HC Deb 19 February 1877 vol 232 cc620-31

(Mr. Solicitor General for Ireland, Sir Michael Hicks-Beach.)


Order for Second Reading read.

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


thanked the Government for having introduced this measure so early in the Session. The Bill was an excellent one so far as it was drawn upon the lines of the English Act, and it would be highly beneficial that the same system of judicature, the same principles, and the same practice should be established in both countries. Under these circumstances, he was prepared to afford all the assistance in his power in carrying out the measure, as he believed that it would be advantageous to Ireland. The reduction which it was proposed to effect in the number of the Irish Judges appeared to be in accordance with the opinion which had been expressed by the Press and the public in Ireland; and, taking into consideration the amount of judicial business in that country he was far from opposing them; and, although he believed that there was some misapprehension on the point, he did not feel disposed to endeavour to stem the tide of public opinion. He might, however, mention that two of the Courts of Common Law in Ireland were fully occupied with business, and that in the Court of Exchequer there were very large arrears of new trial motions undisposed of. There was, however, one change proposed to be made in the Judicial Bench which he confessed he did not exactly understand —and that was the one which was to be made in the position of the Master of the Rolls. The Bill was professedly based on the English Act, but it did not follow that Act as regarded that learned Judge. In England he retained the full dignity and position of his ancient office, but it was not the case in Ireland. There the present Master of the Rolls, who had been a distinguished Member of the Common Law as well as of the Equity Bar, notwithstanding his eminence, would not form a Member of the Court of Appeal, and although he would personally retain his precedence so long as he lived, his successors would lose it, and rank after many Judges of whom the Master of the Rolls now took precedence, including the Lord Chief Justice of the Common Pleas, the Lord Chief Baron, and the Lords Justices of Appeal, and they would find their salaries diminished by £500 a-year. He must say that he did not think it good policy thus to degrade an ancient office, and he trusted that the Government would re-consider this matter. There was another point in the Bill to which he entertained great objection. The pressure of business in England had rendered it absolutely essential in order to relieve the over-weighted Judge to appoint official referees to whom causes might be referred. But this was at least an unsatisfactory measure, depriving suitors as it did of the opportunity of submitting their causes to a Judge of the Superior Court. It ought not to be resorted to except in the case of extreme necessity. But this necessity did not exist in Ireland. There was no pressure of business upon the Judges there to excuse it, and he did not think it was, therefore, desirable to add thereto the facilities which already existed for the referring to arbitration all cases in which it was desirable that such a reference should be made. It was an innovation upon the old practice which had. found no favour in England, and which, in his opinion, ought not to be applied to Ireland. By another provision of the Bill the Lord Chancellor in Ireland was to take matters exclusively of an appellate character; whereas it would be far better, in view of the small number of appeals in Ireland, if, when the Court of Appeal was unoccupied, that learned Judge were enabled to sit as a Judge of First Instance. It might pot be ad- visable to compel that high dignitary to sit as a Judge of First Instance, but he thought it going unnecessarily out of the way to prohibit him from doing so. The introduction of the new Winter Assizes would be productive of much good, because there were cases in which from the nature of the case prisoners could not be admitted to bail, and yet it might eventually turn out that they were quite innocent. It was, therefore, in every way desirable to accelerate their trial by special Commissions or by Winter Assizes. He regretted that the Bill did not embody within it, in the same way as the English Act, the rules of procedure by which the Supreme Court was to be governed in the future. It was deemed necessary that the rules under the English Act should be sanctioned by Parliament; whereas the Irish rules were to be framed by the Judges under the authority of the Lord Chanceller, and were then to be approved by the Lord Lieutenant in Council, which was scarcely the proper body to settle matters of that kind. There were some other minor matters requiring attention, which struck him in connection with the Bill; but he would not delay the House further, as they would have an opportunity of discussing details in Committee.


said, that before the Question as to the second reading was put he wished to offer a few observations on some of the more prominent features of this very important Irish measure, though he did not rise for the purpose of opposing it. On the contrary, he was very anxious to see it passed, as ho thought that legislation upon the subject had been too long delayed. As to the contemplated reduction in the number of Judges, he doubted whether the extent or value of this reform was sufficiently understood. The Bill proposed either presently or prospectively to get rid of four of the Irish Judges, and also an important legal functionary called the Master Receiver, and thus to effect a saving of over £14,000 a-year in judicial salaries alone; and this by itself he thought was a very considerable measure of economy. He concurred in the remarks of his hon. and learned Friend who had just spoken as to official referees, and also as to the inexpediency of departing as the Bill proposed to do in respect of the Irish Court of Appeal from the course that had been adopted in the constitution of the Court of Appeal in England. It was a matter of paramount importance in Ireland, that they should have a strong Court of Appeal. They could not afford to come to Westminster except for the very heaviest and most important cases. That luxury they must leave to the more fortunate dwellers in Great Britain. For the satisfactory adjustment of their rights it was essential that they should have a tribunal of as great strength as they could supply in Ireland. He had never heard any reason stated why the Master of the Rolls in Ireland should not be an ex officio Member of the Court of Appeal, as the Master of the Rolls in England was. It might, perhaps, be said that the Master of the Rolls was too deeply engaged already with the business of his own Court; but he did not apprehend that the Master of the Rolls would have any unsuperable difficulty in contributing his knowledge and experience to the efficiency of the Court of Appeal. And, at all events, he would have no more difficulty than the Chief Justices or the Chief Baron. In fact, they knew that the Chief Judges of the Common Law Courts had other and onerous duties to perform besides sitting in Banco with their Colleagues, and the Master of the Rolls, he had no doubt, could also, occasionally, at least, find time to attend the Court of Appeal. He could understand the argument, if those who were for excluding the Master of the Rolls, were against having any ex officio Members of the Appellate Court. This, however, they felt they could not reasonably contend for. And as the necessary judicial strength must often be sought outside the ordinary Court of Appeal, he (Mr. Law) hoped the Master of the Rolls in Ireland, as in England, would be added to the list of Chief Judges who might be called in when necessary to constitute a Court of extra strength. He understood too there was another point on which this Bill differed from the English measure, and that was with respect to registration appeals. It appeared to him a questionable course to transfer appeals involving what he could not help calling political questions from a tribunal like the Court of Exchequer Chamber to one which would be presided over in all cases by the Lord Chancellor, who was to a certain extent a political officer. However, if cases of this kind were to be dealt with by the Court of Appeal it became all the more important that for that purpose as well as for disposing of the other difficult and delicate questions which would come before it—as, for example, under the Land Act of 1870—they should have a Court so constituted as to command the entire confidence of the country. With regard to the way in which the Bill dealt with the Judge of the Probate Court, he supposed it was the best course that could be adopted under the circumstances. He was of opinion that in this respect the Bill of last year was absurd, for although it declared that the Judge was to be transferred, he was not in fact transferred. He thought therefore that the Government had exercised a wise discretion in leaving out the Court of Probate altogether.


said, he had great pleasure in offering his hearty congratulations to the right hon. and learned Gentleman the Attorney General for Ireland on his first appearance in that House in his official character, for he was certain that his appointment had given satisfaction to every member of the Bar, and that it would be a matter of just pride and gratification to him if he succeeded in passing this Session a measure on that subject which had been twice before the House. The Bills introduced in 1875 and 1876 did not come on for discussion in this House till a late period of the Session, and the Bar of Ireland could not fairly be charged with endeavouring to obstruct the measure of last year. All they desired was that it should be fairly discussed, and if it had been brought forward in this House at an earlier period of the Session, instead of being brought down from "another place" so late as it was, it would in all probability have been passed. Though the present Bill differed in some material respects from that of last year, it was identical with it in principle. Almost all the reductions proposed last year were incorporated in this Bill, which substantially carried out the views expressed by Her Majesty's Government in the Judicature Bills of 1875 and 1876. The chief difference between the measure now under consideration and that of last year consisted in the mode of dealing with the Bankruptcy and Probate Courts. Last year a most extraordinary proposal was made to transfer the jurisdiction in Bankruptcy to the Court of Exchequer. He (Sir Colman O'Loghlen), however, opposed that proposal and suggested that, as the learned Judge of that Court had to go on circuit, the jurisdiction should be transferred instead to the Court of Chancery. Her Majesty's Government had not now adopted his view; but they had, perhaps properly, left the Bankruptcy Court altogether out of the Bill, a course that had received the support and approval of the barristers and solicitors of Dublin. He hoped that next year his right hon. and learned Friend would introduce a general Bankruptcy Bill, and that by it, above all things, local jurisdiction in Bankruptcy would be given to such large towns as Belfast and Cork, and ultimately that the Bankruptcy jurisdiction would be transferred to a Vice Chancellor in the Court of Chancery as in England. The other alterations made in the Bill were in reference to the Court of Probate. By the Bill of last Session it was proposed that the Court of Probate should be united with the Court of Common Pleas in Ireland; but the Judge of the former Court, though he would have received a higher salary, would not have been allowed to perform the ordinary duties of the Court to which he was to be transferred. This provision he was glad to find had now been altered. He thought, however, that when the office of Judge of the Court of Probate became vacant the jurisdiction of that Court ought to be transferred to the Court of Common Pleas. The whole of the Judges of Ireland had met and expressed an opinion that that ought to be done, and the Judges of the Common Pleas had notified their willingness to take this business. Another argument in favour of the proposal was, that there would be a saving of £3,500 per annum. With respect to the Landed Estates Court he did not like the proposals in the Bill as to the extension of its jurisdiction, though he thought the Government had done quite right in appointing a second Judge. The Landed Estates Court had been one of the best Courts established in Ireland; and if a similar tribunal, with power to give a Parliamentary title, were established in England it would be a great advantage to this country. [Sir GEORGE BOWYER: No, no!] Well, if his hon. Friend differed from him he could write a letter to The Times to-morrow morning on the subject. This Bill dealt with the salaries of the Judges. The salary of the Master of the Rolls was to be increased from £4,000 Irish to £4,000 British, but the difference between Irish and British was so small that he was surprised at such a proposal being made. In addition, the new Vice Chancellor was to have the same amount. Then the salary of the Judge of the Court of Probate and Matrimonial Causes was to be increased from £3,500 to £3,800, thought why he could not understand. It was proposed by the Bill to do away with the Judge of the Admiralty Court. This he regarded as inconsistent with the 8th Article of the Act of Union; and it seemed to him that if any Court stood in need of a separate Judge it was the Court of Admiralty, seeing that its duties required peculiar knowledge which ordinary Judges did not possess. He thought, therefore, the office should be retained, but it might be expedient to make him also Wreck Commissioner under the Act of last Session, and to give him some jurisdiction over Probate and Matrimonial causes. There was a clause enabling the Judge in question to retire at once, but this seemed unnecessary, the gentleman who held the office being in the full vigour of life. With regard to salaries, it was proposed that no Judge appointed in future should have less than £3,500; but the salary of the Judges of the Landed Estates Court at present was £3,000, and surely it would be unfair to give those who had long been discharging the duties of the Bench a less salary than was given to a newly-appointed Judge. There was reason to fear, also, that under the provisions as they stood there might at times be a great delay in the appointment of a new Judge. As to the mode in which it was proposed to deal with the officers of the Court he thought it wrong that there should be a different system in Ireland from that in England, but this was a matter of detail, which could be discussed in Committee. With regard to making the Master of the Rolls a Judge of the Court of Appeal, he contended that it was unwise to place Judges of Primary Courts on the Bench of the Appellate Court; and he believed the opinion entertained in the Profession in England with reference to the double duties cast upon the Master of the Rolls was not at all favourable to the plan. He hoped the Committee on the Bill would not be taken till after Easter. If it was taken earlier there would be much inconvenience caused to some Irish Members, and a sense of injustice would be the result. This would be particularly regrettable in connection with so important a Bill, to which the Irish Members generally offered no opposition except on some points of detail.


thought the right hon. and learned Baronet opposite (Sir Colman O'Loghlen) somewhat contradictory in his complaints, for he had talked of the Bill of last year as introduced too late, and of the present one as introduced too early. Seeing that an hon. Member had set down a Motion for the rejection of the measure, it might be well for the Government to follow their own counsel as to when they should take the Committee, and not listen to the counsel of hon. Gentlemen opposite. He must express his astonishment at the allusion made by the right hon. and learned Baronet to the Act of Union. It was not unusual to hear appeals made to the Act of Union in opposition to proposed changes, but there was rarely such extreme veneration shown for it as the right hon. and learned Baronet had just manifested, when he sought its aid, not for the purpose of preserving some great public institution, nor for some great public necessity, but for preserving the dignity or increasing the salary of an Admiralty Judge. He (Mr. Lewis) trusted the Act of Union would not stand in the way of Her Majesty's Government doing the very best for the Irish system of Judicature without reference to an Admiralty Judge, his office, or his salary. There was one point on which he agreed with the right hon. and learned Baronet, and that was with reference to having local Bankruptcy Judges in Ireland. It was a most remarkable thing that there was a local Bankruptcy jurisdiction over the whole of England; but in the city which he had the honour to represent persons had to travel to Dublin in order to transact their Bankruptcy business. If a person in Londonderry failed in business he went to Dublin, and was there made a bankrupt, and his creditors had to travel 200 miles, having to follow him at their own expense to obtain justice. That was the system which prevailed at the present time in Ireland, whilst in England a totally different system prevailed. In fact, the English system was directly opposite. The English system first began by the appointment of Bankruptcy Commissioners in Leeds, Manchester, Birmingham, Hull, Liverpool, and nearly all large towns, and now there was, through the County Courts, a local Bankruptcy jurisdiction all over England and Wales. Many of the statements made by hon. Gentlemen opposite with reference to the want of consideration by the House of Irish Business were exaggerated or untrue. ["No, no!"] Well, at least, he thought so. But he had put Questions in that House to the right hon. Gentleman the Chief Secretary for Ireland with respect to this matter during the last two or three years. Promises had been made that the subject should receive careful attention; but, notwithstanding those promises, nothing had as yet been done. He should not be surprised if he heard his right hon. Friend who so ably represented the Government, say that the subject should receive his most careful attention, and on a future day would be included in a general Bankruptcy Bill for Ireland. But even if the right hon. Gentleman made that promise, it was only what he had been told three or four years ago. As no attempt had been made to redeem these promises he had mentioned the subject again that evening.


said he had no doubt, from its reception by the House, that the Bill would be allowed to pass. The course of debate, from beginning to end, upon the Bill had been anything but unsatisfactory, and he thought it might be gathered from the discussion, which had been carried on in the fairest way on both sides, that the House approved the general principle of the Bill, which was to assimilate as rapidly as possible the judicial system in Ireland to that prevailing in England. Two important changes were contained in this Bill as compared with previous measures introduced on the same subject. One was the omission of the attempt to put the Court of Probate into the Court of Common Pleas; the other was the omission of a similar attempt to introduce the Bankruptcy Court into the Court of Exchequer. Those were the only broad changes which had been made in the Bill, and he gathered that they were acceptable to the House, as no objection bad been raised to them. With regard to the opinion which had been expressed by the right hon. and learned Baronet the Member for Clare (Sir Colman O'Loghlen) and the hon. Member who had just sat down (Mr. Charles Lewis) in favour of the introduction of some legislation with respect to the establishment of local jurisdiction in Bankruptcy in Ireland, he (Mr. Gibson) would only say that the present Bill carefully excluded anything in regard to Bankruptcy. In fact the measure need not have referred to the Court of Bankruptcy at all, but for the circumstances that it provided for the Court of Bankruptcy a Court to which its appeals should go as a Court of Appeal, instead of the Court of Appeal, which was abolished by the Bill. He therefore thought it was hardly possible that he could accept the wording of any Amendments which might be placed upon the Notice Paper dealing with the question raised by the hon. Members for Clare and Londonderry. His hon. Friend who sat behind him (Mr. Charles Lewis) did not seem to attach very much importance to the pledge of the Government, that they would give the subject their attention, and therefore it was with considerable hesitation that he ventured to tell the hon. Gentleman again, that the remarks which he had made upon the subject should receive the earliest possible consideration of the Government. With regard to the other criticisms which had been urged by hon. Gentlemen, he hoped he should be excused if lie did not go into them at great length. In reference to what had been said about the omission of the name of the Master of the Rolls from the list of Judges of the new Court of Appeal in Ireland, he ventured to say that it was done advisedly, in consideration of the state of business prevailing in the Court of that most eminent Judge. No one could entertain a higher opinion of that most distinguished Judge than he did. He was acquainted with the public opinion in Ireland, and he was also acquainted with the public opinion in his own Profession, and the idea of suggesting that there had been the slightest intention of casting a slight on that distinguished man by omitting his name from the list of Judges for the new Court of Appeal was so unfounded that it was a subject which he did not think it necessary to advert to. The Government had before them the experience of England, and he was not sure that it had worked so admirably well in England. The Master of the Rolls in England had a great deal to do in his own Court, and it was only by working very hard, and very possibly by overworking himself very much, that he was able to make it possible to occasionally attend at the Court of Appeal. He might say that of all the Irish Bench, none of them were harder worked than the Master of the Rolls. The Master of the Rolls had very laborious work, and also very arduous Chamber sittings, and he ventured to say that if they were to ask the Master of the Rolls the same thing, he would say—" Save me from my friends ! I have quite enough to do, and more than enough, without being cast into a new office." The hon. and learned Gentleman the Member for King's County (Mr. Serjeant Sherlock) adverted to another topic, and stated that he was sorry that the clauses with reference to referees were not omitted. He (Mr. Gibson) thought his hon. and learned Colleague, in introducing the Bill, pointed out what he now ventured to call attention to—namely, that the compulsory clauses of the Bill of last Session, compelling the public to refer their cases to referees, had been omitted from the Bill, and that the referees would only act where all the parties not labouring under any incapacity consented. He thought that was a provision which would recommend itself to the better judgment of the House. Two or three of his hon. and learned Friends adverted to another topic, and rather suggested that it might be desirable to withdraw from the Court of Appeal constituted under this Act the power of hearing registration appeals. He thought it better, however, when one Court of Appeal was established, to let it decide everything. It would be a strong Court, and there could be no question of the strength of the Court proposed in the Bill. Indeed, it could hardly be gravely suggested that the Lord Chancellor of any Government, no matter what his politics, would be influenced in deciding a registration case. He was not sure that in connection with the Bill there were any other topics which it would be reasonable for him to refer to on the second reading. He could only say that the other questions raised would receive every possible attention on the part of the Government, and he hoped that the Bill would soon become law. As to what had been said by the right hon. and learned Baronet the Member for Clare with reference to fixing the Committee on the Bill, he was afraid he could not consent to defer it until after Easter, seeing that the Bill had now been before the House for three Sessions, and had been fully discussed. He would, however, endeavour to meet the convenience of all hon. Members interested in the question, but he should endeavour to take the Committee on the Bill before Easter. The Bill would effect a very great saving by the consolidation of offices and the consequent reduction in their number; and in doing so he trusted it would not only effect a substantial saving in the public funds, but that also greater facility in the administration of justice would be accomplished by it, and he therefore hoped it would now be read a second time.


pointed out that that would be an inconvenient time for Irish Members to attend on the Committee, and hoped that at least it would not be taken before Easter.

Question put, and agreed to.

Bill read a second time, and committed for Monday next.