§ 3.16 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, this Bill deals with a number of miscellaneous matters between which there is one common link, derived from the fact that Northern Ireland has a written Constitution, which is contained in the Government of Ireland Act, 1920, as amended from time to time. That Act, as your Lordships know, set up a separate Parliament in Northern Ireland and gave it power to legislate for order and good government in Northern Ireland. The 1126 powers of the new Parliament at Stormont were, however, restricted in a number of important respects. Noble Lords who are interested will find these restrictions, or the most important of them, in Sections 4, 5 and 47 of that Act. The Parliament cannot, far example, legislate on matters relating to the Crown, the Supreme Court, and trade with places outside Northern Ireland. There are other such matters, and there are other effects of the Act, to which I shall refer in a moment.
The general principle followed in 1920 in the division of powers between Parliament at Westminster and the Northern Ireland Parliament was that the latter should be responsible for purely domestic matters, while matters of wider import, which could more appropriately be dealt with at Westminster, were reserved to the United Kingdom Parliament. However, it is difficult to draw any clear line, and the division of powers has never been regarded as something fixed and immutable, but rather as a working guide which can be revised in the light of experience. Once the need has been shown to widen the powers of the Northern Ireland Parliament, Parliament here has always been ready to pass the necessary legislation.
As I have said, the Act of 1920 provided that all matters relating to the Supreme Court of Northern Ireland should be reserved matters requiring to be dealt with at Westminster. Much of the law relating to the administration of justice in Northern Ireland is now out of date, and the Supreme Court itself is still governed by the Act of 1877. When Lord Jowitt was Lord Chancellor, he set up a Committee to examine the enactments relating to the practice and procedure of the Supreme Court of Northern Ireland; and this Committee, under the chairmanship of Mr. Justice Sheil, reported in 1957. I, among many others, am very grateful to Mr. Justice Sheil and his Committee for their work. The Committee made a number of recommendations designed to simplify the procedure in the Supreme Court and to free it from the need to follow the English practice and procedure in cases where that appeared to be ill-adapted for a small community with wide agricultural areas, such as exists in Northern Ireland.
1127 The first twelve clauses of the present Bill will enable effect to be given to the main recommendations of the Sheil Committee, and will, I think, bring about a substantial simplification and improvement of the present law. I do not think your Lordships will wish me to enter into any detail about the changes made by these clauses. It is perhaps worth mentioning that Clause 1 will effect a much-needed simplification in the law relating to the right of appeal to your Lordships' House. At present this is most obscure and in some cases it even involves a consideration of pre-Union enactments dating back to before 1801. In future, the right of appeal from the Court of Appeal in Northern Ireland will be much the same as the right of appeal in England and, in particular, it will be necessary to obtain leave to appeal, following the practice which has worked successfully in this country since 1934. At the same time, it has been thought useful to restrict appeals from the High Court to the Court of Appeal in Northern Ireland on relatively unimportant matters, thus further reducing the likelihood of such matters reaching your Lordships' House. This is done by Clause 2, which is very similar to provisions which have obtained in England for some time.
I think that the only other clause I need mention here is Clause 11, which reduces the number of jurors required in civil proceedings—I repeat, in civil proceedings—from 12 to 7. Jury trials are much commoner in Northern Ireland than they are in England and the need to serve on a jury is apt to impose a heavy burden in a relatively small community. No change is proposed for criminal proceedings, where there will still have to be 12 members of a jury.
I now turn to the next group of clauses, which form part of the continuing process of amending the Constitution of Northern Ireland to meet changing needs and circumstances.
The most important provisions in this part of the Bill are contained in Clauses 13 to 15. The object of these clauses is to enable housing, slum clearance, planning and other social legislation of a like nature to proceed in Northern Ireland on lines with which we in the "other Island" are familiar.
1128 Such legislation has been hampered in Northern Ireland largely because of the existence of a written Constitution, with its rigid definition of powers. and these clauses are designed to remove the difficulties which have been experienced. The position is somewhat complicated and I hope that your Lordships will bear with me for a few minutes if I explain the matter in a little detail.
Section 5 of the Act of 1920 is principally aimed at preventing religious discrimination, but it also limits the purposes for which the property of religious denominations may be taken even on payment of compensation. Similar provision in regard to the property of educational bodies was made by another statutory provision. Section 5 of the Act of 1920 also contains a general prohibition on the taking of any property, not only that belonging to religious and educational bodies, without compensation.
The list of purposes for which property of religious and educational institutions can be taken on payment of compensation is, as I have said, strictly limited and includes only roads, railways, lighting, water or drainage works and other works of public utility. It does not include housing, slum clearance, or the development or redevelopment of land. In consequence, progress in these directions has been much impeded, since Church interests in property are widespread in Northern Ireland.
The worst difficulties have been experienced in connection with slum clearance schemes. The difficulties have not been quite so great in connection with sites for new housing, though, as a result of the restrictions I have mentioned, it has not in fact been possible to make use of some sites which would have been particularly suitable for new houses.
These difficulties will be removed by paragraph (a) of subsection (1) of Clause 13, as a result of which it will be possible for the Northern Ireland Parliament to authorise the compulsory acquisition of land belonging to religious and educational bodies—of course, on payment of compensation—for the purpose of housing, slum clearance and the development or redevelopment of any area.
Paragraph (b) of the same subsection will enable the Parliament of Northern 1129 Ireland to control the use of land belonging to religious and educational bodies. This will be of particular value in connection with planning legislation. The present power to impose controls of this kind is doubtful, in view of the wide interpretation which can be placed on the prohibition contained in Section 5 of the Act of 1920 against the diversion of Church property. As I have said, Section 5 also prohibits the taking of any property, whether directly or indirectly, without paying compensation. This provision goes further than might at first sight appear, for it can be construed so as to prevent the imposition of restrictions on the use of property.
A great deal of modern legislation is aimed at preventing the use of property, in what may broadly be described as an anti-social manner, without providing compensation. Yet, because of the wide interpretation which can be placed on the provisions I have mentioned, the validity of Northern Ireland legislation of this kind is always open to challenge, and for this reason the planning code in Northern Ireland is a good deal less far-reaching than the planning legislation in the sister island. Much of our own legislation provides for controlling the use of land and buildings, in many cases without any right to compensation, but it is doubtful how far the Parliament of Northern Ireland could go in following these provisions. Clause 14 of the Bill accordingly proposes the removal of these restrictions, thus giving the Northern Ireland Parliament a free hand to legislate on planning matters, which it seems only right that they should be able to do.
It is true that Clause 14 is quite general in its application arid is not confined to legislation on planning matters. But the prohibition on taking property without compensation has given rise to a good deal of troublesome litigation, and it would not be practicable to devise any partial relaxation of the restriction which would work satisfactorily in practice. The truth is that there is no likelihood of the Parliament of Northern Ireland engaging in the expropriation of property without compensation, and so no safeguard of this kind is really needed.
Clause 15 will remove any doubt as to that Parliament's power to pass legislation providing for security of tenure or 1130 enlarging estates or interests in land. At present, Northern Ireland legislation on such matters as the control or decontrol of rents (your Lordships will appreciate how far-reaching the point is when I point out that the control of rents may affect a right of property in a landlord, and the decontrol of rents may affect a right of property in a tenant, so that even such obvious legislation as this has to be regarded in the light of the risks which I have mentioned), and on such matters as the renewal of long leases and business tenancies—which is the field over which we legislated in the Act of 1954—is capable of being attacked on the ground that it takes property without providing compensation. Accordingly, Clause 15 extends to past as well as to future legislation on these subjects.
The remaining provisions of the Bill will extend the powers of the Parliament of Northern Ireland to legislate on a number of miscellaneous matters, and in certain cases will directly amend the law relating to Northern Ireland. I do not think I need go through these clauses in detail, but your Lordships may be interested in Clause 17, which will enable the Parliament of Northern Ireland to legislate so as to prevent cruelty to horses, asses and mules when exported from Northern Ireland, whether by land, sea or air. It is unlikely that many old or worn-out horses are, in fact, exported from Northern Ireland, but it is clearly desirable that Parliament at Stormont should be able to introduce their own legislation on this subject.
Clause 18 will enable that Parliament to pass wider measures than they can at present in order to foster the export of agricultural produce from Northern Ireland. Clause 19 removes doubt about Parliament's power to base charges for services or facilities on the quantity of any product: under the present law such charges might be held to constitute an Excise duty, which the Northern Ireland Parliament has no power to impose. The only other provision in the Bill that I think I need mention is Clause 24, which will make law enforcement easier by adding to the number of persons who are authorised to endorse warrants of arrest sent from Great Britain to Northern Ireland, or vice versa, for execution in the other country.
My Lords, I am conscious that I have had to cover a great variety of subjects, 1131 but the point of interest is that, with whatever skill the Constitution is drawn, and however much care is devoted to the separation between reserved and transferred powers, one inevitably finds that with the advance of human affairs new problems arise which must be dealt with, and I am glad that we are able to make a stop forward in giving more powers to the Parliament at Stormont and in bringing their law up to date. I am sure that these provisions will improve the law relating to the administration of justice in Northern Ireland and will give the Parliament at Stormont up-to-date powers of which they will make good use. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.33 p.m.
§ LORD SILKIN
My Lords, I am sure the whole House will welcome this step forward in giving to the Parliament of Northern Ireland a substantial measure of freedom in the administration of their own affairs. The matter is regulated, as the noble and learned Viscount said, by the Government of Ireland Act, 1920. So we have now had nearly 42 years' experience of the administration of justice in Northern Ireland and it is quite timely that this matter should have been reviewed at this stage. The matter was first put in motion by the setting up of the Sheil Committee in 1949, and it is some indication of the pace at which these things move that it is over twelve years since the Committee was first set up. Well, judging by the speed of other matters, this is not really bad going. It is over five years since the Committee reported, and they had a big task in dealing with the multifarious matters with which they were confronted: indeed, one has only to look at the First Schedule to the Bill and the enormous number of amendments to Statutes for which it provides to see that this was a most complicated matter. As I say, to the extent that the Government of Northern Ireland are given greater freedom and restrictions are removed, I am sure we should all welcome this measure.
There is a certain amount of criticism of the fact that not all the recommendations of the Sheil Committee have been accepted or are provided for in this 1132 Bill. I do not propose to go through them at this stage—there are quite a number of them—but it may be that at a later stage of the Bill it will be possible to draw the attention of the House to some of the more important of them. I should like, however, to refer to one or two matters dealt with in the Bill and one or two that are not. Let me mention, first, a relatively small matter. There is a recommendation of the Sheil Committee that subpoenas issued by the High Court of Northern Ireland should run throughout the United Kingdom. That is a convenient recommendation. A person who is desirous of evading the necessity of appearing in court on a subpcena has only to move a short distance out of Northern Ireland and he is exempt from the obligation to attend court. I see no reason why the recommendation of the Sheil Committee should not have been implemented and why subpœnas should not be valid throughout the whole of the United Kingdom. That is one example of where a recommendation has not been accepted.
There is another matter of which I should have hoped advantage would he taken in this Bill—namely, the recommendation of the Northern Ireland Child Welfare Council which recommended in its Report that the operation of juvenile courts in Northern Ireland should be such that power be taken for the transfer of probation orders between England, Scotland and Northern Ireland where there is a change of residence. That is really another example of the same thing: it is one of those difficulties that arise where removal from Northern Ireland to another part of the United Kingdom prevents the enforcement of probation orders and enables people to evade them. I hope that I may be able to draw the attention of the Committee (if this Bill goes to a Committee) to these specific points and others, with which I will not trouble the House at this moment, where the recommendations of the Sheil Committee have not been implemented in this Bill.
There are one or two matters to which it might be convenient if I draw the attention of the House on the Bill itself. I hope I shall not outstay my welcome, but there are a few clauses in particular with which I think your Lordships should be acquainted. The first is Clause 1133 1. Subsection (8) of that clause gives to the Northern Ireland Parliament the power to make a law precluding Northern Ireland citizens from taking their cases to the House of Lords. That is a prerogative which every citizen of the United Kingdom has, subject, of course, to the normal restrictions on going to the House of Lords, such as that of acquiring permission, and so on. This Bill, as I say, enables the Northern Ireland Parliament in terms to preclude people from taking their cases to the House of Lords, and in that sense differentiates between the rights of people in Northern Ireland and in the United Kingdom.
Similarly, in Clause 2 there is a restriction against the right of appeal from the ordinary courts to the Court of Appeal in a considerable number of cases. I agree with the noble and learned Viscount that one does not want a multiplicity of appeals to the Court of Appeal and, consequently, to the House of Lords, on matters which are not worthy of being considered by the august bodies of the House of Lords or the Court of Appeal. But one should not differentiate between the rights of citizens in Northern Ireland and those in the rest of the United Kingdom. Where a citizen of England, Wales or Scotland has the right to go to a higher Court, or to the House of Lords, in my view there should be a similar right to go to the Court of Appeal in Northern Ireland or to come to the House of Lords here. I propose to put this matter before your Lordships in greater detail when we come to the Committee stage.
I do not think the noble and learned Viscount referred to Clause 7, except in very general terms. This clause permits the amendment by the Northern Ireland Parliament of any measure in existence at the time of the passing of this Bill by a Rules Committee, the composition of which is set out in Clause 8, without having to pass an Act of Parliament. That seems to me an extraordinary provision. I doubt whether it could be justified, in view of the special circumstances of Northern Ireland. In this country, if it is desired to amend or repeal an Act it is necessary to pass legislation for that purpose. Is it right that it should be possible for the Northern Ireland Rules Committee to do 1134 this by incorporating the repeal in Rules? Admittedly, I imagine that such Rules would have to be approved by Parliament, but to have to accept or reject the recommendation of a Rules Committee, possibly en bloc, is a very different thing from having the opportunity of debating whether or not a particular measure should be repealed or not.
The noble and learned Viscount has referred to the reduction in the size of juries in civil cases. This is one of the points which struck me as rather remarkable. It may well be that the case he has made for it, of the small population and the liability that the citizen may have to attend as a juryman more frequently than he would in this country, is a valid factor. But I should like to explore this matter a little further. This was not recommended by the Sheil Committee, and I wonder what is the liability of the ordinary citizen of Northern Ireland to be called for a jury? After all, I imagine the same applies in Northern Ireland as here; that the number of civil cases tried with a jury is getting smaller.
When I first joined the legal profession far more civil cases were tried by jury, and to-day it is a very rare thing. If the position is the same, relatively speaking, in Northern Ireland, is there any validity for reducing the number of jurymen? I find that, far from most people regarding being selected to attend on a jury as an ordeal, they welcome it. It is one of the few concrete cases where the ordinary citizen is enabled to play a part in the administration of justice. People talk with great pride and pleasure about their service on a jury, and after many years very often with great nostalgia. I should hesitate before I reduced the size of juries in that respect, and I should certainly want a good deal more evidence than has been forthcoming so far.
The noble and learned Viscount has referred to Clause 13. This is the clause which enables the Government or local authorities to acquire compulsorily land belonging to the churches or educational institutions for slum clearance, development and redevelopment. This is a most timely measure, and I certainly welcome it because the opportunity of clearing slums in certain cases where the land is owned by these authorities 1135 has hitherto been held up, and this has prevented redevelopment. I am informed that there will be considerable opposition to this clause, and I was glad to hear the noble and learned Viscount support it with such firmness and conviction. I hope that, as the Bill goes through, any opposition to this clause will be firmly resisted. The same applies to Clause 14.
The noble and learned Viscount referred to Clause 17 of the Bill. This is the clause which makes provision for the comfort of horses and asses exported from Northern Ireland to this country. The question has been raised: Why is it limited to those animals, and why are we not a little more concerned with the comfort of human beings who come over here?—because some of the conditions under which people come from both Northern and Southern Ireland are really deplorable. Although it may not be possible to provide for this in legislation, I think we ought to have some regard to this point—not that I want in any way to make life more difficult for the horses and asses which are exported from Northern Ireland.
The last clause to which I wish to refer is Clause 23, which the noble and learned Viscount did not mention. This is a clause which provides for compensation to be paid forplundering, damaging or destroying vessel wrecked, stranded or in distress or its cargo or apparelon the coasts of Northern Ireland. I wonder if this is really necessary. Was it recommended by the Sheil Committee? Is there much plundering and wrecking of vessels? I do not know, but I should be very interested to hear whether there is any case for this and whether it is so important as to be incorporated in legislation of this kind. As I said at the outset, I welcome this Bill. I think it is a great step forward. I welcome any measure which gives to responsible bodies, Parliaments and other institutions, the right to manage their own affairs, and in so far as this is a step in that direction I am sure the whole House will wish this Bill God-speed and hope that it will have a successful career through this House and another place.
§ LORD RATHCAVAN
My Lords, as the noble Viscount who occupies the Woolsack stated, this is really a Bill to 1136 deal with matters which have arisen since the passing of the Government of Ireland Act, 1920. I think I am right in saying that there have been Bills of this nature in 1928, 1932, 1945, 1947 and 1955, dealing with matters with regard to which it became necessary to give further powers to the Government of Northern Ireland. This is a very technical Bill. The noble Lord, Lord Silkin, has shown great knowledge of the legal aspects of it so far as they affect the Supreme Court. I do not intend to refer to those, but before referring to one or two other clauses in the Bill I should like, if I may, to make a few more general observations.
Northern Ireland is the only federal unit in the United Kingdom. There was a time when federation within the United Kingdom was seriously discussed. Shortly before and after the First World War there was a lot said in Parliament here about what was then known as devolution. That meant devolving local affairs upon the separate Parliaments, and the idea was that there might be a Parliament for England, a Parliament for Scotland, a Parliament for Wales, a Parliament for Ireland, and a Federal Parliament sitting at Westminster over them all. However, nothing came of that although, of course, we know that to-day there is very considerable demand in some places in Scotland for the kind of local Government which Northern Ireland has at present within the United Kingdom.
The reason why this idea of devolution was seriously considered towards the beginning of this century was, of course, that it was found that the central Parliament of Westminster was far too occupied with large matters to be able to give proper attention to urgent local requirements in the different parts of the United Kingdom. That still, I suppose, operates to-day. However, the only portion of the United Kingdom which has become a federal unit and which has its own Government is Northern Ireland, and since that Parliamentary Government was set up, as the noble and learned Viscount the Lord Chancellor has said, some 42 years ago, there is no doubt that there has been far greater progress in local legislation and improvements than could ever have 1137 taken place under the central direction of Parliament at Westminster.
For example, the housing situation in Northern Ireland has been completely transformed. There is hardly a village now that does not have its housing estate of good modern houses, and the provisions under Clause 13 of this Bill will, I hope, enable housing to be even more actively pursued by making it possible in certain cases to obtain land belonging to certain religious bodies for the purpose of housing and slum clearance. Agriculture has made tremendous progress. There is an efficient and admiraable Agricultural Department and Ministry; and I cannot help feeling that, without the devolution which took place when the local Parliament was set up, the agricultural needs could never have been dealt with in the way in which they have. With regard to electricity, as no doubt noble Lords know Northern Ireland is mainly a province of small family farmers, and there is hardly a farm house in the country that does not now have electricity both for light and power. The whole country is now covered by a central grid. There have also been great advances in education.
To come to one or two further details in the Bill, I have referred to Clause 13, and I agree with the noble Lord, Lord Silkin, that it is very necessary that the clause should be passed. I did not know there was going to be any special opposition to it because, indeed, it is concerned with a social service. Clause 17, to which both the noble and learned Viscount who sits on the Woolsack and also the noble Lord, Lord Silkin, referred, is the one which deals with horses and asses. I do not think there is, or ever has been, any export of decrepit horses from Northern Ireland, although of course, as we know, there has been from the South. That has led to a good deal of criticism and, now that there has been this criticism of the shipment of old horses from Dublin, I think the main reason for this clause would be that there might be some efforts to try to divert that trade through Northern Ireland.
§ THE EARL OF LONGFORD
My Lords, may I ask the noble Lord whether an attack on the alleged behaviour of the Dublin Government in 1138 respect of old horses has much to do with the Bill?
§ LORD RATHCAVAN
I was saying, or at least I intended to say, that I thought the criticism which arose a short time ago about the export of horses from Dublin had led to great qualifications in that trade so I understand that there might be people who would want to divert it to the Northern Irish ports. Therefore, under this Bill the Northern Ireland Parliament will be better able to deal with it than they would otherwise have been.
The only other clause that I should like to refer to is Clause 18, to which the noble and learned Viscount referred. That clause would give the Parliament of Northern Ireland power to legislate as regards the quality of certain agricultural exports. At present in this respect they have power to legislate with regard to the quality of exports within the United Kingdom and the Republic of Ireland only. This is mainly, I think, to deal with the growing trade which has arisen in the last few years in seed potatoes exported from Northern Ireland to countries abroad. Quite a number go, I think, to Portugal, Spain and the Middle East and quite a big trade in seed potatoes has been set up in recent years. Without this clause the Parliament of Northern Ireland would not be able to legislate as regards provision of quality of the potatoes they are packing and so on, which is very necessary in connection with seed potatoes sent abroad.
I should like to say how much we who come from Northern Ireland, as I do, appreciate the admirable way in which the noble and learned Viscount the Lord Chancellor has introduced this Bill and the excellent and helpful remarks which the noble Lord, Lord Silkin, has also made.
§ 4.0 p.m.
§ LORD OGMORE
My Lords, in common with noble Lords who have spoken, I very much welcome this Bill both on my own behalf and on behalf of my noble friends who sit with me. We are entirely in favour of the principle; we believe in the devolution of powers both legislative and administrative, and we have been studying lately with keen attention, I may say, the situation of Northern Ireland, within the United 1139 Kingdom. Obviously the Government of this country believe that the experiment in federation, which is what the Northern Ireland Parliament is, has been successful; and, if the noble Lord, Lord Rathcavan, is correct—and I have no reason to believe he is not—this experiment has been highly successful in a sphere in which in Scotland and Wales we have had failure; that is, with reference to rural communities. Everybody knows that large areas of the Highlands of Scotland and quite a large area of the midlands of Wales are becoming more and more depopulated. There are counties in Wales which have less population than in the reign of Elizabeth I. They have been successful in Northern Ireland. The noble Lord said it was because they had had a regional Parliament. He may be right; we believe he is right. But it is rather remarkable that in the 40 years since this experiment was first instituted there has been no development of it elsewhere; and I, for one, should like to see serious consideration given by other Parties than the Liberal Party to the possibility of introducing other experiments of a like nature to Scotland and Wales, and, I may say, to England. We are at the moment going through a process in which we are stirring up violently all the county councils and are making large conglomerations of them. I am, certain, so far as Wales is concerned, that it would be better to have some sort of regional Parliament rather than these enormous county councils now proposed which will be neither fish, flesh nor good red herring. That is one reason why I welcome the Bill and I am in great sympathy with the objects of it.
As to the details of the Bill, there are one or two points to which I should like to draw your Lordships' attention. It is no good disguising the fact that the Government of Northern Ireland is almost entirely Unionist. I say "almost entirely" because I am happy to say that in November last there was a solitary swallow, if she will allow me to call her so, in Miss Sheelagh Murnaghan, a Liberal, who won the Queen's University seat in the Northern Ireland Parliament. We hope the summer will not be long delayed in coming as a result of the swallow. But we have to face the fact that it is largely a Unionist Parliament, and that is because it is based, 1140 again not entirely but to a large extent, on a Protestant electorate. Some of the objects of the Bill would cause no eyebrows to be raised here, but they may cause, and indeed will cause, eyebrows to be raised in Northern Ireland because of that fact; therefore we must be careful to make sure that there are no possibilities of misunderstanding the Bill.
I should like the noble and learned Viscount the Lord Chancellor to be good enough to explain what the real purpose of Clause 2, subsection (3) is. It says:No limitation or restriction imposed by the Government of Northern Ireland Act, 1920, on the power of the Parliament of Northern Ireland to make laws shall be construed so as to prevent that Parliament from making a law providing that an order or judgment of the High Court made or given in proceedings instituted under or by virtue of an enactment of that Parliament shall be final or so as ever to have prevented that Parliament from making a law providing that an order or judgment of that Court made or given as aforesaid should be final.Bearing in mind that it is very largely a one-Party Government which has control of the legislation, does that mean that the courts can be prohibited or prevented from making an order with reference to any law which it passes? I am not quite sure as to the object of this provision and I think we ought to know what that object is. I am quite sure the noble and learned Viscount the Lord Chancellor will be able to convince us.
The only other point I have on the Bill is the one which has already been raised by two of the noble Lords who preceded me, and that is Clause 13. Here, again, I am perfectly certain that what the noble Lord, Lord Rathcavan, said was absolutely correct: that in any community a clause of this kind is needed. But I think we ought to have some declaration, or something of the sort, that they are not going to use it either to liquidate the property of their political enemies or do something untoward towards the Roman Catholics. I do not think they will at all, but I think there ought to be some declaration. One can see how touchy this subject is by the intervention of the noble Earl, Lord Longford, in the speech of the noble Lord, Lord Rathcavan, a moment ago. It may well be that somebody will create some disturbance on this account.
1141 Apart from that fact, I think that Clause 13 is probably a very valuable one, but one has to realise it may not seem so in the eyes of a Roman Catholic living in Northern Ireland who objects strongly on political or religious grounds to the Government. From my own visit to the Republic of Ireland I am happy to say that I think many of the old differences of opinion between Roman Catholic and Protestant are going, and that when the present or older generation goes those differences will practically go altogether. I hope so. I believe in these times, when the Free World is in jeopardy, it is a time for Christians to come together, whether Roman Catholics or Protestants. We are all Christians. But we have not quite got to that stage yet, and sometimes these issues do come forward.
Finally, I should like to take issue with the noble Lord, Lord Silkin, on the question of juries for civil cases. I must say that in my own experience I have never found those people who look with nostalgia on jury service. Generally speaking they object very strongly to it on civil jury service. There may be some who rather enjoy a day in the criminal courts, especially if there are cases of an interesting kind, but that does not apply to civil cases. I have yet to find the juryman who looks with delight on listening to some involved case affecting super-cargoes or hills of lading or something like that. Probably this is a good measure because it will enable more juries to sit in civil cases, and it is the sort of measure which in all probability we ought to have here. It might well be introduced in this country. I think it is a pity we do not have more juries in civil cases. But while there is still the provision for 12 jurors—I believe it is still the case—it is nevertheless a little difficult to collect 12 people. So far from objecting, I would suggest to the noble and learned Viscount the Lord Chancellor that he might consider extending the provision to this country. That is all I have to say, and I welcome the Bill.
§ 4.7 p.m.
§ LORD DENNING
My Lords, may I just say a word so far as the provisions relating to the administration of justice in Northern Ireland are concerned? This Bill clearly intends to make the 1142 appeal structure similar to that in this country. Indeed, it is to be welcomed. But there is one feature which has been mentioned: the question of trial by jury. This raises an important question, because for centuries the number of jurors in this country and in Ireland has been 12. We know that in Scotland it is 15. During the war we tried for a time with 7, but as I believe, not with complete confidence and satisfaction. The reason this measure reduces the number of jurors from 12 to 7 is because of the strain the larger number puts on a small community. I would suggest that the better remedy is in effect to do away with any right to trial by jury in civil cases but to leave it to the discretion of the judges or the court. That is what has been done in this country. In this country most civil cases nowadays are tried by a judge alone, far more expeditiously and to the satisfaction of all concerned. There are jury trials only in civil cases such as libel cases and others where people's reputations are involved.
If you go to the United States, where there is still a right by constitutional law to trial by jury in all civil cases, you will find that plaintiffs demand trial by civil juries, and the delay is such—they take much longer to try—that four or five years elapse before a case comes on for trial. They envy our system whereby the right to trial by jury is no longer a right under the Constitution but a matter for discretion by the judge. I believe that in Northern Ireland it would be a good thing not to reduce the numbers from 12 to 7—I believe 12 is the best number—but to give a discretion to the judge whether a jury should be had or not. It would be found that in most cases there would be no trial by jury; people would be content to have trial by judge alone. There would not be the burden on the whole community of having a jury, because the judge would decide the case alone and it would be dealt with far more expeditiously. I submit that the experience of this country in the last thirty years is a good precedent for Northern Ireland.
§ 4.11 p.m.
§ THE EARL OF LONGFORD
My Lords, I had intended only to put a question to the Lord Chancellor, of which I have hardly given him any 1143 notice, so he may or may not have an answer. But I should like to say to the noble Lord, Lord Rathcavan that I hope I did not intervene too rudely. I realise that the exceptional service which he has given to Northern Ireland entitles him to a most considerate hearing. He will perhaps allow me this amount of credit, that not so long ago I opened a branch of our bank in Bangor, in Northern Ireland, so that in my humble way I have an interest in Northern Ireland which, of course, it is my duty to declare.
I was most interested to hear what Lord Ogmore was saying about progress. He is a great friend of, I think, all parts of Ireland—certainly of the Irish Republic, and it may be of Northern Ireland. I was most interested to hear what he said about the success of the Liberal lady in the election at Queen's University. I have the greatest admiration for Queen's. It is a kind of island of Liberalism amidst waters which are not all so liberal. But I am sorry to tell him that there may be some need for apprehension in regard to this lady's success. I listened to a debate on the Northern Ireland radio a day or two ago when this matter of University seats was dealt with and, so far as I could judge before I switched off in distress, the general opinion seemed to he against her and to her right to be elected. I beg her Liberal friends to keep an eye on the footing that they have gained in Northern Ireland recently.
But I rise not to put a question as to whether there has been great progress in Northern Ireland—there has been progress in Southern Ireland, as in England. Scotland and Wales in the last 40 years—but to put a question to the Lord Chancellor, because on the answer which is given, either to-day or later, my own attitude, I suppose, is bound somewhat to depend. We are told that Clause 13, which was explained by the noble and learned Viscount most carefully relaxes the restriction on the diversion of the property of religious and educational bodies by adding to the list housing, slum clearance and development. As it seems to me to be generally assumed that that must be a good thing, I should like to ask him how this change is viewed by the religious and educational 1144 bodies concerned. Has the noble and learned Viscount the Lord Chancellor any information at this stage about their attitude? Because until I at any rate—and it may be true of others—have any information as to the attitude of these bodies, I should find it quite impossible to express an attitude to the Bill.
§ 4.14 p.m.
§ LORD KILBRACKEN
My Lords, I wish to intervene for a moment, because I cannot help feeling apprehension, despite the attention given to it by the noble and learned Viscount, in regard to Clause 14 which refers to the abolition of the prohibition on making of laws taking property without compensation. It is my submission that there are no circumstances in which property should be taken without paying compensation. I should like to ask the noble and learned Viscount (I think he did say that it was not likely that expropriation of this kind would take place) in what possible circumstances this clause could be used.
§ 4.15 p.m.
§ THE LORD CHANCELLOR
My Lords, may I first say a general word of most sincere thanks to those noble Lords who have contributed to the discussion on this Bill, and before I deal with the somewhat more technical points an the administration of justice I should just like to say one word on the point made by the noble Lord who has just sat down. I did explain—I do not know if he had the opportunity of hearing me—that taking property without compensation has raised a number of problems which I do not think were really in his mind when he made his declaration of faith on the point. May I take the examples which I mentioned before? You may have an Act controlling rents, which may be necessary for social purposes. I can remember at the beginning of the First World War when the Rent Act was first passed it was absolutely essential in the conditions of people joining the Forces, as the older ones of us know. That was an extreme example, but your legislation may be vulnerable and in danger because it may be construed as taking the landlord's property without compensation—because, of course, you may be taking the property in the sense of preventing the charging of higher rents. Similarly, in the case 1145 of decontrol, the legislation might also be vulnerable, because that would be taking the tenant's property without compensation—namely, his right to remain in the house.
The noble Lord will see the real practical difficulty with which we are dealing. If he will forgive me, as I have a number of points, I will send him a reference to the last two cases in which this matter came before the House of Lords, and he will see that it is really necessary, from the point of view of carrying on with ordinary legislation of the kind I have mentioned, and various kinds which have been accepted by all parties in this Island, to have such a provision. As I have said, I am sure he need have no apprehension at all of the use of the provision for expropriation in the manner that he has in mind.
May I just deal with the other general point of the noble Earl, Lord Longford? So far as I know—I asked for information after he was good enough to give me notice—there has not been any reaction from the religious and educational bodies on this point that has come to the knowledge of those who have been preparing the legislation. Of course, if I hear of any I shall tell the noble Earl at once. They know of none.
§ THE LORD CHANCELLOR
The other point that I must just mention is that there has been some entirely friendly discussion in regard to Queen's University from a liberal and from a general cultural position. I just want to make it quite clear that one of the best Unionist meetings that I ever addressed in the many that I have addressed in Northern Ireland in my time was one of the Undergraduates' Unionist Association of Queen's University; so I do not want it to go from this House that that aspect of the humanities is entirely ignored.
My Lords, I come to the point which first of all the noble Lord, Lord Silkin, raised in his most interesting speech as the result of a careful study of many points in the Bill—namely, with regard to subpœnas. I will, of course, look into it carefully, but as I am informed at the moment, under the existing Northern 1146 Ireland law, a subpœna may, by leave of the court or a judge, be issued for service in any part of the United Kingdom, and service thereof will be as effectual as if served within the jurisdiction. That is the effect of the Attendance of Witnesses Act, 1854. I was under the impression, and I like always to verify these things, that the Sheil Committee was really dealing with the rewriting of the Statute rather than the existence of the powers, but perhaps the noble Lord will allow me to verify that point. That is the position, as I understand it.
I should like equally to look at the point regarding the juvenile court and the transfer of probation orders. But, generally with regard to the Sheil Committee, I think I can say that all the substantial recommendations made by them are implemented by the Bill, or are capable of being implemented by rules made under Clause 7. There are, however, necessarily a number of minor recommendations which it has not been possible to deal with. They would require a complete rewriting of the Judicature Acts which could be undertaken at Stormont only if the Supreme Court were to be totally de-reserved. That is the position we have considered.
The next point that the noble Lord mentioned was with regard to the question of appeals. My Lords, so far as appeals to the Court of Appeal are concerned, the restrictions imposed by Clause 2 are exactly the same, mutatis mutandis, as those imposed by section 31 of the Judicature Act, 1925. In regard to Clause 1, I think that the noble Lord, Lord Silkin, had specially in mind subsections (7) and (8), because they really hang together—at least so my note tells me. The provision in subsection (7) goes back to paragraph (c) of section 49 of the Government of Ireland Act, 1920, because under that paragraph an appeal lies to the House of Lords in any case where a decision of the Court of Appeal in Northern Ireland involves a decision on any question as to the validity of any law made by or having the effect of an Act of the Parliament of Northern Ireland, and the decision is not otherwise subject to appeal. That position is preserved by subsection (7), because even where a Statute provides that a decision of the Court of Appeal in Northern Ireland is 1147 to be final, the decision will still be appealable if it turns on the validity of a law made by, or having the effect of an Act of the Northern Ireland Parliament. But, subject to that, subsection (7) provides that no appeal shall lie under Clause 1 where any enactment in force immediately before the day appointed for the purposes of this clause (other than Section 11 of the Annual Revision of Rateable Property (Ireland) Amendment Act, 1860) expressly provides that the order or judgment is to be final.
There are certain Acts which provide that a judgment of the Court of Appeal is to be final, and these are preserved, except with regard to valuation cases, where the noble Lord can take it that an appeal lies; but that is not peculiar to Northern Ireland. I have myself been sitting in the House of Lords when it has been pointed out to me by counsel that I had no right to hear an appeal because the British Act of Parliament prevented it. To give one reference to the noble Lord, in the Supreme Court of Judicature (Consolidation) Act, 1925, Section 31, subsection (1) (d) says:No appeal shall lie from the decision of the High Court or any judge thereof where it is provided by any Act that the decision of any Court or judge the jurisdiction of which or of whom is now vested in the High Court, is to be final.So it is a matter contemplated by our Judicature Acts as well.
The next point that the noble Lord, Lord Silkin, mentioned—
§ LORD SILKIN
My Lords, before the noble and learned Viscount goes on to another point, am I to understand him to say that all this does is to bring the legislation in Northern Ireland into line with what is the position in the United Kingdom?
§ THE LORD CHANCELLOR
Yes. I am not saying they are the same Acts in both cases. Subsection (7) only applies where there are Acts already in force which make the decision final. But I ought to point out, as the noble Lord had it in mind, that subsection (8) removes the doubt which otherwise might have existed as to the power of the Parliament of Northern Ireland to prevent an appeal against an order or judgment of the Court of Appeal in 1148 Northern Ireland. I do not think this can be said to be an additional inroad, but I will look into it again. There are certain matters where there is a strong case for not having a further appeal. One I had in mind was where it was pointed out to me that I had no jurisdiction in the House of Lords to hear an appeal on the custody of children. One quite sees the social argument for it—that one appeal may be considered enough—but I will look into the point again and if I find any other information that I think would interest the noble Lord, I will let him know.
He then raised a question on subsection (2) of Clause 7 as to the fact that the Rules Committee had the right to modify existing Statutesso far as may be necessary or expedient in consequence of provision made by tile rules".In the Mother of Parliaments that sounds a very strong right, but it again is well known here, because paragraph (g), of subsection (1) of Section 99 of the Judicature Act, 1925, gives a similar power, as the noble Lord will see if he sends for the Act. What is perhaps even more material, there is a similar power of modification of pre-1877 Acts, given by Section 68 of the Supreme Court of Judicature Act (Ireland), 1877. So, although as a Parliamentary purist the noble Lord may not like it, it is a form which has a considerable legislative history.
The noble Lord and a number of other noble Lords have discussed the question of juries. I think it was my noble and learned friend Lord Denning who said that the use of this provision during the war worked well. That is certainly my information on the point, and I have a certain amount of experience as a law officer of the Crown when I was in touch with it. On the main point, I think that the noble Lord, Lord Silkin, was under the impression that the law with regard to the use of juries is the same in Northern Ireland as here. It is not. The noble Lord will remember that in 1933 Parliament here substantially re-enacted an Act of 1920 which had restricted juries, and the present position is that in England juries can be asked for as a right only in a very limited number of cases. I will not trouble your Lordships with the cases. That situation has been accompanied, as 1149 the noble Lord, Lord Silkin, said, by an immense fall in the number of jury cases here.
If I may take the dates which I think the noble Lord himself had in mind up to 1913 (when the noble Lord was probably just beginning to think of the law) there was still trial by jury in the majority of cases. That declined very rapidly, and to-day—I am now reading from page 132 of the Hamlyn Lectures on Trial by Jury by my noble and learned friend, Lord Devlin, where he says:The popularity of trial by judge alone is now decisively established the proportion of jury trials is now 2 per cent. or 3 per cent. of the whole"—that is, in this country. I will only read one other sentence, as I do not want to detain your Lordships. Lord Devlin says:It must not be supposed that this severe decline is due to a jury being refused when asked for; the number of refusals is in fact quite negligible.So that has been the trend in this matter. I think it might interest the noble Lord. and if he would like it, I will lend him Lord Devlin's book, so that he may pursue the matter.
In Northern Ireland. however, there has not been this decline; there have not been these restrictions, and jury trial is popular there. Therefore, one has the difficulty of those in a small community leaving their work for jury service; and of course it is especially difficult in Belfast, the big town in the Province. On the other point raised by the noble Lord, Lord Silkin, he will remember that the Bill does not affect the number of jurors in criminal cases, and therefore I think one can say that the citizenry of Northern Ireland are getting a full chance of jury service. The noble Lord need not be frightened from the point of view of their share in the administration of the law. My Lords, I think I have dealt with all the points raised by the noble Lord, but I will go through my speech carefully to see if I have missed any. I am glad to have his support on the planning point.
It was a great joy to me, and I am sure to many of us, that my noble friend Lord Rathcavan should intervene in this debate. Your Lordships will remember, as I do, that, apart from being a colleague of many of us in another place, 1150 the noble Lord was Speaker of the House of Commons at Stormont and had himself to guide that House through the problems which we are discussing to-day. Therefore, it was a great pleasure and support for me to have his appreciative speech on the proposals of the Bill, and I was delighted, if he will allow me to say so, to hear him speaking again.
On the other points that were raised I come to the speech of the noble Lord, Lord Ogmore. I must say that I am very tempted by the depopulation of rural communities, but I will come to his first point on Clause 2, subsection (3). That subsection removes any doubt as to the powers of the Parliament of Northern Ireland to provide that an order or decision of the High Court in proceedings instituted under or by virtue of a Stormont Act of Parliament shall be final. In a number of enactments of the Northern Ireland Parliament, conferring jurisdiction upon the High Court or the Supreme Court, it has been provided that the decision of the High Court or Supreme Court shall be final, and subsection (3) will ensure that the reservation of matters relating to the Supreme Court in Section 47 of the Government of Ireland Act, 1920, does not affect the validity of these enactments or prevent the making of similar provisions in future Northern Ireland enactments. It is similar to the point raised by the noble Lord, Lord Silkin, with which I have just dealt, and I think the noble Lord will appreciate that in some cases it is desirable to make decisions final. But I am sure that the power will be used with discretion.
I was grateful for the help of my noble and learned friend Lord Denning on the jury points. I have already dealt with the question raised by the noble Earl, Lord Longford. My Lords, I hope that I have dealt with all the points, and not at too great a length, but if I find any others, when I read your Lordships' speeches I will try to find an opportunity of dealing with them. Meanwhile, I ask your Lordships now to give the Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.