HC Deb 26 April 1865 vol 178 cc1040-53

Order for Second Reading read.

SIR GEORGE BOWYER,

in moving the second reading of the Bill, said, he wished briefly to explain the Present state of the law, and the remedy which he proposed to apply to its defects. The Benchers of the Inns of Court exercised a very important jurisdiction of a criminal nature. They had a right to hear and determine complaints and charges against their own members; they had power to refuse admission to their Inn of Court to a person seeking such admission, and thereby of excluding him from a very lucrative and most important profession; they had the power, after a student had complied with all the regulations of the House, and so entitled himself to his call, to refuse upon charges against his character to call him to the Bar, thus inflicting on him very severe punishment and stigmatizing his character; they had also the power of expelling persons from their Inn of Court—a highly penal sentence. But the most important power they exercised was that of disbarring—that was to say, expelling from the legal profession barristers, even though they had the rank of Queen's Counsel. He need scarcely say what a severe punishment that was, depriving a man of the means of living by his profession, and casting a most grave stigma on his reputation. Such a jurisdiction, everybody would allow, ought to be exercised by a tribunal every way qualified to discharge such functions. Even the Judges themselves, with all the formalities of a jury and the procedure of the criminal law, often tried cases the consequences of which were not so serious as those to which he referred, and especially where persons of high standing in the profession might be disbarred. The jurisdiction in these cases was exercised by the whole body of the Benchers. He had no doubt that these gentlemen exercised their authority to the best of their ability for the purpose of administering justice properly and impartially; but he maintained that justice could not be well administered by such numerous bodies. He found that Lincoln's Inn had sixty-nine Benchers, the Inner Temple forty-five, the Middle Temple thirty-six, and Gray's Inn twenty. Cases heard before such numerous bodies as these could not be satisfactorily disposed of. In the first place, the tribunal was necessarily a shifting one. The same cases were heard by one set of Benchers on one day, and by another set of Benchers on another; so impossible was it to secure the attendance of the same Benchers on each day. The old saying of what was everybody's business was nobody's business held good there; and when they had a large body to hear and determine a case, some Members found it convenient to be present on one day and others on another. Not long ago it was shown that, in a case in which a Member of that House was concerned, on each day of the trial there was a great variation in the Court—A and B hearing it on one day, C and D the next, and so on all through the alphabet, and that some of the Benchers who determined the case were not present at all during the hearing. It was said, indeed, that the Benchers who were not present at the hearing had an opportunity of reading the shorthand writer's notes, and thus of making themselves masters of the proceedings that had taken place in their absence; but he submitted that that was not a satisfactory state of things. It would never be borne that one man on a jury should be absent from the trial, and that, having only become acquainted with the evidence by perusing the shorthand writer's notes, he should afterwards join in giving the verdict. But there were other objections to the present tribunal. One was that the Benchers, in cases of a highly penal and important nature, had no power to administer an oath, and consequently persons might go before them and tell any falsehoods they pleased without there being any remedy by a prosecution for perjury. Another was that the Benchers had no power to compel either the attendance of witnesses or the production of documents. An important case illustrating the necessity for the first of those powers occurred some years ago. Mr. Whittle Harvey was refused his call to the Bar, and his case was heard before the Benchers. Without going into the merits of the case now, it need only be stated that the Benchers determined not to call that gentleman to the Bar. The same case was afterwards brought before a Committee of that House, composed of very distinguished Members, some of whom were still alive, and that Committee came to a conclusion directly the contrary of that arrived at by the Benchers. The Committee held that Mr. Whittle Harvey was entitled to be called to the Bar, and they recorded in their Report the reason why they had come to a different conclusion from that of the Benchers—namely, because they had the power of compelling the attendance of a particular witness, whereas the Benchers had not. Again, when a charge was made against any one, the accuser went before the Benchers with his evidence and his case prepared; but the defendant must beg and request it as a favour that his witnesses would come forward on his behalf, as there was no power of compelling them to do so. Therefore the person defending himself was placed under great disadvantage, and might be subjected to very great injustice. A witness whose evidence was material to his exculpation, might decline to leave his business to attend the tribunal. Every Court ought to have the power of com- pelling the attendance of witnesses, and so also ought it to hare the power of compelling the production of documents material to the cases before it. Being devoid of both of those powers, the Benchers were, to a great extent, an incompetent tribunal. But another power essential to the administration of justice, which the Benchers did not possess, was that of committing for contempt, and maintaining the order of their proceedings. At present any one might go before the Benchers and commit any outrage he liked, and they had no remedy but taking him before a police magistrate. During a late important investigation before an Inn of Court (the Middle Temple) a witness having got possession of a document that was before that Bench, refused to give it up. The Benchers had no remedy. All they could do was to endeavour by force to get the document from him, but it so happened that the witness was strong enough to frustrate their endeavours. The police were called in, and the result was that the judges and the parties all went before the Inspector of Police at the station in Fleet Street. He asked whether such a state of things ought to exist? If the Benchers had had the proper powers of a Court, they would have simply committed the witness to prison, and obliged him to surrender the document of which he had so irregularly obtained possession. He now came to the remedy which he proposed by this Bill, for the evils he had described. He wished to apply to the tribunal of the Benchers of the Inns of Court the principle of the statute well known as the Grenville Act. Before the passing of that Act, all cases of contested elections were tried at the Bar of that House before the Whole House. That was a shifting tribunal, without the power of administering an oath, and the business wa3 often done in a very unsatisfactory manner. By the Grenville Act, the House had the power to appoint Election Committees for the decision of these cases, and the powers necessary for the administration of justice were given to them. He proposed to do something of the same kind in regard to the Inns of Court. He proposed that instead of cases being heard before the whole body of the Benchers, the Benchers should have power to select a judicial committee for their determination, and that such judicial committee should be armed with all the powers that belonged to a court of law—that it should be able to administer an oath, to compel the attendance of witnesses and the production of documents, and also to punish for contempt. Last year he introduced a Bill very similar to the present one; but he had sought to obviate the objections that were raised to the former measure. One of those objections was that he had made it necessary for the Benchers in every case of complaint brought before them to appoint a judicial committee to investigate and determine it. No doubt it might be inconvenient to interfere with what was called the forum domesticum by which the Benchers maintained due discipline among their own members; and, therefore, he proposed to leave it in the option of the Benchers to refer or not refer cases affecting discipline to a judicial committee. Therefore, in those cases they would be a sort of grand jury, deciding in the first instance whether or not the matter brought before them should be referred to the judicial committee. They would, of course, have the power of censuring members of their own society, even although they might not think that the case was sufficiently grave to undergo inquiry before the judicial committee. But he proposed that the Benchers should not be allowed to exercise the highly penal powers which he had mentioned—namely, that of refusing admission to the Inn, that of expelling from the Inn, that of refusing to call students who were entitled to their call, and, still less, that of disbarring, except through the medium of a judicial committee. The Benchers themselves would probably agree with him that that was a fair restriction. One very grave defect in the constitution of the existing tribunal was that its proceedings were invariably secret. Now, a secret tribunal was objectionable in principle, and altogether alien to the spirit of English law. When Mr. Whittle Harvey, then a distinguished Member of Parliament, had to appear before the Benchers, he was accompanied thither by twenty other Members of that House, many of them Members of great distinction, and one of whom, he believed, was the late Sir James Graham; but not one of them was allowed to be present during the proceedings. He did not mean to cast any blame on the Benchers for following a practice which they found established. There might, moreover, be cases in which it would not be right that the public should be present. His Bill, therefore, provided that if both parties concurred, the case might be heard in private; but that, unless both concurred, it should be heard in public, with all the guarantees which publicity supplied. When the measure went into Committee, he should be happy to listen to any suggestions for its improvement. He had brought forward the Bill, not in any spirit of hostility to the Inns of Court or the Benchers—far from it. He had no doubt that those gentlemen exercised their jurisdiction, such as it was, to the best of their ability, and with the intention of doing what was right. The Bill was a remedial measure. It was a Bill to enable the Benchers to do justice, to give them powers without which they could not administer justice safely and satisfactorily. The hon. and learned Baronet concluded by moving the second reading of the Bill.

MR. ROEBUCK,

in seconding the Motion, said, he thought the Bill an exceedingly good one. The former attempt of his hon. and learned Friend at legislation on that subject was of a different character, and he had been quite prepared to oppose it. The present measure, however, would give such powers to the Inns of Court as they now wanted, and as would render them what they ought to be—an efficient judicial tribunal. He was glad his hon. and learned Friend had not brought any charge against the Inns of Court. He must say that if they were merely to judge of the tribunal by its effects, it had as it stood attained all the ends for which any tribunal ought to be instituted. They ought to recollect that the Bar of England was overlooked by the Inns of Court, and he appealed to the House and to the world at large, whether there was anything in the result but honour to the Inns of Court. Two classes might be referred to in support of his assertion—the Judges of England—the advocates of England. He asked his hon. and learned Friend to look the world over and pick out any body of men superior, he might almost say equal, to the Judges in this country. As Judges they were above suspicion. He did not mean to say they had always been so; but they had kept pace with the growing improvement of mankind and the advancing march of civilization, and they stood unchallengable as far as both intellect and honour were concerned. So far as regarded the first-class; then as to the advocates, he said the character of the English Bar was such that no slur could be cast on it. There was no man, however weak or humble, he might say disgraced even, who could not find among their ranks some one thoroughly honest, able, and willing to defend him. That had been the result, and they need go no further for I what the Inns of Court had acomplished. But it was not sufficient to have justice | done; they must have the confidence of the public mind that justice was done; and no secret tribunal, as this had properly been described, could possess the public confidence. The trials in which he had exercised his power as a Bencher of an Inn of Court had been anything but agreeable. It was a jurisdiction which every member of the Court wished to throw off his shoulders; but when they were compelled to appear in public with all the dignity of a Court, a great deal of that painful sensation would be removed, and the Inns of Court would more willingly accept accusations than they now did. The consequences of this Bill would not, therefore, be altogether so soft as his hon. and learned Friend imagined. He believed the jurisdiction would be very much more severe, and the consequences to persons charged much more painful than they were at present. It very often happened that the Inns of Court had to try accusations which were felt to be not only a scandal to the profession but most disagreeable to the public at large, and they exercised their jurisdiction with most cautious, almost timid, consideration for the feelings of all parties concerned; but when the tribunal became an open one, when it exercised all the jurisdiction of a Court of Law, every publicity being given to their proceedings, they would almost necessarily bear more severely on the accused. While he willingly seconded the Motion of his hon. and learned Friend, he must add that when the Bill came into Committee he should invite the consideration of the Attorney General to one of its clauses, by which it was provided that the Inns of Court should be allowed to choose five persons as a judicial Committee, power being reserved to the individual charged to challenge three of them. Now, that appeared an unwise thing. There were many eminent men among the Benchers; men of high character and renown would, no doubt, be selected by the Bench to act on this Committee, and it would not he agreeable to such men to be challenged. He would much rather the tribunal should consist of three chosen by the Bench, and that no power of challenge should be given. They would not sit as jurymen, but as Judges; and in no Court in England was any man allowed to challenge his Judge. [An hon. MEMBER: Yes; in courts-martial.] Well, he really thought that courts-martial would be the last to be cited as an example of what would be proper in the administration of justice. With this exception he believed the tribunal, as it might be constituted, would conciliate the confidence of the public, and the judicial Committee, as high minded men, would administer justice honourably to all parties.

Motion made, and Question proposed, "That the Bill he now read a second time."—(Sir George Bowyer.)

MR. LOCKE

said, he was not a little astonished at finding the Bill supported by his hon. and learned Friend the Member for Sheffield. It appeared to him that no case whatever had been made out in favour of the measure. Indeed, both Mover and Seconder admitted that up to the present time nothing could be better than the existing tribunal. But there might be somebody or other not satisfied with it; and to soothe the mind of that somebody, who had not yet been pointed out, they were to adopt a totally different system. Why should they refer the powers of the Benchers of the Inns of Court to a Select Committee? If he were accused before his Inn he should prefer being tried by the whole body rather than by a selected few of them. The hon. and learned Baronet saw the impropriety of this, for he gave the accused the power of objecting to more than half of the tribunal. What, then, was the use of all this? Where any man was brought up before the Benchers and stated an objection to any of their number, that Bencher invariably retired. In a case which occurred in the Inner Temple last year objection was made to more than one of the Benchers, and they retired from the inquiry. He had thought this was a permissive Bill; but it was no such thing. By the third clause nothing of importance could be done except by this judicial Committee. That clause enacted that— No barrister shall be disbarred or suspended from practice, no barrister or other member of any Inn shall be expelled from such Inn, and no student shall be refused to be called to the Bar, and no person shall be refused admission as a student to any Inn of Court, except by decision of a judicial Committee elected under the provisions of this Act. It therefore appeared that the whole powers of the Bench would necessarily devolve upon this Judicial Committee. Now, he maintained there was no necessity for this. The hon. Baronet was bound to show that there had been some want of justice, some impropriety and misconduct on the part of the Benchers of the Inns of Court. There had been no complaint, no petition from the Bar or from the public in favour of this Bill. No voice had been raised in its favour but that of the Mover and the Seconder. If it was to give satisfaction to the public, it ought to be to some section of the public that had a cause of complaint. Although his hon. and learned Friend the Member for Sheffield had been longer at the Bar than he had, and although he had been much longer a Bencher of an Inn of Court, still he believed that he (Mr. Locke) had had quite as much experience of the Bar as his hon. and learned Friend. Well, he knew what the feeling of the Bar was. He knew how matters were regulated upon circuit, and how far offences were there investigated. The proceedings on circuit had been always in accordance with the system of administration pursued by the Inns of Court. Now he did not want to see those things altered, and a new tribunal introduced, unless a very strong case could be made out for it. His hon. and learned Friend the Member for Sheffield did know something as to the general customs of the Bar, but the hon. and learned Member for Dundalk (Sir George Bowyer) had practised in a peculiar sort of court in a peculiar branch of the law, and therefore had never been thrown into contact with the general body of the Bar, had never gone the circuit, had never dined at the circuit mess, and never saw how charges made against the Members were disposed of. The hon. and learned Member had never seen that beautiful system for keeping men in order by word of mouth—not the cannon's mouth, as it would be, if the hon. and learned Member succeeded in bringing the principle of courts-martial into the Bar—the system of trusting one another, and looking to one another. They had their own circuit officers, their Attorney General, and their Solicitor General, and he was proud to say that he had had the honour to fill both of those positions. But they did not want this "dragooning" system, and trying everybody at the Bar of a Select Committee. In that House they had seen enough of Select Committees, and often had to spend day after day in correcting their proceedings. But what appeal did the Bill give from this Select Committee? [Sir GEORGE BOWYER: The Judges.] The Judges!—the overworked fifteen Judges!—so overworked that they wanted now to appoint five more. And these overworked Judges were to sit as a Court of Appeal from all the Select Committees that might be appointed by the Inns of Court. Since he had had the honour of being a Bencher of the Inner Temple, though it was rather a stirring period, there had during eight years been only three cases; but if this Bill passed he had no doubt there would be plenty of them. He also sympathized strongly with the objection that the new tribunal would be one which certainly would not tend to the benefit of the accused. He therefore felt it his duty to move that the Bill be read a second time that day six months.

MR. NEATE

seconded the Amendment. He thought a sufficient case had not been made out by the hon. Baronet for any alteration in the constitution of the Inns of Court. The Benchers, as a body, formed a better tribunal than any Judicial Committee could be. If the subject were at all dealt with, it would be more desirable that the whole powers of the Inns of Court and the trusts reposed in or assumed by them should be inquired into in a full and comprehensive manner. He did not wish the House should in any way pledge itself, either by conferring new rights on the Inns of Court or by subjecting them to new restrictions, to recognize the expediency of continuing their powers.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Locke.)

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

THE ATTORNEY GENERAL

said, he was not inclined, as far as his own personal feeling and opinion went, to offer any objection to the second reading of this Bill; without, however, in any way committing himself as to the course he should take if it reached a later stage without amendment. At the same time he sympathized to some extent with the observation of his hon. Friend behind (Mr. Neate) that it was not altogether satisfactory to deal piecemeal with this, which was a portion of a larger and more general subject—the relation of the Inns of Court to the Bar, and the administration of justice in the country. But his hon. Friend did not appear to bear in mind what had already been done in the way of inquiry on that subject. He also felt considerable regret that the Inns of Court themselves should not have thought it desirable to take a clear and decided course in this matter in order to assist the House in coming to some definite conclusion one way or another. It would have been far more satisfactory that legislation, if desirable, should have taken place with the concurrence of these learned bodies, and with the assistance they could have brought to bear on the subject; and, on the other hand, if it were not desirable, that the House should have been informed by them of the reasons why they had come to that conclusion. It was not the fault either of the Government or of the hon. Baronet (Sir George Bowyer) that this had not been done; on two former occasions the question had been agitated, and upon one of these the hon. Baronet had at his request allowed the measure to stand over, because there was a prospect at that time of something being done by the Inns of Court, an expectation on his part which was undoubtedly well founded, so far as regarded Lincoln's Inn. He, however, ventured to impress on his hon. and learned Friend that it was not satisfactory this subject should be discussed on a Wednesday, when it was exceedingly difficult for many Members of the legal professions to make arrangements to be present, all of whom might give important information to the House. He therefore hoped, if the Bill passed its present stage, that care would betaken to fix both the Committee and third reading for days when all Members of the profession would have a full opportunity of being present. Having said this much he wished the House to bear in mind the position of this question in connection with the general inquiry which some years ago was made into the constitution and functions of the Inns of Court, and what had since been done. He owned it was not satisfactory that this matter should be divorced from other important questions relating to the same subject. In 1854 a Commission was appointed— To inquire into the arrangements in the Inns of Court for promoting the study of Law and Jurisprudence, the revenues properly applicable, and the means most likely to secure a systematic and sound education for students of law, and provide satisfactory tests of fitness for admission to the Bar."—[3 Hansard, cxxxi. 147.] They reported in favour of erecting or re-erecting the several Inns of Court into a great legal University, with a senate or council, elected partly by the Benchers and partly by the outer Bar, but without superseding in all respects the separate powers of the different Societies; and they expressly recommended that the Inns of Court should not be compelled to call to the Bar even those persons who had passed the examination which it was proposed to require; but that they should— Retain their present powers with reference to the calling of students to the Bar, and the disbarring of persons after their call, subject to the appeal to the Judges."—[Ibid.] He wished the House to understand what had since been done. They had not moved with very great rapidity; yet these learned Societies had shown, at least, a very sincere and zealous disposition to make important improvements in the direction pointed out, although they did not go so far as the Report of the Commission recommended. They had established a bonâ fide system of legal education, which gave advantages to the students who availed themselves of it, greater than any which prevailed at any former period; and at Lincoln's Inn the opinion of a majority of the Benchers, in a very full council, had been expressed in favour of the principle of a legal University; and he (the Attorney General) was glad to have the opportunity of stating in the House what he said at that meeting—namely, that he should be greatly rejoiced if all the Inns of Court would concur fully in the Report of that Commission. It was founded on a sound principle; he saw no solid objection to its adoption, and he thought that great public advantage might arise from it. In the hope that that might yet be done, he could not look with very great favour on piecemeal legislation, such as that proposed by the present Bill. With regard to this Bill all the hon. Baronet had said dealt with only one of four subjects comprised in it—the disbarring of barristers; that was, he admitted, a power of a penal nature; but he totally disputed the propriety of that observation as applied to the three other subjects dealt with by the Bill. They were not penal proceedings, and it was, he maintained, entirely inexpedient, unless the Inns of Court were to be abolished altogether, to supersede the authority, or interfere with the jurisdiction of the Inns of Court, as to the admission of students, as to calls to the Bar, and as to the exercise of discipline over the members of their own Societies. The case of Mr. Daniel Whittle Harvey had been referred to. He applied to one of the Inns of Court to be called to the Bar, and the Benchers, for reasons satisfactory to themselves, thought fit not to call him. They did not take from him any personal means of livelihood, or deprive him of any advantage he already possessed; but they declined to give him the new position which he asked for, and the reasons on which they had acted were, no doubt, such as they deemed satisfactory. The gentleman whom they had refused to call subsequently obtained a seat in that House, and obtained the appointment of a Committee to sit as a court of review on the judgment of the Benchers. On that Committee sat two gentlemen whose names had been mentioned—Mr. O'Connell and Sir James Graham—no doubt very distinguished men, but politicians who might have entered that Committee with minds not altogether free from a political bias. He could not therefore look on the opinion of such a tribunal as entitled to the smallest weight as opposed to that of the Benchers. Then they came to the crowning argument of a Committee consisting of twenty Members of that House bringing their whole authority to bear against the decision of the Benchers. The House of Commons in its own place had great authority, but in this matter it had really none at all. He could not therefore admit that the argument from the single case of Mr. Daniel Whittle Harvey had any force whatever. Still, however, speaking for himself, and separating the subject of disbarring from the rest, with great respect for his two hon. and learned Friends (Mr. Locke and Mr. Neate), he must say he agreed substantially with what had been said by the hon. and learned Mover and Seconder. He did not think the present constitution of the tribunal was satisfactory, or fit for the discharge of what was not undeserving the name of a criminal jurisdiction. He had himself sat when questions of a painful nature were brought before the Benchers, and he was struck by the anxious desire which every person evinced to do justice; but it was impossible to secure the uniform attendance of the same Benchers, and a difficulty arose respecting the evidence in consequence of the absence of any power to adminster an oath. Without pledging himself to the clauses of the Bill, he did think, as the Inns of Court had taken no steps to deal with the subject themselves, and had not informed the House of their opinions upon this Bill, that it would be wrong not to give it a second reading.

SIR GEORGE BOWYER

said, that he should be perfectly ready to consider, and if possible concur in any amendments that might be proposed in Committee by his hon. and learned Friend the Attorney General. He had referred to the case of Mr. Daniel Whittle Harvey for the purpose of showing that the Benchers could not satisfactorily administer justice without the power of compelling the attendance of witnesses. In that case a witness refused to attend before the Benchers; the Select Committee upstairs, however, compelled his attendance, heard his evidence, and recorded their opinion that probably the Benchers would have come to the same conclusion with the Committee if they had possessed the power of compelling his attendance, and had heard his testimony. The Attorney General had admitted that the Benchers were too numerous, and it was therefore difficult to secure in any case the attendance of the same Judges throughout. Admitting that no special complaint had been made against the present system, be contended there were strong arguments for some change. The hon. and learned Member for Southwark (Mr. Locke) had made a speech worthy of the days of Lord Eldon, and bad used the old Tory arguments in favour of the present system, He (Sir George Bowyer) believed he had made out a case for some alteration, and he was perfectly ready to allow the Bill to go into Committee, and to take into consideration the suggestion made by the Attorney General, and he hoped his hon. and learned Friend would not press his Amendment, but allow the Bill to pass a second reading.

MR. LOCKE

said, he would withdraw his Amendment.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read 2°, and committed for Tomorrow.