HC Deb 15 July 1858 vol 151 cc1543-9

Order read, for resuming Adjourned Debate on Question [13th July], "That the Bill be now read a second time.

Question again proposed.

Debate resumed.

MR. COGAN

said, he considered that a Bill of such importance as the present ought not to have been delayed until this period of the Session, when many of the leading Irish Members who were opposed to it were necessarily absent, more especially as many constitutional principles were involved in the measure. The Bill proposed to alter the tenure of office of Assistant Barristers, and enabled the Lord Chancellor to certify to the Lord Lieutenant, who might remove these gentlemen for misconduct or infirmity. That portion of the Bill had been reconsidered, and now the Lord Lieutenant could only remove those gentlemen on account of permanent infirmity. He (Mr. Cogan) contended that the Lord Chancellor and the Lord Lieutenant had no more right to dismiss these gentlemen on account of infirmity than they had a right to discharge them on account of misbehaviour. These gentlemen had political duties to perform in the revision of the electoral lists, and they ought, therefore, to be kept aloof, as far as possible, from the Executive of the day, of whatever party that Executive might be composed. The only excuse he had heard for the measure was that the Lord Chancellor in this country had the power to dismiss County Court Judges, but there was no analogy between the two cases, because the County Court Judges of England had no civil jurisdiction, no criminal powers, no political functions. He would move that the Bill be read a second time that day month.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day month."

Question proposed, "That the word 'now' stand part of the Question."

MR. ROEBUCK,

in seconding the Motion, said that in England we had thought that the best mode of providing for the independence of Judges was to render them irremovable except on the Addresses of both Houses of Parliament. The English Judges had a civil and a criminal jurisdiction, and in certain cases a political jurisdiction. The assistant barrister in Ireland was a civil and a criminal Judge and a revising barrister. The Bill contained two provisions; the first was that in the statement of the Lord Chancellor, that an assistant barrister was incapable of performing his duties, he should be removable by the Lord Lieutenant; the next was that the Lord Lieutenant might transfer an assistant barrister to any other county than that to which he had been appointed. They called an assistant barrister a humble Judge, but the matters he determined were of as much importance as any decided in Westminster Hall; and his independence was of as great concern to the country at large as the independence of the Judges of the superior courts. He should like to know why the Bill had been introduced. There were Judges of the superior courts in Ireland totally incapable of performing the duties of the office, and it would have been more consistent to have begun at the top instead of the bottom of the tree in making this change in the law; but those who promoted this Bill dared not do so.

MR. WALPOLE

said, the hon. and learned Member had asked a pertinent question, and he would give him an answer which would show the extreme importance of passing the measure. Nothing was more important than that the assistant barristers, who were dispersed in different parts of Ireland, should be capable of discharging the functions cast upon them. There were thirty-two or thirty-three assis- tant barristers, and during the last three years there had been thirty instances in which their three-fold functions had, from infirmity or other causes, been discharged by somebody in their stead. The cause of that was that their retiring allowance was so small compared with their income, that they had no inducement to retire when, owing to infirmity or other causes, they ought to do so. There were three classes of assistant barristers; the first class received £1,100 a year; the second, £900; and the third, £700; and the retiring allowance for all of them was £400 a year; so that those having the largest salaries had a very strong inducement to remain in their office as long as possible. That was not a state of things which ought to be allowed to continue. Now, the object of the Bill was to have efficient Judges to discharge the important threefold functions cast upon the assistant barristers. The first clause of the Bill, therefore, proposed a remedy for this state of things by providing that the assistant banisters could retire on two-thirds of their salary. He admitted that there was a constitutional objection to the wording of the second clause, which gave the power of removal on account of permanent infirmity or for misconduct. The clause was taken from the County Court Act for England, but he admitted that the words "for misconduct" might be taken advantage of to remove a Judge without due cause. His right hon. Friend the Attorney General for Ireland was, therefore, ready to strike out the words "for misconduct," and make permanent infirmity the only ground on which a Judge could be removed, while the retiring allowance was to be increased to two-thirds of the salary. His learned Friend also proposed to introduce words which would meet the objection that the clause gave the Lord Lieutenant undue powers. The Lord Chancellor would only be authorized to remove, and the Lord Lieutenant to sanction this removal, when the Irish Privy Council, composed principally of Judges, deemed the case a proper one. The third clause provided for the removal, upon cause shown, of the assistant barrister from one district to another. In Ireland an assistant barrister, unlike a County Court Judge in England, was at liberty to practise, and this being so, circumstances might arise which would render his removal to another district desirable. In this case, also, however, his learned Friend would make such removal dependent on the sanction of the Council, and also would provide that he should never be removed from a higher class to a lower one; and if that were not enough the Government would be prepared to withdraw the clause altogether. All the Government asked, therefore, was, to allow the Bill to be read a second time, that these alterations might be made in Committee.

MR. BERNAL OSBORNE

said, he must complement the right hon. Gentleman on the clearness of his statement, but at the same time he must express his regret that the whole system with regard to assistant barristers had not been remodelled. These appointments at present seemed much like the Pool of Bethesda—every man who could do nothing else was made an assistant barrister. He thought great mischief might result if those gentlemen were allowed to practise on circuit, and he should like to see them put on a respectable footing as Judges. As to the mode of removing them from their appointments, he would remind the right hon. Gentleman that the Privy Council in Dublin was only called by the Government of the day, whereas publicity was insured by an Address to the Crown, which he looked upon as the constitutional and the proper mode of procedure. He suggested whether it would not be well to withdraw the Bill, and introduce next Session a new measure, having general reference to the status of assistant barristers.

MR. WHITESIDE

said, that he had undertaken this Bill in consequence of a request made to him to revise the retiring allowances of the assistant barristers, it being stated, at the same time, that the late Government had intended something of that kind. And when he mentioned his intention to revise the system, a hope was expressed that in so doing he would follow the system pursued in the case of the sheriffs of Scotland, rather than that of the Judges of the county courts of England. As to the present mode of removing an assistant barrister, he could assure the House that nothing could be more troublesome and difficult than to do so; it required as much trouble as to impeach a Chief Justice. This Bill was framed to meet that objection, and he could see no just reason why the House should not agree to it. There were cases now in Ireland in which the assistant barristers were so paralysed that they could not move, and yet they would not retire, because the retiring allowance was so small. Within the last three years there had been at least thirty deputations complaining of their conduct in that respect. The result was that these Judges were in the habit of appointing incompetent persons, at small salaries, to do badly that work which they were paid a large salary to do well. At present, by the law as it stood, an assistant barrister could not be removed from one county to another without his own consent. The operation of this law was, that when an assistant barrister got his appointment, he never changed the scene of his labours during the natural period of his life, and therefore became inconveniently acquainted with all the persons with respect to whom he had to administer justice. As to the mode of removal, he asked the House whether it was reasonable that the business of the House should be ever and anon stopped to inquire into the question whether an assistant barrister in Ireland was or was not capable of performing his duties; and that too when there was a clause in the English County Courts Act providing that those English Judges should be removed by the Lord Chancellor. He hoped the House of Commons would agree with him that there was nothing unreasonable in the proposition, and that they would support the Bill.

MR. J. D. FITZGERALD

said, he felt bound to resist the Bill at every stage, as long as the second and third clauses remained in it. To the first clause, which provided for the retiring annuity, he had no objection; but the other two clauses raised a question of the highest constitutional importance, and he would never consent to have the constitutional independence of the Judges trenched upon. At the same time, he agreed with the right hon. and learned Gentleman that when assistant barristers were incapacitated for the performance of their duties, they ought to be removed; but the question was, by what tribunal and in what mode they should be deprived of their offices. In 1851 a Select Committee inquired into the question, and they recommended that these Judges should receive the same protection as the superior Judges. A Bill was then introduced to carry out their recommendation, and that was the present law; and in cases of permanent incapacity the Lord Chancellor had the power at present of withholding his certificate for the appointment of a deputy. His opposition was not based on factious motives, but the Bill, as proposed to be altered, would equally trench upon the constitutional principle as it did in its present shape. To make the Judges liable to removal except by Address from both Houses of Parliament was to detract from their independence, a principle that ought to be guarded with the most jealous care.

MR. S. B. MILLER

said, he bad looked with sadness and sorrow on the existing state of things. Session after Session the Lord Chancellor was making appointments of persons who virtually settled the constituencies. A just and adequate retiring pension ought to be provided to induce the assistant barristers to retire—if they would retire—though he did not believe they would for any pension below the actual salary. He approved of the tribunal appointed for determining incompetency—namely, the Lord Lieutenant sitting in Council; it would be a gross injustice to subject an assistant barrister to the expense of an impeachment before both Houses of Parliament. He implored the House to put a stop to the crying evil of the system of deputies, which had been so much abused.

MR. P. O'BRIEN

said, he should give his opposition to the Bill on the ground that it was hastily and inconsiderately framed, and that it was inimical to the feelings of those it would affect. In his opinion, also, the Bill would tend to destroy the independence of Judges. He could not forget the remark of Blackstone:— It deserves particular remark that in this distinct and separate existence of the judicial power—nominated, indeed, but not removeable by the Crown—consists one main preservation of the public liberties. He had heard of a case where the result of an election depended on the assistant barrister. Notwithstanding this, he should vote against the provision for removing them from place to place.

MR. BRADY

said, he wished to know what the right hon. Gentleman meant by the word "infirmity." He had neither alluded to want of eyesight nor of hearing.

MR. WILSON

said, he objected to the Bill as an infringement of the principle accepted by the House, that no one who was allowed to practise should be entitled to a superannuation allowance. He admitted, however, that such a principle was allowed in the Bills of 1851. He wished to see the Judges put upon an equality with a liberal retiring pension, which had operated well in England. It could not be right that a person acting as Judge one day, should act as advocate another day.

Question put,

The House divided:—Ayes 97; Noes 62: Majority 35.

Main Question put, and agreed to.

Bill read 2o, and committed for To-morrow at Twelve o'clock.