JUDGE OF THE PRIVY COUNCIL. (Hansard, 1 April 1844)

§ Lord John Russell

said, in pursuance of notice, I wish to put a question to the right hon. Baronet with respect to a Bill now in the other House of Parliament. If I expected that that Measure would come down to us in any reasonable time I should be disposed to reserve anything I have to say upon it until then; and even now I do not propose to enter into a discussion of the question whether or not there should be a head of the Judicial Committee of the Privy Council receiving a salary and holding his situation as a permanent office. That is a point on which different persons and different Governments may entertain different opinions. Lord Cottenham, when he was in office, had an opportunity of considering the subject, when he prepared a Bill to add two Judges in the Court of Chancery. He thought it was not expedient that there should be any such permanent head; and that opinion, which he stated to me at the time, he has repeated since he has been out of office. I am aware that another Chancellor and another Government may think it expedient to add to the Judicial Establishment of the country by making a permanent head to that Committee; but what I have to remark is, that with regard to all the great Judicial appointments of the country, especially, I should say, with regard to that part which forms a branch of the Privy Council of the Sovereign, it is expedient that the Crown should originate and state to Parliament its views upon the fitness of any increase or addition. It appears by the Minutes of the House of Lords that a Bill was introduced by Lord Brougham and Vaux, on the 4th of March, for the appointment of a head of the Judicial Committeee with a salary of 2,000l. a-year, and of two inferior Judges with salaries of 1,500l. and 1,200l. a-year respectively. We find by the same minutes that the Bill was referred to a Select Committee consisting of thirty Members, and since then we have heard nothing of the fate of the Bill. It might, therefore, happen that 1727 after a great deal of evidence, there being a quantity of other matter added, on which I do not mean to touch, the Bill in all its complicated details might not come before this House until near the close of this Session, when the attention of Members begins to flag, and they may be unwilling to continue in town. On this account I wish to know decidedly, in the first place, the opinion of the Government, and of the head of the Government, whether it be expedient that there should be a Judge with such a salary placed permanently at the head of the Privy Council, and whether it is their intention to introduce and support the Bill for that purpose in the present Session? In the next place, I wish to call the attention of the right hon. Gentleman, and of the House, to a very extraordinary statement, which I think the right hon. Baronet will himself be happy to contradict. It is said that a very eminent person some time ago received an offer, no less than three times repeated, to place him at the head of the Judicial Committee of the Privy Council as a permanent Judge. It being, as stated, entirely within the competence and discretion of Government to make up their minds whether such an officer was wanted, it would seem that the more wise and usual course would be, if they decided that a Judge was necessary, to introduce their own Bill; and it would seem a still more wise and usual course that they should carry their Bill through Parliament, and allow it to receive the Royal Assent, before an offer was made to any individual to place him at the head of the Judicial Committee of the Privy Council. It certainly seems a most extraordinary course, not to call it a suspicious course, to propose to a single individual, however eminent, that he should accept such an appointment, there being at that time no office of the kind in existence. It is rumoured that the individual in question declined the proposal three several times, and that the Government then gave up their intention of making this addition to the judicial force of the country. If the business of the Judicial Committee of the Privy Council, which Lord Cottenham thought did not require more than the attendance of the Master of the Rolls, and upon the arrears of which business a return of nil has been made, did, in the opinion of the present Government, require the addition of new permanent Judges, let 1728 them state the general grounds of that opinion, and upon those grounds let the question be decided; but it cannot be in any respect right that the whole question should depend upon the point whether a particular individual is ready to accept the appointment. If the Government considered it right to create the office, and to offer it to an individual, still, when it was refused, one would have supposed that they would themselves, either in this House, where the salary can be properly fixed; or in the other House, where, I admit, it is very proper that they should entertain a question for supplying the deficiency in the judicial establishment of the country, introduce and carry forward their Bill, although the individual they had selected as most fit were not ready to undertake the office. As the matter stands now, here is a Bill which may remain hanging on till the end of the Session, and in the meantime we are not aware whether Her Majesty's Government do or do not think proper to make the addition. My questions are therefore two—first, whether there is any intention to introduce and support with all the influence of an united Government a Bill for making this addition? And, secondly, whether there is any foundation whatever for the statement that the office has been already offered and refused, and that the intention to create such an office was subsequently dropped?

§ Sir R. Peel

As to the Bill which the noble Lord states is under the consideration of the House of Lords, I think it will be quite sufficient to say, that if that Bill should be sent down to this House—that is to say, a Bill which, I apprehend, contemplates the removal from the House of Lords of the jurisdiction in matters of divorce and the appointment of a Vice-President of the Privy Council, with a salary, and two other Judges also with salaries—if that Bill be sent down for the consideration of this House, it is quite sufficient for me to state that I have as unfettered a right to exercise a discretion with respect to it as the noble Lord himself. That Bill has been referred to a Committee, and it embraces several important matters. What view the Committee may take of the policy of creating three new Judges, and of removing from the House of Lords the jurisdiction in divorce à vinculo matrimonii, it is impossible to decide, but I repeat that I am in a condition to exercise as free and unfet- 1729 tered judgment as the noble Lord. The noble Lord may be assured that if the Bill did come down under the sancion of Government—if Government thought fit to take that course—the opinion of this House should not be asked upon it at any period when it could not receive the fairest consideration; but I am entirely at liberty to exercise my own discretion as to the policy of supporting this Bill. I believe it has been felt that it would be of great advantage if there were a Judge of the Privy Council permanently presiding over its judicial proceedings, but that appointment might take place without the addition of any salary. The noble Lord seems to think that no such appointment is necessary; but I may remind him that in 1836 Lord Cottenham brought in a Bill, the object of which was to separate the judicial powers of the Lord Chancellor: I mean the strictly judicial and original jurisdiction from the functions of Lord Chancellor as a Judge of Appeal. [Lord J. Russell: He did not propose to appoint a new permanent President of the Privy Council with a salary.] Lord Cottenham proposed the appointment of a Judge in the Privy Council who should preside over a Court of Appeal, and he stated his reasons why he thought such an appointment ought to be made. I may remind the noble Lord of an opinion then given by Lord Cottenham, not in respect to the jurisdiction in appeal of the Privy Council, but as to the fitness of dividing the functions of Lord Chancellor; his Lordship observed:— There is another part of the jurisdiction of this country which is nearly connected with the appellate jurisdiction of this House, and to which I wish to call the attention of your Lordships—I mean the jurisdiction of the Privy Council in matters of appeal. Not only has the Privy Council to discharge all that business which peculiarly belongs to it, arising from the Colonies, but, by a modern Act of Parliament, all the important functions of the House of Delegates. Various other duties are also imposed on it by modern Acts of Parliament. It appears to me, that by some modification of the existing system, it might be made as good a tribunal for discharging these important functions as could be devised. The Bill establishing the Judicial Committee of the Privy Council had this defect—it did not make it the duty of any one individual to superintend and watch over the judicial business of that Court. There were numerous individuals who constituted the Members of the Judicial Committee, and there was no one 1730 whose duty it was to attend to it, or who was answerable for the proper performance of the duties. The consequence was, that that high tribunal has been open to the great inconvenience of a change from time to time, even from day to day, of the officers who attended to administer justice there. His Lordship then states very fully the inconvenience arising from merely voluntary attendance, which frequently led to a change of individuals presiding, and that opinion has also been entertained for several years past by the present Lord Chancellor. I believe that Lord Cottenham contemplated the appointment of the Master of the Rolls to perform the duties. I can only say that any proposal made to a noble and learned Lord, to which the noble Lord opposite has adverted, did not contemplate the annexation of any salary to the office. It was expected that the noble and learned Lord, who devotes so large a portion of his time, to the great advantage of the public, to the performance of his judicial duties, would have undertaken the situation of permanent Judge of the Privy Council without a salary. I believe that the offer was made under the impression that the Crown had the power to constitute a Judge of that nature of its own authority, only applying to Parliament in case of the annexation of some emolument to the office. The noble and learned Lord thought at that time that the business of the Privy Council required no such addition, and, though perfectly willing to give his time, he urged an objection to the constitution of such a Judge. Circum. stances afterwards occurred which induced hint to take up the subject, and he proposed a legislative enactment to effect his object. The Bill so proposed is his own Measure; it originated with him, and I believe it is supported by several of the highest legal authorities. The noble Lord must not conclude, because it has been referred to a Committee, that it is a Government Measure, or a Measure upon which Government will not exercise its discretion.