HC Deb 27 May 1913 vol 53 cc141-56

Postponed Proceeding resumed on Question, "That the Bill be now read a second time." Debate resumed.

10.0 P.M.

Sir RUFUS ISAACS (who was very imperfectly heard in the Press Gallery)

I was dealing with the constitution of the tribunal and the assistance which might be given, as the House knows the very valuable assistance, by those Law Lords who have retired. Besides them there are a number of judges who are Members of the Privy Council who sit in our Courts, like the Lord Chief Justice, the Master of the Rolls and the President of the Probate, Divorce and Admiralty Division, who are also qualified to sit, but who have their own work to do, consequently they are unable to give much assistance to the Judicial Committee. The consequence is that substantially there are only these four Law Lords and the ex-Lord Chancellor, Lord Mersey, to whom I have referred, and occasionally Lord Dunedin, to constitute the two Courts, the House of Lords and the Judicial Committee of the Privy Council. At the Imperial Conference it was pointed out very clearly that it was desirable to have an addition to the strength of the Judicial Committee. It was thought that a quorum of three was insufficient and that there should be a quorum of five. That is the point to which considerable attention was directed. There is no doubt that some of the Dominions have a strong objection to the decisions of their Supreme Courts, sometimes consisting of five or six judges, being overuled by three judges sitting here. The whole discussion eventuated in this: that the recommendation was made and a resolution passed to the effect that there should be these two new Law Lords constituted so that there would be greater opportunities of forming a satisfactory quorum. If you take into account the number of judges who are available, it must be obvious to the House that there is not a sufficient number to man both the Judicial Committee and the House of Lords. The recommendations of the Conference were formulated in eight propositions which were agreed to by the Conference. I will read those which are material to this Bill. The first was: At present the House of Lords is the Supreme Court of Appeal for the United Kingdom, and the King in Council (in effect the Judicial Committee) is the Supreme Court of Appeal for the rest of the Empire. The second was:— It is proposed to take a first step towards combining these Courts into a Supreme Court of Appeal for the Empire, and towards strengthening them by adding to the number of judges composing them. The third was:— The scheme is that the Home Government should add two selected judges to the Lords of Appeal. There would then be six Law lords devoting their whole time to sitting in the two Courts. It is that proposition which is embodied in the Bill now before the House of Commons. Undoubtedly the work of the Judicial Committee has increased very considerably during the last three years. Those recommendations were decided upon at the Imperial Conference of 1911, and from that time, including last year, the number of appeals which have been dealt with has increased, and it is certain that the work of the Judicial Committee and of the House of Lords will in all the cases tend to increase most certainly in complexity, and I must also say in duration of argument. There is one case at the present time pending before the Judicial Committee which comes from the Commonwealth of Australia. It has already lasted some ten days. It involves a great many difficult questions. It will be resumed, and it will certainly require another three or four days before it can be concluded. The most important questions come from the Dominions, and altogether the Judicial Committee deal, I suppose, with the most vital points that arise ire our Dominions, and also with the constitutional points which are constantly occurring in Canada, Australia, and elsewhere. The substance, therefore, of the proposal of the Government is to embody the Resolution of the Imperial Conference by the addition of these two Law Lords. When this is done, it is quite true that even with the six Law Lords and with the Lord Chancellor presiding we should not be able to man the two Courts simultaneously without the assistance of some of those who are not bound to sit, but who are willing to give assistance whenever it is required, whenever they can. We shall undoubtedly have to call upon them in the future as in the past, but it will be possible now, when you have this nucleus of judges who are under an obligation to sit, to so arrange the business of the Judicial Committee and the Judicial Tribunal of the House of Lords that you will have these two Courts effectively manned, as they are at present, but also with an increased number. I think that everyone who has practised before these Courts, not only those who come from the Dominions to argue cases here, but those who are in the habit of appearing before the Courts, will agree it is very unsatisfactory to have to argue the kind of cases which go to the House of Lords and to the Judicial Committee when they are composed of three judges only. Our Dominions themselves have objections to that, and I know perfectly well that those who practise in this country before these Courts are of the same opinion. I suppose there is no supreme tribunal in any country which has so few judges, and which will have so few judges, even when we have added thereto those proposed to be added under this Bill.

A question to which I should refer for a moment is the salary of the two new Law Lords. I indicated just now that it was the intention that the salary should remain the same as had been fixed hitherto for the Law Lords up to the present moment. At one time it was thought that the salary might be reduced to £5,000, and that was the first proposal, but it was pointed out then that that really was putting the members of the highest tribunal at a lower rate of salary than a judge of first instance in the High Court, because he gets the assistance of a clerk, who is provided outside his salary. As the result of the criticisms which have been directed to this proposal, we came to the conclusion that it is better to maintain the same rate as before, and not make any distinction, and, at any rate, as matters are at present, to give the increased salary of £6,000 a year to these new members of the highest tribunal. We are not making any proposal to increase the salary. What we are proposing is that the salaries of the two new Law Lords shall be the same as the salary of the four Law Lords since 1876.

One other matter is worthy of observation. In the proposals formulated by the Imperial Conference, it was proposed that, in accordance with the wishes expressed by the Dominion representatives, the practice of the Judicial Committee should be modified, so that, in Dominion cases, any dissentient judge may be free to give his reasons if His Majesty's consent is given to this change. At the time of this discussion it was thought by some of the representatives of the Dominions that it would be desirable that the constitutional practice should be departed from which has hitherto always existed. All the members of the House of Lords tribunal are entitled to give their judgments separately, and, if they dissent from the majority to express their dissent in their own judgments. But in the Judicial Committee of the Privy Council, which is an appeal to the King-in-Council, the Judicial Committee gives advice to the King upon which the King either accepts or rejects the petition which is presented to him from the Dominion, and that opinion is always the expression of the Judicial Committee, and there is nothing to indicate whether there is any dissension between the members of the Committee. It has hitherto been thought undesirable that it should be so, and that it would be much better that there should be the one judgment expressed, and that undoubtedly would be the constitutional practice. Since this proposition which I just read, there has been a good deal of correspondence with the Dominions, and as the result of that, as I know from my right hon. Friend, the Dominions have substantially agreed to the view which was expressed, certainly by the representatives of the tribunal here, that it was better to adhere to the old practice and to give one judgment which was to be the decision. The Dominions have now agreed to that, and therefore it becomes unnecessary for us to formulate any proposition of that kind in the Bill. And, moreover, it is not necessary to do it by legislation. It could be done by Order in Council. But it is not proposed at present that effect should be given to that proposition, because the Dominions have agreed to adhere to the old course which has been hitherto pursued.

That, in substance, deals with the various proposals of the Government. I have not gone in any length into the other two. So far as I have been able to ascertain from any of those who had intimated their intention before they had heard the proposal of the Government of opposing this Bill, no objection was raised to the proposal of the Government to increase the number of five to seven, of judges, Chief Justices, and Judges of Dominions who were members of the Privy Council and were qualified to sit on the Judicial Committee. Under the present system, with the number limited to five as it is by Statute, it is not possible to give representation to New Zealand. New Zealand desired it, and it was thought New Zealand should have it, and consequently we propose to take the additional two by extending the five to seven. That does not involve for a moment any increase of expenditure or the creation of new judges. What it does is to give the right to a certain number of judges of particular Dominions to sit in the Judicial Committee of the Privy Council to assist the Committee but they have their duties in their own country and must try cases there. I do not anticipate for a moment that there will be any difficulty about that. The other proposal is one which I am sure I need not dwell upon. It is simply to enable the judges and the Privy Council to sit in the Court of Appeal, so that, if the opportunity offers, they may lend assistance to the Court of Appeal if they are willing to do so. It is necessary to do that by legislation, to make them ex-officio members of the Court of Appeal. That is all that it is necessary to say upon that.

At the present moment there are altogether sixty-three appeals which stand in the list for hearing. There are fifteen appeals from India, twenty-four from the Dominions otherwise, including fifteen from Canada, and there are twenty-four to the House of Lords. That makes a total of sixty-three, involving many very difficult, intricate, and complicated points. If you get the advantage of the assistance of these two Law Lords there is no doubt that both the Judicial Committee and the House of Lords will be able to cope with the work. Without that assistance, as I know from the Lord Chancellor, and as I am empowered to say, it will be quite impossible to deal with this huge list and quite impossible for them to make the arrangements which are necessary. I may point out, as showing some of the difficulties which confront those who are responsible for the constitution of these Courts, that counsel come from Canada for the purpose of representing their cases, and it is necessary to constitute your tribunal some time ahead in order that you may be able to take these cases from Canada so that they may be heard, and the counsel who are over here may be able to argue all the cases with which they are concerned, and then go back to their own country to take up their own work. I hope the House, when it understands why it is that this Government is making these proposals, will not persist in the objections which have been foreshadowed with regard to the creation of these two new Law Lords. It is impossible for the work of the Empire to continue and to be properly done unless this House allows us to create these two new Law Lords. It is impossible for us to give real satisfaction to the views which they have expressed unless we are empowered to create these two new judges, and I cannot but think that when the House realises what importance is to be attached to the Bill in this particular respect, its passage will be a little less stormy and a little less obstructive than was indicated during the earlier stages of another discussion. May I say before I conclude in reference more especially to an observation which fell from the hon. and learned Member for East St. Pancras (Mr. Martin) in the speech which he made in the course of the last Debate, that no question has been raised as to the age at which any of these Law Lords should retire? I am quite sure that those who have practised before the Law Lords will readily recognise that Lord Halsbury, who has given so much valuable service, both in the House of Lords and in the Judicial Committee, has been one of the most assiduous workers in appeal cases. I do submit to the House that this Bill should be passed. This is the third time we have tried to pass it. We tried in 1911. It was then rather late in the Session, and there was a remonstrance from some of my hon. Friends below the Gangway, with the result that in the end we gave way to their views. It was too late in the Session to attempt the impossible. In the congested state of business last year it was impossible to pass it through the House, and now, two years after the Imperial Conference, we are under obligation to pass it, and I do hope that the House will see fit to give it a Second Reading.

Sir A. MARKHAM

I feel in a peculiarly difficult position in rising to oppose this Bill after the speech made by my right hon. Friend the Attorney-General. I would ask the House to observe that in all the observations which the right hon. and learned Gentleman addressed to the House he has not in any way touched upon the question of the reforms which we have been asking, and which ought not to be confined to the High Court, but should be extended to the House of Lords as well. All the arguments in the main which apply to the High Court apply equally to the House of Lords. If the House passes this Bill, I am afraid we shall be absolutely precluded from modifying the present system, or having any reforms whatever carried in respect of the legal body sitting in the House of Lords. Let me first of all refer to the pension question. I am very sorry to deal with the matter, because it is a personal one, but I consider it my duty to do so, although it is an uncomfortable position to take as a Member of this House. The late Attorney-General, in 1910, was appointed a member of the Privy Council and sat for, I think, a few months, retiring in 1911. He retired after considerably less than two years' service. I think it was sixteen months' service, after which he retired with a pension of £3,700. It may be that that is a proper allowance to be paid for His Majesty's judges who retire on account of ill health, but the private Member of this House after all is sent here to guard the public purse, and having regard to the long period which the ordinary citizen has to serve before he obtains his pension, it does seem to my mind a grievance that a pension of this kind can be granted by the Government—because I wish to point out that there was no obligation on the part of the Government to have granted this particular pension. I might refer the House on this point to Section 7 of the Judicature Act of 1876. That Section reads:— Her Majesty may by letters patent grant to any Lord of Appeal in Ordinary who has served fifteen years or is disabled by permanent infirmity from the performance of the duties of his office, a pension byway of annuity to be continued during his life equal in amount to the pension which might under similar circumstances be granted to the Master of the Rolls in pursuance of the Supreme Court Judicature Act, 1873. The Act of 1873 provides by Clause 13— Subject to the provisions in this Act contained in respect to existing judges, there shall be paid the following sums, which shall in each case include any pension granted in respect of any public office previously held by him to which the judge may be entitled: to each of the judges of the Court of Appeal the sum of £5,000 a year, and to the Master of the Rolls a salary of £6,000. We on this side of the House claim to be the party of economy, and how any country can justify the payment to any public servant of the large sum of £3,700 a year after only a few months' service is to my mind incomprehensible. I do not for a moment suggest that a judge who has sat and done his duty year after year should not be entitled to a pension adequate to the high office which he held. It would be outrageous if the judges upon whom such great responsibilities rest were not to have proper pensions after they leave their offices. But this is a very different matter. Owing to the system on which judges' salaries are based we have no opportunity on the Estimates of discussing these questions. The only opportunity which we have is on an occasion of this kind. I am not opposed to the proper number of judges being appointed to deal with the business that comes from the Empire. It is, as I think the House will freely grant, a great honour conferred on this country by the great Dominions, for it shows great respect for the ability and integrity of our Courts that they should bring their cases 12,000 miles to this country to have a final decision given on legal matters. But that is all the more reason why we on this side of the House, who have to take part in the setting up of the Court, should see that the business of that Court is conducted in a manner, to use the language of Lord Loreburn, which meets with the approval and is followed by the ordinary man. After all, the judges are not more entitled to special privileges than the ordinary citizens of this country. Under this Act we allow the Government of the day to give a pension when the judge has served the period which I stated in the particular case I have cited, and I defy any Member of the House to go down to any meeting of his constituents, or any body of the electors who find the taxes that we vote here, and justify the action of the Government in this matter. This Government claim to be a democratic Government; they claim to be here representing the great industrial classes of this country. Will the Attorney-General go to his constituents at Reading and tell them that a judge who has served his country for a period of thirteen or sixteen months is entitled to receive a pension of £3,700 a year? It is unthinkable, and the whole system is wrong. Then there is the question of the Long Vacation. Is there to be any reform in that matter, or is it to be the same as before. We understand that we are to have another Royal Commission, but I do not think that I am disclosing anything in breach of confidence when I say that it is the general opinion that one recommendation will be the shortening of the period of the Long Vacation. Will legislation be necessary, or will the reduction of the Long Vacation equally apply to the House of Lords, if the Bill is passed?

Sir RUFUS ISAACS

If by Statute the Long Vacation is altered, it would have application just as much to one branch of the judicature as to another.

Sir A. MARKHAM

The Long Vacation is not fixed by Statute.

Mr. MARTIN

The same thing would apply to changes in the rules of the Court.

Sir A. MARKHAM

I think my right hon. Friend is incorrect. The Long Vacation is fixed by a committee of the judges, and not by Statute.

Sir RUFUS ISAACS

That would not affect legislation.

Sir A. MARKHAM

Of course, this House can alter anything, and it might very well be that a Statute might regulate the time of the Long Vacation; but what I particularly ask is whether the alteration would equally apply to the House of Lords. It would meet one of my objections if I could feel that when we have those reforms for the High Court, that they will equally apply to the other Courts and to the House of Lords.

Sir RUFUS ISAACS

The House of Lords and the Judicial Committee do not sit as they do in the High Courts from day to day, but if you have a Statute affecting the Long Vacation, then as far as the Long Vacation affects either the House of Lords or the Judicial Committee it will affect them as well as the other Courts.

Sir A. MARKHAM

May I ask the attention of the House to the fallacy underlying the argument of the right hon. Gentleman? He told the House that if two extra judges were appointed the arrears would be dealt with and more speedy justice would be obtained, and he said that the work of the Empire could not be carried out unless those additional judges were appointed. I do not understand that argument. The Attorney-General tells us that in the opinion of the Dominions the Court should not be less than five. The quorum at present is three, and if you are going to have a quorum of five how is it going to deal more expeditiously with those appeals which it is absolutely necessary should be dealt with? The course of business will remain exactly as it is. I should think that the wheels of justice would move more slowly with five than with three. In my opinion, in an industrial business the best board of directors is two when one does not attend. That, to my mind, is the ideal system under which business can be rapidly and efficiently carried out. In this case we are asked to appoint five judges, not because there is in this country any demand on the part of litigants that there should be an additional number, but simply because the Colonies say, according to what the Attorney-General said, that it is not in the interests of the dignity of the judges in the King's Dominions that their decisions should be overruled by a minority of judges sitting in the House of Lords. I do not know whether that actually was stated. I cannot find it. On this point the House ought to bear in mind that on the title page of this Bill we are referred to the Imperial Conference of 1911. There is not a single copy of that to be obtained in the Library. There was one copy there, but it has disappeared, and I have not been able to get hold of it. I think, therefore, we might have had some papers to enable us to have gone more fully into the points raised on the title page of the Bill itself.

The SECRETARY of STATE for the COLONIES (Mr. Harcourt)

The whole of the proceedings of the Imperial Conference will be found in the Blue Book, Imperial Conference, 1911, Command Paper, No. 5745, which has been in the hands of hon. Members for two years, and of which there is a large number of copies, bound and unbound.

Sir A. MARKHAM

My hon Friend knows perfectly well that we all get these Papers, and—at any rate, I do—toss them the morning they are received into the waste-paper basket. I have no doubt every Member does the same. To ask me to carry in my mind a Blue Book printed two years ago is really not a reasonable proposition.

Mr. HARCOURT

I was not asking my hon. Friend to carry it in his mind. I was asking him to refer to it in the Library.

Sir A. MARKHAM

I took this memorandum to the chief librarian. He told me there was one copy in the Library, but it had disappeared. I do not know whether any Member is going to produce it later in the discussion. I understand that the delinquent is the Attorney-General himself. Possibly that is the reason why I have not been able to obtain a copy in the Library. As to the Vote Office, owing to lack of space these documents are only kept for the particular Session in which they are issued. Hence, not having the Papers before me, I cannot refer to the statement. In any case, the mere fact that the Dominions ask for an increase is not a sufficient reason for asking the House to appoint two additional judges at the salaries named. The total cost is not to be measured by the amount of the salaries. It is always said that the fees pay for the running of the Courts, but anyone who examines the amount voted year by year in respect of the administration of justice can see that the salaries of the judges represent really an insignificant sum compared with the gross amount voted. The Attorney-General has not given any figures as to the arrears except for the present time. He has given no comparative figures to enable the House to judge whether there is any accumulation of arrears. I do not think there is.

Sir RUFUS ISAACS

I have not said that there are arrears.

Sir A. MARKHAM

Then what is the reason for this demand? If there are no unreasonable arrears and speedy justice can be secured, there must be some other reason. Why should the Government ask for these additional judges simply to have a quorum of five instead of a quorum of three? In the House of Lords judges sat in 1910–87 days; in 1911–100 days; and in 1912–86 days. The Judicial Committee sat in 1910–76 days; in 1911–101 days; and in 1912–101 days. The Attorney-General says that there has been an increase in the number of cases. If there has been an increase it has been dealt with in the same number of days, because the figures for 1911 and 1912 are precisely the same. The total number of cases heard before the Judicial Committee was 34, 50 and 39 in the respective years. The reasons that the Attorney - General has advanced that we should sanction this proposal do not seem adequate. Again, are these judges to sit in the Court of Appeal only when they think fit? After all they are public servants. In my opinion they ought to be under the direction of the Lord Chancellor, and if the Lord Chancellor directs them to sit in the Court of Appeal they ought to sit. This matter ought not to be left to the discretion of the judges. I fail to see why the Lord Chancellor should not have the power to say to these judges in the House of Lords, when no business is available and the Court is not sitting, that they should take their places in the Court of Appeal and help to dispose of the arrears. This is usurping a power that Parliament possessing, should emphasise at the present time, for after the judges have been appointed we cannot do so. I do not wish to obstruct this Bill; if I did I should proceed to read Statutes which would continue the discussion for a much longer period. The Attorney-General put before the House a most conciliatory statement, although he seemed to give a kind of sanctity to the Appeal Court and the House of Lords, but with that exception I think his speech was admirable. Still, I think the reasons given for the appointment of those judges are wholly inadequate.

Mr. SANDERSON

I do not think the arguments advanced against this Bill by the hon. Baronet who has just sat down are very convincing. I am strongly of opinion that four Lords of Appeal are not sufficient for the highest tribunal not only in this land, but the highest tribunal in the Empire. The Attorney-General put the case very well, if I may say so, from that point of view. He pointed out that the Dominions have expressed the view that it is undesirable that perhaps six or seven judges in the Colonies or Dominions should be over-ruled by three individuals sitting in this country, no matter how learned these individuals may be. I have often heard the same opinion expressed in this country. It does sometimes happen that a judge of first instance who may be very highly thought of as a lawyer may decide in one way, and may be upheld by the Court of Appeal in which three Lords Justices were sitting, and therefore a suitor may have the opinion of four very learned judges in his favour. Then the case may come to the House of Lords where he may find only three Lords of Appeal-in-Ordinary sitting, and these three may over-rule the Court of Appeal, and by so doing they over-rule the considered opinion of four learned judges. That is a point that some people in this country do not understand. I have heard suitors say, "I have the opinion of four learned judges in my favour, but when I go to the House of Lords I find that opinion overruled by three other judges." When one considers, in reference to the highest Court in the Empire, what important interests they have to decide, and what a variety of subjects they have to deal with, I think it most desirable that the number of Lords of Appeal-in-Ordinary who sit in the ordinary course of events should be increased from a minimum of three to a minimum of five. I think that that alone is sufficient reason for supporting this Bill. In one sense I am sorry the hon. Baronet raised the question of pensions, though in another sense I am glad, because I think there is a perfectly obvious answer. For a tribunal of this kind you have to try and get the very finest intellects available. In fact, I see in this Memorandum drawn up by the Colonial Conference the words are used that there should be added to the highest Court of Appeal "two English judges of the finest quality." I do not quite know what the expression "finest quality" means. It is an ill-chosen phrase, but I think it means you should get the very best men available. If you wish to get the best men available you must have some substantial consideration to attract them. If you wish to induce the best men from the learned profession to give up their position and their incomes in order to take a seat on the judicial bench, you must give them something which is likely to attract them, and £6,000 a year is by no means sufficient to attract some of the finest intellects in the profession. I have in mind one or two individuals who are not Law Officers, but who are Privy Councillors, and are much thought of throughout the world, and you must offer such men something which is really attractive. A man may be attracted by £6,000 a year if he understands that when he breaks down in health he will get a substantial pension. In the case which the hon. Baronet has referred to it was the greatest possible misfortune to the individual and a great loss to the country that he was taken so seriously ill a short time after he was appointed to the high office from which he was compelled to retire. Under the Section the pension is limited to such sum as might in similar circumstances be granted to the Master of the Rolls. That is the limit of authority given by the Statute. In regard to that matter, I do not think there is any real cause of complaint. With regard to the number of days, I do not think that is a good way of arriving at the amount of work done by any Court. Such returns are apt to be very misleading. For instance, one learned judge told me, with regard to the particular commission now sitting, that a return had been made of the number of days he was supposed to have occupied on Circuit. With regard to one place, it was stated that he occupied one day in going there, another day in sitting there, and a third day in travelling away from it. What were the actual facts? He said that h cancelled the Assizes at that place altogether, and sat for three days in London. That shows how inaccurate those returns are in some cases. It may be the same with regard to the ultimate tribunal in this country. When you have got a tribunal like the House of Lords, you must remember that nearly every judgment that is delivered is either a very important judgment to a large class of individuals or is one upon a principle of law, and you have not only to count the days which are occupied by arguing the case, but you have also to count the days which are occupied by the members of the Court in considering their judgment. You might thus, if you are estimating the real amount of the work, very nearly double the number of days that the Court sits.

Sir A. MARKHAM

If you double the number you get 420 days in the year.

Mr. SANDERSON

Perhaps I am putting it too high; it makes them perhaps half as many again. At all events, I am quite certain you ought to add to the number of days which the Court sits the large number of days that judgments are being considered. For these reasons, and there are others which could be put forward with equal force, I think this Bill is one which should be supported by the Whole House.

Mr. MARTIN

I think the Government have treated Members sitting below the Gangway with rather scant courtesy. The Attorney-General has placed the matter very nicely indeed before us, and if the conduct of the Government in dealing with it had been as gracious, we should not have had any cause to complain. I object to this Bill because I cannot agree with the statements made by the Attorney-General. If I could look upon the position as he put it in his speech, I should support the Bill. It is because I differ almost entirely from him in regard to the real situation that I oppose it to-day as I have done previously. The Attorney-General said there were sixty-three cases standing for hearing in the Court between now and the end of July. He put that forward as a strong reason for passing the Bill. When the Bill was introduced in 1911, there were not sixty-three cases, nor were there when it was introduced in 1912. This is a new reason which has been discovered. It has not affected the Government at all, because they had made up their mind to appoint these two judges.

It being Eleven of the clock, the Debate stood adjourned. Debate to be resumed To-morrow (Wednesday).

The remaining Orders were read and postponed.

Adjourned at Four minutes after Eleven o'clock.