand him to say that no Amendment can be accepted?
§ THE EARL OF BIRKENHEAD
Oh, no. In the hope of shortening debate I wished to make it clear that the particular Amendment of the noble and learned Lord—though I entirely agree with him that it was sympathetically and helpfully framed—is not considered to be one that is acceptable. I could have explained the reasons which have led a Department, which is not my own, to come to that conclusion, but inasmuch as that conclusion has in fact been reached, it seems to me that it would be an economy in time if we took the discussion upon the main thesis. I do not in the least say—it would be a very unintelligent method of conducting a Bill through this or through any other House—that there is no Amendment that could be accepted. On the contrary the Minister himself would, I believe, authorise certain Amendments which might relieve some of the apprehensions which were expressed in the earlier stages of the debate, and it may be that after your Lordships have had a discussion to-day as to whether or not Clause 4 should be retained, the grave possibility of repelling finally the advice of a Government Department might be postponed to a later stage. I do not know. I would rather hear the debate and ascertain what is the mind of your Lordships.
§ LORD HANWORTH
In the circumstances I will accept the suggestion of the noble and learned Earl. I will not move this Amendment, but will move the omission of Clause 4. Perhaps I may do that quite shortly as a convenient course. I have already stated in a few sentences which go to the very root of the matter my objections to the clause. I have suggested in my Amendment (and perhaps you will take that as the measure of my position) that it might be possible to allow the Minister to intervene in an appeal so as to get a case stated for the High Court—a well-known system and practice—and thereby enable him to secure a decision in a case which involved questions which he felt 760 were of so wide-reaching a character as to require consideration by the High Court.
As the noble and learned Earl has very fairly said, the Amendment first proposed by me was a sympathetic Amendment, but he finds himself unable to accept it. We then have the question whether or not this clause ought to stand. I think I am right in saying that in the House of Commons all lawyers, on both sides of the House, said this was an unworkable clause, and in the debate on the Second Reading here noble and learned Lords in all quarters of the House agreed that this was an unworkable clause. I will use language which may be appreciated by those not acquainted with law. It really amounts to this, that a decision could be obtained by this method by the Minister, and that decision or opinion would be binding in other cases, to the disadvantage of those who desired to have their cases brought in the ordinary course before the Courts. There are abundant opportunities of having matters decided by the Courts, and this power given to the Minister to take the opinion of the High Court without a sufficient investigation of the facts and without opportunity being given to all those who desire to be heard, and ought to be heard, to come before the Court, is to my mind a piece of mischievous legislation which should not be allowed.
§ Amendment moved—
§ Leave out Clause 4.—(Lord Hanworth.)
§ LORD MERRIVALE
On the Second Beading of this Bill I ventured to make a few observations regarding this clause. I appreciate the reasons which have induced the representatives of the executive authority to try to find some means of ascertaining conclusively the opinion of the Courts upon matters of law which may be of general importance. The more a man knows about the administration of the law, either by practice in law or by taking part in its administration, the more he will sympathise with that object, but the more closely I consider this clause the less I think it is calculated to secure that object. It is a really mischievous clause. I am not concerned with the matters which are here raised. I am not concerned in public administration, and I am not one of any body of Judges likely to be resorted to when any question arises under this Bill in respect of 761 rating law. I hope I am as disinterested in the matter as any member of your Lordships' House, but I have had acquaintance with the practical working of these things.
I have, at any rate, this qualification, that through a long professional life I was often engaged in such matters as here arise, and in various judicial capacities in later times I was concerned with the decision of such questions, and in the personal position of a ratepayer I know how this class of legislation operates. With this knowledge I have the strong conviction that on the whole this clause, in the form in which it is presented, is a mischievous clause. What it would effect, whether it is designed or not, would be to make the Judiciary act in an ancillary and advisory capacity to the Executive, and confound the working of the judicial system with Executive administration. Every student of politics who has considered the matter during the whole of our political history has seen that that is the road to mischief. It was the kind of proposal, the kind of intention, which led to the removal of Lord Coke from his high office, and to his going into opposition against the then Government (which, of course, had an autocratic flavour about it but which he had honestly as an Englishman supported), because, as he said, it established a species of auricular relation between His Majesty's Administration and the Judges, who had to be impartial in all questions affecting the subject.
When this clause is examined, what will be seen is that the Department in question, where it is anticipated that grave difficulties may arise, will be able to select a general question of law, a question of general application, to get the sanction of the Minister of Health for proceeding under this clause and then to take care that, upon a question and with a process of argument which will be regulated by itself, it will anticipate a conflict of authority with the individual by securing, upon arguments which it controls, a decision of a Judge which is intended to be authoritative and secure in advance. There is nothing like it in the whole character of our law. I do not know that there is anything like it in the character of the law of any Western State. I have not enough experience of the latest developments of 762 autocratic government to know if elsewhere there is some process by which, when the citizen comes to be in conflict with the Executive, he must go to the Department with which he is in conflict and elicit from some pigeon hole in which it is placed for reference a decision which they say governs the situation. This is totally contrary to anything that we have known of in the whole history of administration in this country, and for my part I confess that I regard it with great apprehension. I know that it is proposed with the best intention by Ministers who desire simplicity of administration and certainty in the application of the law, but this is not the mode by which it is to be got.
There is not really any difficulty in securing the opinion of the Courts at a minimum of expense upon a case stated with regard to any question which arises in practice. As soon as there is a dispute and litigation, the authorities are in a position, by one or other of the processes provided either in Quarter Sessions practice or in the practice of the High Court, to agree what the facts are, to bring them before a Judge and to argue the question. That is the businesslike, safe and sensible way in which this class of matter has been dealt with in past times, and the result has been to attach to the judicial decision a degree of confidence which, outside this country, is almost unheard of. It is known that the Judiciary have no particular association with the Executive, that they are not approached by the Executive with a view to their coming to conclusions that the Executive desire, that there are not any auricular communications between them, as Lord Coke said, that the thing will have been fairly thought out and that a decision arrived at in that way falls into the body of the law and guides the opinion of everybody who is concerned.
That is the old process, the existing process, and it can be pursued quite simply now. Steps could be taken by means of which a Department could be put in a position to intervene and to take care that there was a thorough discussion and that its views were represented. But a system which puts a public Department in a position to take charge of the question with which it deems itself administratively concerned, to organise the argument of it, to provide 763 payment according to its views for some of the argument, to obtain a decision and then to promulgate or to retain it to regulate its relations with His Majesty's subjects is unheard of. I believe such a system is very unhealthy and for my part I regret that it, or anything like it, is found in this Bill.
I want to say two or three words more with regard to the position of His Majesty's Judges in this matter. It is no part of the business of His Majesty's Judges, and never has been part of their business, at any rate since the Act of Settlement, to have any advisory concern in the acts of the Administration or to take any part in advising the Administration. The natural effect of associating them with the Administration and attaching to them the responsibility for conclusions which are put forward by the Administration will be to weaken the authority of the Judiciary. It can have no other effect. As I have said, this is no part of the business of a Judge. The business of a Judge is regulated by his oath of office. It is to determine according to law, without fear, favour or affection, questions which arise between His Majesty's subjects or between any of His Majesty's subjects and either the Throne or the Executive. That is the function of the Judges. Why should the Judges be brought in by this side-wind to help the Executive to carry on their business, to replace the Law Officers and to relieve the Executive of responsibility as to decisions that they ought to arrive at upon the law?
This is not a fair proposal with regard to the Executive, and I ask those of His Majesty's Ministers who know how business is done in the law whether they think that any Judge whose opinion is worth having is going to be party to a system of obtaining opinions in advance of litigation by processes such as this Bill makes possible, or whether, on the other hand, when a case of this kind comes for opinion in advance and is presented to a Judge who understands his business—which I think may be said of all His Majesty's Judges—he will not say: "I have not any facts before me as to this abstract question. It will depend upon facts and the conclusion may be this way or that way, but when I see the facts to which it is desired that the opinion shall be applied I shall be able to express an opinion with regard to those facts."
764 An opinion with regard to any dispute on facts can be obtained now. Why is it that, in terms exceedingly difficult of application and almost impossible to justify from the point of view of practical experience, we get this proposal for a resort by the Executive at its choice and under its authority to the Judges, with power given to demand of a Judge, whose business it is to decide disputes between them and His Majesty's subjects, some opinion in advance which may have the effect of unjustly concluding those disputes? I have taken, up your Lordships' time at great length, but this is a matter which in my view requires very serious consideration. I say this from observation and consideration of it from the various standpoints with which I am concerned, and have been concerned, and with no interest at all in it judicially or otherwise than as a member of this House and a citizen. I hope that this clause will not be persisted in.
§ VISCOUNT HALDANE
My Lords, in the debate which took place upon this Bill, and particularly upon this clause, before Easter, there was disclosed very considerable repugnance on the part of the House to accept Clause 4, and I think that the discussion this afternoon shows that that repugnance has not abated. At the bottom of it all there is a question of principle. The clause is an attempt to introduce something quite novel, so far as the law of England is concerned, into our procedure—to introduce the plan of enabling an abstract question, a question not necessarily relating to any concrete case but purely general, to be put before the Judges, and the Judges are to be compelled—the word is "shall"—to give an opinion upon that question. That plan is unknown to our law. On the last occasion the noble and learned Earl opposite referred to the Responsa prudentum of the Romans as a sort of precedent. I had already spoken, and therefore could not answer, but that system, by which the Romans liked to get opinions given by wise and highly competent outsiders on general questions, is a system which is absolutely unknown to the jurisprudence of this country. We have nothing whatever to do with it.
Here the system is that if two people dispute they can carry the concrete fact before the Court, and upon that concrete fact the Court can decide, and the 765 Court does not go beyond that, unless it be necessary to pay down principles in arriving at a decision. We have not had experience of the other procedure. I referred on the last occasion to the liking which had grown up in Canada for submitting abstract constitutional questions to the Courts there and ultimately to the Privy Council. In my opinion experience of that course has led to enormous inconveniences, and successive Lords Chancellor have objected to and denounced it. The late Lord Herschell said some strong things about it, and at times refused to give an opinion. The late Lord Loreburn was even stronger, and other Lords Chancellor and other Judges in the Judicial Committee have expressed themselves without restraint upon a system which they deemed to be very mischievous. It was mischievous because it invited the Court to go beyond the particular case which it had to decide, and to say things beyond the facts to which the decision would be applied, which might prejudice future suitors.
That is what is proposed to be done here. The Minister, if he thinks fit, is to ask the Court to give an opinion upon what may be a purely abstract question, and then when the Court has given its opinion, which it has got to do, because the word used is "shall," obviously that opinion is to be used as an authoritative guide to the Court on the next occasion. I can only say, judging from the experience which I myself have had, that such a procedure is very embarrassing to future litigants. It involves them in a great deal of confusion and leaves them without certainty whether the law laid down in perfectly general terms will or will not deprive them of rights which they think they possess. I think this clause is an objectionable one. I think it is an objectionable one also as drawing the Judges into the region of administration, and I cannot but feel that the Government would be well advised not to press the clause, to which it is obvious that in this House there is a great deal of repugnance felt, and which I am sure will be regarded with a great deal of repugnance by experienced lawyers outside.
§ LORD DYNEVOR
I also have on the Paper an Amendment to omit Clause 4. As your Lordships will remember great objection was taken to this clause both 766 in another place and on the Second Reading in this House, and very strong and weighty arguments against it have been used in this House this afternoon. I do not propose at the moment, to go into those objections. I should like simply to say that I strongly support those objections, and that I feel that the clause, as it stands, is left too much in the air. I think, however, that something is wanted in its place and that the principle should be preserved. The object of Clause 4 is to arrive at uniformity in valuation for rating, and I have on the Paper a proposal to omit Clause 4 and to substitute an alternative clause. At the moment I know that I cannot deal with my alternative words, but unless alternative words are included in the Bill, I should like to see Clause 4 taken out altogether.
I do not know whether I may intervene for one moment before the noble and learned Earl replies. I would not like to have it thought that I am without great sympathy for the object which is sought to be attained by this clause. In this very complicated business of rating valuation it obviously is very inconvenient that there should be a number of conflicting and uncertain decisions, and I think we can all understand that any Central Valuation Committee would be most grateful if they could have a code or book of rules, or some guide, in these difficult cases. But the difficulty, which I do not wish to dwell upon, is that our system of English law does not provide for these abstract decisions, and the clause will involve all the inconveniences which have been pointed out, including, I cannot help thinking, the inconvenience that in any concrete cases which subsequently come before the tribunal the Judges will always tend to say that as the facts of the present case were not before the Court which gave the decision they were not necessarily bound by that decision and would have to consider the matter afresh.
Our method of deciding these difficult questions is an expensive one to litigants. It consists of obtaining the decision of various Courts on various concrete cases, which can be turned to as precedents. No doubt it would be convenient if the law could be laid down in advance, and I have great sympathy with the object of the clause, but I do not think it is 767 possible to combine that with the present conception or the conception of lawyers, of the procedure in our Law Courts. In that I differ from Lord Dynevor. I think it would pass the wit of man to devise a clause which would enable the Courts, under the ordinary legal system of this country, to give an opinion of this sort, and I think the old-fashioned method of the opinions of the Law Officers is far preferable. I think that this clause, and anything in the nature of this clause, should be omitted from the Bill.
§ THE EARL OF BIRKENHEAD
The discussion which has taken place upon this clause has been of great interest, and has been put forward in very moderate and even friendly language, but I have nevertheless formed the view that the clause is not universally popular among your Lordships. At the same time the adverse opinions which have been expressed have proceeded almost entirely from legal sources. In fact I think I may say they have proceeded entirely from legal sources. Even the noble Earl who spoke last was nourished many generations ago at Gray's Inn—
§ THE EARL OF BIRKENHEAD
Well, decades, and I am not so sure that his mental attitude towards this Bill was not poisoned by some ancient stream of legal aridity. The real truth is that, as I have long since abandoned the profession of the law and ceased either to speak its language or to think its thought, I have become conscious of the dangerous and unprogressive conservatism of the legal profession, of its rigidity, of its unadaptability to new and perhaps necessary and beneficial advances. Noble and learned Lords speak as if in the days of Magna Charta, or at any rate—I refer to the speech of Lord Merrivale—in the time of Lord Coke, we passed to the last word of our administrative, social, and legal development. That would, indeed, be a strange failure to keep any pace or contact with the immense changes and readjustments that have taken place in our administrative life.
If any profound question of principle were involved, if noble and learned Lords who would preserve the ark of the legal covenant so inviolate and inviolable could point to some great legal principle, then I agree that that transcends the passage 768 of time, and the precedents of four hundred years ago may be as valuable as a precedent of to-day. But I confess I detect, unless I am mistaken, some lack of what the noble and learned Viscount used so ardently to desiderate—clear thinking—in his particular presentation of the case, and from a great master of lucidity I was a little disappointed in the manner in which he presented his case on principle. He says that we have to put before the Court for the first time in our legal history an abstract case. I do not move in that vast field of incalculable abstractions which have nourished the intellectual life of the noble and learned Viscount for so long, but I certainly imagined that an absolutely abstract question was undiscoverable for the purposes of legal presentation. I can quite understand the noble and learned Viscount musing upon the absolute in complete detachment from facts of all kinds. I can imagine him reflecting on the without really entangling himself in the facts, but I really cannot understand how the Minister of Health who, after all, is very tangible and very material, is to apply the powers asked for in this clause, if they are conceded, to a purely abstract case.
Let us for a moment apply our minds to these clauses, and I must be given leave with the greatest respect for my noble and judicial friends to make this very plain, that I have heard apprehension after apprehension stated by the most acute Judges in their legislative capacity as to their ability to construe a particular clause which it is proposed to place on the Statute book—never was there such a depth of anxiety betrayed as I have heard betrayed on these and cognate topics as to the power of the judicial mind to grasp them and still less to elucidate them—and nevertheless when I have sat in this House as a Judge I have never observed among my noble and learned friends the slightest intellectual incapacity to appreciate, to explain, to pronounce upon these bewildering clauses. And equally there is not one of my noble and learned friends who has spoken to-night who could not, with incredible and admirable clarity, give an opinion if such a matter were presented to him.
Take my noble and learned friend the Master of the Rolls, who speaks with admitted authority upon all these 769 matters. Now, in the House of Commons in 1920 I had the honour of being a colleague of the Master of the Rolls. He was then Solicitor-General, and the present Lord Chief Justice was Attorney-General, and I at that time sat upon the Woolsack. In that year the Government of which I was a member passed the Unemployment Insurance Act, which contained a not unimportant and somewhat analogous section. If my memory serves me aright, there were one or two noble and learned Lords who felt doubts, very comparable to those which have been expressed to-night. Similar doubts were expressed by legal members in the House of Commons, but my noble friend the Master of the Rolls—he was a member of the House of Commons at that time, and not a member of your Lordships' House—found no difficulty in accepting and in lending the great weight of his authority to a clause which, if not precisely analogous with that under discussion, nevertheless on the point of principle presented no inconsiderable likeness to it.
Section 10 of the Unemployment Insurance Act of 1920 provided that:—If any question arises—(a) as to whether any employment or any class of employment"—observe the generality of those words—is or will be such employment as to make the person engaged therein an employed person within the meaning of this Act or whether a person is or was an employed person within the meaning of this Act.…Now, it will be observed that the provision is partly particular and partly general. In so far as it relates to an individual it is particular; in so far, on the other hand, as the Judge is charged to determine whether any employment, or any class of employment, is such employment as to bring it within the Act, it is general. It is almost as abstract a question as that which excites the alarm of the noble and learned Viscount. Now, I pass over one or two purely general questions, and I come to the next question—(d) as to the rate of contribution payable under or in pursuance of this Act by or in respect of any person or class of persons or as to the rates of contribution payable in respect of any employed person by the employer and that person respectively.This question was to be decided by the Minister. So the Act provided, subject to two other provisions, namely, that 770(i) any person aggrieved by the decision of the Minister oil any such question may appeal from that decision to the High Court;(ii) the Minister may, if he thinks fit, instead of himself deciding any such question, refer the question for decision to the High Court.So that three or four questions—one or two of them undoubtedly are not limited to individuals, but determine the fate of classes—were dealt with in this very Act, and I am sure that my noble and learned friend in the responsible position which he then occupied must have given most valuable advice in the framing of that difficult and novel measure. I am unaware that any difficulty of any kind has been occasioned since that day by these provisions.
§ LORD HANWORTH
I remember the clause, and, indeed, as to a part of the Unemployment Insurance Ace, I was in charge in Committee. The clause followed a clause which will be found in the National Insurance Act of 1911, and the provision was that in the particular case or in any decision which is actually given by the Minister there is power to go to the High Court in respect of that decision. In the present clause the difference is that the Minister may take a case before the Court and ask for the resolution of a doubt. It is not determined who shall in any way be a party to that decision, and there is not a provision that this shall then be taken up immediately to the Court by those concerned. The noble and learned Earl is quite right in charging me with all responsibility. I would not shrink from it at all, but I think he has confessed that the two clauses are not comparable. In the present case you submit a question for the opinion of the High Court and the High Court shall give its opinion. But upon whom is it binding? There is no such provision as in the other case. It is to be kept in a pigeon hole and be used as required in the Ministry.
§ THE EARL OF BIRKENHEAD
The noble Lord has reminded your Lordships that this clause, if that has any relevance to the case, on which I shall say a word, goes back as far as the year 1911.
§ THE EARL OF BIRKENHEAD
It has, at any rate, a respectable history. How far is the noble and learned Lord right 771 in saying that there is no proper basis of comparison? With great respect to him, he is entirely wrong. I did not say they were not comparable; I said they were not identical. The comparability, which is obvious I should have thought, lies in this fact that on a Matter not respecting any individual litigation but affecting a class, a decision not limited to an individual but affecting a class can be taken by the Minister. If a legal doubt arises as to whether the decision of the Minister is right, or if he thinks it proper to do so, he can state a case for the decision of the High Court, and the High Court which gives the decision will have legislated not for individuals but for a class; that is to say, not individually but generally. I think my language, which is carefully chosen, is absolutely valid when I say that the clause is comparable though not identical.
Let us look at it for a moment as laymen and let us ask why we are to be told for all time that a system, the wisdom of which, after all, was conceded as one would expect from so profound an historical lawyer, by the noble and learned Viscount, might not have some element of value on a partial application of it to a different system of jurisprudence. It is perfectly true to say, as more than one learned lawyer has said, that it has not been our system except in relation to an individual case which requires decision between two citizens or between the State and the subject, to appeal to the assistance of the Judges. But is it necessarily the last word of constitutional wisdom that we should retain that view? The noble and learned Lord, Lord Merrivale, said with perfect truth that the Judges took an oath which did not include this clause. That really was the substance of his argument. Of course, they took an oath which did not include this clause. On the other hand, if the Legislature passes this clause in its wisdom, a clause which has received the assent of the House of Commons and which comes before your Lordships warmly recommended by the very able and painstaking Minister who is responsible, give me leave to resolve the doubts of my noble and learned friend: from that moment the duty of discharging this function will be completely included in the oath which the Judges have taken and upon which he has spoken.
772 That there is an issue of principle I do not in the least conceal. There is an issue of principle as to whether or not, in the hope of reaching the solution of an administrative matter which has occasioned the greatest difficulty to one Minister after another in all Parties, and in the hope of enabling a general rule to be laid down for the prevention of superfluous individual disputations, it is worth while to adopt this procedure. What does the clause say—because hardly any of the criticisms seem to me to have been founded upon that which it actually provides. First of all, you must have the representation of the Central Valuation Committee. That is a very responsible body. This representation must be made after consultation with such associations or bodies as appear to them to be concerned. That is the second step. It must then be made to appear to the Minister of Health that a substantial question of law has arisen in relation to the valuation of hereditaments or of any class of hereditaments for the purposes of rating. In the next place, he must also conclude that unless that question is authoritatively determined, want of uniformity or inequality in valuation may result. If all those five most carefully formulated conditions are satisfied, then the Minister may submit the question to the High Court for its opinion thereon and the High Court shall give its opinion after hearing such parties as it thinks proper. That is in the discretion of the Court. The Judges are not inexperienced in such matters; and when a case is put before them which the smooth and elastic working of the administration of government in the opinion of the responsible Minister requires, the Judge must then be satisfied that he has all the parties before him.
How do your Lordships suppose that a Judge of the High Court would handle such matters? Is it supposed that he is going to make himself the slave of the executive authority? In the eleven years in which I have been a Minister my experience has been the very opposite. His Majesty's Judges have more than once expressed unaccountably unfavourable opinions on the subject of the Executive, and I should say with the most complete confidence that there were no guardians more efficient or more jealous of the rights of the subject as 773 against the Executive than His Majesty's Judges to-day. I do not observe any signs at all that their determination to preserve the rights of the subject as against the aggression of the Executive is failing. On the contrary I am satisfied that it is increasing. Nor am I complaining of that exhibition of independence, which is one of the proudest records in our judicial history. How, then, is the Judge going to handle such a matter when it comes before him? Is it supposed that he is going to accept the orders of the Minister of Health, or the signed papers of some subordinate in the office of the Ministry? The Judge is competent. He understands points of law. He knows perfectly well how to deal with the matter, who has a right to be there, and every person who must be heard if justice is to be done. The Judge can turn round to the Minister and say: "I will not give a decision because you have not brought before me this person whose rights may be affected."
Supposing we had the good fortune to bring such a matter before my noble and learned friend Lord Merrivale. He has pointed out that it is unlikely and that he sometimes joins, as he is entitled to do, in the deliberations of this House upon these matters. He has pointed out that it is unlikely that he will have such matters before him. I know how many and various his labours are, but I still look forward, although I have abandoned the law for some time past, to sitting with my noble friend upon some such problem as this, and I know very well whether he will have the slightest difficulty in dealing with it. The first thing he would say, sitting as a Judge, is: "Here are the rights of A.B., a citizen, which are affected. Why has the Minister of Health not produced A.B. here, not at A.B.'s charges but at his own? Why has he not produced him in order that we may reach a complete decision upon this matter?" My noble and learned friend would be right; and the Minister of Health, who is represented as omnipotent and as a kind of tyrant who by this clause can stride over all the Judges and override all the privileges of the citizen, would have to go back and get the direction of the Judge on the whole situation.
774 Really I should have thought that one would have hesitated before rejecting the advice of a Minister and of a Department unless it can be shown that the advice offered is really destructive of some actual liberty. This is not so destructive. The noble Earl, Lord Russell, has expressed sympathy with the purpose of this clause, though I do not know that his sympathy was more helpful to me in the argument than the antipathy of the other speakers. Nevertheless it was satisfactory to know that one of the spokesmen showed a vague if a useless benevolence towards the purpose of the Government. At any rate at this stage of the Bill my respectful advice to your Lordships would be not to take the responsibility of throwing out this clause, but to wait till a later stage when we have considered the matter a little more deeply. As your Lordships know it is well within the rights of members of this House to put down this Amendment upon Third Reading. I should myself deprecate a decision against the Department concerned, which, as your Lordships know, is not my Department. I became concerned in the matter because of the illness of the late Lord Chancellor, who would naturally have concerned himself in it, and his successor could not perhaps intervene as I had already undertaken the charge of this Bill. I would suggest that we should not to-day reject the Government's proposal, knowing that we still retain the power, if further reflection calls for it, to reject this clause. If that suggestion is not accepted I would make a further one that we should take the decision of the House and see how your Lordships stand. The Government would then have to consider what the position was in relation to the Bill.
I rather deprecate the noble Earl's suggestion that I took a fossilised view of this case, or that it was one that depended upon the arid atmosphere of Gray's Inn. My objection to this clause is an entirely modern and an entirely practical one. It is that I do not think that it will work. The noble Earl did not pursue to the end his examination of the language of the clause, but began with the preliminary difficulties and then said, in an airy way, that the Court could call before it all those who were proper parties. At 775 another stage of his observations he asked whose rights or whose interests were going to be affected. I do not quite see how the Court can decide whose interests or whose rights are going to be affected by a decision on an abstract question of law. It is rather difficult to say. Also, it is easy to say that the Court shall say that such-and-such parties shall be cited, but unless their costs are to be paid what chance have they of proper representation? All that the clause says is that the Central Valuation Commitee may, if they think fit, contribute such amount as they think proper. That is a sort of direction upon which a person is not likely to indulge in expensive litigation out of his own pocket. If there were a direction that the Court might give costs to be provided out of some public fund or the fund of the Valuation Committee that would be another thing. I do not see how these parties are going to be heard.
I assure your Lordships that my objection is an entirely practical one. I cannot see, and we have not had quoted to us, a single instance of the sort of case that might be brought before the Court in this matter. I did hope that the noble Earl might have been influenced by the arguments that have been used in this House, but, since he has not, I hope your Lordships will, if you think proper, go to a Division on this matter and vote against this clause. I think it is a dangerous innovation, which may be applied not only to this but to all sorts of other things. I would like to emphasise also the point made by the noble and learned Lord, Lord Merrivale, that it is to some extent—only to a small extent, but to some extent—a mingling of the functions of the Judiciary and the Executive and that is contravening a principle which I regard as extremely valuable in the administration of justice.
§ LORD ATKIN
Might I be allowed to intervene for a moment or two and dwell upon the practical difficulties that arise in the carrying out of this clause. This power is taken by the Department to assist in a rapid, easy and cheap determination of points which they think it is necessary should be determined. I am not satisfied that if this duty is confided to the Judiciary they will perform it 776 willingly, and on the other hand there are practical difficulties. I should like to point out that it is now admitted that the proposal is one that does conflict with what has been for generations the principle upon which justice has been administered in His Majesty's Courts—namely, that they decide questions that have actually arisen between subject and subject or subject and the Crown. They have not in the past had as part of their duty to advise a Department upon questions of law that did not arise in the manner that I have said. I am far from saying that it might not be expedient to alter those principles, but if they are to be altered, surely they ought to be altered in cases where there is a very strong public demand and a very considerable public inconvenience by not having these facilities. In this case I venture to suggest that no case is made for disturbing the ordinary principles on which Courts of Justice administer justice.
In another place the Minister, in proposing this Bill, said that in various Quarter Sessions different conclusions have been arrived at on rating questions and it was important to secure uniformity. I cannot think that, if that at all events does exist, this is the way of remedying it, because it is to be observed that the only point that can be brought up under this clause is a point of law. Speaking generally, rating questions are not points of law; they are questions of fact. Though I am far from saying that questions of law may not arise, they are nearly always based upon the substratum of facts. At the present moment there is a very simple procedure by which questions that arise between the rating authority and the ratepayer can be determined. The ratepayer makes his objection to the assessment committee, and he can afterwards do two things. He can appeal to Quarter Sessions, and if he appeals to Quarter Sessions then Quarter Sessions can raise a point of law by stating a case which comes before the High Court and which, by leave of the High Court, can go on to the Court of Appeal and then to this House. But there is also another and a very simple proceeding which I should have thought could have been adopted in the cases which are contemplated by the Minister. Under the Quarter Sessions Act, 1849, it is possible for parties to agree upon 777 facts and to get an order of the Judge that the facts should be stated, and then to go direct to the High Court without going to Quarter Sessions at all and so getting what I venture to suggest is the very procedure that is contemplated here.
But the difference is this, that in this case the parties have to agree that they will abide by any order as to costs that may be made. That brings me to what is the practical difficulty in this case. Are these parties who are to be represented before the Court to pay their awn costs, or are they to have their costs paid by somebody else? If the case comes before the High Court to begin with there must be some rule of procedure. I think under the rule-making powers of the Court there is power to make rules governing this procedure without any express power being given in the Act. As soon as the parties come before the Court, the Court has, by reason of its general powers, authority to order the parties to pay the costs and nothing, so far as I can see, can remove that power. What is the position here? The Minister contemplates that he may instruct Counsel and the Central Valuation Committee may appear as parties. Therefore they will be liable for costs. But the Central Valuation Committee have no funds of their own. The only funds they have are voluntary funds which may be paid to them by the different rating authorities. They may not be able to pay even their own costs, but they certainly have no power of calling upon the funds of assessment committees for the purpose of paying the costs of the persons who may be opposing them. The real difficulty is that there is no sufficient protection given to those persons whose interests are contrary to those which may correspond to the view taken by the Central Valuation Committee.
Who is to argue the case for the ratepayer and who is to provide the costs for the ratepayer? There is no power in the Minister to find costs, and I venture to think that it would be impossible to impose power on the Minister to find the costs of both parties. The consequence is, as I venture to suggest, that there is no way of securing that in any point of importance that arises within the provisions of this Bill the case should 778 be satisfactorily argued for the Central Valuation Committee on the one hand and by somebody opposed to the views of the Central Valuation Committee on the other hand. That seems to me to be the real difficulty. I venture to suggest that there are very few cases in which the clause would be brought into play at all. There are ample means at the present moment by which questions may be brought to the Court to be determined in such a way that there may be appeals to the highest tribunal.
May I say a word in reply to the noble and learned Earl in reference to the Unemployment Insurance Act? I think that no single case has ever come before the Court under that Act which has not been argued upon an actual dispute arising between actual individuals and somebody interested on behalf of the Crown. There is a rule-making power in the section to which the noble Earl referred, and a rule has been made providing that any reference by the Minister shall be referred by way of issue in a prescribed form. The form prescribed is:—In the matter of an application by A.B. and C.D. for a decision of the Minister of Labour.That is to say that where a question has arisen between A.B. and C.D. the Minister states the facts of the case. Then, in addition, there is a provision that—any person not originally a party to the issue claiming to be interested in or affected by the question referred may apply to intervene.You have therefore in those cases complete procedure when there is an actual dispute for the Courts to determine the matter. There is no such provision here, and I think that the procedure proposed breaks down because it is not analogous to the procedure contemplated in this case. I venture to say that no ground has been shown of such urgent public advantage as would justify the House in departing from what has been the policy of the judicial administration of this country ever since it took an organised form.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Their Lordships divided:—Contents, 33; Not-Contents, 28.779
|Hailsham, L. (L. Chancellor.)||Stanhope, E.||de Clifford, L.|
|Dunmore, L. (E. Dunmore.)|
|Somerset, D.||Elibank, V.||Gage, L. (V. Gage.)|
|Sutherland, D.||FitzAlan of Derwent, V.||Howard of Glossop, L.|
|Younger of Leckie, V.||Kylsant, L.|
|Airlie, E.||Lawrence, L.|
|Birkenhead, E.||Balfour of Burleigh, L.||Lovat, L.|
|Eldon, E.||Biddulph, L.||Monk Bretton, L.|
|Iddesleigh, E.||Clanwilliam, L. (E. Clanwilliam.)||Somerleyton, L.|
|Lucan, E. [Teller.]||Templemore, L.|
|Midleton, E.||Cranworth, L.||Wharton, L.|
|Onslow, E.||Cushendun, L.||Wraxall, L.|
|Plymouth, E. [Teller.]||Daryngton, L.|
|Denbigh, E.||Avebury, L.||Monkswell, L.|
|Morton, E.||Banbury of Southam, L.||Olivier, L.|
|Russell, E. [Teller.]||Cawley, L.||Parmoor, L.|
|Clwyd, L.||Redesdale, L.|
|Haldane, V.||Dynevor, L.||Sandhurst, L.|
|Hutchinson, V. (E. Donoughmore.)||Fairfax of Cameron, L.||Shandon, L.|
|Hampton, L.||Stanmore, L.|
|Hanworth, L. [Teller.]||Sudley, L. (E. Arran.)|
|Arnold, L.||Hemphill, L.||Swaythling, L.|
|Askwith, L.||Merrivale, L.||Thomson, L.|
§ Resolved in the affirmative, and Clause 4 agreed to accordingly.
§ Remaining clauses agreed to.
§ Schedules agreed to.
§ Bill reported without amendment.
§ THE EARL OF BIRKENHEAD
My Lords, if it is convenient to your Lordships, the decision of principle having been taken, I would propose to put the Third Reading down for Thursday next.