SECOND READING. (Hansard, 12 July 1881)

§ EARL CAIRNS

said, he was anxious to call attention to some clauses in the Bill which appeared to him to be of great importance, with reference to the administration of justice and the judicature of the country. There were many clauses to which ho had no objection—they were desirable, and some absolutely necessary. There was the proposal that the President of the Probate, Divorce, and Admiralty Division should become an ex officio member of the Court 624 of Appeal; that was following the precedent of the other Divisions. At the time the Judicature Act passed this could not have been done with the Probate Division, for at that time there was only one Judge. Then the Bill proposed, in regard to the Master of the Rolls, that he should cease to be a Primary Judge of the Chancery Division, and henceforward be a Judge of the Appellate Court; and if the Master of the Rolls was willing to make that alteration in his position, he could only say that he was sorry that the Division was about to lose him as a Primary Judge, for which he had unusual qualifications. At the same time, he was certain that the Master of the Rolls would do equally good service in the Court of Appeal. He quite agreed that if they confined his labours to the Court of Appeal, it was impossible to do otherwise than to secure to him the precedence he had at present, his remuneration in point of salary, and all his rights with regard to patronage. He should like to ask his noble and learned Friend what was to be done with the Chambers and Chamber Clerks of the present Master of the Rolls? Were they to be transferred to Mr. Justice Kay? There were other clauses in the Bill of a miscellaneous description, but he should not dwell on them. He now came to a part of the Bill which, it appeared to him, required the serious consideration of their Lordships. Ho referred to that part of the Bill which related to the future constitution of the Appellate Court, which had been regarded as the key-stone of the system. There was not one case came before their Lordships for every 20 that was decided finally by the Court of Appeal. It had been their object for several years past to strengthen in every way, and to give solidity to this Court of Appeal. They had tried to do this under various statutes—the Acts of 1873, 1875, 1876, and 1877. All those Acts more or less altered the arrangements from time to time, as experience suggested, with regard to the Court of Appeal. One object they had in view was to give to the Court of Appeal, in the first place, as great dignity as could be given by securing the services of the most eminent men that could be obtained for it. Another object was to insure that the Judges of the Court of Appeal should be, as far as possible, of 625 equal rank and dignity, and possess equal advantages in reference to their judicial office. But would not that object be frustrated by the provisions of the proposed Bill, which would enact that in future any person who might be made Master of the Rolls should never act as a Primary Judge, but should at once become a member of the Court of Appeal, and possess all the advantages hitherto enjoyed by Masters of the Rolls with reference to the questions of precedence, salary, and patronage? By this Bill a person quite inexperienced as a Judge might join the Appellate Court as Master of the Rolls, and ipso facto he would have precedence of tried Judges, like the late Lord Justice Knight Bruce, or Lord Blackburn, or Lord Justices Bramwell and Brett. The result of this arrangement would be that the Appellate Court would lose the respect of the public and the Profession. He might be told that a man could be made Lord Chancellor, and enjoy the precedence attached to that Office without ever having been a Judge before. That was true; but this state of things had never been considered advantageous, and was only accepted because it could not be avoided. If it was desirable that Masters of the Rolls should for the future become members of the Appellate Court and not be Primary Judges, he would raise no objection. What he insisted on was that the opportunity should be taken to do away with the artificial precedence of the Master of the Rolls, who should have in the Appellate Court no more than the precedence derived from the order of his appointment. Why, ho asked, should future Masters of the Rolls have a higher salary than that allotted to other members of the Appellate Court? By giving this higher salary to the Master of the Rolls they would create unnecessarily an invidious distinction between one member of the Court and the other members. Then, again, with regard to patronage. The Bill proposed that future Masters of the Rolls should have all the patronage enjoyed by the Master of the Rolls at the present time. There would, therefore, be one Judge sitting in the Court of Appeal whose rights of patronage would be far more extensive than those of the other Judges in the same Court. To that provision he strongly objected. He hoped his noble and learned Friend 626 the Lord Chancellor would see the advisability of introducing Masters of the Rolls into the Appellate Court with precedence according to the dates of their appointments only, and upon an equal footing with the other members of the Court. He also disapproved the provision according to which three Judges of First Instance would be selected out of the number of Primary Judges once in every year for the purpose of sitting in the Court of Appeal. It was a proposition of a very grave character, and one which would be very injurious to the Court of Appeal. They had now nearly reached the end of the Session, and therefore but little time was left for discussing the measure. The public and the Bar would have no opportunity of understanding its provisions, and the Judges who wore now on Circuit would not have time to devote themselves to the study of the Bill, so as to be in a position to express their opinion upon it. He thought the best thing to do would be to relieve the measure of the two provisions to which he had specially drawn attention. He referred to the clause regulating the position of future Masters of the Rolls in the Appellate Court, and to the provision for the annual selection of three Puisne Judges who should sit in the Court of Appeal. These provisions ought to stand over till another Session, when they could be considered by the public at large. They should not rashly mar the work which had been done under the Acts passed during the last eight years. As things were, the Judges were occupied up to the hilt. No doubt arrears were less than they had been; but that was owing to the state of business in the country. Speaking generally, he thought it was impossible that the Primary Judges should have much time to sit in the Court of Appeal. Besides, the time when the Court of Appeal wanted most help was during the Circuits. But that was just the time when not a single Primary Judge could be had. He believed it was a delusion to suppose that any Primary Judges would have leisure to sit in the Court of Appeal. He had another objection, and that was the varying constitution of the Courts which necessarily followed. One day the Court would be constituted of certain Judges, all of whom would be unable to sit together again. And a Primary Judge 627 would say, when a fresh cause was called in the middle of the day—" I have to sit in the Court of Appeal tomorrow, and therefore cannot take this case if it is likely to occupy any length of time." The system proposed, therefore, was a most wasteful one. Another objection he entertained most strongly was that it was assumed that all the Primary Judges were fit to sit in the Court of Appeal. The best men were required for that Court. The proper way of getting the best men was to choose from time to time the most distinguished Primary Judges and promote them to the Court of Appeal. But if all the Primary Judges were to be treated as eligible for the Court of Appeal, the popular respect for that Court would be lowered. What would be the position of the three Judges? They would go at once to the bottom of the list of Appeal Judges. They would lend no additional respect to the Court; on the contrary, a division would be established between one class of Judges of that Court and another. What he said was not mere theory. The plan had been tried and found wanting. In 1875 it was enacted that the Crown might select from the Common Law Judges Judges to sit in the Court of Appeal. The result was that when such selections were made considerable dissatisfaction was expressed in the country. The public thought it was not the kind of Court of Appeal which they had been led to expect. In consequence of that dissatisfaction three additional permanent Judges of the Appeal Court were appointed under the Act of 1876, so as to raise its strength to six Judges. Then, how were these three Judges to be selected under the Bill? Why, in a way in which Judges never were selected before. There was no analogy between the present case and that of the Election Judges. In the latter case there was an obvious reason why the appointment should not be by the Crown. Besides, the Election Judges were chosen to do what was the ordinary work of Judges of First Instance; whereas under the Bill it was a higher class of work to which certain Judges were to be called. How would the Judges select? In all probability by rota. They would naturally decline to do anything so invidious as to choose certain of their body by preference to sit in the Appeal Court. 628 Thus, in turn, from year to year, all the Judges would sit in the Appeal Court without reference to their standing or experience or other special qualification. The Court would thus be furnished without reference to merit. But suppose the election was not by rota—and he observed that his noble and learned Friend had provided for meetings of the Judges and a casting vote. Let their Lordships imagine what it would be to have a contested election of Judges. Was the voting to be by ballot? It might be necessary to apply the provisions of the Ballot Act to the election of Judges of the Court of Appeal. Then, what were called the Common Law Judges might think themselves particularly eligible, and the Chancery Judges might hold a different opinion. Thus, there would be a contest between one side of Westminster Hall and another. He thought, therefore, that the Bill would introduce a great change from which little benefit would accrue, which would lower the character of the Court of Appeal, and the machinery for which could only be put in motion by a mode of selection among themselves of the Primary Judges, which was, in the highest degree, objectionable. He booed that the noble and learned Lord would reconsider the two provisions to which he had referred, and would postpone dealing with them until another Session. Another point to which he desired to draw attention was this. He was responsible for proposing to Parliament that the Judges of the Court of Appeal should go Circuit, and at the time that proposal was made it was not an injudicious one, because no one could tell what the extent of the duties which those Judges would have to discharge would be. The proposal having been adopted, the Judges of the Court of Appeal had gone Circuit, and they had done so at the greatest possible inconvenience to the public, inasmuch as during Circuit time either one or both of the Divisions of the Court of Appeal were closed. In dealing with this point, their Lordships must remember that Courts in banco had been almost abolished, and that the weight of the ordinary banco business of the Courts fell upon the Court of Appeal. It was impossible that the weight of the objection to there being arrears in the Court of Appeal could be overrated. And, therefore, he thought the subject of the expe- 629 dieney of sending the Judges of the Court of Appeal on Circuit should be reconsidered. Turning to the subject of the salaries of the Judges of that Court, they had been fixed at £5,000 per annum, as against the £6,000 which was paid to the Lords Justices. He had always objected to the salaries of those Judges being placed on so low a scale, as it was remarkable how much greater inducement the additional £1,000 a-year was to men of eminence and learning to accept the post of Judges. Seeing that the Offices of Lord Chief Justice of the Common Pleas and of the Chief Baron of the Exchequer had been abolished, and a considerable saving had thereby been effected, it was not unreasonable that the salaries of the Judges of the Court of Appeal should be increased, and thus that some prizes should still be opened for distinguished members of the Bar. In his opinion, a I most beneficial result would accrue from strengthening the Court of Appeal by relieving the Judges of that Court from the obligation of going Circuit and by increasing their salary. He thought that the clause having reference to the Assizes might be misunderstood, and that it might be supposed that the Government was about to take power to group counties together for purposes of all the Assizes in the same way as they did for the purposes of the Winter Assizes. If that were the real meaning of the clause, he thought that it was objectionable, as it would result in considerable inconvenience to the parties and others obliged to attend the Assize Court. He trusted that the noble and learned Lord upon the Woolsack would afford the House some explanation on this point.

THE LORD CHANCELLOR

sincerely hoped that none of their Lordships would object to the clause in the Bill relating to Winter Assizes. Until recently there were only two Assizes in the year; but there were now four for criminal purposes, and two (in some places more) for other purposes. While that arrangement undoubtedly accomplished the very desirable object of not keeping prisoners too long awaiting trial, it had been found to interfere seriously with the business of the Courts in London. It was, therefore, proposed to extend the powers now given to the Crown to reduce, as occasion might require, the number of places for 630 holding the Winter Assizes in the months of November, December, and January, to all Assizes, and all times of the year, which would lessen the waste of judicial power for Assize purposes; and, as fewer Judges would be required to go Circuit, there would be less interference with the business of the Courts in London. With regard to the Chambers of the Master of the Rolls, he was not aware that there was any controversy raised as to the Judge to whom those Chambers should be assigned. It might, or it might not, be found convenient that the junior Judge should take them; but that question must be decided with a view to the convenience of business only, when it became a practical one. With regard to the criticisms of his noble and learned Friend on the proposal as to future Masters of the Rolls, he thought that they really were such as when examined would not be found to have much weight in them. He did not see any reason why the official precedence of future Masters of the Rolls should be more objectionable in the Court of Appeal than the precedence which the Master of the Rolls for the time being already had there, or than the precedence heretofore existing in the Court of Queen's Bench, the Court of Common Pleas, and the Court of Exchequer, before the abolition of those distinctions. He had never heard, when those who had attained such eminent positions at the Bar and in the Public Service as to be fit, in the judgment of the Crown and the public, to be appointed to the highest judicial posts, that there was any jealousy or dissatisfaction caused by the fact that they were advanced to a position of superiority of rank. With regard to the question of retaining the greater prizes of the Profession, he thought they should neither sacrifice the public interest for the mere purpose of retaining those prizes, nor should they wish to diminish the number of them when they could be maintained consistently with the public interest. Having for sufficient reasons parted with two of those prizes, it was desirable that the office of Master of the Rolls should remain as it had been heretofore, unless seine clear and strong public reason could be assigned to the contrary, and he was convinced that no such reason could be assigned in that case. It was an ancient historical office, and the other 631 Judges had never felt, as far as ho was aware, the least dissatisfaction at the Master of the Rolls, being also the principal Keeper of the Public Records, having a higher salary and rank than other Judges. It was desirable to retain with the office of the Master of the Rolls the principal custody of the public records; and the last two Masters of the Rolls, as well as the present occupant of that office, had discharged their duties in connection with the public records in a manner which all admitted to be very highly beneficial to the public. Formerly there was much separate patronage belonging to the Master of the Rolls; but now there was nothing, or next to nothing, of that kind. He was afraid that they could not conveniently put off till another Session the proposal to which the noble and learned Earl had referred, because, even before another Session, exigencies might possibly arise which would have to be provided for. On the whole, he held that there was not only no valid objection to retaining the future holders of the office of Master of the Rolls in the same position in which the Bill would place the present Master of the Rolls, but that the great preponderance of argument was in favour of that course. His noble and learned Friend had raised several objections to the selection of three Judges to sit as the Court of Appeal. He (the Lord Chancellor) had pointed out that it was necessary to strengthen the Court of Appeal in order to avoid arrears, and that the Master of the Rolls and the Lord Chief Justice had on several occasions given material assistance as ex officio Judges to the Court of Appeal; and he thought such an arrangement as he now proposed would strengthen the Court, and make it more popular, because there had, no doubt, been some little feeling from the first with respect to the fusion of Equity and Common Law, and the occasional presence of working Judges of the Queen's Bench and other Divisions of the High Court on the Bench of the Court of Appeal had a very good effect. He reminded the House that it was contemplated by the Judicature Act that three of the ordinary working Judges should be annually appointed members of the Court of Appeal. He could not, therefore, see the force of the objection to the selection of three ordinary Judges of First Instance as mem- 632 bers of the Court; and he had explained the reason of the postponement of that part of the recommendation of the Judicature Commissioners, it not being then necessary to bring it into operation. The worst result that could ensue from the adoption of the principle of selection was that all the Judges might occasionally sit in rotation, which he admitted to be possible, but which, after all, might not be any serious evil. At the same time, he could not say, that this was a subject on which it was necessary for Parliament to decide during the present Session; because there were still under the Act of 1875 means of providing, on the same principle, for emergencies. Ho would, therefore, not press upon their Lordships, during the present Session, the clause for the selection of the three Judges by the general body of Judges who were to sit in the Court of Appeal. As to the patronage under the Bill, it was his intention to propose an Amendment in Committee, by which it would be conferred, not on the Lord Chancellor, but on the Master of the Rolls, the Lord Chief Justice, and the senior Puisne Judge of the Queen's Bench Division.