Lords Sitting of 24 April 1928

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR on the Woolsack.
HIS ROYAL HIGHNESS THE DUKE OF GLOUCESTER.
His Royal Highness Prince Henry William Frederick Albert, K.G., G.C.V.O., having been created Baron Culloden, Earl of Ulster and Duke of Gloucester, was introduced between His Royal Highness the Prince of Wales and His Grace the Duke of Sutherland (the Gentleman Usher of the Black Rod, the Garter King of Arms, the Deputy Earl Marshal and the Deputy Lord Great Chamberlain attending), and was placed in a Chair on the left hand of the Throne.
LOCAL AUTHORITIES (EMERGENCY PROVISIONS) BILL.
Brought from the Commons; read 1a; and to be printed.
TEACHERS (SUPERANNUATION) BILL.
Brought from the Commons; read 1a; and to be printed.

SOUTHAMPTON CORPORATION BILL. [H.L.]
THE CHAIRMAN OF COMMITTEES (THE EARL OF DONOUGHMORE): My Lords, in reference to this Bill I beg to move the Motion which stands in my name on the Paper.
Moved, That Standing Order No. 91 be considered in order to its being dispensed with in respect of the Bill, and that the Bill be now read 2a.—(The Earl of Donoughmore.)
On Question, Motion agreed to, and Bill read 2a accordingly.

NEWQUAY WATER BILL.
Read 2a.
HASTINGS CORPORATION BILL.
Read 2a.
DARTMOUTH CORPORATION BILL.
Read 2a.
LANCASHIRE QUARTER SESSIONS BILL. [H.L.]
Read 3a, and passed, and sent to the Commons.
PORT OF LONDON BILL. [H.L.]
Read 3a, and passed, and sent to the Commons.

MARRIAGES PROVISIONAL ORDERS BILL.
Order of the Day for the Second Reading read.
THE EARL OF PLYMOUTH: My Lords, on behalf of my noble friend Lord Desborough I beg to move the Second Reading of this Bill.
Moved, That the Bill be now read 2a.—(The Earl of Plymouth).
On Question, Bill read 2a.

ADMINISTRATION OF JUSTICE BILL. [H.L.]
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR (LORD HAILSHAM): My Lords, this is a Bill which does not lend itself very well to the exposition of a single principle. It is designed to carry into effect a number of minor reforms in the administration of justice. Your Lordships will have seen that the Bill consists of five separate Parts. The first Part is designed to complete a reform which was recommended by a Committee in the year 1923, presided over, as I remember, by Mr. Justice Tomlin, under which the probate registries were to be reorganised and centralised in order to promote both efficiency and economy. Effect was given to some of the recommendations of the Committee in the year 1925 by the Administration of Justice Bill of that year, and Part I which I am submitting
786
to your Lordships is a Part designed to complete that work, firstly, by defining the status of the registrars and clerks, and further by giving effect to an arrangement which has been made between the Treasury and the Departments and representatives of the Registrars' and Clerks' Associations, under which some financial provision is to be made for those registrars and clerks who lose their employment by reason of the re-organisation. Part II of the Bill deals with four or five quite minor matters which have arisen in the course of administration and to which attention has been drawn by the Chancery Judges and by the Probate Division itself.
Part III of the Bill deals with the Judicial Committee. It reproduces a Bill which has already received the assent of your Lordships' House both last year and in the year 1926. Its provisions in effect enact that there shall be power to appoint two Indian lawyers of distinction to form part of the Appeal Committee of the Privy Council, and that they shall receive from this country a salary of £2,000 per annum, and a pension on retirement of £1,000 per year. Provision has already been made by the Indian Legislature that in the event of this Bill passing into law the Indian Revenues shall provide a further and equal salary of £2,000 a year, so that the total remuneration is to amount to £4,000 a year. The Part reproduces exactly the provisions which met with the approval of your Lordship's House, and I think of all Parties in the House, when it was submitted last year, when lack of time prevented its passing in another place.
Part IV of the Bill deals with three or four minor amendments in the law which have turned out to be desirable; but I think there are only two to which I need call any attention. Clause 15 is a clause which deals with the enforcement in this country of judgments which have been obtained in the Dominions beyond the seas. It provides that where reciprocal arrangements are made between this country and any Dominion a judgment obtained in the Dominion may be enforced in the Courts of this country in respect of a revenue debt. That provision already extends to all except revenue debts by virtue of the

787
Act of 1925, and your Lordships will understand that this does not in any way extend the liability of any taxpayer, but merely provides that where a man has incurred a liability, and judgment has been obtained against him, then, if reciprocal arrangements are made, that judgment can be enforced in the Dominion to which he goes. There seems to be no reason why any taxpayer should be able to escape his liability merely by removing himself and his property outside the jurisdiction of these Courts. Clause 17 is one which extends to fathers the power already existing for mothers to apply to a court of summary jurisdiction with regard to the guardianship of their infants. Before 1925 these appplications could only be made in the High Court, and could be made by either parent. In 1925 power was given to apply to a court of summary jurisdiction in the case of the mother, but there was no similar power given in the case of the father. That anomaly has been pointed out more than once and this clause is designed to remove it.
The last Part of the Bill merely corrects one or two clerical slips which have occurred in previous Acts. The amendments are in truth, as they are described to be, minor amendments. I hope this Bill, if it be passed by both Houses, may provide a useful although an unambitious contribution to the general efficiency of our system of justice, and I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
VISCOUNT HALDANE: My Lords, the Bill which the noble and learned Lord on the Woolsack has explained deals with matters most of which have been under consideration for some time past. They arose when I occupied the Woolsack, and they have been considered since then. I entirely agree with the substance of the Bill. All the changes it proposes seem to me to be valuable. That as to the Probate Registry is not perfect. I do not think that part of our system will ever be on a satisfactory footing until it has been placed on the same footing as the other corresponding parts in the High Court, and comes under the Lord Chancellor and into the ordinary system. But so far as this Bill goes what is proposed seems to me to be an improvement.
788
What I am most interested in is Part III, which proposes to create two new Law Lords to sit in the Privy Council who are to be qualified Indian Judges or lawyers. That is necessary. I have drawn attention to it before, and I will say again that the business that comes to the Privy Council from India is steadily increasing and has attained dimensions far beyond the strength which is available for it. The situation is worse because we have lost two much-to-be-lamented Judges, not only the late Lord Cave, but Lord Sinha, who gave great assistance in the Indian Division of the Privy Council and was a Judge of great rank. We are shorter than ever, and if anybody chooses to look at the list he will find a long list of judgments in arrear, which ought to be disposed of. It is imperative that these two new Judges should be appointed, and when they are appointed I hope they will be Indians and that they will be of such stamp as will give confidence to the legal world in India that we are regarding their interests as on the same level as our own.
I cannot leave this subject without again raising what I have raised before. The whole position of the Judicial Committee of the Privy Council is unsatisfactory. In order to man three tribunals which sit for the disposal of Imperial business, fifteen Judges are required, five for each. You require five to sit here, for this is virtually a division. You require five to sit in Indian cases, and you require five to sit in Dominion and Colonial cases. We have six paid Law Lords, and two or three ex-Lords Chancellor, two of whom are available for active business, and the Lord Chancellor himself. That is nine. Then there are two other Indians who sit, who are very insufficiently paid and on a very unsatisfactory footing. That brings the number up to eleven. But fifteen are required, and the Lord Chancellor or the President of the Council can only get along with the Supreme Tribunal of the Empire by begging, borrowing and stealing from other Courts. Stealing, I say, because you have occasionally to take away a Judge who is a Privy Councillor from the High Courts, begging the President to get various Judges and other people who really ought not to be called on undertake the exertions which they have to undergo by serving in the tribunal. I myself sit

789
there a great deal, but, as a rule, I find my colleagues over eighty rather than below it. The Supreme Tribunal of the Empire may or may not be indispensable—I shall not enlarge on that very big subject now—but it is there and is much regarded by the Empire and by the Dominions, and I say it is nothing short of a scandal that Government after Government should leave it without augmentation. I managed myself, when Lord Chancellor, to get through without great difficulty a Bill which added to the number of Law Lords, but we want two more and without two more we shall not be able to do the business decently.
I have made these observations because I think it is very important that the attention of the public should be called to a subject which the public neglects. They are all ready to talk about the High Courts because it is their own affair, but when it comes to the Empire and to the Supreme Tribunal of the Empire there is not the smallest interest taken. Nobody goes there, yet it is one of the links of the Empire, and a very important one. I have said this because I do not think the occasion ought to be allowed to pass without drawing your Lordships' attention to the fact that, although the Bill which the Lord Chancellor has introduced is on this point a very valuable one, it does not, go nearly far enough to remedy the evil from which we have suffered.
THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD): My Lords, I rise only for a moment, finding myself in very considerable agreement with what has fallen from my noble and learned friend. My purpose in rising is that an observation of his enables me, in the absence of the Leader of the House and as one who knew him well, to add a word on the subject of the lamented death of Lord Sinha. The noble and learned Viscount did not use excessive language when he spoke of his efficiency as a Judge. I had no opportunity by close experience of forming an independent opinion upon that point, but I should be very unwilling on the first occasion on which his name has been mentioned since his lamented decease to withhold a tribute to the courageous and useful part which he played in India at a very critical moment in the fortunes of that country.
LORD PHILLIMORE: My Lords, as one who has been able to render some assistance in the Indian part of the Privy Council work, I beg strongly to support that part of this Bill which proposes to add two additional Judges. I am sure they are very much required. I did not rise really to trouble your Lordships on that matter, but rather with regard to quite another matter which arises in connection with Clause 6—the power given to the Lord Chancellor to transfer business which has been assigned by Act of Parliament to special Judges. I welcome that provision and I am going to ask your Lordships' House, sometime or other, to carry it a little further.
The history of the Judicature Acts is one of the most curious examples of seesaw legislation that I think I know. When I was first a practitioner (and I think there are very few besides the noble and learned Viscount, Lord Finlay, who are in the same position) we had several separate Courts—Chancery, Queen's Bench, Common Pleas, Exchequer, Probate and Matrimonial and Admiralty—and if an unfortunate suitor chose one of the Courts which had not the particular jurisdiction, though his claims and rights were unquestionable, he found himself turned round and his suit dismissed with costs, and he had to begin over again in one of the other Courts. Moreover much time was taken up in discussing whether a case or a matter was one which could quite properly come before the Chancery Court—whether it was a question where the only relief could be got in Chancery and whether, therefore, the Queen's Bench or Common Pleas could not deal with it. Again, questions arose as to whether some action against a shipowner was proper to the High Court of Admiralty or whether it ought to have gone into one of the Courts of Common Law. Even between the Queen's Bench, Common Pleas and the Exchequer there were cases which could only be brought in one of those three Courts, though, as a rule, a case could be brought in any one of the three.
Finding that, we passed in 1873 and confirmed in 1875 a great Statute setting up one Supreme Court of Judicature, with one High Court of Appeal and one High Court of Justice, and we gave that Court jurisdiction over all the matters over which any one of those Courts had

791
jurisdiction before and we got rid of all the objections to jurisdiction in future. No doubt there were provisions for assigning business to one Division rather than to another, but if a suitor brought his action and assigned it to a wrong Division a very simple application, at very slight expense, put it right or enabled the Judge to say that, though strictly speaking it was an action proper to another Division, it would be more convenient to let it stay in the Division in which it had been entered. Having done that, we have done nothing since but set up all sorts of additional tribunals and assign particular matters to particular Divisions, and only to those particular Divisions, and sometimes to particular Judges, and I am very glad to think that this clause will, to a certain extent, get rid of that. Nevertheless, something of the old Adam still remains.
I am referring at this moment to the case of the Sheafbrook, which was decided in 1926 by the Court of Appeal and which fettered the exercise of jurisdiction by saying that particular cases could not be brought, or could not be kept, in the Probate, Divorce and Admiralty Division because of some special clause in the Amending Judicature Act, 1925. I have a private opinion that the decision of the Court of Appeal in that case was wrong, but two of the Lords Justices who sat in that appeal are now members of your Lordships' House and I fancy I should have a very poor chance if I tried to get your Lordships to sit on appeal with regard to that decision. But what I do think I should be able to satisfy your Lordships of in the Committee stage is that, assuming it to be a correct decision upon the Act and not attacking it as such, it was a very inconvenient decision, which prevents a great number of cases that used to be most usefully tried in the Admiralty Division by a Judge whom we all in this House highly respected, the late Lord Gorell when he was Mr. Justice Barnes, from any longer being tried in that Division.
I venture to outline my point to-day because, being such a technical one, it is desirable, so to speak, that it should have two Readings. I am very glad to see that several noble and learned Lords who are Lords of Appeal are in the House to-night. I shall probably, with the assistance of my noble and learned
792
friend Lord Merrivale, submit to your Lordships in Committee some short Amendment which I hope may, without attacking the decision of the Court of Appeal, render the inconvenience of that decision no longer effective. I do not quite know whether the noble and learned Lord upon the Woolsack has settled upon a day for the Committee stage, but it will take a little trouble to draw a convenient Amendment and therefore I hope we may have a few days before the Bill goes into Committee.
LORD MERRIVALE: My Lords, I am very glad that my noble and learned friend on the other side of the House (Lord Phillimore) has called attention to this matter because it is within my personal knowledge that certain cases cannot get the advantages of fixed days and speedy trials in questions of shipping such as those to which my noble and learned friend referred. I say no more about that. I know what attention the noble and learned Lord on the Woolsack will give to any suggestion of my noble and learned friend. I believe it is a sound and wise suggestion, if I may venture to say so, in the first Part of the Bill, which deals with probate administration, which is a matter for which I have some responsibility. It is an enactment about which great trouble has been taken. It tends to remove longstanding injustices and inconveniences, it will produce economy, and already the changes which have been made have considerably improved the administration in the country under probate jurisdiction.
THE LORD CHANCELLOR: My Lords, in moving the Second Reading of this Bill I said it was not a very ambitious proposal, but I gather from the speeches which have been made that some of your Lordships think it is hardly ambitious enough. I would only like to say in answer to the noble Viscount, Lord Haldane, that I fully share his desire that the Supreme Court of the Empire should be in a position to carry on its business with efficiency and despatch. Your Lordships will not expect me to express any conclusive opinion as to what measures may be necessary to meet the position. In answer to the speech of the noble and learned Lord, Lord Phillimore, I had originally intended to ask your Lordships to take the Committee stage of the Bill

793
this week, but after what he has said I cannot persist in asking for that. Probably if we took the Committee stage one day next week that would give sufficient time for the drafting of an Amendment.
LORD PHILLIMORE: Tuesday would do quite well.
THE LORD CHANCELLOR: Then perhaps Tuesday next week would be a convenient day to take the Committee stage.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

ARMY AND AIR FORCE (ANNUAL) BILL.
Order of the Day for the Second Reading read.
THE UNDER-SECRETARY OF STATE FOR WAR (THE EARL OF ONSLOW): My Lords, in moving the Second Reading of the Army and Air Force (Annual) Bill this year, I do not think I need take up much of your Lordships' time, but there is one important matter to which I think it necessary to draw attention and that is the alterations which Clause 4 makes in the existing law. Those alterations in the existing law relate to the death penalty. Your Lordships will recollect that in 1925 there were certain amendments introduced into the Army and Air Force (Annual) Bill by which the death penalty was abolished for all military offences in peace except the offence of mutiny. No great change was made then in the law governing the infliction of the death penalty in time of war and on active service. After very careful consideration the Army Council have decided that it cannot be held essential for the maintenance of discipline and morale that the death penalty should be retained for any military offences except mutiny in peace and, of course, mutiny in war, and for treachery, cowardice, desertion, leaving a post or guard on active service, or in case of a sentinel, leaving a post without being regularly relieved. These will be the only offences for which the death penalty may be inflicted on active service. The Memorandum, I think, enumerates the amendments to Clause 4 very clearly. These amendments have been recommended
794
by the military members of the Army Council, fully concurred in by the civil members and accepted by my right hon. friend, the Secretary of State for War. The other amendments are so clearly explained in the Memorandum that I need not trouble your Lordships with observations on them unless any noble Lord wishes to ask any questions in regard to them.
Moved, That the Bill be now read 2a.—(The Earl of Onslow.)
VISCOUNT HALDANE: My Lords, as an ex-War Minister it has been my duty in your Lordships' House to go through this Bill and scan its provisions. I have done so and I think its provisions are all satisfactory. The Bill is an essential Bill because, as some at least of your Lordships know, if it does not pass we shall have no Army after April 30. That is a very important consideration. The Army would be an illegal organisation. Therefore I do not rise to delay your Lordships with a long speech or to move any Amendments. As regards the death penalty, that has been under consideration for a long time and I think the changes make very little difference. In time of peace there is almost no military offence involving death and in time of war the question does not arise in any form in which this Bill will make much difference. I think it is right to diminish the death penalty in the Army as much as possible, but you have also to remember that the Army is a place of death and that the standards set up regarding capital offences are vital to the organisation of the Army. I pass by that. The other amendments, as the noble Earl has said, are matters of importance but of quite minor importance, matters of detail, and speaking of the Bill as a whole I think it is one we ought to pass.
THE EARL OF ONSLOW: I ought to have added, and perhaps your Lordships will allow me to say now, that, as the noble and learned Viscount has said, it is necessary to pass this Bill before April 30. Therefore it is proposed to take the Committee stage to-morrow and the Third Reading on Thursday.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

CLAUSE 4 OF THE RATING AND VALUATION BILL.
LORD MERRIVALE LORD MERRIVALE had given Notice to ask His Majesty's Government if they are able to inform the House what steps, if any, have been taken to obtain information as to the willingness of His Majesty's Judges, or any of them, to accept the responsibility of giving advisory opinions at the instance of Ministers of the Crown in the manner proposed by the Rating and Valuation Bill, Clause 4; and to move for Papers.
THE EARL OF BIRKENHEAD: My Lords, I hope the noble and learned Lord will allow me to make a suggestion before he rises to ask the Question which stands on the Paper in his name. I shall perfectly understand if he finds any difficulty inn accepting my suggestion. The Third Reading of this Bill is to be taken on Thursday and I think it would not answer any obviously useful purpose if we covered to-day any of the ground on the Motion which at present stands on the Paper which can be dealt with when the Third Reading is discussed. If my noble and learned friend wishes to proceed let him do so, but I would undertake that I would give him the best answer the Government can give to the Question which stands on the Paper in the course of the observations which it will be necessary for me to make on that occasion. If, however, the noble and learned Lord prefers to deal with it now, so be it.
LORD MERRIVALE: My Lords, I am much obliged to the noble and learned Earl and I think I had better state as concisely as I can how the matter stands. The Third Reading of this Bill is appointed for Thursday. Down to the present time those who are anxious about the probable effect of Clause 4 have not the remotest notion of why His Majesty's Government have proposed Clause 4, what reasons they have for supposing it will operate at all, or how, if it operates, it is to be carried into effect. We have had two debates on the matter and my noble and learned friend took part in each of those debates. They were most interesting debates, and I am sure that those of us to whom my noble and learned friend addressed his criticisms appreciated them thoroughly, if they did not enjoy them. But they did not tell us the things we want to know and the position is this:
796
It is proposed—I do not know why and I have found nobody who does know—to put a Parliamentary obligation upon His Majesty's Judges to answer such questions as the Ministry of Health may think fit to propound to them with regard to matters of rating and valuation. As time proceeds I learn from various quarters how capable of mischief that is going to be. I happened to hear—I dare say the noble Viscount on my left (Viscount Novar) will not object to my saying it—that something of this kind has been tried in Australia, and I have become aware to some slight extent of the mode in which it operated or failed to operate. I do not intend to deal with that point, and I do not desire to make a speech to your Lordships.
I would much sooner have had nothing to do with this matter, for I have plenty of other occupation. But that is the position. This is a fundamental and constitutional change in judicial administration in this country. Everybody who understands it knows that it is so. The Question that I want to ask at some convenient time is as to what steps His Majesty's Government have taken to assure themselves that this grave proposed change can work. That is one thing that I want to know. The time is so short that, besides putting down this Question to-day, I have formulated a Motion for to-morrow. It seems an extravagant thing to do, but we know nothing about this matter. I have formulated a Motion to the effect that it is not fair to His Majesty's Judges to put upon them this task, which is not part of their duty, which they have never engaged to perform and which it is proposed to make a statutory duty. It is not fair so to treat a body of men like His Majesty's Judges, some of whom, I have reason to believe, are satisfied that such a course would be mischievous as regards the general administration of justice. I have formulated a Resolution to this effect, and I have added that it is not consistent with the due administration of justice that a Minister who has obtained in advance an advisory opinion from a Judge should afterwards bind His Majesty's subjects to that opinion although they were not parties to it. I do not think that anybody can say a word to the contrary of those two proposals,

797
but they are both contradicted by Clause 4 and we have had no sort of intelligible explanation why this is done, how it is to be carried out, what expectations His Majesty's Government had, and where this proposal originated.
Let me tell my noble and learned friend that I am particularly concerned with regard to its origin, because I recall something that happened here on almost the last occasion when the late deeply-lamented holder of the office of Lord Chancellor was sitting in this House. There was a proposal to transfer all business by way of dispute between landlord and tenant under a highly contentious new Bill to a scratch tribunal, a committee, nominated nobody knew how, which was to take charge of all these matters and of the contentious affairs of His Majesty's subjects, without any opportunity of recourse to the Courts of Law to which everyone of His Majesty's subjects is entitled under our Constitution to go. We changed that Bill before Christmas with great difficulty. The Bill narrowly escaped being thrown out because of that clause. Consider this clause and associate it with that clause. I am afraid that somewhere, not in His Majesty's Government but in the offices where matters of this kind are considered, there is some ingenious gentleman who has never commanded practice at the Bar but has gained some acquaintance with theories of law and is associated with a coterie of persons who are at present steadily engaged in the effort to remove questions of conflict between citizens out of the jurisdiction of the Courts in order to transfer them to the decision of administrative authorities.
I trust that your Lordships will forgive my taking up your time in this matter. The more I reflect upon it the more it strikes me as a departure of the utmost gravity. My noble and learned friend, for whose gifts and learning I have always had admiration, twitted us with the practices of the ancient Romans before Roman law was embodied in the digest. What is the use of that? We really want to know what is to be the procedure under the English Constitution, which is not a Roman Constitution but a free Constitution. I further desire that, before the hour immediately preceding the Division on my Amendment to this clause—upon which no doubt the Whips, in support of His Majesty's Government, will
798
be put on, as they were last week, and at which, without explanation and without any more knowledge than I have now, I may be defeated—we should at least have some fuller information before us. I do not complain of political procedure, for I have been accustomed to it for a great part of my mature life, but here is a serious question. If my noble and learned friend will tell the House that we shall have a real opportunity of considering this matter and that some Minister of the Crown will deal with it as a question that raises a constitutional principle, I am sure he knows that I am the last man in the world to desire to embarrass any member of His Majesty's Government, or to impose unnecessary trouble upon this House. As the matter stands, in order that there may be a reply I formally ask my Question and move my Motion. That is all that I desire to do.
VISCOUNT NOVAR: My Lords, as the noble and learned Lord has referred to me and my experience in Australia, perhaps I should say that, while I am unfitted to enter into the technicalities of this case, I had opportunities of judging of the extreme delicacy of the situations that arose when His Majesty's Judges were called in to help to solve the difficulties of the Government. I remember once being told by Sir Samuel Griffith, then the very distinguished Chief Justice of Australia, whose name will be well known to noble and learned Lords, that he had been put under great pressure by Ministers to provide a Judge for some arbitration or commission—I am afraid I cannot remember the exact purpose—or at any rate to help in the solution of some very serious political difficulty. Great pressure was put upon him, but he refused to nominate a Judge of the High Court, and he was supported, as he informed me, by the whole Bench. I hope, therefore, that before such obligations are made statutory there will be very careful inquiry into the manner in which this system has worked, or in which it has been attempted to work it, in other portions of His Majesty's Dominions.
LORD HANWORTH: My Lords, it would be quite wrong on my part to trouble your Lordships with a speech, because your Lordships have indulged me by allowing me an opportunity on

799
two occasions of offering my criticisms of Clause 4. Accordingly I am not going to make a speech, but I want to make one or two observations in support of the noble and learned Lord who has already addressed your Lordships. In the opposition to the clause that was developed both on Second Reading and in Committee we had a speech not only from the noble Lord who holds the great position of President of the Probate and Admiralty Division but from Lord Carson, from the noble and learned Viscount, Lord Haldane, who has twice been Lord Chancellor, from Lord Atkin, who has come here recently from the Court of Appeal and from a long experience on the Bench, and from one or two other noble Lords who have had legal experience. Leaving myself out entirely, it does occur to me that those speeches aggregate an amount of authority which your Lordships would desire to respect and, unless something more can be shown in favour of this clause than has been shown, I trust your Lordships will reject it.
The Division which took place upon it in Committee was a somewhat narrow one. If I recollect the figures were 33 to 28, but in that number of 28 every single judicial person who had had experience and possessed knowledge, and who could speak with authority, voted against this clause. It is sometimes said of lawyers that you can get an opinion on one side or the other if you turn, say, from one part of the Temple to another, or from the Temple to Lincoln's Inn, and perhaps it is all the more remarkable when you find the whole judicial body in this House united against this clause. I am not going to make a speech, but I desire to emphasise my strong support of Lord Merrivale's Motion.
VISCOUNT HALDANE: My Lords, I do not, rise to continue the discussion on the merits. I have already expressed myself on that subject in the previous debates; but I do rise to say this, that obviously there is a great deal of division of opinion in this House, and it is unnecessary to speculate what the majority is at any particular moment. Would it not be wise on the part of the Government to withdraw a clause which they can withdraw without the least harm to the Bill, and to leave the
800
question to be raised on some subsequent occasion, after the matter has had general consideration?
THE EARL OF BIRKENHEAD: My Lords, the elasticity of the rules of this House is notorious. Alone among Parliamentary Assemblies we have avoided the formality of rules, cramping the freedom of individual Peers, to an extent which has never been known in any Assembly in the world, but I am humbly of opinion that that elasticity could never be preserved if a process of the kind which we have witnessed to-day were to become common in our practice. Let me remind your Lordships what has happened. This Bill was produced, I understand, months ago in the House of Commons, and it was very fully debated there. The experienced and able Minister who was in charge of the Bill gave a very lucid defence of this clause, which is very accessible, if my poor efforts are as paltry as has been indicated by my noble and learned friend, to any one who wishes to understand what argument prevailed in the House of Commons. The matter then came to Second Reading in this House. The debate centred upon this particular clause. I am of opinion—such is my recollection—that no other point in the Bill was mentioned in the whole of that lengthy debate except Clause 4, and after hearing that debate and realising with the utmost clearness what the only controversial point involved was, this House gave the Bill a Second Reading.
Than we came to the Committee stage. Every Peer who took an interest in this subject was in the ordinary course informed that the debate would take place, and knew quite well what Amendments were likely to be moved. It is, therefore, entirely reasonable to claim that every Peer who took sufficient interest in the subject, knowing quite well from the Amendment Paper what was the only point, presented himself to take part in the debate and in the decision. The number of Peers who actually stayed to the end of the debate, to vote, was somewhere in the neighbourhood of sixty, which is no inconsiderable number on a dull and technical subject. If it be the fact that some left at an earlier stage, it may be presumed that their convictions upon the subject were not of a very powerful character. Now, within a day or two of this debate, my

801
noble and learned friend puts down a Question on which I will make some observations in a moment. He then proceeds to make a speech or rather, I suppose, in the language of the Master of the Rolls, a few observations upon the merits of the general matter. In addition, he has placed upon the Paper a Motion, the plain result of which is to say that this House is entirely wrong in what it decided, after adequate debate, a few days ago.
I do not know how Parliamentary government would develop if this practice became general. I suppose upon that basis one of the majority Peers, who happened to disagree with my noble and learned friend, could put down another Motion on the Paper asserting the contrary to what is asserted in my noble and learned friend's Motion; and all the time we have full opportunity, according to our rules, if any noble Lord wishes to do so—and the noble and learned Lord has already done so—to put down a Motion on the Third Reading, inviting the House to reconsider and re-decide the whole matter. So we have an agreeable Parliamentary discussion to-day, to-morrow there is the noble and learned Lord's Motion that it is desirable to consult the Judges, and so forth, involving in this House a discussion on the whole merits of the question, and on Thursday we are to approach the Third Reading and reconsider the matter and then arrive at a further conclusion. It does not appear to me that that is a proper use to make of our procedure.
As to my noble and learned friend's Question, I will make an answer which I believe his own experience will convince him is reasonable. It is not in the general interests, and it could not be in the general interests, that any Government should make a public statement as to what Judges they have consulted before any particular proposal is brought forward. I do not wish my noble and learned friend to draw any inference either that the Government have, or that the Government have not, consulted any individual Judge, because if I allowed any inference of either kind to be drawn from my observations I should be evading a practice which I think will meet with the acceptance of the noble and learned Lord. It must happen to every Government, before they introduce controversial legislation, that the Minister in
802
charge reinforces himself by the opinion of some particular Judge. I have myself, in relation to the subject of divorce in India, received the greatest assistance from the experience of the noble and learned President. It would obviously not be possible, and certainly not in the public interests, that whenever one receives such help from a Judge one should be invited to specify the name of the Judge, the character of the advice which he has given, and the Papers (which can only mean the correspondence, if there be any) which have passed between the Minister and the Judge. The answer, therefore, to the specific Question put must be that in my considered opinion it would not be in the public interest to state what steps, if any, we have taken to ascertain the opinions of the Judges. Nor will I ever consent, as long as I have responsibility in the matter, to answer similar questions, whether they have reference to the whole body of Judges or reference to an individual Judge.
While I have found it necessary to say this I am most anxious not to take any step which your Lordships can reasonably construe as being inconsiderate to that body of opinion, which was indeed a minority upon the Committee stage, but which was in a small minority; and if it would in any way be regarded as an indication of the desire of the Government to act deliberately and considerately in the matter, I will certainly, postpone the Third Reading, which was to have taken place next Thursday, until a day conveniently chosen in the following week, which will at least make it possible for more time to be given to the matter. I cannot hold out the hope that the suggestion made by the noble and learned Lord will be assented to, because I have no authority in dealing with a Department which is not my own, and in discharging a duty which I only undertake, as noble Lords know, because of the lamented state of health of the late Lord Chancellor. But I should be very sorry—it has not been, I think, my history in this House—to refuse any appeal for more opportunity for consideration, where the public service permitted it, and I will most gladly fall in with the noble and learned Lord's view to that extent.
LORD CARSON: My Lords, I am sorry to say that, through circumstances which

803
I could not control, I was unable to be present here when the Committee stage of this Bill came before your Lordships. I did my best on the Second Reading to proclaim the reasons of my opposition to this very grave and unparalleled system, which it is sought to set up, of trying to rope in the Judiciary to the help of the Executive in their administrative capacity. Anything more dangerous or more unfair to the subject I cannot conceive. But I am very glad that my noble and learned friend Lord Merrivale has taken this opportunity of reviving the subject. The noble Earl who has just spoken rather complained of the way in which the rules of the House were being used for that purpose. The rules of this House and those of the House of Commons are, of course, quite different, but to say that anything that my noble and learned friend has done is misusing the rules of the House is an entire misconception. In the House of Commons a Bill goes through all its stages at great length, with Parties on both sides thoroughly examining it, and a general impression as to the importance or unimportance of the Bill grows up as the Bill goes through. In this House it is quite different. The great difficulty here, in the condition to which this House has been brought, is to get noble Lords to take any interest in the proceedings whatsoever. The bulk of Peers do not know what is going on, or whether the questions are important or unimportant. I should have thought that if the ordinary Peer saw down on the Paper the Rating and Valuation Bill he would think that was a very good day for him to stay away. That is really the whole difficulty—that any one who desires to take part in a debate on a subject in which he is interested finds it difficult to ascertain even that the question is on. And therefore when my noble and learned friend put forward this very important Question to-day, and put down the Motions for to-morrow, what I expect he was trying to do was to create some real interest in a subject which he feels is fraught with very considerable change as regards the position of the subject in his relation to the Judiciary and the Administration.
The noble Earl said that it was well known that the matter would be discussed in Committee. I should have
804
thought that for a proposition of this kind to be decided by about fifty Peers was really very discreditable to this House. I took the trouble to look through the Division List, and I found that there were ten or eleven members of the Government who supported the Government, as it was their business to do. If you took away those eleven members of the Government, you would find a considerable majority of independent members of the House against the proposal. It is, therefore, a very good thing to give notice to Peers that this is a matter in regard to which, at all events in the opinion of those who have had considerable experience in the administration of justice, change cannot be made without detriment to the rights of the subject to have his case properly tried, if an attempt is made to put rates upon him which he feels he is not bound to pay. I cannot imagine anything worse than for us to lay down that such a procedure should be taken as one which may be applied to many other matters. Just fancy applying it to the Finance Acts—to those complicated measures which raise all the taxes of the country. A case might be submitted to the Judges as to whether under a particular clause certain persons should be taxed, and then, if they were advised that that is not the proper construction, they would be told: "Oh, you were not there; we have got judgment; that is what the Courts say." Anything more mischievous I cannot imagine.
EARL RUSSELLMy Lords, it may or may not be improper to discuss the merits of this Motion, but I certainly think it would be inconvenient, and in that respect I shall follow my noble Leader. I have on the Paper a Motion for leaving out this clause on the Third Reading. The House will, of course, understand that in putting down that Motion I intend no disrespect to the House because of the decision in Committee. It is neither unusual nor improper to endeavour to reverse a decision at a later stage, and when that time comes I shall, of course, discuss the merits of the question. I should like to join my noble friend behind me in pointing out that, as practically all the independent members in this House, and certainly all those who spoke, did feel very strongly the danger of this clause, it is to be

805
hoped that before the Third Reading stage the noble Earl may succeed in obtaining authority to bow to what I think was the universal feeling of the House, and to withdraw it until it has been further considered.
THE EARL OF BIRKENHEAD: My Lords, in view of what the noble Earl and the noble Viscount have said, it will—it is of course my duty—be transmitted by me to the Minister to whose Department this Bill belongs. I should like to remove a misconception, if it exists, from the mind of the noble Earl. I never criticised him, nor any one who has put down an Amendment to the Third Reading, being well aware of the right of any member to challenge on the Third Reading a decision taken in Committee. Where I made a complaint of inconvenience, if it was a complaint, was in the anticipation of that legitimate occasion by debate, as it seemed to me, upon what was in substance the identical point to-morrow.
LORD MERRIVALE: My Lords, the discussion which has taken place relieves me of the necessity of asking your Lordships to divide upon the Motion of which I gave Notice. I take full account of what the noble Earl has said regarding the inconvenience of anything anticipatory of a Motion and Division to-morrow. My fear has been that it would not be possible to get this matter formulated
806
until noble Lords came to a decision upon this question. But so far as I am concerned have now discharged what I conceive to be my public duty of calling express attention to this matter and to the grounds upon which I object in the strongest way to the taking of advisory opinions from the Judges. Having done that, I feel that I am entitled to ask leave to withdraw the Motion now and to say that to-morrow I do not feel disposed to ask that further attention should be given to this matter in anticipation of the debate which will no doubt take place, if it becomes necessary, on the Third Reading. But I would say that I hope His Majesty's Government—and I include my noble and learned friend on the Woolsack—will in the meantime regard this not as a matter which has cropped up in a Department and about which they are at issue with some who are their usual opponents and some who are their usual supporters, but as a matter which is really a grave question of principle, and that, applying their minds to it, they will see whether it is worth while to depart from ancient practice and introduce a novel principle which many of us think would be fraught with danger. I ask leave to withdraw my Motion.
Motion, by leave, withdrawn.
House adjourned at twenty-five minutes before six o'clock.