COMMITTEE. [Progress 24th May.] (Hansard, 25 May 1882)

§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, he had now to formally move "that the Chairman do report Progress," and he would state the reasons why he made the Motion. As the Bill now stood he must offer it his opposition, because, as the Committee were aware, it would render the working of the Courts impossible. At present the Judges had power to make certain rules and regulations, some of which were very important, and others of which related to 1694 mere matters of detail in connection with the Courts. It would be unwise for the House to refuse power to the Judges to make rules and orders for the regulation of their practice. The Bill would to a certain extent take away such power, because a rule or regulation could not come into operation until it had been laid on the Table for a given period. For instance, if the Judges on the 1st of July in any year saw the necessity of making a rule to meet any emergency, and if the House happened to rise on the 10th of August, the new rule could not come into operation until 40 days of the next Session of Parliament had expired, so that for eight months of the year the new rule could not apply. There would not be between the 1st of July and the 10th of August 40 days during which, as the Bill provided, the matter could be discussed; and if the House met on the 7th of February in the following year, the new rule could not be sanctioned until after the 20th of March. He felt that this was a matter which would raise so much difficulty that the Bill could not be agreed to. He could not, however, disguise from himself the fact that the Bill of the hon. and learned Gentleman (Sir Hardinge Giffard) was chiefly aimed at one state of things. There had been a rumour afloat that the Judges intended to make such alterations in procedure as would practically abolish in some cases trial by jury. There were some Members in the House who were adverse to delegating to the Judges the functions of the Legislature, and to allowing them, by order, to alter and change the Constitutional mode of trial. He did not wish to enter upon the question, for it was a fair one for discussion. The Bill, however, went far beyond that object, and applied to all regulations that the Judges might be disposed to make. What he had to suggest was that the Chairman should report Progress, and ask leave to sit again. If that were done, he would confer with his hon. and learned Friend, and would consult the Lord Chancellor as to whether something could not be done to meet the wishes of the hon. and learned Gentleman. He did not think the hon. and learned Gentleman would lose anything by consenting to Progress being reported, because he (the Attorney General) did not make the Motion with any other desire than to see if the Go- 1695 vernment could not meet the views of the promoters of the Bill.

§ SIR HARDINGE GIFFARD
said, he quite agreed that, under the circumstances, it would be desirable to report Progress. He must, however, protest very strongly against some of the observations made by the Attorney General; and in agreeing to report Progress, it must not be understood that he assented to the views entertained by the hon. and learned Gentleman in regard to the Bill. The Bill only dealt with such orders as were required by Act of Parliament to be laid before Parliament. An Act of Parliament had delegated to the Judges the power to make laws for their own procedure, and the only alteration now proposed was that those laws should be laid on the Table of both Houses, and then, by an Address of each House, Her Majesty should or should not affirm them. It was quite true that inconvenience might arise in the case cited by the Attorney General; but it was equally true that inconvenience and danger might arise if the rules were allowed to be enforced without the approval of Parliament. For instance, if a rule were made on the 11th of May, and Parliament adjourned on the same day, the rule would become law at once, and it could not be altered until Parliament re-assembled. He was satisfied that when the Legislature intrusted these powers to the Judges, it was under the belief that the powers were not so extensive as had since turned out. There was now a general feeling on both sides of the House that the powers should be limited. In assenting to report Progress, it must not be understood that he assented to the notion that it was only against the power of the Judges to abolish, in some cases, trial by jury, that the Bill was aimed. He thought the abolition of appeal from Judges by themselves was even worse than the abolition of trial by jury. The majority of Judges, he believed, were very much against it, and it was only by a committee of Judges that the change was contemplated. A small number of Judges, finding appeals from themselves ex- 1696 tremely inconvenient, suggested that, in certain cases, appeals should be entirely abolished. He thought that was an extremely undesirable thing, and he would do what he could to prevent such a very grave and mischievous alteration.

§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)
said, he thought his hon. and learned Friend (Sir Hardinge Giffard) was under a complete misapprehension. The learned Judges had no power to make any rule of the sort he had described, and he did not know that they intended to do so. The Judges could modify a rule, but they had no power to modify a provision of an Act of Parliament.

§ SIR HARDINGE GIFFARD
said, he was very glad to hear the Solicitor General say that that was so; but he thought it should be put beyond all doubt.

§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, his hon. and learned Friend had introduced a Bill to meet a state of things which did not exist. He was afraid there was not much chance of an agreement; but he would do his best to meet the wishes of the hon. and learned Gentlemen.

§ MR. BUCHANAN
said, that, as his name appeared on the back of the Bill, and as a Scotch Member, he wished to say a word with regard to the Bill. In Scotland they had experienced great disadvantage in consequence of the rules made by English Judges. Rules were made by the Judges under the Judicature Act of 1875 with regard to service of writs out of the jurisdiction; and on account of the dissatisfaction which they caused, an appeal was made to the Home Secretary and to the Lord Chancellor. Under one of these rules, the jurisdiction of the English High Court was extended practically over all Scotland; and though, after the appeal he had mentioned, the rule was altered, and there was a slight diminution in the number of cases in which Scotchmen were injuriously affected, the diminution was merely temporary, and at the present time Scotchmen were being continually cited on frivolous pretexts before the English High Court. The grievance was not only felt keenly by the legal societies in Scotland, but by the commercial classes, especially the small traders. He hoped the hon. and learned Gentleman 1697 (Sir Hardinge Giffard) would press the Bill.