HC Deb 16 December 1908 vol 198 cc1944-50

Considered in Committee.

(In the Committee.)

Clauses 1 to 3 agreed to.

Clause 4:

LORD R. CECIL moved to omit subsection (1) which provided that the Lord Chancellor might request the attendance at any time of a Judge of the High Court to sit as an additional Judge of the Court of Appeal, and that any Judge whose attendance was so requested should attend the Court. He had no objection, he said, in principle, to Judges of the High Court being capable of being summoned to assist the Court of Appeal, but it must be obvious to the Committee and to the occupants of the Treasury Bench that that would throw additional work upon Judges of the High Court. The Attorney-General would know that there was a great deal to be said against any proposal which would add materially to the work of the Judges of the High Court. He could assure the Committee that this was really a matter of some seriousness. Before additional work was put upon the Judges of the King's Bench Division, the Committee ought to have some assurance that the Government fully realised the rather serious position of the work of that division at the present time. In 1870 there were eighteen Judges of the then Queen's Bench. Some few years later three Judges were taken away and given to the Court of Appeal when it was set up by the Judicature Act. In exchange it was provided that the Court of Appeal and Chancery should assist the Queen's Bench Judges by going on circuit. The Attorney-General recollected perfectly well, he was sure, that when that experiment was tried it was found that the Chancery Judges were not sufficiently familiar with the Criminal Law to be able properly to discharge the duties of circuit. The matter was, therefore, abandoned and the Queen's Bench had not yet got the quid pro quo in respect of the three Judges taken away to assist the Court of Appeal. The result had been that there had been very considerable delays in the transaction of the Common Law business of the Court; so great had been the delay in fact, that last year an additional Judge was appointed to sit on the King's Bench side, and that had no doubt, afforded some relief. Moreover, since 1870, when the three Judges were taken away, business activity had greatly increased and even if this had not given rise to a greater number of cases, it had certainly added to their complexity and thus thrown additional duties upon the Judges of the Kings' Bench Division. In 1883 bankruptcy business was given to this Division; and when the Railway and Canal Commission Court was established it deprived the Division of a great part of the services of a Judge. Then the Court of Criminal Appeal was established. He had been a great supporter of that measure, and he saw no reason so far as he had been able to watch its work, to regret giving that support, but its establishment had added considerably to the work of the Kings' Bench Division. Three Judges sat almost every week in that Court. He desired to submit to the Attorney-General that if additional work was to be thrown upon this Division by the Bill, the Committee should be given some assurance that the Government were alive to the serious state of the block in the work of the King's Bench, and that they would devote their attention to ascertaining whether something could not be done to remove the block by the appointment of additional Judges. Owing to the development of industry, it was becoming increasingly important that commercial disputes should be decided with great rapidity. He felt that the House had not been always quite alive-to the real failure of the State to meet the requirements of litigation. He did not believe that anybody was really satisfied with the system of arbitration. In his opinion, it was in many respects a thoroughly unsatisfactory system, and it was very largely resorted to, not because litigants liked it or preferred the rather haphazard decisions of the arbitrator to the scientific decisions of the Judge, but because they could not get their cases decided with the required rapidity by ordinary litigation. The existing system amounted to a denial of justice to many of his Majesty's subjects, and he pressed upon the Government the appointment of additional Judges as a method for redressing the grievance. The expense would be comparatively trifling. Court fees, according to some estimates, more than paid the salary of a Judge, or, according to a more moderate estimate, were sufficient to make that salary but a trivial addition to public expenditure. He was prepared for drastic reforms in the circuit system, but addition to judicial strength would be urgently necessary; it was unreasonable to suppose that we could do with less than was found necessary in 1870. He begged to move.

Amendment proposed— In page 2, line 10, to leave out subsection (1)."—(Lord R. Cecil.)

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

MR. RAWLINSON (Cambridge University)

earnestly, supported his noble friend. He had not the slightest objection to the clause, it was quite necessary, and it was not out of hostility to the Bill he had given notice to omit the subsection, but to call attention to the undesirability of taking Judges from the King's Bench Division. Last night further powers were given to the Lord Chief Justice to draw the Judges from the King's Bench to the Court of Criminal Appeal, and that would mean that the latter would sit in two divisions, making a great strain on judicial strength. When the Court of Criminal Appeal Bill was before the House it was stated that if it caused inconvenience to the King's Bench Division further Judges would have to be appointed. The Government were about to erect two new Law Courts, but unless they made further appointments there would not be Judges to sit in them. On 16th November ten King's Bench Judges were appointed to be on duty in London, but only five were able to keep those appointments, because they were actively engaged in work elsewhere. Judges were trying to do more work than they could possibly get through. The time had come for adding to the strength of the King's Bench Division.


said that if he were disposed to deal controversially with the facts and arguments put forward he would have a difficult task. He did not propose to do so, because to deal with the question of additional Judges for the King's Bench Division was beyond the scope of the Bill, though undoubtedly a legitimate opportunity for a discussion of the subject was offered by the clause. But on this measure he could give no undertaking that additional Judges would be provided. He was not in a position to pledge the Government to any course whatever. He fully admitted the justice of what had been said as to the additional strain put upon the Judges by the Criminal Appeal Act and in other ways. If the arrangements as to circuits and chambers did not afford any relief, undoubtedly the considerations urged would become more urgent. There was not much difference of opinion upon the points raised, it was a question for the Treasury. It was a legitimate question to bring before the Government, and well worthy of attention.

Amendment negatived.

MR. RAWLINSON moved to amend the clause by adding words to provide for the omission of the word "two" from the last paragraph of Section 1 of the Judicial Committee Act, 1883. He explained that the section of the 1883 Act referred to gave the Lord Chancellor power to appoint two Judges to sit on the Judicial Committee of the Privy Council. What he proposed by the Amendment was that the Lord Chancellor should have unlimited discretion. There was no reason why the number should be limited to two. No harm would be done by the Amendment, because it would rest upon the Lord Chancellor to make the appointments, and it certainly might in some cases do the greatest amount of good.

Amendment proposed— In page 2, line 22, at end, to add the words '(4) The last paragraph of Section 1 of the Judicial Committee Act, 1883 (3 & 4 Will. VI., c. 41), is hereby amended by the omission therefrom of the word "two."'"—(Mr. Rawlinson.)

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


was understood to say that there were some considerations which, perhaps, had not occurred to his hon. and learned friend, which made it undesirable to accept the Amendment. The effect of it might be that the Government of to-day might multiply Judges without limit or restriction in what was now the highest Court in the Empire. Without this limit any Government might create Privy Councillors, and then call upon them to sit in this Court, and it might appoint them with regard to important Imperial cases, and the majority might consist of persons who had not been Judges. He did not think that the suggestion would make for the dignity of the Court or that quasi political considerations should be allowed to enter into the matter.


thanked the hon. and learned Attorney-General for his courteous reply, and he felt his judgment must be better than his own. He would withdraw the Amendment, but he hoped the hon. and learned Gentleman would consider his previous Amendment in a better light, as it was on safer ground.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 5 agreed to.


, in moving a new clause, was understood to say that the reasons for it were very simple. The Judicial Committee Amendment Act of 1895 did not include the Chief Justice or a Justice of the High Court of Australia, as that Court had been formed since the Act, and that was also the case in regard to the Chief Justice or Judge of the Supreme Court of Newfoundland. The Schedule of the Act also did not include the Transvaal and the Orange River Colony, which had been added to the Empire since the date of the Act.

New clause— (1) Section one of the Judicial Committee Amendment Act, 1895, shall have effect as if the persons named therein included any person being or having been Chief Justice or a Justice of the High Court of Australia or Chief Justice or Judge of the Supreme Court of Newfoundland. (2) The schedule to the Judicial Committee Amendment Act, 1895, shall be read as if the Transvaal and the Orange River Colony were included therein as South African Colonies."—(The Attorney-General.)

Brought up and read the first and second time, and added to the Bill.


was understood to say that his next new clause dealt with a very short and simple matter. Originally every appeal was specially referred to the Judicial Committee of the Privy Council. Then there was an Act in 1841 by which the Privy Council were empowered to make an order for twelve months. It was now desired instead of an order being made for twelve months that the Privy Council should have power to make the order indeterminate to hear all cases of appeals as they arose.

New clause— His Majesty may from time to time, by Order in Council, make a general order directing that all appeals shall be referred to the Judicial Committee of the Privy Council until the order is rescinded, and Section nine of the Judicial Committee Act, 1844, shall have effect as if any such general order for the time being in force were substituted, in the first proviso to that section, for the annual order therein referred to, and the time for which the order remains in force were substituted for the twelve months next after the making of the general order. The expression 'appeals' in this section means appeals on petitions presented to His Majesty in Council, and includes any complaints in the nature of appeals and any petitions in the matter of appeals."—(The Attorney-General.)

Brought up and read the first and second time, and added to the Bill.

Amendments proposed— In page 3, line 6, to leave out the word 'Colony,' and to insert the words 'of Good Hope.' In page 3, line 8, to leave out the word 'Colony.'"—(The Attorney-General.)

Agreed to.

Schedule agreed to. Bill reported; as amended, to be considered to-morrow.