HL Deb 24 April 1928 vol 70 cc785-93

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 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 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.

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 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 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 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 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.