§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor).
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clauses 1 to 21 agreed to.
§ LORD ORANMORE AND BROWNE moved, after Clause 21, to insert the following clause:—
§ "—(1) A submission to arbitration unless a contrary intention is expressed therein shall not be revoked by the death of one or more of the parties thereto.
§ (2) The High Court shall, on application made in the manner prescribed by the rules of the Supreme Court, have the same power to issue a commission, request or order to examine witnesses abroad for the purposes of an arbitration as it has for the purposes of an action or matter in the High Court.
§ (3) Where a submission provides that the reference shall be to two arbitrators, then unless the submission expresses a contrary intention if either of the appointed arbitrators fails or neglects to enter upon the reference within three months of his appointment, the court or a judge may, on application by any party to the arbitration, remove such arbitrator and appoint some other person to act as arbitrator in his place.266
§ The noble Lord said: The Amendment which stands in my name was not, I need hardly say, drafted by me personally. It has been put down at the request of the Council of the London Chamber of Commerce. I need not point out to your Lordships that this is a very important organisation. I have here some particulars regarding it. It has a direct membership of 7,000 firms, companies and individuals engaged in commerce and industry, and 53 trade organisations having a membership of approximately 50,000 are affiliated to the Chamber and represented on its Council. The members of the Chamber resort to arbitration as a ready means of settling commercial difficulties and the Chamber therefore has much experience regarding the deficiencies in the law relating to arbitrations which it is desired to remedy. Furthermore, the London Court of Arbitration, which is under the joint control of the Corporation of London and the London Chamber of Commerce, is also in favour of the additional legislative provisions now suggested.
§ I had some hesitation in putting down this Amendment, because this is purely a legal Bill and I thought that as such it might have been left to be looked after by noble and learned Lords, of whom there are so many in this House. But on examining the Amendment it seemed to me to be in itself a very good Amendment and one that could easily be dealt with by a layman, as it contains nothing of a very complex nature. I was further led indirectly to believe—the Lord Chancellor will correct me if I am wrong—that, although be might not be able to give an official benediction to this Amendment, he yet thought that it was not an unsuitable one to be brought forward on this occasion and to be considered and discussed in your Lordships' House.
THE LORD CHANCELLOR
I do not think that I gave any intimation, but of course I am very glad that it should be brought forward.
LORD ORANMORE AND BROWNE
I apologise if I was misinformed. It appears to me that the objection is not so much to the Amendment itself as to the fact that it is desired to introduce it into a Bill which is already overloaded, 267 and that consequently there might be additional difficulty in passing the Bill into law. Certainly, if one examines this measure it is seen to contain an immense variety of different subjects. I have gone through it only superficially, but I find that it deals, in the first place, with Assizes; it then proceeds to deal with the Supreme Court, and under that heading it proposes to authorise the appointment of another Judge; it goes on to deal with County Courts, concerning which there are many provisions; and after that there are provisions relating to the registration of deeds, to fees, to grants of administration, to the enrolment and filing of deeds, to the custody of deeds and to the repeal of enactments. When I saw all these things I must confess that it rather reminded me of those pots pourris sometimes played by bands on board ship during a long voyage which introduce the beginnings of at least a hundred popular songs, a prize being given to the passenger who can name the greatest number of those indicated. I submit to the noble and learned Viscount that, as he is able to adopt the position of foster-parent to so many different measures which are included in this Bill, it may be possible for him, if the Amendment is good in itself, to include my little bantling, which I am sure would be safe under his ample raiment.
May I explain to your Lordships the effect of the Amendment which I propose to introduce? It has three subsections, and, if it be inserted, I think it ought to have a heading "Arbitration," in the same way as there are headings "Supreme Court," "County Court," and so on. I see that it has not been put in on the Paper which I have before me. The first subsection suggests that:A submission to arbitration unless a contrary intention is expressed therein shall not be revoked by the death of one or more of the parties thereto.At present if an arbitration takes place I believe I am right in stating that, though the whole case may have been considered, witnesses heard and the award absolutely ready to be given, yet if one of the parties to the arbitration dies the whole arbitration is void and proceedings have to be begun again ab initio. It seems to me that this proposal is a very useful one, and I cannot think that any objection can be taken to inserting it.
268 The second subsection proposes to give the High Court the same power—on application made in the manner prescribed by the rules of the Supreme Court, … to issue a commission, request or order to examine witnesses abroad for the purposes or an arbitration as it has for the purposes of an action or matter in the High Court.At present the arbitrator has no power to give this order, and it is considered very desirable that he should be able to do so.
The third subsection deals with a point of which I really had no knowledge before. It states that:Where a submission provides that the reference shall be to two arbitrators, then unless the submission expresses a contrary intention if either of the appointed arbitrators fails or neglects to enter upon the reference within three months of his appointment, the court or a judge may, on application by any party to the arbitration, remove such arbitrator and appoint some other person to act as arbitrator in his place.I was quite unaware of the fact, but I am told that there are instances where one party, not desirous of having an arbitration, has agreed nevertheless that an arbitration shall take place and has appointed an arbitrator who is instructed not to take any action of any kind. It is impossible for the other side to do anything in the matter, and therefore the arbitration hangs fire without any possibility of a decision being reached. I think that if it had been known that this provision had been in force it is possible that one of the parties in a very famous arbitration case concerning a boundary, which has been well known to all of your Lordships, might have thought fit to take advantage of it. However, if my Amendment is carried, it will be impossible in the future to do anything of this kind, as the Court will be empowered to remove an arbitrator who declines to act, and appoint somebody else in his place.
This is the Amendment, in three portions, which I ask your Lordships to accept. I understand that the objections to it are two in number. The first is that the Amendment only deals with a small part of the whole matter, and that it is desirable to deal with cases of arbitration as a whole. I am told that His Majesty's Government intend, after this Bill has been passed, to set up a Committee to inquire into the matter. Let us consider what that means. This Bill will take some time to pass, and after it is passed, 269 say next year, a Committee is to be set up. In 1927 that Committee will probably have reported, and its Report will be considered by the Cabinet, and in 1928 we may hope to see a Bill introduced into this House. To judge by the Bill which is now before us—which is now before your Lordships for the third time—it will be 1930 before the Arbitration Bill will become law. By that time this Parliament will have ceased to exist, and we do not know who will then be the Ministers of the Crown, or if they will be willing to adopt the recommendations of a Committee which has reported several years before. There is a French proverb: Le meilleur est pennemi du bien, and I think it will be advantageous now to make these small alterations as to arbitration, which avowedly would be very useful and not prevent the Government from dealing with the matter on a larger scale if they see fit to do so.
The second objection is that this Bill is already overladen. I would again like to refer your Lordships to what has happened in regard to this Bill. It has been three times before your Lordships' House and each time it has come before you in a new and improved form. Each time Amendments have been introduced, and at the present time it comes before you with great changes from last year. We find that not only is there a clause which enables a new Judge to be appointed, but, as the Memorandum tells us, Clauses 12 and 17 and Schedule 3 are all new this year. Therefore, I suggest that we should not weary in well doing, but, as this may be the last opportunity on which we shall have the Bill before us, we should again pass Amendments to make it even better than it is already. I think if the noble and learned Viscount sees his way to accept my Amendment I can promise that there will not be much difficulty in getting the Bill through this House. I do not know what may happen in another place but, if the Measure is found to be overladen. I hope that it is not this portion which I am introducing, but some other portion, which will be jettisoned.
I do not like to suggest that the Lord Chancellor is wanting in courage—he has introduced a Bill which deals with so many subjects, but if I may say so with all respect, if he were to take his courage in both hands and adopt the clause which I suggest I feel confident it would be a 270 great improvement to the Bill as it now stands, and satisfy many people who now complain bitterly of the faults which exist with regard to arbitration. I beg to move.
Page 15, after Clause 21, insert the said new clause.—(Lord Oranmore and Browne.)
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, I certainly make no complaint whatever of the action of the noble Lord in moving this Amendment, nor do I deny that the topic which it raises is one which deserves to be carefully considered, out, for all that, I hope that I shall foe able to convince the noble Lord that this is not the time for pressing this particular Amendment. It is true, of course, that I am anxious not to overload the Bill. It is not, I hope, for want of courage, but because, having a good deal of experience in another place, I know how an important Bill may be imperilled, and even lost, by trying to put too much into it. There is, however, a better reason than that. This Bill ideals with the Courts. It is an Administration of Justice Bill relating to the administration of justice by our Courts. This Amendment deals with quite a different matter. It refers to arbitrations outside the Courts and, indeed, the form of the. Amendment, particularly of the last, subsection, shows that this is not a proposed amendment of the Judicature Acts, or of any Statute referring to the administration of justice by the Courts, but an amendment of the Arbitration Act, 1889. That is a wholly different matter.
I may illustrate that by adding one observation. We hope when this Bill becomes law to transfer the whole of its provisions to the new Judicature Acts (Consolidation) Bill. That we can do, but if the Amendment were adopted we should not be able to transfer that Amendment into the Consolidation Bill, because it has nothing to do with the subject. We should have to leave it standing as the sole remains of this Statute. It is, of course, not a very serious thing bit it illustrates the difference between the subject matter of this Bill and the subject matter of the Amendment.
Of course I am not going to stop there. I think this proposal is well worth consideration, 271 although I could not accept it in this particular form even in an appropriate Bill, because I think it wants overhauling. I think the proposal itself is worth consideration, but the points which have been picked out are not the only matters in the Arbitration Act which require consideration, and for some time I have been of the opinion—and I believe I am not alone in that opinion—that there are parts of the Arbitration Act which should be looked into and, possibly, amended. I am hoping quite soon to appoint a Committee to look into that matter, to go through the Arbitration Act, and to see in what respects it needs consideration and possibly amendment. These three matters raised by the noble Lord would, of course, be among those which that Committee would consider, and if an expert Committee of that kind should report in favour of amendment of the Act of 1889, I think Parliament would have no hesitation in giving effect to their recommendations. The noble Lord is hardly doing justice to us and particularly to my Department in suggesting that we should take five years to go through a process of that kind. We have been, I think, fairly prompt in our proceedings during the last few years, and although it is the fact that this Bill comes before Parliament for the third time that is no fault of my Department, or of any Government, but is due to the fact that we have had two Dissolutions during that period. On each occasion the Bill has got very far forward and would have passed through Parliament but for those sad events to which I have referred. I hope that the noble Lord will accept the assurances which I have given that the matter will be considered in the way I have mentioned and will not seek to put in his Amendment which has no real connection with the Bill.
LORD ORANMORE AND BROWNE
After what the noble and learned Viscount has said, of course I will not press the matter. I am very grateful to him for assuring me that the matter will have attention, especially the points which I have raised, when an amendment of the Arbitration Act is brought forward, which is anticipated to be within a very short time if no Dissolution again interposes. I would add that, of course, if it had only been a question of the framing of the Amendment to which the Lord 272 Chancellor objected, I should have been delighted to make any alterations that he thought fit. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 22 to 24 agreed to.
§ LORD BALFOUR OF BURLEIGH moved, after Clause 24, to insert the following new clause:—
§ Operation in England of certain Scottish confirmations of executors and operation in Scotland of certain English grants of probate or administration.
§ "—(1) Where a confirmation of the executor of a person granted in Scotland, being either—
- (a) a confirmation which includes personal estate situated in England as well as personal estate situated in Scotland; or
- (b) an additional confirmation of estate situated in England, whether the additional inventory confirmed includes any estate situated in Scotland or not; or
- (c) a confirmation or additional confirmation of personal estate situated in Scotland which contains or has appended thereto a note or a statement signed by the sheriff clerk of funds in England held by the deceased in trust;
§ (2) Where a grant of probate or letters of administration by the High Court in England contains a statement that the deceased died domiciled in England or has appended a note or memorandum to that effect signed by the proper officer, the grant shall have the like effect in Scotland as a grant of confirmation.
§ (3) In the case of probate or letters of administration granted by the High Court in Scotland, a statement in the affidavit to required to be made on the application for the grant that, according to the deponent's belief, the deceased was domiciled in England, shall be sufficient authority for the insertion of a statement to that effect in the probate or letters of administration, and, in the case of a confirmation granted in Scotland, a statement in the affidavit to the inventory that the deceased died domiciled in Scotland shall be sufficient authority to the sheriff clerk to insert in or to note on the confirmation and sign a statement to that effect:
§ Provided that any such statement as to the domicile of the deceased shall be evidence for the purposes of this section only.273
§ (4) The sheriff clerk may insert in or append to a confirmation a note or a statement of funds in England held by the deceased in trust in any case where such a note or statement is set forth in any inventory recorded in the books of the court of which in is the clerk."
§ The noble Lord said: The object of this new clause is to simplify the procedure necessary in order to render operative the title of an executor in cases where the personal estate of the deceased person is situated partly in England and partly in Scotland. Under the existing law the title of an executor granted by an English Court—that is, probate or letters of administration—only becomes operative in Scotland after it has been presented to the Commissary Court in Edinburgh and endorsed there, a copy being lodged in that Court. Similarly a title granted in Scotland, to become operative in England, has to be sealed with the seal of the High Court, a copy being also lodged in the High Court. These two operations servo no useful purpose whatever, and, indeed, are only a cause of some expense and delay in the administration of estates. The object of the Amendment, therefore, is to introduce a clause which will abolish those rather superfluous formalities. The method which is followed is to re-enact the existing law on the subject, but with the omission of the provisions for the scaling in one case and the endorsation in the other.
After Clause 24, insert the said new clause.—(Lord Balfour of Burleigh.)
§ THE LORD CHANCELLOR
This Amendment is, of course, proposed by the Government. I will only add that the form may need some further consideration, but, in case any changes are needed, we can introduce them in another place.
§ On Question, Amendment agreed to.
§ Clauses 25 to 28 agreed to.
§ Clause 29:—
§ Short title, interpretation, extent, repeal and commencement.
§ (3) This Act shall not extend to Scotland or Northern Ireland.
§ LORD BALFOUR OF BURLEIGH moved, in subsection (3), after "not," to 274 insert "except as therein otherwise expressly provided." The noble Lord said: The Amendment is purely consequential, as Scotland is not otherwise brought into the Bill.
Clause 29, page 19, line 34, after ("not") insert ("except as therein otherwise expressly provided").—(Lord Balfour of Burleigh.)
§ On Question, Amendment agreed to.
§ Clause, 29, as amended, agreed to.
§ Schedules agreed to.