United Kingdom House of Lords Decisions

Earl Loreburn—In this appeal the real question is whether the Local Government Board had the power to determine that the removal of a pauper lunatic from Fife to London was unreasonable and improper. We have nothing to do with the value, so to speak, of the decision, provided they had jurisdiction and authority to give it. The question turns upon the Poor Law (Scotland) Act 1898, section 5, sub-sections (1) and (2), and I think I had better state what my view is of those two sub-sections very shortly and compendiously. I think the effect of them is this, that where there is a warrant for the removal from Scotland to England or to Ireland of any English-born or Irish-born poor person who has not acquired a settlement by residence in Scotland, and to whom the immediately preceding section does not apply, then when that occasion arises, first, the poor person can appeal if he or she resided continuously for a certain period in Scotland, and secondly, the guardians of the English or Irish parish which is to be charged can appeal, and the condition as to the continual residence does not apply to their appeal at all; in other words, the poor person can appeal if he or she has resided continuously, and the guardians can appeal whether or not the poor person has resided continuously, and that seems to me to be applied whatever meaning you give to the word “reside.”

This point seems to have been, we were told, argued in the Court of Session, but does not appear to have been argued before the Lord Ordinary. But if it is decided, as I respectfully recommend your Lordships to decide it, then no other point of any sort, kind, or description arises. But the point in question was not noticed in the judgments in the Inner House. I prefer to rest my opinion upon that ground, which is a very short and a very simple ground, and to my mind a very plain ground; but I will add that if that be repelled, and the point which was raised and decided in the Court of Session falls to be considered, then I am of opinion with Lord Dundas “that the judicial construction of the words ‘reside’ and ‘residence,’ while fairly applicable to section 1, has no necessary nor justifiable application to other sections of the 1898 Act, such as that with which we are here specially concerned, which deal with quite a different aspect of Poor Law administration.” I desire to adopt those words, and had I not been willing to recommend the dismissal of this appeal upon one ground, I should have been prepared to assent to that also.

Lord Kinnear—I entirely agree with my noble and learned friend. I cannot help thinking that there is some little confusion introduced into the argument by the use of an inappropriate term and the technical construction of a particular word in the Poor Law Acts. The Acts to be construed are of course the Acts of 1845 and 1898. It appears to me that the enactment in question is expressed in ordinary language, and for that very reason it is language which is open to construction. It has been construed over and over again, and there is no dispute, as I understand, as to the construction which the Court has put upon it, at least since 1845. But then the words are construed, not by picking out one particular word and affixing a technical signification to that word, so that whenever it occurs in any other discussion relating to the art of which it is said to be a technical term it must receive the same meaning; but the words are construed with reference to the subject-matter, and in particular, I think, with reference to the existing law, which the Act of 1845 assumes to be established, and with reference to the context in which they occur.

I have no doubt at all that, taking all these matters into consideration, it has been decided in Scotland that according to the true construction of the Act of 1845 the residence which is necessary to acquire a settlement must be the residence of a person capable from mental capacity of acquiring or of abandoning a civil status. It is not the residence of a lunatic. But then I think it follows that when you come to read the same word “residence” in a different context and with reference to a different subject-matter you must construe it as a word of ordinary language under these conditions, and see whether it must still retain the same meaning which the Court has ascribed to it in the first case I have considered.

Now I agree entirely with Lord Dundas, and I think that is the true ground of the judgment upon the point first of all considered, that when the statute comes to treat a totally different subject of judicial construction, the words “reside” and “residence” become inapplicable, and you must construe the language of the new enactment with reference to the new subject by itself. But then if I were wrong in that, I should agree with my noble and learned friend that the question is excluded altogether by the point which he stated first, upon the construction of the first and second sub-section of the fifth section of the 1898 Act. The first sub-section provides for the case of an English-born or Irish-born poor person who has not acquired a settlement by residence, and to whom the immediately preceding section does not apply. Such poor person may upon a certain condition appeal to the Local Government Board. Now I think that the words describing the case in which an appeal may be presented by a poor person are those, and those only, which I have already read. But then the section goes on to say, “if he or she shall have resided continuously in such first-mentioned parish for not less than one year before the date of the application for relief,” he or she “may within ten days after the intimation of such order, and of the right to appeal in this section mentioned, appeal.” That is not part of the description of the poor person who may be entitled to appeal. In other words, it is not part of a

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