§ Order of the Day for the Second Reading, read.
THE LORD CHANCELLOR, in moving that the Bill be now read the second time, said, he desired to say a few words, as some misconception had arisen as to what was intended in reference to the 738 Bill. In introducing this measure he stated that he proposed to repeal the Schedule to the Judicature Act of 1873, which contained the Rules as to the practice of the Court, and that he proposed to incorporate the contents of that Schedule along with the Rules made by the Judges last year, and submitted to Her Majesty in Council. As misconceptions had arisen, he wished to state that the Schedule of the Act of 1873 contained about 60 Rules, which were called the leading Rules of Practice and Procedure under the Act. It was, in addition, left to the Judges to prepare Rules in greater detail, because the 60 Rules were inadequate to meet the whole practice and procedure of the Court. The Judges, consequently, last year approved a very extensive body of supplementary Rules under the Act. The only object he had in view was that the body of the Profession should not be obliged to resort to two different compilations of Rules for the purpose of ascertaining the procedure of the Act. To him it was a matter of complete indifference. He held in his hand a complete body of Rules—the 60 Rules in the Schedule of the Act of 1873, and those approved by the Judges last summer. That document ran to the extent of 117 long pages, and his apprehension was lest the Statute Book should be needlessly loaded with so great a body of matter, which might be changed by the Courts after the Act came into operation. If changes were made by the Judges, these Rules, although published in the Schedule, would become useless. He doubted whether it was wise to load the Statute Book with such a body of matter; but it was indifferent to him whether it was placed in the Schedule or treated as a separate body of Rules. There could be nothing further from his mind than to suppose that such a body of Rules ought not to be brought under the notice of Parliament and the public in sufficient time before the Act came into operation.
§ Moved, "That the Bill be now read 2a"—(The Lord Chancellor.)
§ THE EARL OF HARROWBYsaid, he did not wish to raise an obstacle at the present stage of the Bill, but there was one point in connection with the Bill to which their Lordships' attention should be called. A strong feeling existed in favour of the continuance of the juris- 739 diction of their Lordships' House as the Final Court of Appeal. Public attention had not been much called to this question when the Bill of 1873 was before them. The two leaders of opinion, in such matters on both sides concurred, and no one but the noble Lord (Lord Rdesdale) had the courage to question the propriety of the step, so that it easily passed into law. There was now an opportunity, of which he hoped their Lordships would avail themselves, of re-considering the question. A great deal of feeling had already developed itself against the proposal, and it had been manifested by the Petition of the Writers of the Signet, by the almost entire unanimity of the Bench and Bar of Ireland, by the doubts expressed by between 400 and 500 members of the English Bar, and by a very considerable admixture of doubt among the Judges on the Bench. While the opposition to the proposal had thus gained ground, not a single Petition had been presented in favour of the proposed change, and no complaints of delay had been made by suitors. He did not say what conclusion their Lordships would arrive at; but he did hope that an opportunity would be taken to pass the matter again under review, and he trusted also that sufficient time would be given before the stage of Committee for a full expression of opinion on the part of those out-of-doors who wished to preserve their Lordships' jurisdiction as the Final Court of Appeal.
§ LORD SELBORNEsaid, it would be for the convenience of their Lordships that, before the time came for asking the decision of the House, full notice should be given by those who opposed the removal of the jurisdiction of the House of Lords of the precise proposals which they intended to make, as to the future mode of providing against those difficulties, the existence of which had been felt for a series of years, and had led to the constitution of the new Court of Final Appeal by the Act of 1873. Some mode of securing the due discharge of their Lordships' judicial functions must be provided if their Lordships should unfortunately be inclined to retrace their steps.
§ LORD PENZANCEsaid, that their Lordships were now for the first time considering the creation of an Imperial tribunal of appeal for the Three King- 740 doms, and the time had accordingly arrived when they might properly reconsider the question whether that House was or was not fully capable of fulfilling the functions of a Final Court of Appeal, and better indeed than any other tribunal. The decision arrived at when their Lordships were asked to pass the Bill of 1873 was wholly different from that now before them. The question then concerned England alone and their Lordships had no alternative. For it was proposed to take away the second Appeal in English cases altogether, and if that was a wise step for the suitors and the public, no one would say that for the mere purpose of keeping alive your Lordships' jurisdiction or privileges, a second Court of Appeal should be retained. But they were now asked to deal with Scotland and Ireland; and the Bill provided that there should be a second appeal in English cases also, thereby undoing the legislation of 1873. No doubt that appeal was restricted; but the Lord Chancellor did in certain cases give a second appeal, and the question now, for the first time, arose, to what tribunal that second appeal should go. The new Court of Appeal was required to be an Imperial tribunal; but it had nothing about it Imperial except the name. That was one objection; but there were other serious objections to the proposed new Court of Appeal. In the first place, while there was to be a limitation of amount upon appeals coming from Scotland—and he admitted that frivolous appeals had come to that House from Scotland—and while the appeals from England were to be restricted to cases in which the Judges in the First Appeal Court had differed in opinion on cases in which the judgment of the Court below had been reversed, there was to be no limitation and no restriction upon appeals from Ireland. He had never heard a reason for this distinction, nor that Irish Judges were more likely to be mistaken than English or Scotch Judges. Then the Court itself was constituted in the most arbitrary manner; it was the fraction of another Court; and the upper half of the Court was to review the decisions of the lower half. The Judges of the upper half were to have the same standing, emolument, and dignity as the Judges of the lower half; and that was a condition of things that could hardly be satisfactory to suitors, 741 For what would a suitor think, who had been successful in the first half of the Court, and then had that decision reversed by the second half? What reason would he have for believing that the second decision was more worthy of confidence than the first? Further, the upper half was not to be a permanent Court of Appeal, which, recruited from Judges from Scotland and Ireland, might become conversant with the laws of those countries: but, at the end of three years, the Judges of the upper half were liable to be sent down to the lower half; and this in itself seemed to be a most unconstitutional proceeding by placing it in the power of the Crown to remove, or rather degrade, a Judge, for no wrong done. If these difficulties were unseparable from the constitution of the new Court, it was all the more incumbent on them to consider whether the old tribunal was not, on the whole, a more satisfactory Court of Appeal.
§ LORD HATHERLEYsaid, he would have inferred from the last speech that the noble and learned Lord (Lord Penzance) intended to propose the repeal of the Act and to oppose the second reading of this Bill. As to the resignation of their Lordships' jurisdiction, he should reserve any remarks he had to make until he saw the plan it was pro-posed to substitute for the new Court of Appeal. He did not admit that the question of a second appeal had any material bearing upon the subject. Before the Act was passed there was a Committee of this House which considered every alternative; and the noble and learned Lord on the Woolsack proposed a scheme which would have saved their Lordships' jurisdiction if anything could have saved it. He believed the Act was founded on sound principles, and was calculated to uphold the dignity of the House.
§ LORD REDESDALEsaid, it was not an open question whether they were going to reverse the policy of the Act, because the Bill did that for England by giving a second appeal; and, that being granted, the question again arose whether their Lordships' House was not the best Court for the purpose in view. It was admitted last year by the noble and learned Lord on the Woolsack that the new Court would not have the prestige of their Lordships' House. There never had been the least complaint from Eng- 742 land against that House as a Court of Appeal, and the feeling which had been expressed in Scotland and Ireland was well known. Therefore, those who had brought causes to it were satisfied with it and desired its jurisdiction to be preserved; and he believed that the preponderance of opinion among the members of the Bench and the Bar was in favour of maintaining it.
§ LORD WAVENEYsaid, that in conversation with a high judicial authority in Scotland (the late Lord Murray), he had expressed implicit confidence in the House of Lords as a Court of Appeal in Scotch cases, even though the Law Lords did not include any Scotch Judges, because he said the decisions were submitted to men conversant with the highest principles of jurisprudence. He thought this was strong evidence of the satisfaction of the Profession in Scotland. He had been at some pains to satisfy himself on a recent visit to Ireland that the Profession there was content with their Lordships' House. He could not help thinking there was a defect in the Act or in the Bill in the absence of a declaratory clause with regard to the effect the change would have on our general jurisprudence and the hearing of appeals from all parts of the Empire. There ought to be no doubt whatever as to what the jurisdiction of the House was to be in the future. Let it be supposed that a case which was now exciting great attention in the Peninsula of India should in any circumstances follow the course of a great cause in the last century—it would be a great disadvantage to the Colonies if it were thought that the power of ultimate appeal to that House had passed away from their Lordships.
THE LORD CHANCELLORsaid, he hoped it would not be thought that he undervalued the arguments which had been adduced by his noble Friends if he did not now refer to them at length. Understanding that the whole question would be raised on a future occasion, he hoped that his noble Friend at the Table (Lord Redesdale) would adopt the suggestion which had been thrown out by his noble and learned Friend (Lord Selborne), and be prepared when the Bill went into Committee to explain the scheme he would substitute for the Act of 1873. He would fix the Committee for that day week, or if his noble Friend pre- 743 ferred Thursday in that week, which was also an open day, he would say Thursday; but having regard to the state of Business in their Lordships' House, he did not think it would be convenient to postpone the Committee beyond Thursday week.
§ LORD REDESDALEhoped a little more time would be allowed. There was nothing in the state of the Business either of that or the other House of Parliament which required so much haste, and he did think it most important that an opportunity should be given for a further expression of opinion by those best qualified to pronounce it upon this subject. The other House of Parliament were fully engaged with a variety of measures, and if this Bill were sent down to them they could not take cognizance of it for a considerable time to come. The matter was really of so much importance that he hoped their Lordships would induce the noble and learned Lord on the Woolsack to allow some further time for the Committee.
§ EARL GRANVILLEsaid, he would only make one observation. He hoped whatever time was allowed before the Committee would enable the noble Lord at the Table (Lord Redesdale) to adopt the very reasonable request of his noble and learned Friend—namely, that he should give the House the advantage of having the alternative scheme before them.
§ THE DUKE OF RICHMONDmust remind the noble Lord at the Table that this was not the first time this subject had been discussed. No subject had been more thoroughly considered and discussed during the last two or three Sessions. The noble Lord wished further time in order to get up more opposition to the scheme; but, as he stated on the first night of the Session, it was the intention of the Government, if possible, to pass this Bill, and he did not think it was too much to ask their Lordships to go into Committee on Thursday week. He could not believe that the noble Lord was not prepared with some substitute for the Act of 1873, unless he really meant to turn matters into utter chaos. He should certainly endeavour to persuade their Lordships to go into Committee on Thursday week.
§ LORD REDESDALEobserved that if nothing were done beyond retaining their Lordships' jurisdiction there would 744 be nothing of chaos whatever. There was no embarrassment in their appellate business, and the country was perfectly satisfied with the manner in which it was conducted.
§ Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday the 4th of March next.