HL Deb 13 June 1870 vol 201 cc1921-8

(The Lord Chancellor.)

Amendments reported (according to Order).

THE LORD CHANOELLOR

said, that, in view of the Amendment of which his noble and learned Friend (Lord Cairns) had given Notice, he had thought it right to consider whether his own views and those of his noble and learned Friend were so antagonistic as to necessitate the postponement till another year of a measure which both of them substantially approved. Such a delay he had been extremely anxious to avoid, as it would not in any case be possible to bring the new system of Courts into operation till Michaelmas Term, 1871. His noble and learned Friend (Lord Cairns) differed from him on two points. First, while concurring in the change in the Courts of Judicature recommended by the Commission over which he presided, he desired that the Court of Appeal should be a branch of the High Court, and not, as proposed in the Bill, a Court apart—a view in which he deemed himself supported by the Commission. He (the Lord Chancellor) had no objection to adopt that view, and was accordingly prepared to amend the Appellate Jurisdiction Bill in that sense. His noble and learned Friend contended, in the second place, that the rules of procedure essential to every Court should be framed before any change took place, and should be embodied in the Act. Now, the rules of the existing Courts, which it was proposed to consolidate, were no less than 2,800 in number; and although those of the consolidated Court would be less numerous, they could not be introduced into this Bill unless it were deferred for a year, in order that they might be framed. That proposal he (the Lord Chancellor) opposed; because he considered it impossible to frame rules for the guidance of a Court until the constitution of the Court was known. His own proposal, therefore, was to delegate the task to a Committee of the Privy Council, leaving it afterwards to the Court to make modifications. His noble and learned Friend, however, supported—with one exception—by all the noble and learned Lords who had addressed the House, urged that the rules should have the direct sanction of Parliament, instead of the indirect sanction of being laid on the Table of both Houses before taking effect. Now, although not satisfied that this course was preferable, he (the Lord Chancellor) was willing, by way of compromise, provided the constitution of the Court was settled—as it would be if the Bill passed—to superintend the framing of rules, obtaining such assistance as should be necessary, and to provide that, with the exception of one or two clauses, the Bill should not come into operation until these rules had received the sanction of Parliament. One of the exceptions would relate to the power to appoint a Lord Justice of Appeal in Chancery, pending and subject to those changes. It had not hitherto been deemed expedient to fill up the vacancy caused by the death of Lord Justice Selwyn, on the ground that any person appointed should be prepared to submit to the changes which Parliament might think desirable; and though this course had been much animadverted upon, he was happy to say that the appeals awaiting hearing, which in November were 33, none of them of older date than the previous June, were now only 36, although one appeal had lasted 11 days. Indeed, during the Chancellorship of his noble and learned predecessor (Lord Cairns) the Court of Appeal in Chancery twice cleared its whole paper—though, of course, a fresh one always followed the operation. The Government were desirous of avoiding any arrears in the business, by at once appointing a Lord Justice, subject to the provisions of the Bill. There was one feature of the measure which would take immediate effect: it related to the constitution of the Judicial Committee of the Privy Council; the Chief Judge in Bankruptcy, if a Privy Councillor, was enabled to sit, if appointed, on the Judicial Committee—which at present he could not do. He proposed, in deference to the objections which had been urged, to strike out the clauses relating to the Home Circuit; and there were a few other alterations, of a consequential nature, which he hoped would meet with their Lordships' approval.

LORD CAIRNS

said, that so far as he was personally concerned, he was perfectly satisfied with the concessions of his noble and learned Friend. They would meet his objection to the separation of the new Court of Appeal from the High Court of Justice, and also his objection to the delegation to an extra-Parliamentary body of the settling of rules affecting the whole judicature of the country, He thought that, in assenting to these changes, his noble and learned Friend had taken a very wise course; and would, he trusted, have the satisfaction of seeing these Bills become law this Session, and thus of seeing the High Court of Justice constituted, although it would not come into operation until the rules had been sanctioned by Parliament. He had himself paid very close attention to the measure; but, as persons out-of-doors had not had a sufficient opportunity of considering the Amendments which had from time to time been introduced, he trusted—although recognizing the importance of expedition at this period of the Session—that the Bills would be reprinted, and that a few days would intervene before the third reading, in order that persons outside might become cognizant of the Amendments.

THE LORD CHANCELLOR

said, he proposed to fix the third reading for Friday.

EARL GREY

said, he could not say a word in opposition to an arrangement concurred in by the two noble and learned Lords who had just spoken; but he confessed he regretted the change that had been made in the Bill, because he thought the mode originally proposed for settling the rules of the Courts was better than that which was substituted for it. He did not concur in the noble and learned Lord's jealousy of allowing matters of this kind to be determined by any other authority than that of Parliament, as he felt that the machinery of legislation in this country was getting absolutely choked by a too great an amount of business. The consequence of this excessive amount of labour which Parliament took upon itself was that the work was ill performed, Bills being passed in an imperfect and unsatisfactory state. It was impossible that it should be otherwise until some efficient means were adopted of lightening the heavy load of business which at present pressed on the two Houses, and of making greater use of subsidiary authorities in the preparation of measures for legislation. Much had of late years been done in that direction; and the drawing up a vast number of rules relating to the procedure of Courts of Law was, above all, a case where Parliament should not be encumbered with too much detail. Considering the numbers of both Houses, effective consideration of such detail was impossible; and he was persuaded that measures embodying such a vast amount of detail as that which was now before them would be much better prepared if they were submitted to the consideration of another authority, preparatory to their being presented to Parliament. The supreme control of Parliament should, of course, be maintained; but this would have been sufficiently done by the original proposal of the noble and learned Lord on the Woolsack—that the rules should not come into operation unless they had been laid before Parliament, and unless Parliament within a certain time refrained from expressing disapproval. Next Session there would probably be as great a pressure of business as at present; and a measure embodying these rules would occupy more time than might be expected or than was desirable, and might lead to a discussion which would probably be fruitless, and could not fail to obstruct other measures. It was taking a wrong view of the duties of Parliament to keep within its walls matters of detail of this kind. In the earlier history of Parliament they would find that the substance of the law was alone considered, and that it was left to the Judges to embody its wishes in statutes. He believed those earlier Acts, thus deliberately framed out of Parliament, compared advantageously with Acts passed under the modern system, under which Parliament took cognizance of every detail and wording.

LORD WESTBURY

said, he should decline to follow the noble Earl (Earl Grey into the large historic question he had raised; but he must express his regret that his noble Friend, like others both in and out of the House, had allowed himself to be terrified by the bugbear of the immense number of rules and orders which would be necessary. All that was sought to be done was this—as they were going to abolish all existing Courts, and to constitute one High Court, and as it was necessary at the same time to abolish the separate forms of pleading, and to impose on them the obligation of one simple form, those who knew how essential forms were to justice required that the rules determining procedure should be embodied in a Bill and sanctioned by Parliament. These would be as different from minute rules of practice as principles were from its details; and, if properly framed, Parliament would avoid that "leap in the dark" which was as inexpedient with regard to our Courts of Justice as to any other part of our existing Constitution. It being known how the Courts were to act, the material forms necessary would, in the hands of his noble and learned Friend on the Woolsack, and competent assistants, extend only over a few pages; and the other forms necessary, which already existed, and in all probability would not be altered, would be easily dealt with; so that the noble Earl would be able next Session to read the Bill with great ease, and, he had no doubt, to understand what it contained. He agreed with him that many Bills were passed in an imperfect shape; but this was frequently owing to the infirmity of purpose of their promoters, who had not duly considered, what was required. He regretted that a measure altering all our Courts should have been introduced without previous conference with the Judges, and should have been persevered with in spite of the remonstrances of the Common Law Judges. Had these things been abstained from, we should not have had different editions of the same Bill. He was obliged to complain of three sheets of Amendments to the Appellate Jurisdiction Bill having been only delivered at three o'clock that afternoon. Could it be expected that the House should be able to consider them? After the concessions made by the noble and learned Lord on the Woolsack, he did not wish to interpose any unnecessary delays; but he trusted that the noble and learned Lord would permit the Amendments to be printed, circulated, and considered before their Lordships were asked to proceed with the Appellate Jurisdiction Bill; because it was most important that the two Bills should harmonize with each other.

EARL GRANVILLE

said, he agreed very much with what had fallen from his noble Friend (Earl Grey), and thought the question whether legislation of this nature should be worked out either in or out of Parliament was one on which laymen could form as good an opinion even as the noble and learned Lord who had just sat down. He was glad, however, to find that noble and learned Lords, to whom they looked for guidance on these subjects, now approved generally of the measure in its amended form. He wished to make a remark upon the very severe rebuke which the noble and learned Lord (Lord Cairns) had administered to himself on a former occasion, for having referred to the manner in which noble and learned Lords were accustomed to deal with any measure introduced by a Member of their own profession. He said there was a tendency, when one noble and learned Lord prepared a measure of legal reform, for the others to fall upon it and pull it to pieces. The noble and learned Lord opposite censured him, with considerably more warmth than he usually showed, for making that observation, declaring that it was neither amusing nor new, that it was without foundation in fact, and that it was unworthy of the position he held in that House to make it. The criticism that the observation was not amusing was perfectly irrelevant: he admitted that it was trite and common-place, as well as devoid of humour, although it seemed at the time to make some of their Lordships laugh a good deal. The observation he had ventured to make had undoubtedly been made over and over again not only by writers in the Press and by speakers in Parliament, but might be read in certain legal bio- graphies, the tone of some parts of which he regretted, and which gave minute and almost painful descriptions of the way in which law Lords treated the legal reforms that they had not themselves introduced. He had looked back to see how many law Bills had been brought forward by noble and learned Lords in that House without being passed in the same Session since he had had the honour of sitting among their Lordships; and he found that during that period there had been 224 such Bills, almost all of which were rejected or withdrawn by the action of noble and learned Lords. He remembered the late Lord Lyndhurst once moving the second reading of a law Bill, when the late Lord Campbell got up and supported the measure, saying he was delighted to do so, because it was identically the same Bill which he had himself introduced in a previous year, but which was then rejected by the advice of Lord Lyndhurst. Lord Lyndhurst did not complain of that assertion, but, turning to his noble Friend the present Foreign Secretary, asked whether it was correct? The Foreign Secretary replied that it was; whereupon Lord Lyndhurst only said—"Well, that is one of the best jokes I have heard." All that showed that the statement he made the other night was quite borne out by the facts; and he could not admit that it was unworthy of his position to call attention to the serious stumbling-blocks which such a course threw in the way of great legal reforms. What had occurred that night, however, took the ground from under his feet. Legal reform was the very salt of that assembly; for nothing could give greater utility or greater reputation to their Lordships' House than the carrying of measures of that kind which were so much desired. What had happened that evening he regarded as a good augury that they would have the united assistance of noble and learned Lords in passing a legal reform of the greatest importance, and that no undue delay would be allowed to occur.

LORD CAIRNS

said, he would not now attempt to answer the remarks of the noble Earl upon the observations he had made in a previous debate; but he supposed that the best course for him, under all the circumstances, to take would be—following the irregularity of the noble Earl—to give Notice that three weeks hence, on the third reading of the Bill, he would call attention to the noble Earl's speech.

EARL GRANVILLE

reminded their Lordships' he was precluded by the rules of the House from taking any notice of the noble and learned Lord's rebuke on a former occasion.

LORD CAIRNS

said, the noble Earl had been grossly irregular in referring that evening to a previous debate.

Further Amendments made; Bill to be read 3a on Thursday next, and to be printed, as amended. (No. 135.)