HC Deb 05 August 1871 vol 208 cc929-43

Order for Second Reading read.

THE ATTORNEY GENERAL

, in moving that the Bill be now read a second time, said, it was a Bill of great and pressing importance, which had just passed the House of Lords, and that it proposed to enable Her Majesty to add four paid Members to the Judicial Committee of the Privy Council. The House was aware that the Judicial Committee of the Privy Council, as at present constituted, took its origin in the year 1833; and he believed there was a general concurrence of opinion, at home and abroad, that that tribunal had performed its very high and important functions—a great if not the principal portion of which was the exercise of appellate jurisdiction in cases brought from their Indian and Colonial Empire—to the satisfaction both of this country and of the colonies. Up to a very recent period they had been fortunate enough to be able to avail themselves of sufficient judicial ability of the higher order to deal with the business coming before this great tribunal. It might be called a fortunate accident—it could hardly be called anything else, that for a number of years the country had been able to avail itself of the great public services of such a man as Lord Kingsdown, who united extensive legal knowledge with the most eminent judicial qualities and untiring zeal for the public service. But, unfortunately, they had lost Lord Kingsdown, and they also lost five other eminent Judges who, for a long time, devoted themselves gratuitously to the public service in the Judicial Committee. It happened, too, concurrently with that loss of judicial power the business of the Privy Council had very greatly increased. The result was—there was no disguising it—that that tribunal had broken down under the weight of the business which had been east upon it. He would give the House one or two figures which would show the state of things at the present moment. At the beginning of the late sittings there were 86 appeals ready for hearing—that was, appeals which had reached the stage of having been deposited, on both sides, and actu- ally ready for hearing. By great exertions 41 of these cases had been disposed of; 13 had been set down for hearing since, making altogether 58 appeals now standing over and actually set down for hearing. But that statement by no means represented the full amount of the business which was pending before the Committee, for a Return for 1870 showed that at the end of last year 336 appeals had been received at the Privy Council Office in which the records were lodged; since which time 80 more had been received, making altogether the number of 416. There had been 62 appeals disposed of this year, so that in round numbers there were in the background about 350 appeals, of which the records had been received, but which were not ripe for hearing. It was, of course, probable that many of these might be compromised, and not come on for hearing; but the statement he had made was sufficient to show that the arrears were entirely beyond the strength of the Committee, as at present constituted, to dispose of. The Lords Justices of Appeal had sometimes, to their own inconvenience, sat at the Privy Council that year; every effort had been made to bring together all the members available; and with great exertions the number of appeals determined this year had been 62, whereas those now standing over and set down amounted to 400; and if those came on for trial it would take, according to the present constitution of the Committee, several years to dispose of them. He thought he had said enough to show that the Judicial Committee, as at present constituted, was not able to cope with the amount of business before the Court, and no one could deny the magnitude of that evil. Among the numerous causes of the attachment of their colonies and of the loyalty of the Queen's subjects in their Indian Empire, by no means the least had been the belief that if injustice had been done them in any of the Colonial Courts, or if they believed that injustice had been done to them, they had an effectual and prompt remedy before the Queen herself in Council. But if a different feeling were to prevail—and it could not be said that the amount of satisfaction formerly felt did exist—if a feeling were generally entertained in their colonies and among their Indian fellow-subjects that justice was denied or delayed in the Supreme Court of Appeal—and he need not say that delay of justice frequently amounted to a denial of it—the consequences might be very serious. That was a strain on the loyalty of the Queen's subjects which they were not entitled to place on them. Under those circumstances, he thought there was a general concurrence of opinion, certainly in the House of Lords among the noble and learned Lords who had paid attention to the subject, there was a concurrence of opinion among the Members of the Judicial Committee, and he believed also at the Bar—and he should be surprised if that House did not entertain the same opinion — that it was absolutely necessary, without delay, to increase the strength of that Court. It was for this purpose that he proposed the second reading of that short and simple Bill, which had been well considered in the House of Lords, and now came down to them. The provisions of the Bill were very plain and simple, and very much what had been indicated by some hon. Members of that House last Session as the description of a measure which would satisfy the exigencies of the case. Power was given to the Queen to appoint four paid Members additional to the Judicial Committee of the Privy Council — the appointment being limited to persons who might be assumed to be of high judicial authority. Of these four Members two were to be Judges or ex-Judges of the Superior Courts of Common Law, and two Judges or ex-Judges of the Great Court of Bengal. The Judges removed from the Common Law Bench would have the same salary they had at present — £5,000 a-year; but, inasmuch as they would be relieved of the most onerous duty of the Common Law Judges, going circuit, which would scarcely be calculated as entailing a less expense than £600 a-year, their salaries would, in fact, be higher than at present. The ex-Judges, whether taken from the English or Indian Bench, would have an addition of £1,500 a-year to their retiring pensions. These provisions, it was thought, would be sufficient to secure the additions desired to the Judicial Committee of Privy Council. But he should not be dealing fairly by the House if he represented that Bill as one which purported finally and completely to settle the great and important question of their appellate jurisdiction. Undoubtedly, it would have to be considered, and considered before long, how far the appellate jurisdiction of the House of Lords, as at present exercised, was satisfactory. It would further have to be considered whether or not it might be desirable to form one great Court of Appeal from all the decisions of the Queen's Courts both in this country and the colonies, and it would also have to be considered whether such a Court could not be constituted possibly by the amalgamation or fusion of the jurisdiction of the House of Lords and the Privy Council. But, he thought, everyone must see these were questions which there had been no time to discuss in the present Session, and unquestionably there was no time to discuss them adequately now. He was quite certain the Government would have been greatly to blame if, in addition to the numerous and important measures they had laid before Parliament, they had attempted to deal with questions of such magnitude and importance that Session. That Bill was brought forward in such a form as not to interfere with any larger and more comprehensive scheme. Care had been taken that the Judges selected under that Bill should be men presumed to be qualified to form members of any supreme tribunal, however constituted; and he might state that the Judges who would be offered seats under the Bill in the Judicial Committee would be given clearly to understand that their services should be considered available for any Appellate Court which Parliament may hereafter constitute. He quite admitted that some of his hon. and learned Friends might say with perfect truth that was not a complete measure, and did not settle the whole question. There was no denying that. It was a measure of a temporary character, introduced to meet a pressing evil, seriously affecting their Colonial and Indian Empire; and until they had determined the difficult problem, which would have to be dealt with next Session, he thought the House would say that that was probably as good a measure as could be devised for meeting a temporary urgency without interfering with any subsequent complete arrangement. Under the circumstances, he hoped the House would give a second reading to the Bill, which he accordingly begged leave to move.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Attorney General.)

MR. COLLINS

said, he thought such a Bill should not be considered that Session. He had given Notice of a number of Amendments, some of which would commend themselves not so much to lawyers and Members of Governments as to persons of sound common sense; but it would be idle to suppose that they could materially alter the measure in Committee. In fact, at that period of the Session a Committee would be not so much a Committee of the House as of the Government. It was now the 5th of August, and he contended that the Committee could not be taken till after the 12th of August, and that at that time of the year a decision arrived at in Committee upon a Bill like that was a decision of the Government, and did not fairly express the opinion of the House as it would at an earlier period of the Session; and as it was impossible for an independent Member like him to obtain a majority against the Government upon the merits of a question, he should not move the clauses he had put on the Paper; indeed, he should probably be far away from the House by the time the Bill got into Committee. Under other circumstances, he should have proposed to make ex-Lord Chancellors serve on the Judicial Committee until they had earned a pension by the ordinary course of service, and so get rid of the scandal attached to legal sinecures. It was monstrous that persons who might have been for 20 weeks or 20 months Lord Chancellor, should for 12, 15, or 20 years in the prime of their life, receive a pension of £5,000 a-year, and perform no work for it, while they were left to supplement their income by accepting arbitrations and other private work. He would further relieve Archbishops and Bishops from attendance, because they were no more fitted to decide legal questions than the presidents of Dissenting Bodies; it was an anomaly to give even Archbishops or Bishops a power in a Court of Appeal which they did not possess in a Court below, and it was an anomaly which did not work satisfactorily, as close boroughs did, for instance. He would further require the Judges to give separate judgments, because the decision of a majority might prevent a matter being pushed further, and because they would be of use in guiding Parliament in modifying the law. As it was of no use making these proposals now, he would move that it was not expedient at that period of the Session to proceed further with the Bill.

MR. BERESFORD HOPE

seconded the Amendment.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "it is not expedient, at this period of the Session, to proceed further with the Bill,"—(Mr. Collins,) —instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."

MR. VERNON HARCOURT

said, he would congratulate the hon. and learned Gentleman the Attorney General on having that year charge of a Bill which he was able personally to support. He (Mr. Vernon Harcourt) regarded that Bill as a very little Bill upon a very great subject, and he viewed it with mitigated satisfaction, for it was avowedly a stop-gap to deal with a system which had entirely broken down. It was conceived very much in the same spirit as the Life Peers Bill—which, when it was proposed by Earl Russell, had been described by the right hon. Member for Birmingham (Mr. Bright) as childish tinkering—with the object of propping up a system—the appellate jurisdiction of the House of Lords—which was entirely indefensible, and ought to be abolished. With regard to the House of Lords, it might happen that when a case came before that body in its judicial capacity, that the Members of the Appellate Court would be influenced by political motives. It might, perhaps, be urged that the Common Law Judges were promoted on account of their political services. That was true; but it should be remembered that the moment a Judge ascended the bench of one of the Courts in Westminster Hall he ceased to be a politician; whereas if a lawyer were promoted to a seat in the House of Lords he continued to be a politician, and in the case of any great political trial would be sure to act in the spirit of his party. In the celebrated O'Connell case the Law Lords naturally decided according to their political views, and in a well-known civil case—that of Lord Bridport—their decision was entirely guided by political considerations. Supposing the legality or illegality of the Royal Warrant abolishing purchase in the Army came before the House of Lords, could anyone doubt for a moment what would be its decision? He therefore entirely denied that the House of Lords was a proper basis on which to found a general Court of Appellate Jurisdiction. This objection would continue as long as the Lord Chancellor, who was a leading political officer and a Member of the Cabinet, presided over that tribunal. It was desirable to substitute for him a Minister of Justice, who would not only deal with all cases of this kind, but also with those applications for the exercise of the clemency of the Crown which were at present entertained by the Secretary of State for the Home Department. What the country wanted was an Appellate Court like the Supreme Court of the United States and the Court of Cassation in France. Such a Court would not be of a political character. It would be permanent in its constitution, and the Judges would not be appointed on the condition of their being well enough off to take a Peerage, and of their having a party bias. He should like to know what opinion the hon. and learned Member for Richmond (Sir Roundell Palmer) entertained of the Bill, and whether either the hon. and learned Gentleman the Solicitor General or the right hon. and learned Gentleman the Recorder of the City of London (Mr. Russell Gurney) had been consulted in reference to it. What was the condition of the House of Lords as a Court of Appeal from the Courts of Common Law? Lord Penzance was, no doubt, an excellent Common Law Judge; but he was so fully occupied with the business of his own Court that it was impossible for him to sit in the House of Lords to hear appeals. Therefore, the only Common Law Judge left in the House of Lords to deal with these questions was Lord Chelmsford, and thus the decision of a Court in Banco, confirmed, it might be, by the Exchequer Chamber, was liable to be overruled by a single individual. In other words, one Common Law Judge might reverse the decision of 12 others, and it should be remembered that to make a man a Peer did not make him a great lawyer. Again, the appeals from the Scotch Bench were numerous, and yet there was not in the House of Lords a single Peer who was acquainted with Scotch law. ["No, no!"] Well, even admitting that there was a Scotch Judge, he would ask the House to look at the amount of time at the disposal of the House of Lords for the hearing of appeals. It could not sit in the absence of the Lord Chancellor, and as he had to attend to his own Court the sittings of the House of Lords as a Court of Appeal could be only occasional; and even those sittings were interrupted by the sittings of the Committee of Privileges. Such a system was a most monstrous one. Having thus shown that the House of Lords was not a proper basis on which to erect the new Court of Appellate Jurisdiction, he would remark that the Judicial Committee of the Privy Council was, in his judgment, equally unfitted to form the basis of the new Court, and for this reason—the Privy Council was a body appointed by the Crown, and removable at its pleasure, and was, in fact, an accidental remnant of the old Star Chamber. The present Bill, it was said, was only intended to serve as a stop-gap; but he deeply regretted that the Government had not brought forward a much more comprehensive measure. He knew the excuses they urged for not having done so, but he would remind the House that the present Parliament and Government had done less for the cause of law reform than any Government or Parliament since the passing of the first Reform Act. The Court of Appeal proposed to be established would probably, in its constitution, be inferior to any of the Courts in Westminster Hall. What the country wanted was a well-constituted Supreme Court, composed of great lawyers, who were competent to decide not only points of Common Law and Equity, but also points of Scotch and Indian law and patent cases. The hon. and learned Gentleman the Attorney General had stated that the present Bill would only be temporary in its operation, and he was very glad to hear this, as the measure was wholly inadequate to the necessities and demands of the occasion. His hon. and learned Friend had spoken of the strain upon the loyalty of the colonists in delaying this measure; but, to his mind, the strain on their loyalty was the offer- ing of it to them. He knew it would be said that the cost of creating such a Court of Appeal as he had sketched would be enormous; but he undertook to find the requisite funds by simply clearing away all the excrescences of their existing legal system—excrescences which had grown around and upon it like limpets on a rock. The Civil Service Estimates for the administration of justice amounted to £4,000,000, and of that sum £176,000 went to the officials of the Court of Chancery — tipstaffs, purse-bearers, Court ushers, train-bearers, purse-embroiderers, with their £200 or £300 per annum each, in some cases. Under the Constitution of this country, it was a cardinal proposition that the Judges of the land should hold their offices not at the pleasure of the Crown, but during good conduct. This Bill provided, however, that the four paid Judges should hold office only as long as they were Privy Councillors. Now, everybody was aware that the Crown could strike off any person from the list of the Privy Council, and it was obvious, therefore, that under this Bill the Prime Minister might dismiss any of these Judges by invoking the Prerogative of the Crown, and removing them from the Privy Council. It was true that one clause said that those Judges who had been Judges of Common Law should only be removable on an Address from both Houses of Parliament; but that proviso was clearly inconsistent with the previous one. The Bill had all the disadvantages attendant on being a patch upon a bad system, and if he thought it would encourage the Government to continue that bad system in operation he should certainly oppose the second reading; but after the pledge which had been given by the Government that the question of the appellate jurisdiction should occupy their early attention, he thought it would be wrong to refuse assent to such practical conveniences as might be afforded under this Bill. The House, however, ought not to allow the Bill to pass, even at that late period, without inserting a clause providing that the Judges to be appointed under its provisions should hold their offices subject to any future arrangements which might be made by Parliament for constituting a proper Court of Appellate Jurisdiction. Thereby the House would put upon record its deliberate opinion that a great blot and scandal of their legal system ought no longer to exist.

MR. WEST

said, he thought his hon. and learned Friend the Member for Oxford (Mr. Y. Harcourt) had, as usual, dealt with that subject in much too lofty a tone. His observations would have been suited more to a Social Science meeting, over which he was going to preside, than to a morning debate upon a small Bill in the House of Commons. The Bill was not put forward in any sense as a great and magnificent innovation—it was a small measure of practical reform; and if every such proposal were to be put aside till a grand scheme of appellate jurisdiction had been matured, it would be a very long time before anything was really done. He congratulated the House and the country upon the new-born zeal for economy of his hon. and learned Friend the Member for Oxford, and should be glad to co-operate with him in his endeavours to effect every reduction that was possible in the legal expenditure of the country. Hitherto he himself had been almost the only lawyer in the House who made feeble efforts from time to time in favour of economy in the administration of legal affairs; but these efforts had never received any support from his hon. and learned Friend. [Mr. VERNON HARCOURT: I was not conscious of them.] If his hon. and learned Friend would sometimes look down from those lofty heights to which he was so constantly pointing his regards he would find among the Orders of the Day the occasions upon which such things were discussed. The Estimates which his hon. and learned Friend had complained of had been passed, not in August, but at Morning Sittings in the month of May. Economies, he believed, were to be effected, not upon petty items such as those to which attention had been pointed, but by refusing to fill up useless offices. He (Mr. West) supported the Bill on the ground that it provided a practical remedy for a real grievance. He thought, however, that the measure would have been received with more satisfaction if the Government had accompanied it by efforts tending towards a reduction of the expenses of the legal establishments of the country. There were now 59 County Court Judges, who cost between £400,000 and £500,000 a-year. The Judicature Commission had recommended that there should be a large reduction in their number; but, notwithstanding, the present Lord Chancellor had filled up no less than six vacancies among the body. These Judges had very little to do, and upon the average they only sat two days and a fraction a-week during the year. If the recommendation of the Commission had been attended to, the saving effected would have recouped the Government for the additional expense which that Bill would entail.

MR. RUSSELL GURNEY

said, he hardly thought the House would be aided in its consideration of the present Bill by discussing whether the County Court Judges were too many or too few. For his own part, he thought the observations of the hon. and learned Member for Oxford (Mr. V. Harcourt) very useful. This Bill clearly ought not to pass without attention being called to the very defective state of the Appellate Courts of this country, and the hon. and learned Gentleman the Attorney General himself probably felt as strongly upon this subject as anybody. His only fear was that this measure, if passed, might prevent a real reform; and, accordingly, he thought that the House ought to mark its intentions clearly by providing that the Act should only have a temporary existence to meet a temporary evil. He was most anxious to secure the consideration of the larger question if possible early in the next Session of Parliament.

MR. SERJEANT SIMON

said, that though agreeing with much of what had been stated by the hon. and learned Member for Oxford (Mr. V. Harcourt), he thought that the House was bound in justice to India and the colonies to pass the Bill. In addition to the number of appeals mentioned, it should be borne in mind that the pecuniary interests involved represented hundreds of thousands of pounds at least. The present number of appeals under the present constitution of the Courts of Appeal could not be disposed of in less than two years. In mercy to the unfortunate suitors therefore it was the duty of Parliament to hasten their causes to a decision. He felt convinced of the necessity for a more complete reform in the appellate jurisdiction, and gave his support to this Bill only on the understanding that it was a temporary measure designed to meet a pressing grievance.

MR. WATKIN WILLIAMS

said, he did not view the Bill with entire satisfaction, but he congratulated the hon. and learned Gentleman the Attorney General on its improvement over that of last Session. He hoped the Bill would be passed that Session, though one of a far better and more satisfactory character might have been brought forward. The right of the colonists to appeal to the Courts of this country was undisputed, and they should be quick and expeditious instead of, as now, the very opposite. If the appellate jurisdiction was dispatched with greater expedition appeals would be reduced one-half in number. Appeals accumulated when the block of business took place, because it was well known that in Indian cases it often answered a suitor's purpose to appeal against an adverse decision in order to obtain a year or two's delay. He should persist in the Notice he had given—that the new Judges should hold their appointments precisely on the same conditions as the other Judges of the Common Law Courts, during good behaviour, and removable only on Address of the two Houses of Parliament. The principle that paid Judges should be removable at the will of the Crown was radically wrong, and utterly incapable of justification; and the fact of that being a temporary measure would not reconcile him to its adoption for even a short period. It might be objected that that would be introducing a permanent principle into a temporary measure; but the responsibility rested with the Government in having brought forward a measure involving that important question at a time when it was impossible otherwise fairly to deal with it. There could be no doubt the sense of the legal profession was favourable to his proposition. One of the greatest securities and safeguards they possessed for their rights and liberties was the independence and permanence of the Judges. But for that it was impossible to foresee what lengths a Government might go wielding great power with the despotism of an autocrat. Even in the present Session they were not without premonitions upon that point. There had been propositions for abolishing the House of Lords, simply because they were not prepared at once to endorse the will of the House of Commons. That, then, was certainly not a time to give up any security they had for the national rights and liberties by allowing the Judges to be placed in a position in which they would be removable at the will of the Crown. There was another alteration he wished made in the Bill which was necessary to make it workable—that no Judge should sit on any appeal from a decision in which he had himself taken part. Unless a provision of that kind were introduced, the measure would fail to give satisfaction to the people of India. He thought also the Judges should be placed on an equality in regard to salary. If the blots which existed in this Bill, particularly with regard to the permanence of the Judges, were allowed to remain, the Lord Chief Justice of England had authorized him to say there was not a single Judge on the Common Law Bench who would accept an appointment under it. He might add that, gossip having designated certain Judges as likely to be offered appointments under the Bill, he had taken steps to ascertain their opinions, and he had their authority for saying not one of them would accept them if the Judges appointed were to be removable at the will of the Crown. He therefore hoped the Amendments of which he had given Notice would be adopted.

MR. HINDE PALMER

said, that if they were now about to form a new Appellate Court, he should be prepared heartily to support the Bill; but he looked upon it as a small measure of reform, as compared with what was required, and thought it tended rather to retard than accelerate the progress of law reform. He complained that useful measures of that class had been shelved, and with respect to the present Bill, he would suggest that it should be made to bear the aspect of a temporary measure, by inserting words to the effect that the acceptance by any of the Judges of offices under the Bill should be considered to be subject to any alteration which the Government might think it proper to make in the appellate jurisdiction of the country. He hoped the Government would not further postpone the question of law reform for any measures of less paramount importance; and he complained that the Government had taken some legal measures out of the hands of private Members by mentioning them in the Queen's Speech, and never laying them before Parliament, such as the Bill for altering the succession to Real Estates.

THE ATTORNEY GENERAL

said, he would admit that larger measures of reform were necessary, and it had been suggested that the Lord Chancellor should be made Minister of Justice, or that the Home Secretary should be placed in that position; but they could not afford to wait until such measures were maturing, and while they were waiting for them, arrears were accumulating at a frightful rate in the present Court. He denied that he had stated that that was a small measure introduced because they could not carry a larger. He supported the Bill because he considered it a good one; and with reference to the statement made by the hon. and learned Member for Denbigh (Mr. W. Williams) that the Lord Chief Justice had said that the Common Law Judges would not accept the office of Judge of the new Court under the proposed terms, he must say it was unusual, in the first place, for the Lord Chief Justice to send a message to the House; and in the second, that if the hon. and learned Member assumed to speak in the name of the Common Law Judges, he could only say that the statements made to him by the Judges were wholly different. On the preceding evening his hon. and learned Friend (Sir Roundell Palmer) had stated that he approved the Bill and had intended to speak in its support; the Solicitor General had expressed his approval of it, and some of the Common Law Judges had done so, and had not indicated any objection to take office under it. He maintained that the colonies had the fullest confidence in the appellate jurisdiction of this country, and that it was necessary to provide continuously for their requirements, whatever we might do in the way of permanent reform. All that the Bill did was to add four paid Judges to the Judicial Committee of the Privy Council. With respect to the general question of the reform of our appellate jurisdiction, it was his intention to introduce a Bill dealing with the whole appellate jurisdiction of the country next Session before Easter, and that the Bill in question was already prepared, and in his hand.

MR. SPENCER WALPOLE

suggested that words should be inserted in the Preamble of the present Bill showing that it was a temporary measure, and that the Judges of the new Committee of Privy Council would not be precluded from accepting appointments in any new Court of Appellate Jurisdiction.

THE ATTORNEY GENERAL

said, he was much obliged to the right hon. Member (Mr. S. Walpole) for the suggestion, which should be considered.

MR. COLLINS

said, he would not, under the circumstances, press his Amendment.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read a second time, and committed for Wednesday.

House adjourned at half after Two o'clock till Monday.