HL Deb 24 April 1928 vol 70 cc795-806

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: 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, 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 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 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 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 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 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 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 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 RUSSELL

My 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 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 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.