HC Deb 11 July 1873 vol 217 cc214-28

Bill considered in Committee.

(In the Committee.)

Clause 75 (Personal officers of future Judges).

Amendment proposed, In page 38, line 38, after the word "justice," to insert the words "who shall belong to the Chancery division, a secretary whose salary shall be four hundred pounds per annum, a principal clerk whose salary shall be three hundred pounds per annum, and a junior clerk whose salary shall be one hundred and twenty pounds per annum, and to each of the other judges of the High Court of Justice."—(Mr. Hinde Palmer.)

Question proposed, "That those words be there inserted."

MR. HINDE PALMER,

in moving the Amendment, contended that the Judges could not perform their duties without the aid of barristers to read Petitions and other documents, and that, while competent men would take the position of secretary, they would not take that of chief clerk. Perhaps a secretary and one clerk would suffice; but the gentleman occupying the first position ought to be a secretary, and not a clerk. He hoped that the Committee would insist upon some such Amendment.

MR. LOPES

said, he objected to the Amendment, because it proposed to draw a distinction between the Chancery Division and the other Divisions of the High Court, by giving one staff to the Chancery Division and a different one to all the other Divisions. He had always understood that the great object of the Bill was to do away with such distinction.

THE ATTORNEY GENERAL

said, he could not accept the Amendment, on account of the distinction it would make.

MR. GREGORY

urged that Judges could not discharge the duties of Vice Chancellors without the assistance of secretaries. It was not the Judge, but the business of the office that had to be provided.

MR. RYLANDS

said, he objected, on the ground that it gave to a section of the Judges an additional permanent staff of clerks. He hoped the Committee would assist the Government in resisting the Amendment, and was not without hope that before they were done with the Bill, they would be able to get rid of some of the staff which it contemplated.

MR. HINDE PALMER

said, his Amendment did not involve any increase of staff or of expenditure, but only a change in the description of the staff. He was not prepared to withdraw the Amendment. If the Committee was not prepared to accord his proposal adequate support, it could be negatived in the usual way.

MR. T. HUGHES

thought that as long as the important duties were discharged, as now, by competent men, it was immaterial whether they were called clerks or secretaries.

MR. VERNON HARCOURT

moved, as an Amendment, in page 38, line 38, to omit the words "and to each of the Ordinary Judges of the Court of Appeal," the object being to reduce the staff of clerks in the Court of Appeal. It was proposed in the clause to make a new charge of £600 a-year for a chief clerk to each of the nine ordinary Judges of the Court of Appeal. Now, at present, the Judges of the Privy Council had no clerks provided for them, and upon a very reasonable ground—namely, that the business of an Appellate Court was very simple. The case was delivered, and that really was all the Judge had got to deal with. He did not want to starve the Appellate Court, and when the time came would move that the salaries of the Judges should be £6,000 instead of £5,000; but these clerks were unnecessary.

Amendment proposed, in page 38, line 38, to leave out the words "and to each of the Ordinary Judges of the Court of Appeal."—(Mr. Vernon Harcourt.)

Question proposed, "That the words 'and to each of the' stand part of the Clause."

MR. LOPES

said, he concurred in the view of the hon. and learned Member for Oxford. There was a vast difference between the duties of the Judges of the High Court and of the Judges of the Appeal Court, and he should therefore support the Amendment.

THE ATTORNEY GENERAL

said, the choice of the Members of the Court of Appeal would be much limited if they were not allowed to take their clerks with them. That had been found a great practical difficulty in the constitution of the Judicial Committee under the recent Act. Two or three of the most distinguished Judges declined to accept appointments in the Court of Appeal, because of feeling and consideration for their clerks, and the Government must therefore oppose the Amendment of his hon. and learned Friend.

MR. HUNT

said, he was inclined to support the Amendment: It would be better to make a special arrangement for the clerks of the present Judges. It was only fair that the clerks should be transferred with the Judges, or that power should be given to the Treasury to com- pensate them. It would be better to do that than saddle the country with the expense of a number of useless clerks.

MR. RYLANDS

said, they had heard from his hon. and learned Friend below him (Mr. Harcourt), who was an authority, that two of the clerks of the Judges of the Court of Appeal were not necessary. Then why have an unnecessary number of clerks?

THE ATTORNEY GENERAL

did not admit that they were unnecessary.

MR. HUGHES

said, he was unable to see why the public should be saddled for all time with a number of officers who were not needed.

MR. MATTHEWS

suggested words that might be adopted to provide for the clerks of Judges taken from the High Court to the Appeal Court.

THE SOLICITOR GENERAL

reminded the Committee that the Bill would remove the officers of the Vice Chancellors, the House of Lords, and the Lord Chancellor, and there must be some one to discharge the duties which had hitherto been discharged by them.

THE ATTORNEY GENERAL

contended that the arrangement would be a fairly economical one.

MR. HUNT

quite agreed with the hon. and learned Member for Oxford that it would be misplaced economy to stint the Judges of the Court of Appeal in regard to their salaries. Those salaries ought to be such as would attract the best men in the profession. As he understood, there were six Judges required to constitute the Court of Appeal, and in that case if three clerks were allowed to each Judge they would have 18 clerks. He, however, found that it was said two clerks would be sufficient for each Judge, and if that were so, why should they have superfluous clerks? He was therefore prepared to support the proposal to raise the salaries of the Judges of the Court of Appeal; but at the same time he was not ready to provide them with staffs which he did not think necessary.

MR. LOPES

said, the real question—a question that should not be lost sight of—was to pay the Judges an adequate salary—£6,000 a-year each, and then they might, if they deemed it necessary, have an extra clerk.

Question put.

The Committee divided:—Ayes 102; Noes 78: Majority 24.

MR. RAIKES,

in moving as an Amendment, in page 38, line 39, to leave out "Ordinary," and insert "other," said, he did so because the Committee had just decided that there were to be two clerks to each of the ordinary Judges of the Court of Appeal, and the object of his Amendment was to place all the Judges of the high Court of Justice and the Court of Appeal in similar positions with regard to their clerks and the salaries and pensions to be paid to them.

THE ATTORNEY GENERAL

opposed the Amendment.

MR. VERNON HARCOURT

said, that was a mere waste of money—nine times £600—forced upon the Committee by the Government by means of majorities brought in from the lobby. The proposal was outrageous, absurd, illogical. But what he would recommend the hon. and learned Member for Chester to do was to withdraw his Amendment, and let the clause go down to Westminster Hall in all its native absurdity.

THE SOLICITOR GENERAL

said, the hon. and learned Gentleman had talked of the clause as outrageous, absurd, illogical. But the clause was in exactly the same state as when it came down from the House of Lords.

MR. VERNON HARCOURT

protested against the assumption that the Committee were not to alter anything coming down from the House of Lords. They had been told night after night that the Lords had done this and the Lords had done that, and the Lords must be right. The hon. and learned Gentlemen the Solicitor General and the Attorney General came down upon the Committee time after time and said Lord Selborne and Lord Cairns have agreed upon this, and it must be the proper thing to do. He would admit the doctrine of Privilege; but he trusted the Committee would not be overborne not merely by tyrannical majorities, but by tyrannical language.

MR. MATTHEWS

remarked that when the Lords were spoken of as a judicial body the hon. and learned Solicitor General had not language strong enough to condemn them. They were octogenarians and so on; but now, when adhering to their legislative recommendations, he appeared to hold just the contrary opinion.

Amendment negatived,

On the Motion of Mr. LOPES, Amendment made in page 38, line 41, after "per annum," by inserting "and in the case of the Judges of the High Court of Appeal, a Junior Clerk whose salary shall be two hundred pounds per annum."

MR. CAVENDISH BENTINCK

said, he wished to put a question to the Government as to the establishment of the Master of the Rolls. It appeared by the clause that the Master of the Rolls was to have an establishment of officials assigned with fixed salaries. If the clause stood in its present form an end would be put to the legal establishment of the Master of the Rolls, and his secretary would receive only £500 a-year instead of £1,200. It was highly desirable the Committee should have some explanation on the subject.

MR. JAMES

expressed a hope that the hon. and learned Attorney General would, at some stage of the Bill, make provision in it for preserving the status of Judges' marshals, which was somewhat interfered with by the clause. It was necessary to public convenience that such officers should be gentlemen fit to associate with the Judges, rather than comparative servants.

THE ATTORNEY GENERAL

said, it was never intended to interfere in the slightest degree with the position of the marshals. He would take care that words were brought up in the report to secure the marshals in the continuance of their offices.

MR. CAVENDISH BENTINCK

complained that no answer had been given to his question. He should, therefore, move that Progress be reported.

THE ATTORNEY GENERAL

said, the hon. Member was told last night that the whole of this matter was under consideration. It was therefore impossible to give any answer at present.

Clause, as amended, agreed to.

Clause 76 (Doubts as to the status of officers to be determined by Rule); and Clause 77 (Powers of Commissioners to administer oaths) agreed to.

Clause 78 (Official Referees to be appointed).

MR. MATTHEWS

proposed as an Amendment, in page 39, line 31, after the word "that," to insert "each division of." The effect would be to attach the official referee, not to the Supreme Court, but to each Division of the three Courts. In his opinion one of the great and serious blots of the Bill was the extraordinary amount of patronage thrown into the hands of the Lord Chancellor. It therefore seemed to him that the president of each Division of the Court should have the patronage of his Division.

THE ATTORNEY GENERAL

could not accept the Amendment. If the patronage were given to the heads of Divisions, it would leave them open to temptations, and although they might not yield to those temptations a suspicion might be cast upon them from which it was desirable they should be free. The Lord Chancellor, however, was in a position of great independence with regard to each Division. The real question was whether official referees should be attached to a particular Division, or to the whole Supreme Court. He preferred the latter course, as they could then be made available for any Division requiring their services.

MR. VERNON HARCOURT

thought it anomalous that the whole patronage should be vested in the Lord Chancellor, although he was practically removed from the Supreme Court. It would be much better that the officers attached to each Division should be appointed by its head.

MR. RYLANDS

did not think there was a sufficient check upon the exercise of legal patronage where so many official referees were to be appointed.

MR. LOPES

maintained that the Judges had always exercised the patronage they possessed in a most proper manner, and that the patronage of their Courts should belong to the Presidents of Divisions rather than to the Lord Chancellor, who was not to be the head of the High Court, and, being a political personage, would be more open to pressure.

Amendment negatived.

MR. MATTHEWS

said, he must again raise the question of "referees," to which he had called the attention of the Committee on the previous evening, and in relation to whom he moved an Amendment which was negatived. The question was one of great importance, involving the appointment of "experts" in the various arts and sciences, to whom it was proposed to refer questions of great importance. What British justice wanted, however, was sworn testimony given by experts, sifted and tested before a Judge and jury, and not a decision by experts alone. They might be very clever in drawing up their reports; but the existing system of subjecting them to cross-examination should be adhered to. As he understood the hon. and learned Solicitor General that system was to be departed from. That hon. and learned Gentleman said, that there were not to be any barristers appointed as referees in the provisions of the clause; but that chemists, engineers, &c., were to have questions in science and art submitted to them as referees. He considered it necessary that legal men should be appointed. He would conclude by moving his Amendment.

Amendment proposed, In page 39, line 34, after the word "referees," to insert the words "any barrister of not less than seven years standing, or any solicitor of not less than ten years' standing, shall be qualified to be appointed an official referee."—(Mr. Matthews.)

Question proposed, "That those words be there inserted."

MR. GREGORY

considered the object of the clause one that deserved the most serious consideration of the Committee. He thought the Amendment an improvement on the clause, but it did not provide a proper substitute for the ordinary tribunal of Judge and jury.

DR. BREWER

considered it of great importance that scientific men should be appointed as referees. In his own profession questions of great importance often arose, which ordinary men were not trained in a knowledge of, and in relation to which the professional man must be most competent to report upon.

MR. WHEELHOUSE

said, he had not until now taken any part in the discussions on this Bill. No one entertained a greater respect for scientific men than he did; but if they wanted scientific opinions, they should be obtained on sworn testimony, tested by cross-examination. If they were to deal with the English law in the manner proposed, they would commit a great error. It was not necessary for them to be guided by France or Belgium. They should retain that which had the sanction of British law. The scientific man's report on points submitted to him might go up for inspection and be sent down again for further consideration, and so on several times, thus leading to increased expense. The report, as the clause stood, would be without cheek. He hoped the House of Commons would exercise common sense, and let the country have the disposal of legal matters confined to legal hands. He said, that with the greatest respect for official referees, and thought that the President of the Tribunal at any rate ought to know something about the law he had to administer.

Mr. LOPES,

in supporting the Amendment, said, it was most important that they should know who those referees were to be. There was nothing in the Bill to inform them. The hon. and learned Solicitor General told them that they might be engineers, chemists, doctors, &c., and it appeared to him (Mr. Lopes; that they might be shoemakers, builders, mechanics, or men of any other trade; but they must not, according to the hon. and learned Gentleman, be barristers. [The SOLICITOR GENERAL: Not exclusively lawyers.] An hon. Member said, that referees could call in extra assessors to aid them in their investigations; but that was a power which referees should not have, it was a power that should rightly belong to the Judge to direct. It was also said that the referee's report was to be final. But the report might not be correct, and if it could be shown not to be, why should it be final? The hon. and learned Attorney General said, that after the report was made, it would be closed as to the facts; but, however that might be, it could not be closed as to the law. The whole matter was to go back again to the referee, and the effect would be to increase the expense to the suitors. He submitted that those proposals, as in the Bill, were most dangerous, and he should give his vote most decidedly in favour of the Amendment of his hon. and learned Friend, should he go to a division upon it. In conclusion, he would remark that although commercial Gentlemen were absent when discussions on this Bill were going on, they were sure to rush into the House as soon as a division was called for.

MR. RATHBONE

said, the commercial men had been present during the debates, and if they had refrained from taking a prominent part in them it was because they desired the Bill to pass as speedily as possible. In his opinion lawyers would not, in many cases, be the best referees.

MR. FOWLER,

though favourable to the Amendment, hoped the hon. and learned Member for Dungarvan would not press it to a division, as a number of hon. Gentlemen who at that moment were writing letters in the Library would be sure to come in and vote against it.

THE SOLICITOR GENERAL

said, that the clause did not exclude lawyers.

SIR FRANCIS GOLDSMID,

in opposing the Amendment, thought that in the great majority of cases lawyers would be appointed; but argued that there were many cases in which it would be wise to give a power to select another class of persons for official referees.

THE ATTORNEY GENERAL

said, he would not enter into the question, as it had been discussed on the previous evening.

Question put.

The Committee divided: — Ayes 63; Noes 159: Majority 96.

Clause agreed to.

Clause 79 (Duties, appointment, and removal of officers of Supreme Court).

MR. MATTHEWS,

in moving as an Amendment, in page 40, line 24, after "Chancellor," to insert— All officers assigned to perform duties with respect to the High Court of Justice shall be appointed by the Lord Chief Justice of England, said, that as that noble and learned Lord was to be no longer the head of that Court there was no reason for his retaining the patronage of the Court.

MR. VERNON HARCOURT,

in supporting the Amendment, asked why the Lord Chancellor was to appoint the ushers? The reason was because, as was perfectly well known, they would not really be appointed by the Lord Chancellor, but by the hon. Member for Shaftesbury (Mr. Glyn). If the Lord Chief Justice had the patronage, he would not consult the hon. Member for Shaftesbury; but the Lord Chancellor, who was a political officer, would.

MR. MATTHEWS

said, it was not only the ushers, but the official referees, who were to be appointed by the Lord Chancellor. That was an amount of patronage which it was very undesirable to put into the hands of a political officer.

LORD JOHN MANNERS

asked what were really the appointments proposed by this clause to be left in the hands of the Lord Chancellor?

THE SOLICITOR GENERAL

said, in reply, that the only patronage he knew of was the appointment of official referees and of certain ushers of the Court. The High Court would sit in the same place as the Court of Appeal, and if the patronage was given to two Judges, each would appoint his own set. It was thought better, therefore, to give the patronage to one Judge as the more economical. Some of the ushers who should act for the Supreme Court would also act for the Court of Appeal.

MR. LOPES

said, the chief portion of the patronage was the appointment of the official referees, and therefore the Committee were entitled to ask what would be their number and what amount they would be paid?

THE SOLICITOR GENERAL

said, he had answered the question to the best of his ability the other evening. He would, however, now say that the subject had been carefully considered by those most competent to deal with it. The number of official referees would depend on the amount of business, and the acceptance the system set up by the Bill met with at the hands of commercial men. If the reference proposed by it were satisfactory a great many would be wanted, and experience alone would tell how it was best to pay them. It might prove most economical to appoint a referee each time for every single case that was referred, the referee being chosen with regard to his special knowledge of the subject involved in the case. In a sugar case, for instance, it would be desirable to have a sugar broker, in a tea case a tea broker, and in an engineering case an engineer, sitting as referee. The question, therefore, was left open how they were to be paid, whether by fees or by salary and for the present it was left to Parliament to pay them by annual Votes. The matter was not left to the Lord Chancellor alone, but to the Lord Chancellor, with the concurrence of the heads of Divisions, the concurrence of the Treasury, and the annual concurrence of Parliament.

THE ATTORNEY GENERAL

said, he was quite willing, if there was any doubt on the point, to insert words as proposed by his hon. and learned Friend. He would undertake to do so on the Report.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 80 (Patronage not otherwise provided for).

MR. VERNON HARCOURT

said, he had an Amendment to propose. It had often been said that the Preamble was the key to a Bill, but it should, perhaps, rather be said that the patronage clauses gave the proper key. There was a marked distinction made in this clause between the way in which the patronage of the chiefs and those who were not chiefs was dealt with. The patronage of the chiefs was to be continued for their lives, and so was the patronage of the other Judges; but the patronage of the chiefs was to remain for ever as it was, while that of all the other Judges was to "be exercised in such manner as Her Majesty may by Sign Manual direct." What was the patronage they were going to perpetuate? In the Estimates, which they talked so much about, but discussed so little, they would find a list of the personal officers of the Lord Chancellor which might servo as a specimen. The salaries of these officers, of which he read a list, amounted to £7,532 a-year. That — some would call it gigantic, but he called it an infinitesimal patronage — would be an unwise thing to perpetuate for ever, while the patronage of the rest of the Judges was placed under the consideration of' the Executive Government for the purpose of revision. He would, therefore, move, as an Amendment, the omission of the words in line 22 from "if incident" to "and" in line 28.

THE ATTORNEY GENERAL

said, the intention was to leave the patronage where it had always been. However, he had no objection to offer to the Amendment.

MR. HUNT

said, he did not see the object of taking these words out of the clause.

MR. BOUVERIE

doubted whether the patronage now exercised by the Lord Chancellor in regard to his personal attendants ought to be enjoyed by anyone but himself. There was a large branch of patronage connected with the Probate Court, and the House ought to know who was to exercise it. The Judge of the Probate Court appointed the local Registrars all over the kingdom. The Masters of the Queen's Bench, Common Pleas, and Exchequer, no doubt, held valuable appointments; but he doubted whether all their patronage should be taken away from persons of such high dignity as the chiefs of those Courts. Some one must select these officials, and it was better to distribute this patronage among a number of people than to centre it in the Government.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 81 to 93, inclusive, agreed to.

Clause 94 (Interpretation of terms).

On the Motion of Mr. MATTHEWS, Amendment made in page 45, line 29, by inserting before "pleading," the words "procedure shall include pleading."

Clause, as amended, agreed to.

Postponed Clause 31 (Assignment of certain business to particular Divisions of High Court subject to Rules).

THE ATTORNEY GENERAL

moved, as an Amendment, in page 20, line 24, to leave out "and the London Court of Bankruptcy respectively." The object of the Amendment was to transfer temporarily the control of the Court of Bankruptcy to the Court of Exchequer.

Amendment proposed, in page 20, line 24, to leave out the words "and the London Court of Bankruptcy respectively."—(Mr. Attorney General.)

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

MR. JAMES

said, he objected to the proposal to transfer the whole of the business of the Court of Bankruptcy in London to the Court of Exchequer, on the ground that the Court of Exchequer had not sufficient judicial strength to perform those additional duties in a manner that would prove satisfactory either to the suitors generally or to the country. The Common Law Judges would have to go circuit, and as there were only 15 left at present, and as the Bill would require the services of three, there would be only left 12 Common Law Judges to discharge all the duties that belonged to their several Courts. Besides, the business of the Bankruptcy Court was of a peculiar character, requiring the constant attendance and watchfulness of one particular Judge who was well experienced in such matters, including the winding-up of large estates, and the dealing with property of considerable amount. The proposal of the Attorney General, if assented to, would cast upon the Barons of the Court of Exchequer duties for which they were wholly unsuited. That was a piece of false economy to which he hoped the Committee would not assent.

MR. W. FOWLER

concurred in the views just expressed by the hon. and learned Member for Taunton, and thought that this scheme of false parsimony which characterized the Bill generally would prove in the end to be wasteful and extravagant. The fact was, that more judicial strength was wanted in the Court of Bankruptcy, for a vast amount of business was now disposed of by the Registrars which ought to be done by the Judge.

THE ATTORNEY GENERAL

said, all the Courts were overburdened, owing to the waste of judicial strength which our antiquated arrangements had involved. A re-arrangement, he believed, would enable the Judges to do the work of the country. The arrangement now proposed was temporary, and it was subject to the disposition of the Court: which had power to transfer business from one Division to another. He merely proposed, after balancing the convenience and the inconvenience, to transfer the Bankruptcy business from the Division which was most over-burdened; to that which was least overburdened; and it would not break his heart if the Committee preferred some other arrangement.

DR. BALL

said, the matter was one which concerned mercantile interests very closely. He was opposed to the transfer of the Bankruptcy business to the Court of Exchequer, a business which was peculiar in its character, and which should be placed in the hands of a Judge especially conversant with the law and practice relating to it, and always in readiness to administer it. The administration of Bankruptcy Law affected the status of individuals, and it was an anomaly that a man's status should be in the power of a Registrar instead of that of a Judge. A Member of Parliament had been made a bankrupt by a Registrar whose judgment was finally overruled by the Judge, but that did not redress the evil done to the individual. The business of Landed Estates Courts and Bankruptcy Courts should be committed to particular Judges, the Courts should be always open, and the work should no more be delegated to inferior officers than was the administration of the Criminal Law, which was analogous to that of Bankruptcy. The interests of the merchants ought alone to be considered in this matter, and not the interests of the Bar. It was of the greatest importance to the mercantile public to have a permanent tribunal.

THE SOLICITOR GENERAL

remarked that the evil of which the right hon. and learned Gentleman complained already existed in England, and that the object of the present Amendment was to remove it. The Registrar now acted, and if the Amendment were not carried, he would continue to act.

MR. JAMES

pointed out that the Bill had been most carefully framed elsewhere by those who were most capable of dealing with it, and who had not deemed it necessary to introduce the provision now proposed by the Government. He objected that the direction of business for which special provision ought to be made should be handed over to the Barons of the Court of Exchequer, who were already overburdened with their other duties.

Question put.

The Committee divided: — Ayes 70; Noes 114: Majority 44.

Clause further amended, and agreed to.

House resumed.

Committee report Progress; to sit again upon Monday next.

And it being now Seven of the clock, the House suspended its Sitting.

House resumed its Sitting at Nine of the clock.

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