BILL PRESENTED. FIRST READING. (Hansard, 5 July 1881)

THE LORD CHANCELLOR,
in rising to present a Bill to amend the 10 Supreme Court of Judicature Acts, and for other purposes, said, that the Bill was, in some respects, of considerable importance; but he hoped that it would not excite much difference of opinion. A number of changes were proposed, some of considerable magnitude, others comparatively simple. Their Lordships were aware that the High Court of Justice had contained three separate Divisions called respectively the Queen's Bench, the Common Pleas, and the Exchequer Divisions, and that these three Divisions had recently been consolidated. In consequence of that consolidation there was now but one Division on what was popularly called the Common Law side of the High Court, and one Lord Chief Justice. There had been five ex-officio Judges of the Court of Appeal—namely, the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Lord Chief Baron. Owing to the cessation of the two latter offices, the ex-officio Judges were now reduced to three. The Court of Appeal further consisted of six ordinary Judges; and a vacancy had lately taken place in that number by the loss of a Judge whose merits it would be very difficult to do justice to and impossible to exaggerate—Lord Justice James. He spoke from long knowledge, and an intimate personal friendship of many years; and he could not speak of his official services to the country without recollecting the generosity of his noble nature, which greatly endeared him to his numerous friends. But, speaking of him only as a Judge, he would say that the country had never been served by a Judge of higher character—of a sounder and more rapid discrimination; a more ardent love of justice as distinguished from technicalities; a more accurate knowledge of law, or a greater power of immediately applying that knowledge, with an uncommon share of common sense, to the determination of the cases which came before him. For several years those qualities had been exhibited by the late Lord Justice as a Vice Chancellor, and for more than 10 years in the Court of Appeal; and whatever arrangements might be made for filling the vacancy, it would be impossible for any man to bring to the fulfilment of the duties of the office higher qualifications, as a lawyer and 11 a man, than those possessed by Lord Justice James. Now, with regard to the Court of Appeal, although the business of the Court had been ably administered, and arrears prevented from accumulating, yet it was of an arduous and important character, and it required strong Judges, as well as able Judges, to prevent it from falling into arrear. When the question arose what should be done to meet this state of things, it was impossible not to call to mind the proposals which had been made by the Judicature Commission. In their first Report, on which the Judicature Act of 1873 was mainly founded, they advised that the Master of the Rolls for the time being should be a Judge of Appeal only, and that there should be in the Court of Appeal three Judges of the Court of First Instance, annually selected by the Crown. This proposal was not followed in the Act of 1873, which provided for one Final Court of Appeal, comprehending all the judicial strength now distributed between the House of Lords, the Privy Council, and the present Court of Appeal as actually constituted. But that arrangement, as their Lordships were aware, was afterwards changed; and, in the Act of 1875, his noble and learned Friend (Earl Cairns) proposed to introduce into the Court of Appeal three Judges of First Instance—and, under extreme circumstances, it would have been possible to have four—affording temporary assistance. Now they had come to a time when the number of ex-officio Judges was reduced from five to three. What he asked their Lordships to do with regard to the constitution of the Court of Appeal was this—He proposed, in the first place, to take the opportunity of reverting to the recommendation of the Judicature Commission with regard to the position of the Master of the Rolls in connection with the Court of Appeal. Of the special qualifications of the Master of the Rolls he need not speak; they were well known and appreciated by the country at large. It was his proposal that the Master of the Rolls for the time being should be transferred to the Court of Appeal. The present Master of the Rolls was willing to undertake that position. Instead, therefore, of filling up the vacancy now existing among the ordinary Judges in the Court of Appeal, he proposed that the Master of the Rolls should take 12 up the position which seemed more in accordance with the superior rank of his office than that of being one of a number of Judges of First Instance, sitting separately in different Courts of the Chancery Division. At the same time, the Master of the Rolls would continue to exercise all the duties of his office as Keeper of the Rolls, and would retain his present rank, salary, and official patronage. The Master of the Rolls, therefore, would be—he did not say transferred—but confined to the Court of Appeal; and, practically, that would make it unnecessary to fill up the present vacancy in that Court. Then he came to the consideration of the ex-officio Judges. There were now two less than had been contemplated, and if the Master of the Rolls was removed from the High Court, there would be three less. He proposed that the President of the Probate, Divorce, and Admiralty Division, who was not now an ex-officio Judge of the Court of Appeal, should, without any other change in his position, become such a Judge. He proposed, in the next place, that three other Judges should be annually selected from the Judges of the High Court of Justice, who might serve in the Court of Appeal when their other duties permitted. The question remained—in what way should those annual appointments be made? He did not propose that they should be nominated by the Crown. A more convenient mode of selection, he thought, might be found; they might be selected as the Election Judges were now chosen. The Judges of the High Court might meet together, and from year to year nominate for the succeeding year three of their body to serve in the Court of Appeal. They would not be called upon to do duty in the Court of Appeal, so as to interfere with their primary obligations as Judges of the High Court; they would be called upon to assist when the state of business in their own Courts admitted of that assistance being given. Provision was, of course, made for the appointment of a new Judge in the Chancery Division of the High Court, to take the place of the Master of the Rolls. These proposals would not subject the country to any substantial increase of expense. It was also sought to remove a doubt as to the effect of the Act of 1877, under 13 which an additional Judge of First Instance was appointed for the Chancery Division of the High Court. The language of that Act did not make it absolutely clear whether it authorized an appointment on a single occasion only or an appointment from time to time. He proposed to remove that doubt, and to enable the power given by that Act to be exercised from time to time. Occasion had also been taken to alter, in some respects, the existing law as to appeals. By the Divorce and Matrimonial Causes Acts certain appeals from the Divorce Court Judge were given to a Court which was called the Full Court for Matrimonial Causes. He had consulted with the learned Judge who presided over that Court, and found that he, as well as others, was of opinion that it would be desirable that that appeal, which was, practically, to that Judge himself, with the assistance of others, should no longer be to the full Court for Matrimonial Causes, but should, like all other cases, go to the Court of Appeal. He also proposed, very much at the instance of that eminent Judge, to correct what, in practice, had turned out to be an unsatisfactory provision in the same Acts, which gave the right to appeal from decrees for dissolution or nullity of marriage, not in the first instance when the decree nisi was given, but when it had been made absolute after a certain lapse of time, which, if no cause were shown in the meantime, was a matter of course. He proposed that, for the future, the appeal should be from the decree nisi, and there should not be a further appeal. With regard to the Acts which related to Parliamentary registration and elections, they had proceeded on the footing of giving final authority on matters of law to the Court to which Parliament had thought fit to intrust that class of cases. This was overlooked, or not sufficiently considered, when the Judicature Act of 1873 was passed; and no distinction was then made between orders on those subjects, and other orders of the High Court. It was now proposed to make the decision in such cases final and conclusive, unless the Court thought fit to give a right to appeal, in which case the Court of Appeal would have jurisdiction. The Bill also gave a power to regulate the holding of Assizes, which, having 14 hitherto been limited to Winter Assizes only, would now extend to all Assizes, by which means it was hoped that an inconvenience, at present felt, would be mitigated. The measure likewise dealt with the power under the Act of 1875 for making rules to govern the practice of the High Court. It also contained a clause enabling the time of holding the Sessions of the Central Criminal Court to be fixed, not, as was now required by Act of Parliament, by eight Judges, but by four Judges of the Queen's Bench Division. It further contained provisions as to the appointment of officers of the Courts and the filling up of vacancies in the staff of all the Courts. There were various other minor provisions in the Bill, on which he need not now trouble their Lordships.

§ EARL CAIRNS
said, it became desirable to re-consider the question of the construction of the Appellate Court when it was deprived of two of its ex-officio members, the Lord Chief Baron and the Lord Chief Justice of the Common Pleas. He agreed with his noble and learned Friend that the occurrence, so much to be lamented in regard to the Court of Appeal, of the death of Lord Justice James made it necessary to consider the constitution of that Court. In all that his noble and learned Friend had said about that very eminent man and his loss he wished to express his entire concurrence. He himself, like his noble and learned Friend, had known Lord Justice James for a very long time, and had been an observer of the manner in which he discharged his duties; and he must say that in his experience he had never seen a Judge who brought to the discharge of his duties a more admirable knowledge of the law which he had to administer, and a more admirable share of common sense—which, after all, was as great a quality for a Judge as a knowledge of the law—than the late Lord Justice James had always done. Turning to the Bill which his noble and learned Friend had presented to their Lordships, he did not desire to express any definite opinion as to some of the changes which were now proposed. He could only say he was glad that the 15 Master of the Rolls was willing to preside in the Court of Appeal. With regard to future holders of the office of Master of the Rolls, he did not know what would be their position as regarded emoluments. The present Master of the Rolls received a higher salary than the Judges of the Court of Appeal. Of course, it was quite proper that the present Master of the Rolls should have that advantage continued to him; but, with regard to future holders of the office of Master of the Rolls, it appeared to him that it would be somewhat objectionable to have one Judge receiving a higher salary than that of the other Judges. He could not quite follow the noble and learned Lord as to the position of the new Judges to be selected annually from the rest of the Judges to be Judges of the Court of Appeal. He would, therefore, reserve any expression of opinion on that proposal until they had the Bill before them. All he would say was that the reason for having ex-officio Judges in the Appeal Court was that they should be independent of the Court below; but he did not see how that was to be secured by taking the Judges by election annually from the Court below. If it was necessary to strengthen the Court of Appeal he should prefer to do that by adding another Judge.

THE LORD CHANCELLOR
was understood to say it was proposed that every future holder of the office of the Master of the Rolls should receive the same emoluments as the present Master of the Rolls, because the holder of that office had certain duties to perform with regard to the Record Office.