HC Deb 12 June 1882 vol 270 cc952-63

Bill considered in Committee.

(In the Committee.)

Clause 1 (Order in Council or Rule of Court not to come into operation until expiration of forty days after it has been laid before Parliament).


said, he proposed to leave out of the clause the words "or Rule of Court." He did not know how far the Committee would care to go on with the clause at this hour in the morning. It was a measure of an important character, and, so far as he was aware, it was altogether unprecedented. There was no Court in the country, and he was not sure that there ever had been, where the Judges had not the power to make rules for procedure. It was so in the Bankruptcy Court, in the Divorce Court, and in the County Courts. The Bill stated that no Rule of Court with regard to pleadings and practice should come into operation until it had been before Parliament for 40 days. What would be the effect of passing such a law? Why, the Judges would not be able to make and put into practice the most simple rules until they had been on the Table of the House 40 days; and if Rules were made and laid on the Table, and the full period had not expired before Parliament rose, those Rules, which might be wanted for a special purpose immediately, could not be put in force until the following March. The great bugbear with hon. Members opposite was that, as matters at present stood, the Judges might in their rules unduly interfere with juries. But if that was the intention of the supporters of the Bill the course they should have taken was obvious. They should have endeavoured to amend the 20th section of the Act, which at present provided a saving clause in the general law with regard to juries—which provided that juries should not be touched. If the existing law was not sufficient it would be possible to amend it. The proposal that was now made seemed to him to show a distrust of the Judges which had not been exhibited before, and surely some valid reason for it should be given before the Committee were asked to depart from the old custom in regard to these Rules of Court. A Committee was appointed to inquire into these matters last year, and they made a Report, in which suggestions were offered in regard to what were essentially points of practice. He had no hesitation in saying that, to a great extent, these suggestions were worthy of being carried into effect; but the effect of this Bill would be to delay the operation of any rules made in accordance with the suggestions of the Committee and to hamper the Judges. He did not wish to occupy the time of the Committee, and he would, therefore, now confine himself to moving that the words "or Rule of Court" be struck out. He would not deal with the question as to whether a Bill should be passed to apply this new rule to "Orders in Council;" but certainly one was not necessary in regard to the rules made by the Judges.

Amendment proposed, in page 1, line 5, to leave out the words "or Rule of Court."—(Mr. Pugh.)

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


said, this was really a serious and substantial matter, and he did not complain of the view his hon. and learned Friend (Mr. Pugh) took of it. The question was simply this. According to the Acts passed for regulating procedure in civil cases in this country, a great deal of respect was paid by the House to the Rules framed by the Judges. New Rules, according to the Act of 1875, must be laid on the Table of the House, and it was not proposed to alter the disposition of that Act. But what the supporters of the Bill said was—"Let the Rules be laid on the Table of the House for a reasonable time before they came into operation, and do not make a farce of the whole proceeding by laying them on the Table after they have come into operation, and when the House has no proper opportunity of dealing with them." This was a short statement of what he and his hon. and learned Friends who had their names on the back of the Bill wished to see carried out. It was said that to require the Rules of the Judges to be laid on the Table of the House before they came into operation was unprecedented; but that was not so. Only recently Parliament had considered the Statutes of the Universities of Oxford and Cambridge. Rules were to be made, and they were to be laid on the Table of the House before they came into effect. A discussion had taken place on the subject. The Rule for the regulation of Public Parks, and many other instances, might be mentioned. Well, it could not be said that these Rules affecting the practice of the Courts were of so very different a nature that they should not be laid on the Table of the House for a limited space before they came into operation. Rules had been made, and laid upon the Table of the House, abolishing the nominal titles of Lord Chief Justice of the Common Pleas and Lord Chief Baron of the Exchequer. These Rules were laid on the Table in order that the House might discuss them and give its consent to them, or withhold its consent, if it thought proper. The proposal was not merely that of one side of the House, or of one section of Members; but it was the unanimous opinion of the solicitors, who knew more about the matter than many hon. Members, that the Bill before the Committee should pass. The Judges had under their consideration certain alterations of what was called procedure. No one could doubt that the Judges were the proper persons to regulate the procedure of their own Courts; but it might be that such, a form of procedure might be established by them as to entirely alter the system of judicature in the country. There were two matters which had always been very much under the consideration of the House — one was that the pleadings should be put into such a condition that every person who went to trial might have a clear and intelligible statement of the case which he had to meet, and present a similar statement himself to the other side. One of the matters the Judges had to deal with was this question of pleading. He was not going to discuss it now, for this was not the moment to discuss such a thing; but there was a feeling in the House, and an immense number of people outside the House concurred in it, that any such alteration as that proposed would be damaging to the interests of suitors whose interests should be well considered. But there was another matter of a more serious kind. Up to this, the normal course of proceeding in Courts of Justice had been that issues of fact could be tried by juries, if either of the parties wished to have a jury. There was reason to believe that in the view of the Judges this was not a desirable thing to allow, and that it was proposed that the normal course in future should be the trial of fact by Judges, and not by juries. There were many in the House—certainly, he was one of them—who believed that trial by jury was not only a question of procedure, but of political importance; who thought that trial by jury had the effect of giving to every man some knowledge of the first principles of law—that it made everyone who served on a jury a party to the administration of justice— and who believed that it had had a very great effect in bringing about that profound respect for law which had long existed in this country. He did not wish to detain the Committee, and had only put shortly before them the points which appeared to him to be strongly in favour of the Bill of the hon. Gentleman. He hoped the Committee would give its consent to the principle of the Bill, which, after all, would not be a very great alteration in the existing law. It was an alteration—a somewhat novel practice—which, so far as he was aware, had only been introduced during the last three or four years; and he asked them to pass the clause as it stood, so that the consent of the House would be necessary to Rules of Court framed by the Judges, and that hon. Members might have an opportunity of discussing those Rules.


said, the Committee, in dealing with this matter, were unfortunately circumstanced, inasmuch as it had never had laid before it by the hon. and learned Gentleman opposite (Sir Hardinge Giffard) the reason why the reform was required. The hon. and learned Member, on the occasion of the second reading, and on going into Committee, had never said a word.


Yes, yes; on the introduction of the Bill.


said, that, at any rate, they had taken the second reading sub silentio. It was said that if the measure were passed in its present form it would produce very little change—that it would only alter what was done four or five years ago. But it would take away the power of Judges as to procedure, which had existed, not for four or five years, but for centuries. [Sir HARDINGE GIFFARD dissented.] The hon. and learned Member shook his head, but he (the Solicitor General) should be surprised to hear anything said to the contrary. It was now proposed that no such power should exist, and that no rule as to pleadings and practice which was framed by the Judges should come into operation before it had been 40 days before Parliament. [Sir HARDINGE GIFFARD again dissented.] The hon. and learned Gentleman again shook his head; but if he would refer to the Supreme Court of Judicature Acts 1873 and 1875, and read the clause regulating the pleading, practice, and procedure of the Courts of Justice, he might alter his opinion. For many years the Rules, after being framed and put into operation, had had to be laid before Parliament, and Parliament had had an opportunity of remedying them; but if this Bill passed within 40 days of the rising of Parliament the Rules could not come into operation, and there would be no opportunity of remedying them until the following Session. In this way the power that the Judges had always possessed would be taken away. Why was it proposed that it should be taken away? It was not suggested that it had been abused. It was said that, in particular instances, changes might be made which would be objectionable; and what were the points which had been put forward by the hon. and learned Gentleman who had just spoken? He had said that changes might be made in the Rules as to pleading before the House had had an opportunity of discussing them. Was it seriously to be contended that this House ever could, or ever would, discuss such a question as what pleadings ought to be admitted, or what form they should take, or how they should be regulated? It would be idle to pass such a Bill, because such Rules never would be discussed; and the House would never deem itself qualified to consider them. It was said that the Judges might pass Rules to limit the right of trial by jury; and he admitted that if that matter were dealt with by the Bill, and it were limited to that, it would be well worthy of consideration. But that, so far as he could see, was the only matter of importance to which it would be reasonable to apply such a provision as this. The Act, which the Bill would amend, was not an Act passed by the present Government, but by right hon. Gentlemen and hon. Gentlemen sitting opposite. It was they who had made the distinction to which allusion had been made. They had considered that some Orders in Council and Rules of Court should come into operation at once, and that some should not; and the hon. and learned Member (Sir Hardinge Giffard) now came forward and asked for the whole of that to be upset. Great inconvenience would almost inevitably attend the passing of such a Bill as this, as it would prevent the Judges from acting in the future as they had acted in the past, and making Rules, at a moment's notice, to put a stop to an inconvenience or remedy a defect. The Rules might require to be made and put into operation at once, at a time when it would be impossible to bring them before Parliament. In the past, whenever there had existed an inconvenience or a defect to which a remedy could be applied at once, that remedy had been applied; and the system had worked to the satisfaction of both the Bar and the public. It was not reasonable to require that the old power, which had been possessed by the Judges, of regulating pleading, practice, and procedure should be given up; that the Judges should only be able to make rules when Parliament was sitting. He submitted, therefore, that his hon. and learned Friend's Bill was of so wide a scope that it was too much to ask the House to go back from the legislation of 1875 and to adopt it.


said, he was particularly anxious that a misapprehension, which the statement of the Solicitor General had given rise to, should be disputed. This power of making Rules was not exercised by the Judges, but by a Committee of the Judges—a Committee of five. On the publication of the Rules by these five Judges they became law. The Judges would not, by the Bill before the Committee, be deprived of the power to make Rules to meet sudden emergencies; but what was interfered with was the right the Committee of Judges possessed of framing Rules which at once, on publication, had the force of an Act of Parliament, and were as though they had been included in the original Act of Parliament. He had reason to know that, if the Judges were polled, it would be found that the recommendations of the Select Committee were disapproved of by a large number; but whether by a majority or not he was unable to say. It was not correct to say that the present power had been possessed by the Judges for three centuries; but the result of the process, which the hon. and learned Solicitor General defended, was that this House was deprived of its power of superintending the legislation of the country, or whatever was included in the words "pleading, practice, and procedure;" and included, not by the Judges generally, but by the small Committee he had referred to. What they proposed to deal with as a part of practice and procedure the Committee had some means of judging, for they saw that they desired to sacrifice trial by jury, and leave it to the Judges whether or not they would have a jury to assist them. At present, in, for instance, a case of fraud, a man had a right to ask that there should be a jury; but, under new rules, it might be in the discretion of the Judge whether there should be a jury or not. The Select Committee had considered this question, and had made several recommendations; but he would undertake to say that any lawyer in Westminster Hall, when asked in what particular class of cases it was most likely that a jury would go wrong, would say that it was in that class in which the Committee had recommended trial by jury should be absolute. If the operation of the Bill had been limited to such a question as that, no doubt the Solicitor General would have been disposed to listen to it; but this appeared to him (Sir Hardinge Giffard) to be only a specimen of the manner in which the power might be exercised if the House permitted it to be used. All he asked in this Bill was that the Rules should not have the force of an Act of Parliament before the House had had an opportunity of pronouncing an opinion upon them. It was true, as the Solicitor General had said, that there might be some inconvenience, as months might elapse before the sanction of the House could be obtained; but it seemed to him that it was much more inconvenient for Rules to have the force of an Act of Parliament the moment they were published. It had been remarked that this Bill was an intended alteration of an Act of Parliament which was introduced under a former Administration of which he was a Member. When that Act was passed, he believed that the House had not the slightest notion of the purposes to which the powers contained in it would be applied. But anyone who now knew the mode in which they were used by the Committee appointed by the Judges—the small Committee—would, he thought, agree that it was high time for the House to interfere. His hon. and learned Friend the Solicitor General said they were legislating in respect of rumour; but that rumour was tolerably clear and defined, inasmuch as it emanated from the Report of the Committee appointed by the Judges then before the House. He was not speaking of the Committee of Judges, but of the Committee of which he believed his hon. and learned Friend was a Member —a Committee of the Bar, selected, no doubt, upon some principle; but not, he thought, representing very widely those engaged in the practice of the Profession. This small Committee had made a Report, which was certainly not in the nature of a rumour, because nothing could be more definite and distinct than its recommendations. He held in his hand a Petition, which he was unable to present, from the Law Institution, re- commending the adoption of the clause now under discussion. That Petition represented, as hon. Members were aware, in a great measure, the opinion of every branch of the Profession. He supposed the object of the discussion which had been raised was to strike the words "or Rule of Court" out of the Bill, in order to defeat the Bill in Committee under the form of amending it, as though they were on the question of second reading. He hoped the Committee would not allow that to be done; and he appealed to hon. Members to pass the clause as it stood.


said, it appeared to him that the passing of this clause, in its present form, would amount to an insult on the Judges. That undoubtedly would be the effect of such legislation. The Committee of Judges who had to determine these matters consisted of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the Lord Chief Justice of the Court of Common Pleas, and the Lord Chief Baron of the Exchequer, together with four other Judges of the Supreme Court of Judicature. His hon. and learned Friend opposite was a party to the Bill which gave the powers in question to the Judges; and why he should now sneer at those powers he was quite unable to see.


My Bill refers to the Acts of 1873 and 1875. The Act of 1876 is not touched.


said, he was referring to the argument of his hon. and learned Friend as to the smallness of the Committee. He contended that his hon. and learned Friend, instead of complaining of the smallness of the Committee, ought to have attacked the Act for which he was personally responsible. He repeated that it would be an insult to the Judges to pass this clause in its present form, inasmuch as it would take away from the Judges of the Supreme Court the powers which were given to the Judges in Bankruptcy, the County Court Judges, and the Judge of the Court of Probate and Divorce. The House, he thought, would understand that if the Judges were not allowed to remedy any defect in procedure without waiting for the time named in the Bill to lapse, and especially in view of the fact that Parliament might not be sitting at the time such alteration was needed, the interest of the public must inevitably suffer. He believed the Committee would see that the objection of his hon. and learned Friend was really towards the constitution of the Committee, not to the Judges. The Judges had nothing to do with the appointment of the Committee. It was the Lord Chancellor who requested certain persons—Judges,members of the Bar, and eminent solicitors— to meet, not for the purpose of drawing up any rules, but simply to lay their views before the Committee of the Judges. At the present moment his hon. and learned Friend had no knowledge whatever of what the rules of the Judges were to be, because they had made no Report. It was simply because the Committee had placed their recommendations before the public that his hon. and learned Friend assumed that they would be accepted by the Judges and brought forward in this Bill. Now, his hon. and learned Friend the Solicitor General had just pointed out that the Judges were, in matters of procedure, more competent than that House; and even if the Committee were disposed to think it right to criticize the conduct of the Judges, he trusted, for the reasons he had advanced, that they would not pass a clause which would undoubtedly result in prejudice to the public interest.


said, he was surprised that the hon. and learned Attorney General should have resorted to the argument that the passing of this Bill amounted to an insult to the Judges. He was certain that neither the hon. and learned Gentleman opposite (Sir Hardinge Giffard), nor any other Member who supported the Bill, had the slightest desire to offer any insult to the Judges. But where the point was one which involved great and important principles, it would be the duty of some hon. Members, even if the view suggested by the Attorney General were taken of their conduct, to insist upon the point before the Committee. What was the point in this case? He could not help thinking that the Solicitor General really admitted the whole principle of this measure when he said that there was one matter alluded to by the hon. and learned Member for Eye (Mr. Inderwick) which might be worthy of consideration, and it was the question of trial by jury. Why, he ventured to say that this was what was now asked for—it was the whole principle of the Bill. The state of the case was that the Judicature Acts allowed certain Rules to be framed by the Judges and embodied in an Order of Council, and which would then become law. After they had become law they were to be laid on the Table of the House. Now, under these powers of framing Rules of procedure and practice, there was reason to believe that there was an intention to make an alteration with regard to trial by jury— that important right being dealt with as a matter of procedure or practice. That being so, the Committee were told by the Solicitor General that the point might be worthy of consideration. How, then, was Parliament to have an opportunity of considering that point? Why, by passing the Bill of his hon. and learned Friend, which asked no more than that, in matters of this description, which might involve principles of the most extreme importance, instead of the Rules being framed and made into law immediately, and afterwards being laid on the Table of the House within 40 days, as required by the Act, they should be laid on the Table of the House 40 days before they came into force. In the latter case, if the Rules related simply to a matter of procedure they would not be interfered with; they would lie on the Table for the prescribed time, and be passed as a matter of course. But if, as his hon. and learned Friend had admitted, they related to and were intended to affect the Constitutional right of trial by jury, he ventured to say that, in making that admission, the whole principle of the Bill was conceded.


said, as far as he could see, the legal discussion in which they found themselves engaged at that very late hour (2.20), was likely to continue for some time. The principle involved in the Amendment seemed to be an important one, and in order to give time for its full consideration he moved to report Progress.

Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Dillwyn.)


said, he would appeal to the Committee not to agree to the Mo- tion of the hon. Member for Swansea. The question could now be very shortly determined; but, if Progress were reported, the discussion would probably be continued at length on another occasion, and, therefore, he hoped the Committee would be allowed to proceed.


said, on the condition that they were allowed at once to go to a division, he was willing to withdraw his Motion.

Motion, by leave, withdrawn.

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

The Committee divided:—Ayes 69; Noes 76: Majority 7. —(Div. List, No. 131.)

House resumed.

Bill reported; as amended, to be considered upon Friday.

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