§ Trial and Procedure.
§ Clause 58 (Assessors).
§ MR. SERJEANT SHERLOCKsaid, he proposed to omit this and the two succeeding clauses. The clause had reference to the appointment of Referees, and he was anxious that there should not be applied to Ireland a most mischievous piece of legislation—the appointment of Referees to discharge the duties of Judges. These Referees were introduced into the English Judicature Bill from the necessity of providing relief to the overwork of the Judges; but in Ireland no such necessity existed, and the number of Judges were being reduced because they were not sufficiently employed. He admitted that in these clauses the consent of the parties was to be required to a reference, but the suggestion of a Judge was practically irresistible, so that the discretion of suitors would be nominal. It was open to 1541 suitors now to refer a dispute to arbitration of their own motion, but it ought not to be done at the suggestion of a Judge; and he resisted this as an unconstitutional innovation. He, therefore, moved the omission of the clause.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)admitted that there was a strong feeling amongst the Irish people in favour of having their causes tried before what they called "a real Judge and a real jury;" but he considered that the clause did not go much beyond the power which the Judges had at present of referring cases to arbitrators. It was not proposed to establish Special Referees to be paid by the State, but merely to enable a Judge, if the parties consented, to refer the matter to a Referee, to be appointed by arrangement between the parties themselves.
§ MR. BUTTsaid, it was sought to maintain the skeleton of the English clauses when it was found that they could not be maintained in their integrity. He would support the Motion to omit the clause.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. Gibson)said, he was aware that these clauses were unpopular in Ireland, and after the appeal just made to him he would not press them.
§ Clauses 58 to 61, inclusive, struck out.
§ Clause 62 (Provision as to making of Rules of Court before or after the commencement of the Act).
§ MR. M'CARTHY DOWNINGmoved an Amendment to make the procedure and the rules as to costs the same in Ireland as in England. The hon. Member observed that no reason could be assigned for not having the law uniform on the points in the two countries.
§ SIR COLMAN O'LOGHLENsaid, that the real object of the clause was to make the scale of fees in Ireland the same as the scale in England; but Ireland was a much poorer country than England, and could not afford to pay them.
§ Amendment proposed, in page 38, line 1, to leave out the word "and."— (Mr. Downing.)
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. Gibson)opposed the 1542 Amendment, on the ground that the circumstances and conditions of the two countries were essentially different.
§ MR. BUTTsaid, that the whole system of fees was bad, and that the relations of leaders and juniors levelled and, so to speak, "macadamized" the Bar.
§ MR. MURPHYopposed the Amendment.
§ Question put, "That the word 'and' stand part of the Clause."
§ The Committee divided:—Ayes 84; Noes 14: Majority 70.— (Div. List, No. 235.)
§ MR. BIGGARmoved, in page 38, at end, to add—
This Clause shall not come into operation, and no part of it to he operative, till it had been affirmed by a vote of both Houses of Parliament.
THE CHAIRMANpointed out that an Act could not become an Act till it had been passed by both Houses of Parliament.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 63 (Circuits and assizes).
§ MR. MELDONmoved the omission of the clause, on the ground that it would not be advisable to entrust the Irish Executive with the absolute power of altering or re-arranging the Circuits of the Judges.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)said, he would endeavour to meet the views of his hon. and learned Friend by introducing into the clause on the Report words to provide that all Orders in Council making alterations should be submitted to Parliament for approval before they came in force.
§ Clause agreed to.
§ Clause 64 (Winter assizes).
§ SIR COLMAN O'LOGHLENsaid, he had a Bill now before the House to constitute winter assizes for Ireland. He had obtained some Returns from which it appeared that on the 1st September last year there were 160 prisoners who would not be tried till next March, and 28 of them were charged with murder. He would with- 1543 draw his Bill if the Government would have a winter assize this year.
§ MR. SERJEANT SHERLOCKsaid, the Irish Judges were now going to deal with empty gaols, and the right hon. and learned Member was therefore premature with his Bill.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)said, that the necessity for winter assizes in Ireland was not nearly so serious as in England, because the County Court Judges having criminal jurisdiction, there were practically six gaol deliveries in the year in every Irish county.
§ Clause agreed to.
§ Clauses 65 to 69, inclusive, agreed to.
§ Clause 70 (Orders and Rules to be laid before Parliament, and may be annulled on address from either House).
§ MR. BIGGARmoved, in page 40, line 14, to leave out from "Session," to end of clause, and insert—
and come into operation as soon as they have been affirmed by a vote of both Houses of Parliament.He considered that the new rules should have been embodied in the Bill, as was the case in the English Act of 1875. He had great respect for the members of the Judicial Bench in Ireland; but he thought that the making of these rules should not be delegated to any class of persons, no matter how exalted. He urged the necessity of direct Parliamentary control over such matters as fees, &c.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)pointed out that the Bill followed almost word for word the precedent in the English Acts of 1873 and 1875, and that it was impossible for Parliament to go into all the minute and special matters of the Court, even if Parliament had the time, which it had not. The rules would be framed by the Judges under the presidency of the Lord Chancellor, and the Bill provided that they should lie on the Table of the House for 40 days. In the Bill, therefore, was a Parliamentary control which, true, was rarely exercised in the case of the English Act, but which could be exercised if any broad principle were assailed, but it was not the function of Parliament to discuss every technical point.
§ MR. SERJEANT SHERLOCKwas of opinion that Parliament could not well 1544 frame rules of legal practice, and that there would be in the Press, the Profession, and in Parliament a sufficient safeguard against improper rules being framed and acted upon.
§ MR. PARNELLdenied that the clause afforded sufficient control; an objection to the rules to be operative was to be made within 40 days, but any hon. Member would have to put his objection into a Motion on the Paper, and take his chance of bringing on his Motion within that period. He would suggest to the hon. Member for Cavan to withdraw his Amendment in order to allow him to propose to insert the words, "and shall be submitted to a resolution of both Houses of Parliament."
§ MR. BUTTcongratulated the Attorney General for Ireland on a Home Rule speech. He pointed out how the House of Commons was overloaded with work; but if this matter could be submitted to a Committee of Irish Members it might be satisfactorily settled. The Bill proposed to delegate to the Irish Judges legislative powers. It was the duty of that House to see that no rules were made to prevent the approach of the suitor to the tribunal which had to decide upon his rights. It was an utter sham to say that the proposal of the Government gave the House any real control over these rules. What power had he or any other Member of moving a negative of these rules within 40 days? If it were made a matter of "privilege," the control might be real and not a mockery. It was idle to quote the precedent of the English Bill, for that was the occasion of general complaint. The fusion of Law and Equity was more like a confusion of Law and Equity. As to the Bill itself, the people of Ireland did not want it, it was a Bill of crotchet; but if Parliament did change our ancient judicature it should take all the responsibility.
§ MR. O'SHAUGHNESSYthought that 40 days did not constitute a sufficient time for the consideration of rules which were to govern cases of such grave importance as those which came before the Superior Courts. If some means were not found by which the rules might be supervised by the House, he doubted whether the Bill would pass this Session.
§ MR. LAWpointed out that the Bill, if passed, was to come into force on the 1st of January next, and that if the 1545 Courts were left without rules till the end of next Session it would be practically inoperative during that period.
§ MR. SHAWsaid, that 40 days was too short a period to enable them to protect themselves from the lawyers.
§ MR. MORGAN LLOYDthought that the period within which it should be competent for Parliament to take exception to the rules should be the whole Session.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON),said, he adhered to the opinion that it would be practically impossible for Parliament to deal with the rules as it would do with a Bill; but as to the period of time during which they should lie on the Table, he saw no reason why it should be limited to 40 days, or why they should not remain on the Table till the end of the Session, or some equivalent period.
§ Amendment, by leave, withdrawn.
§ MR. O'SHAUGHNESSYmoved that instead of "within the next subsequent 40 days," the words "during the next Session of Parliament" should be inserted.
§ MR. BULWERfeared that that Amendment would do more harm than good. Although it was desirable that Parliament should retain a power of control, it was not likely that the rules framed by the Judges would actually be altered, and it would be a great mistake to put off the approval of them from Session to Session.
§ SIR MICHAEL HICKS-BEACHthought the understanding at which the Committee had arrived was that the time should be extended till the end of the current Session and not till a future Session.
§ MR. O'SHAUGHNESSYpointed out that there would be a difficulty in case the rules were sent up at a late period of the Session. If that happened, they might actually lie on the Table for less than 40 days, and it was for this case he wished to provide.
§ MR. ASSHETONwas glad to find the Committee realized the fact that there was no use in providing that the veto of Parliament must be exercised within the stereotyped period of 40 day.
§ SIR GEORGE CAMPBELLexpressed a similar opinion, and thought the case might be met by leaving the rules 1546 on the Table to be challenged at any time.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clauses 71 and 72 agreed to.