Lords Sitting of 25 October 1932

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR On the Woolsack.

VISITING FORCES (BRITISH COMMONWEALTH) BILL. [H.L.]
Order of the Day for the Second Reading read.
THE UNDER-SECRETARY OF STATE FOR WAR (EARL STANHOPE): My Lords, earlier in the Session I had to explain to your Lordships the reason for the very large number of Amendments to the Army Annual Bill, and I then stated to your Lordships that it was principally due to the Statute of Westminster and the necessity for legislation here and in the Dominions as a result of that Statute. The Bill which I present to your Lordships this afternoon for Second Reading is a further result of that Statute. Prior to its passage the legal position of the armed Forces of the British Commonwealth rested in general upon legislation passed by the United Kingdom Parliament which had to effect two purposes. The first was to provide a legal basis for the application of Dominion defence legislation to Dominion Forces when they were visiting territory outside the Dominions concerned. Secondly, there was the converse case, to provide a legal basis for the position of United Kingdom Forces in the Dominions which could not be overridden by Dominion legislation, and also to provide, to some extent, for assistance from the civil authorities to such Forces. As regards the first point, the legal basis for the application of Dominion defence legislation to Dominion Forces outside their own territory, so far as Naval Forces were concerned that was effected by the Naval Discipline (Dominion Naval Forces) Act, 1911, or by the Colonial Naval Defence Act, 1931. So far as the Army and Air Forces were concerned it has been effected in the past by the operation of Section 177 of the Army and Air Force Acts. Briefly that meant that a Service court of a Dominion Force which was visiting this country could rely on recognition by the Courts of the United
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Kingdom and could rely on assistance from our civil power for such purposes as the apprehension of deserters and things of that character.
The Statute of Westminster does not become operative so far as Australia, New Zealand and Newfoundland are concerned until adopted by them, but in the case of a Dominion to which the Statute does apply the position under the general principles embodied in the Statute can be stated in this way. As to the first point, when a Dominion Force leaves its own Dominion that Dominion has to arrange by legislation that its defence legislation shall follow it wherever that Force goes. Secondly, if a Force from this country goes to a Dominion then there shall be no interference with the discipline of our Forces and such civil assistance as the Dominion can provide shall be at our disposal. As a corollary to this it is necessary for the Dominions to pass their own legislation to deal with their own Forces when serving outside the Dominions and also with our Forces when they go to the Dominions. That is for them to do. This Parliament has to pass legislation for other Forces visiting this country or visiting the Colonies or the Protectorate of Aden. Your Lordships will remember that last summer a detachment came from Canada to take part in the tattoo at Aldershot, and that detachment was very welcome. As regards ourselves, this Bill affects the Air Force more than the other two Defence Forces, because, as your Lordships know, the Air Force is frequently making flights to South Africa or Australia and therefore it is necessary for them to have the advantage of the legislation of those Dominions.
The phraseology of the Bill is rather different from that to which your Lordships are accustomed, and for this reason. It has been drafted with the idea that it should be a model for Dominion legislation. Therefore your Lordships will find such phrases as "parts of the Commonwealth" put in, so that practically without any alteration Canada or any other Dominion can adopt this Bill and bring it into law. As a matter of fact South Africa has already passed legislation on these lines. As regards the Dominions which have not adopted the Statute of Westminster their position was regulated by the inclusion—as agreed

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with them—of a new section, 187c, in the Army and Air Force (Annual) Act which your Lordships were good enough to agree to last April.
I will turn now to the clauses of this Bill. Clause 1 is designed to enable the authorities in command of a visiting Force to exercise effective control over the members of such Force. Clause 2 enables arrangements to be made by Order-in-Council to accord to a visiting Force such facilities in relation to several matters as may be accorded in such matters to the Home Forces. Clause 3 provides for the application of the existing arrangements for dealing with deserters from the Home Forces to deserters from the Dominion Forces. The application of this clause in relation to the Forces of any Dominion has been made dependent upon the issue of an Order-in-Council, the intention being that such an Order should be issued when the Dominion concerned has by its legislation made corresponding provision in relation to United Kingdom Forces. In other words, this will be reciprocal legislation. With regard to Clause 4, is a curious fact that there has been no provision for attachment from Dominion Forces to Home Forces and when officers have come here from the Dominions sometimes to command home units they have had to be given a second temporary Commission in order to regularise the situation. That will no longer be necessary if Clause 4 is passed because it provides, so far as the United Kingdom forces are concerned, for the attachment of personnel from United Kingdom to Dominion Forces and vice versa and also for the exercise of mutual powers of command.
Clause 5 deals with the application of the Bill to Dominion Forces visiting the Colonies, Aden and any territory under His Majesty's protection, substantially as though the latter formed part of the United Kingdom. Clause 6 deals with the position in relation to mandated territories. Clause 7 contains a saving clause designed to make it clear that nothing in this Bill affects the arrangements embodied in the existing Acts relating to Naval Forces, which contain special provisions for co-operation between the United Kingdom and the Dominion Navies. I may say that this clause has been drawn up after considerable con-
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sultation with the Dominion of Canada and the present wording has been agreed with the Canadian Government. There is also in the clause a saving clause for the Army and Air Force Acts in their present continued application to the Commonwealth of Australia, New Zealand and Newfoundland, inasmuch as they have at present decided not to adopt the Statute of Westminster. The remaining clauses are merely formal and I do not think there is anything further I need say. The measure is not an easy one to explain, although its object is simple, and I hope your Lordships will be prepared to give it a Second Reading. I beg to move.
Moved, That the Bill be now read 2a.—(Earl Stanhope.)
LORD MOUNT TEMPLE: My Lords, there is one point I would like to put. I do not expect an answer to it now, as it is rather technical, but perhaps on the Committee stage the noble Earl will give me a reply. In Clause 1, subsection (3) it is provided that
"a certificate under the hand of the officer commanding a visiting force…shall be conclusive evidence of the cause of his detention, but not of his being such a member."
He can say that A has been arrested, say, as a deserter, but there is no evidence there that the person detained is really a deserter. I want to know what steps would be taken to identify the person or alternatively to give the person who denies he is a deserter a chance of clearing himself. It may well be that the section of the Army Act referred to in Clause 3 does provide for that—I am not sure, but perhaps the noble Lord could give me an answer in Committee.
EARL STANHOPE: My Lords, I think I can give a partial answer. Probably an escort would be sent over to identify and no doubt they would be able to give evidence in our Courts of Law.
LORD MOUNT TEMPLE: He would be brought up in a court of summary jurisdiction which would decide whether it was justified in detaining him?
EARL STANHOPE: Yes.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

ADMINISTRATION OF JUSTICE BILL. [H.L.]
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR (VISCOUNT SANKEY): My Lords, I beg to move that this Bill be now read a second time. Its object is to effect some small reforms in legal procedure which have been long overdue. The best way to describe its purpose is to take each clause separately and deal with it quite briefly. The first clause relates to appeals from the decisions of official referees. Of all the letters which reach a Lord Chancellor on the subject of reforms of the law none are so numerous as those which demand a reform of the system by which litigants can drag each other from Court to Court by way of appeal. This clause is intended to make a beginning in the direction demanded and in the most glaring of all cases. Your Lordships are familiar with the nature of the jurisdiction of official referees and the many appeals possible. Cases are referred to them which require prolonged investigation and there are more opportunities of appeal than in any other class of case. The remedy suggested in this clause is twofold. In the first place it makes the decision of the official referee final on questions of fact. Then as to questions of law: in the first place the clause reduces the number of appeals from three to two by providing that the first appeal should go direct to the Court of Appeal and not to the King's Bench. That by itself does not seem enough. Appeals to the Court of Appeal would take an immense amount of time, even on questions of law, if there is not a further simplification. The Bill provides, therefore, that where there is a question of law for appeal, the official referee should be asked to state what it is, in the same way that magistrates and arbitrators can now be asked to "state a case." The matter will then be reduced to manageable proportions, and can be satisfactorily dealt with by the Court of Appeal, and, if necessary, on a further appeal by your Lordships' House. So much for Clause 1.
The remaining clauses deal with quite technical matters in the administration of justice. Clause 2 is designed to enable the High Court to issue grants of representation in cases where a deceased person has left no property in England belonging to him, but where, neverthe-
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less, there is need for a personal representative to attend to his affairs. There may, for instance, be property abroad, or it may be that an ex gratia grant is payable to the deceased person's representative, or there may be Court proceedings in which representation is necessary or desirable. Such cases, I am glad to say, are not numerous, but their occurrence gives rise to very serious difficulties owing to the present inability of the High Court to issue a grant in such circumstances. The purpose of Clause 3 is to enable appropriate directions to be given to limit the accumulation in the Probate Registry of notices as to applications for grants of representation, for as the law stands at present those documents have to be kept, so far as I can make out, for ever, and there is no power to consign this accumulation of formal records of short-lived utility to the waste paper basket.
Clause 4 is intended to facilitate the introduction of a long-sought reform, designed to mitigate the delays and expenses now experienced in the administration of the estates of deceased persons, by a system of issuing at the lowest economic rate copies of probate or letters of administration for registration with companies holding assets of the estate. At present what happens is this. The law requires such a document to bear the large seal of the Principal Probate Registry, at a charge which precludes any prospect of success with the intended reform; and the proposed enactment would admit of the use of a smaller and less expensive seal for the purpose under consideration. Clause 5 is intended to meet a point raised in another place last June. Under Section 84 of the Law of Property Act, 1925, questions whether a restricted covenant should be removed are tried by an expert tribunal. It was pointed out that this tribunal has no power under the Act to award costs in such cases. This causes considerable hardship in cases where improper attempts are made to get restricted covenants removed. The clause gives the tribunal the necessary power to award costs. All these suggestions will make for economy and expedition in the administration of the law. They may seem small reforms but they are worth doing, and I am glad to have this opportunity of asking your Lordships to give the Bill a Second Reading.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
THE EARL OF HALSBURY: My Lords, there is only one question which I would like to put to the Lord Chancellor. He pointed out that under Clause 1 appeals from the official referees were more or less on the lines of what was done in arbitrations. There is a particular form in the Arbitration Act. I am not going to suggest that it is a good one to put in this Bill, but only wish to ask if it has been given consideration. The parties to an arbitration can, during the hearing, ask that a point of law should be taken before a Divisional Court, and then, the arbitrator having got a ruling by the Superior Court, the matter comes back again to him. I am not sure that I approve of it but I remember a case where, the arbitrator having put part of the ruling in his award, the award was set a side by this House on the ground that it was bad in form.
THE LORD CHANCELLOR: I remember quite well the case referred to by the noble Earl—the Underground Railways case—and we had that in mind when we decided that this should not be put in the Bill. After the decision of the Court had been put into the award the Superior Court said that the award was bad upon the face of it because the decision was bad. I know that we felt rather deeply on that matter at the time.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

GAS UNDERTAKINGS (BASIC PRICES).
THE CHAIRMAN OF COMMITTEES (THE EARL OF ONSLOW)THE CHAIRMAN OF COMMITTEES (THE EARL OF ONSLOW) had given Notice that he would move to resolve, That it is expedient that a Joint Committee of both Houses of Parliament be appointed to consider and report whether, as one of the methods of giving effect to the basic price system of charge by gas undertakers in those cases in which a power to make a differential charge in respect of any part of the existing or intended limits of supply is proposed to be continued or granted, it is expedient to authorise a separate basic price in respect of each such part, arrived at by adding to the basic price fixed in respect of the area for which no differential charge is
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proposed a sum representing the differential charge as proposed to be authorised or continued, or as actually made.
The noble Earl said: My Lords, the House will remember that shortly before the Recess, during a debate here on the Bath Gas Order, the noble Marquess, the Marquess of Bath, made a suggestion that the question of one or more basic prices of gas was one which ought to be decided on the lines on which other gas questions had been dealt with, or by a Joint Committee, or something analogous thereto, such as those two Committees which have already sat under the Chairmanship of Lord Chalmers and Lord Marks. I have ventured to discuss this during the Recess with various people, and it was held to be a necessary procedure that we should have at some time to settle this matter in the way that the other two questions have been settled. I therefore put this Motion down on the Paper, but it has been represented to me that this might possibly clash with the Special Order, and therefore I suggest that I should not move my Motion to-day, but leave it over until that has been decided and settled. We could then consider the question of setting up a Committee and deciding this question in the same way as the Committees presided over by Lord Chalmers and Lord Marks have decided the other questions. There is no very great hurry and I therefore suggest that my Motion may be left over.
LORD TEMPLEMORE: My Lords, after the explanation of the Lord Chairman I will not trouble you with a long speech, but as the Peer representing the Board of Trade in this House, I think I should say that there has been certain confusion in I his matter of the Gas Undertakings (Basic Prices) upon which a Motion was to have been moved to-day. It has been in some way confused with a question which some of your Lordships may remember, the question of the Bath Gas Order upon which it was my duty to speak to your Lordships when we had a short debate on the last day but one before we adjourned in July. In the circumstances I have to say that His Majesty's Government have no objection to the course which is proposed by the Lord Chairman, and support his suggestion.
The EARL OF HALSBURY: My Lords, I would like to ask the noble Lord who

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has just addressed your Lordships what he means to do about the Bath Gas Order. I certainly understood that this Motion was in connection with the Bath Gas Order, and I think I have a very good reason for doing so. I would like to ask him whether the Government propose to bring forward before this House—in this Session—the Report of your Lordships' Committee or not; because, if they do not, there are many Peers in your Lordships' House who propose to bring it forward.
LORD TEMPLEMORE: My Lords, I can only speak again in answer to my noble friend by leave of the House. The position is this, that negotiations are now going on between the Board of Trade and the various parties interested, and I am afraid I cannot say at the moment whether this Order will be brought up this Session or next Session. I am afraid that is the only answer I can give, to my noble friend.
THE EARL OF HALSBURY: My Lords, may I be allowed to say a word on that? The noble Lord has said that negotiations are going on between the Board of Trade and—whom? I suppose the undertakers. What negotiations? As to whether your Lordships' Committee is to be absolutely thrown over, or as to whether its Report is to be discussed in this House? What is this suggestion?—that there should be a new Committee set up? If so, are the Board of Trade going to pay them the costs that the undertakers have been put to in producing counsel and witnesses for four days before a Committee which your Lordships appointed to report to you? Will the Board of Trade pay that? If so, under what particular Departmental budget—the House of Lords Committee Shelving Department, or what? I should like very much to know.
We have got a Report from a Committee before us, who have reported that in their view we ought to pass a certain definite affirmative Resolution. Why have the Government not had the courage to bring that before us? Supposing the undertakers had been a little bit unhappy about the finding of your Lordships' Committee: would the Government have listened to them if they said they wanted another chance, by another Committee, or a Joint Committee, or by
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an adjournment, or going over to the next Session? It will mean that there will have to be another Committee appointed, and at whose expense? At the undertakers? Is this the Government economy? Well, I can quite understand it if you are going to have a Departmental bureaucracy which simply tells this House and another place: "We insist on having what we want, even although a strong Committee of the House of Lords have said that we cannot have it." I still want to know whether this is going to he brought up this Session, because, if not, I for one—and I am sure that there are a good many others of your Lordships who mean to do so too—certainly mean to bring it up.
LORD MOUNT TEMPLE: My Lords, may I intervene, because at the end of last Session I prophesied that something would happen which apparently has happened—namely, that during the Recess the Board of Trade would bring pressure to bear upon the undertakers to do certain things, and that the recommendation of the Committee of your Lordships' House would be overridden by a Government Department? As a very humble and junior member of your Lordships' House it does seem to me of very little use having a Committee of your Lordships to investigate such things if the recommendations are not accepted; or at any rate discussed, by His Majesty's Government. It surely must make it a very thankless task to members of your Lordships' House to go into these rather dry subjects, and to spend hours in investigating these matters, if they are to find in the end that their recommendations are flouted by a Government Department. Therefore I support my noble friend Lord Halsbury in asking that the Government's intention as regards this Session should be declared forthwith.

ROTHERHAM GAS (No. 2) ORDER, 1932.
Special Order proposed to be made on the application of the Mayor, aldermen and burgesses of the County Borough of Rotherham:
Laid before the House (pursuant to Act) and referred to the Special Orders Committee.

WISBECH GAS ORDER, 1932.
Special Order proposed to be made on the application of the Wisbech Lighting Company:
Laid before the House (pursuant to Act) and referred to the Special Orders Committee.