HL Deb 06 December 1948 vol 159 cc780-90

Order of the Day for the Second Reading read.

THE LORD PRIVY SEAL (VISCOUNT ADDISON)

My Lords, this is a Bill which has come from another place, I may say with the approval of all Parties. It was there rapidly passed through all its stages, as is evidenced by the date on which we received it. The provision of compensation to Judges of the High Court in India, Pakistan and Burma, was made by a vote which was taken in the House some time ago and therefore does not form any part of the Bill now before your Lordships. This Bill enables proportionate pensions to be provided, not only for the Judges of the High Court, from the judicial part of the Indian Civil Service, but to barrister Judges specially appointed to the High Court who would not otherwise be entitled to a proportionate pension in the provisions here set out. Under existing laws, Judges of the Indian Civil Service are entitled to proportionate pensions, but not those who are barristers, specially appointed, who have not served the full minimum time, which is normally taken as seven years. In fact, of course, their service may be considerably longer.

This Bill enables us, in the special circumstances which have prevailed, to pay proportionate pensions to those Judges of the High Court who, for various reasons, retire before the full time has expired. That is provided for in the first clause of the Bill. Clause 1 also provides that, in the case of Judges who have not served the full seven years, two years are to be added to the period of their service for the purpose of estimating the pension. Under Clause 2 of the Bill, for the amount of pension which will otherwise be payable, a sum of £200 maximum is provided, and a proportion of that full sum will be added to the pension, according to the length of service which the learned Judge is entitled to claim. Clause 3 is specially drawn to apply to the Lord Chief Justice, who has retired after five years of service, and it enables the pension, apart from the compensation, to be paid to that learned Judge. Clause 4 applies similar provisions in similar circumstances not only to the Judges who have served in Pakistan and India, but also to those who have served in the High Court at Rangoon, in Burma. The other clauses of the Bill are really machinery clauses, which I feel are self-explanatory. I think it may be said that this represents a frank and friendly gesture on the part of His Majesty's Government. I can truly say that it has been exceedingly well received, and was called for in the special circumstances attaching to these times. I beg to move.

Moved, That the Bill be now read 2a.—(Viscount Addison.)

4.10 p.m.

VISCOUNT SIMON

My Lords, I do not doubt that the House will be glad to pass this Bill, which has already been before another place. The circumstances in which it has to be passed are, however, worth mentioning. The Indian Independence Act, 1947, became law in July of last year, and it contained no provision at all for dealing with this subject matter. It did contain a provision that an existing Judge of the High Court in India who continued to serve as a Judge after the appointed day, either in the Dominion of Pakistan or in the Dominion of India, should retain the same rights to salary and pension as he already enjoyed. But the Bill which was introduced in the summer of last year did not make any provision for compensating Judges who had accepted appointment to the High Court in India, and accepted that appointment as their life work, but who felt that the setting up of the new system of government by the Indian Independence Act so fundamentally altered the basis on which they had been led to accept their Judgeships that they must retire. Some of us pointed out at the time what we thought might well turn out to be the situation. Now that we are able to look at the matter with a little more information and perspective, I think we can see that it is so.

The staffing of the Indian High Court is a very anxious matter. Some of the Judges, of course, were drawn from the Indian Civil Service. They are dealt with otherwise, and I am not criticising that. But there was a very important part of each Indian High Court which was staffed by appointments of barristers from this country. All of us who have been interested in this matter have from time to time been concerned to help in finding the right sort of barrister who would abandon his chances of practice here in order to undertake work in the High Court in India. Of course, when they did accept it—and they were people of experience—they were abandoning their prospects here and, in return, were expecting to have life work as Judges in India. Therefore, I think it was quite natural—and I regret it was not more readily recognised—that if the Government of India was changed in the way that it has been changed, it might well be that some of these men, who are men of experience and probity, would find that in the new situation they could not continue with satisfaction to themselves or, I dare say, to others. I do not think it was very difficult to see that. It was an omission when the main Act was passed. I think that the Government were slow to recognise it; but never mind, they recognise it now, and I gather from what has just been said by the noble Viscount the Leader of the House that the terms suggested are regarded as not unreasonable. The Bill involves payments from the British Exchequer, of course, but I am sure we shall be prepared to accept it.

I must be allowed, however, to make one observation. The Secretary of State for Commonwealth Relations who presented this Bill the other day to the House of Commons explained the basis of the matter in a way which I certainly could not accept. He first said—and no doubt this is true—that it had now become plain that the continued service of European Judges is no longer acceptable to some, at least, of the Provincial Governments in India. I am sure that if he said so, it is so. I think that a pity because, after all, it was the introduction of British Judges and British justice into India which secured impartial treatment as between the races in that country. About that there is no doubt at all, though I am far from saying that there are not also Judges in the High Court of India, drawn from one or other of the Indian races, who show just the same impartiality and just the same determination to do justice. Some of them are my friends, and I know that that is true. But the Secretary of State for Commonwealth Relations went on to say that he hoped, and he thought we all hoped—I venture to quote these words— that they will continue to serve as long as their service is acceptable to the Government for whom they work. With great respect, I venture to say that Judges do not work for any Government; that it has nothing to do with it whether a Judge pleases a Government or displeases a Government. It is the very essence of the judicial office as we understand it—and we have tried in times past to introduce it in India—that a Judge stands completely impartial between the Government and everybody else; and he is not in the least concerned whether the Government like or do not like what he does.

There must have been some mistake in phraseology, because I am sure that the very distinguished right honourable gentleman who spoke in the Commons cannot really have meant that he was hoping they would continue to serve as long as their services were acceptable to any Government whatever. The truth is quite different. The truth is, of course, that these gentlemen were appointed on the expectation that, whatever changes were made in the Government of India, they would be changes more or less consistent with the situation under which they accepted office. After all, many of these men took a great risk. Many of them gave up their chances of earning their livelihood here, and some of them have only recently gone to India. I know of one case of a Chief Justice who was there for only a couple of years. Of course, if they were really going to lose their position without a provision of this sort, it would surely be very unjust indeed, because they find themselves cut off from the work which they were invited to accept and, it may be, at the very time of their lives when their domestic expenses are at a maximum.

I am therefore very glad indeed that the Government have seen fit to take this course, and from the inquiries I have made I believe it is true (as the noble Viscount opposite said) that the terms are accepted, though I am not able to say I myself think them very generous. I recall—I believe I am right—that when British Judges ceased to serve in Egypt (I think at the time of Sir Miles Lampson), the Egyptian Authorities drew up a paper which showed the length of their service, salaries and so forth. So far as I remember, they asked the British Treasury what they would regard as reasonable compensation. The Treasury, I believe, answered this inquiry and the Egyptian Government then added 50 per cent. to the figure suggested; and undoubtedly the Judges retired well satisfied that they had been fairly dealt with. It is not to the point here that this burden should have fallen on the Indian Government, rather than on the British Government; one quite appreciates that it is one of the adjustments which had to be made.

I have thought it right to make these observations, which are not intended to be critical of the Bill, because it is important to realise that these men, though not very numerous, have in fact suffered a grievous disappointment in their professional prospects. If you are a barrister, you cannot, without very great difficulty, come back after you have been away for many years and resume practice. Sonic of these men, I am glad to say, have now found new work here—one in particular of whom I know—and that is as it ought to be, because these men have by no means exhausted their powers. I therefore warmly approve of the Bill, and I hope I may be forgiven for giving a little actuality to the situation. We all sympathise with men who went out expecting to serve until they came to the end of their working life and who, through no fault of their own or of anybody else, have found their career cut off in the middle.

THE MARQUESS OF READING

My Lords, having inherited some interest in Judges, as well as some interest in India, perhaps I may be allowed, on behalf of my noble friends, to welcome the provisions of this Bill. Those who have served the cause of justice in India have deserved so well of the people of this country that we should be reluctant to see anything done which was against their interests, or anything left undone which their interests demanded at the end of their service. I confess that I share the feeling of the noble and learned Viscount, Lord Simon, that the provision contained in this Bill does not err on the side of generosity; but at least there is a provision, and for that we must be thankful.

4.23 p.m.

EARL WAVELL

My Lords, I am sure this Bill will be welcomed by all of your Lordships as affording some measure of justice to those whose administration of justice in India and Burma has fully maintained the British reputation for fair play and observance of the law. As the last Viceroy and Governor-General of India present here today, I should like to pay a short tribute to the personality and the work of these Judges which I saw and admired during my term of office. Their task was no easy one; they had to work in an atmosphere charged and supercharged with suspicion and hatred, not only between the two main communities, Hindu and Moslem, but sometimes also amongst educated political classes where there was suspicion of the British as British. But amongst all, Hindu or Moslem, educated or uneducated, rich or poor, their character, professional ability and unremitting labours earned the most profound respect for British law, British justice and British Judges.

The administration of law was by no means their only work. Whenever any difficult problem, especially as between the two main communities, had to be resolved and adjudicated upon, the main burden usually fell on a British Judge. Thus, the Chief Justice, Sir Patrick Spens, to whose tact and wise counsel in all matters of constitutional law and other questions pertaining to his office I should like to pay a tribute, was engaged, right up to the partition of August 15, 1947, in addition to all his other labours, in presiding over a Commision on the disastrous riots in Calcutta of August, 1946. Sir Leonard Stone, the Chief Justice of Burma, presided over two most important Tribunals: that which determined the causes of and incidence of reparations after the great explosion in the docks of Bombay in April, 1944, and that on the mutiny in the Royal Indian Navy in 1946. Those are only three instances of the additional work which fell on these few men, in a climate where long hours impose considerable additional strain. I could say much more in praise of these Judges, but I am sure that all your Lordships appreciate what they did and how well they maintained in India (and in Burma as well, though I have not the same personal knowledge in that case) what is perhaps the most precious gift of Great Britain to the East—namely, equal justice for all.

I do not suppose that the award of the Treasury provides all that these Judges had hoped for, or all that they deserve; or that it fully compensates them for what they have done. As noble Lords who have already spoken have said, many of these men gave up very lucrative positions at home to serve their country abroad, and they could have been fully reimbursed only if they had completed their full time in their posts in India. It is obviously extremely difficult to assess compensation for loss of a career; but it is a great thing that a reasonably generous settlement has been made to these men, and I offer my humble congratulations to the Government on this measure.

In justice to others who have served Great Britain in India with equal patriotism, but in lesser spheres than these Judges, I must add just a few words. This Bill, as I read it, establishes three main principles. The first is that the Secretary of State may pay pensions out of moneys provided by Parliament, and not by the Dominions of India or Pakistan, to men not of the Indian Civil Service. It further provides that these pensions may be paid to those who were serving on August 15, 1947, but who may since have retired. It also lays down that compensation may be paid in certain cases. I earnestly beg that the Government will apply these eminently sound and fair principles to those humbler persons—junior police, railway officials, military clerks and the rest—whose claims have been pleaded by other noble Lords in this House on more than one occasion this year. Something has lately been done for them by providing for those who are still serving the right to retire on proportionate pensions. That was done through the generosity of the Governments of India and Pakistan. But there is something more to be done. There are some of those men who were compelled, not by any lack of public spirit but by force of circumstances, to retire after August 15, 1947, yet before the grant of proportionate pensions. There are also some who have a strong claim to compensation for loss of office. Therefore, I hope that the Government will apply these principles to these men in the same way as to the Judges.

4.31 p.m.

LORD HAILEY

My Lords, my excuse for troubling your Lordships for a few minutes is that upon a previous occasion I, with some of my friends here, had to press upon your Lordships' attention the case of the Secretary of State's Services in India who were being deprived of their career, and to urge that they should receive adequate compensation. My own career, of course, has been in only the administrative services. There used to be a tradition in India that a certain amount of alienation existed between the administrative services and the judicial Benches. It was a tradition of old standing for as far back as the days of Warren Hastings it was considered improper for a Judge of the High Court of Calcutta even to meet at dinner members of the Administration. But I can speak on behalf of all members of the administrative services when I say that, so far from there now being any such feeling of estrangement or alienation or lack of appreciation, there is no one who has been engaged in an executive capacity in India who does not realise fully what India owes to its Judiciary.

I often think that there is not a general recognition—as general as there should be—of the fact that the atmosphere of acquiescence or acceptance which the Government of India enjoyed for so many years, and which gave them their chief authority, was due to the fact that the Judiciary had been instrumental in bringing a system of impartial justice to India. There had been gifted administrators before in India, but the one thing that India had never known was a system of impersonal and impartial justice. Realising that, there is none of us who could fail to welcome a Bill which gives to men who had made many sacrifices of their careers in England in order to serve the cause of justice in India some compensation, or at least some consideration, for the loss of their careers in India.

May I add one further consideration? We had always foreseen that the change of the system of government in India must mean a decline in administrative standards. In the beginning, it must at all events have meant dislocation, and afterwards perhaps something even much worse, in the executive organisation of the country. Those of us who have been able to follow, even at this distance, the course of affairs in India in the last year know how far the situation has gone beyond mere dislocation; we know what a grievous falling off there has been in the standards of administrative and executive efficiency. It is a picture that I hope will be revealed to the world, for the whole of it is not yet known in England.

But, although there has been this falling off in the executive administration, with all the loss that it involves upon the ordinary man in India, we had nevertheless hoped that the momentum acquired by our system of judicial organisation would continue, that there would be no falling off in the standards of justice, at all events in the higher ranks of the Judiciary. It is therefore with deep regret that we must realize that it has been found necessary by some of our barrister and other Judges to consider the termination of their careers on the Bench. That fact cannot but have implications which will be far-reaching for the welfare of India. However, now that we have to recognise that, we must welcome the steps that the Government have taken here—courageous steps, it may be said—to find a solution for the necessity which has been forced on these Judges to retire from the Bench.

There is one further point—as has been pointed out by the noble Earl, Lord Wavell—that what has hitherto been done for men who have lost their careers in India has reached only a certain range of those officers. There is another wide field in which we cannot but feel that great injustice has been done, and that many wrongs have to be righted. As I know, the noble Earl has espoused the cause of those men, and he will, I hope, have the support and the sympathy of everyone in this House. It may not be that this is the right occasion to enlarge upon that theme, but I hope there will be some further opportunity for explaining in greater detail the hardship suffered by a large body of meritorious officers and to endeavour to obtain from the Government some measure of justice for them.

4.40 p.m.

VISCOUNT ADDISON

My Lords, I thank your Lordships for the friendly reception which has been accorded to this Bill. As I think that some of the remarks of the noble Lord who has just spoken may perhaps create an unfortunate impression, I should point out that some of these Judges are very happily and willingly continuing their services in India, and that what he has said does not by any means apply to all the Judges. I hope that any impression to that effect will not be created by anything which the noble Lord has said. As to the terms of compensation, I think it can fairly be said that they are generous; at all events they were willingly accepted as fair. If your Lordships are interested, I will circulate with the Papers afterwards the scheme of compensation which was announced in the other place, and which, of course, stands related to the age of the Judge. I think you will see by that table that the scheme is certainly fair.

With regard to the other remarks made by the noble Earl, Lord Wavell, I would like to associate myself with what he and the noble and learned Viscount opposite said as to the immense debt which the whole world (and particularly the Continent of India) owes to the tradition which has been established by British Judges over a long series of years, and which, I am sure, has had, and will have, an enduring influence in both India and Pakistan. The point that the noble Earl made with regard to other services was raised by him in some questions a few days ago, and I am well aware, notwithstanding what we have done, that we cannot expect that the noble Earl will ever say that he is satisfied. At the same time, we are doing our best to be fair and, I think he will admit, even generous. But I would call attention to the statement which I made deliberately at the end of my reply on a previous occasion, that my right honourable friend was prepared to receive representations from the classes to which he specially referred. I may say that I made that statement after consulting the Department concerned, and the noble Earl will understand what that means.

I am sure your Lordships will agree that we should recognise that the fact that those Judges, for various and good reasons, have felt that they wished to retire before their normal time, does not in any way reflect adversely upon their decisions. There are all kinds of family and other circumstances which have led to their decisions, and we are glad that a number of learned Judges are still continuing to serve. As your Lordships are aware, under the rules of our procedure this Bill is related entirely to money questions. I do not think I shall be exceeding the reasonable latitude attaching to these matters when I say that I hope we shall be willing to dispense with the Committee stage, as is usual with Money Bills. I beg to move.

On Question, Bill read 2a: Committee negatived.