HC Deb 23 November 1928 vol 222 cc2122-36

Order for Second Reading read.

The SOLICITOR-GENERAL (Sir Boyd Merriman)

I beg to move, "That the Bill be now read a Second time."

This Bill is to provide for an increase in the Judical strength of the Judical Committee of the Privy Council and of the House of Lords. The proposals are to add to the Judical Committee of the Privy Council two members with Indian experience, either a High Court judge in India or a barrister of experience in India at a salary of£2,000 a year and a pension of£1,000 a year after five years' service on retirement at 72; and as regards the House of Lords, to acid one additional Law Lord at the present salary of£6,000 a year and a pension after 15 years of£3,750. I need scarcely remind the House that the additional Law Lord will be available not only for sitting in the House of Lords but also in the Privy Council. The facts with regard to this matter were fully stated by my hon. and learned Friend, the Attorney-General, on the Financial Resolution the other night, and it will, I think, be sufficient if I restate them very shortly. It is really common ground that, as far as the administration of justice is concerned, there is no more urgent problem at the present moment than that the final Courts of Appeal both for Great Britain and for the Empire as a whole should be properly manned, and that at the present moment they are insufficiently manned. I might Almost content myself with saying that the urgency was fully admitted the other day by the hon. and learned Member for South-East, Leeds (Sir H. Slesser), and that no one was more insistent with regard to the grevious necessities, as he himself called them, of the Judical Committee of the Privy Council and incidentally nobody had set a higher example of devotion in administering to these necessities than the late Lord Haldane.

But in a sentence or two I may be able to state exactly what is the present position. The House of Lords is continuously occupied with appeals from Great Britain. The increase in the Indian Appeals alone—and there are at this moment no less than 168 Indian appeals standing for hearing before the Judicial Committee of the Privy Council—makes it absolutely necessary that there should be one Beard of the Judicial Committee sitting continuously for the Indian appeals. Therefore, it follows that if the appeals for the rest of the Empire are to be dealt with expeditiously the Judicial Committee must sit in two divisions. It is obvious that it is most undesirable that either the House of Lords or the Board of the Judicial Committee should consist of less than five Judges. It is very undesirable that a full Court of Appeal either from England or Scotland or any other part of the Empire should be overruled at first by a majority of two to one. It is very desirable that the Court should consist of five Judges. That means that 15 Judges are continuously required. The actual establishment is the Lord Chancellor, six Lords of Appeal-in-Ordinary, and one Indian member who is not a salaried member of the Judicial Committee but who sits by virtue of the Act of 1833, a retired Indian Judge who receives a contribution towards his expenses. As far as that particular member is concerned, the existing retired Judge who is now sitting will be unaffected by this Bill, but it is proposed to abolish that particular arrangement. There is a Clause in the Bill for that purpose, but for the moment, at any rate, he is available. There are, therefore, eight persons permanently available to fill these 15 places, and, if you add the two whom it is proposed to add to the Judicial Committee and the Lord of Appeal-in-Ordinary, you will get no more than eleven persons permanently on the establishment after this Bill has passed.


Are there any other Judges available?


I am just coming to that. When I say permanently on the establishment, I mean Judges whose official duty it is to perform these functions, and, when this Bill is passed, the establishment will be 11. I come to the point with which the hon. Gentleman was dealing. For the rest, we are dependent on ex-Lord Chancellors and such retired Judges, to put it shortly, as happen to be Members of the House of Lords and are Privy Councillors. The House will see how precarious this volunteer assistance is, if I compare the position 12 months ago with the position as it is at this moment. Twelve months ago there were available three ex-Lord Chancellors, namely, Lord Haldane, Lord Buckmaster, and Lord Finlay. Lord Birkenhead is not counted in the calculation, because he has not been available for judicial duties since 1924. May I say, in passing, because there was a mention of this matter the other day, that I do suggest to hon. Members that for the purpose of dealing with this present problem it is entirely irrelevant whether Lord Birkenhead's services were not available, because he was serving in some other official capacity or because of his engagements elsewhere. The problem is a problem of securing efficient man power for these tribunals. The particular reason why any given person happens not to be available, at the moment, does not, I suggest, really go to the root of the question at all. Then, in addition to the three ex-Lord Chancellors, there were four Peers who had held high judicial office. There were Lord Wrenbury, Lord Phillimore, Lord Darling, and Lord Warrington, and in addition three Privy Councillors who were not qualified to sit in the House of Lords but were qualified to sit on the Judicial Committee. They were Lord Sinha, Lord Salvesen and Sir Lancelot Sanderson. That made 10 persons available as volunteer members, in addition to the permanent establishment. That was last year.

At the present moment, there is only one ex-Lord Chancellor available, Lord Buckmaster. Of the volunteer Peers, it is unlikely that Lord Wrenbury will sit again, and of the Privy Councillors Lord Sinha is dead. There are, therefore, only six volunteer members available. So that if we get this Bill we shall only have a margin of two, if we take the full establishment and the volunteers combined. After all, it is only right to say with regard to the volunteer Peers—and the same applies to the volunteer Privy Councillors—that of the three ex-Judges or ex-Lord Justices whom I have named—Lord Phillimore, Lord Darling and Lord Warrington—Lord Phillimore and Lord Darling were already Judges when I was a boy at school. They have earned their pensions by judicial service which long exceeded the statutory time, and some regard has to be had in making demands upon their services to their claims to leisure and to their own disposal of their time. They give their time generously and ungrudgingly, but they do not grow younger year after year, nor are their other preoccupations less insistent. This is the situation as it is at the present moment. I invite the House to allow us to take the Second Reading of this Bill.


I do not think that anybody who has heard the introduction of this Bill by the Solicitor-General can do other than recognise that it is a badly needed Bill. Indeed, I think, one may say that it is greatly overdue. It has been before the House for a considerable period, but has not been proceeded with. I do not know exactly why, but one presumes that perhaps there was some difficulty relating to the payment of the Member from India. Whatever the difficulties may have been, we are glad that they have been surmounted and that the Bill has come up for acceptance in this House. I have only one criticism to offer in regard to the details of the Bill, but it seems to me to be one of considerable importance. Apparently, the scheme of the Bill is this, that the new member of the Privy Council to be appointed is to he recruited either from an ex-Judge or from a legal practitioner in India who has been carrying on his profession for 14 years. The real drawback to the Bill which I find is that the only pension which is offered to the person who may be called upon to fill this post is£1,000 a year. What does that mean? It means, in practice, that no one will be able to accept this position unless they have already earned a pension elsewhere. That, in turn, makes it a necessity that the person appointed to the post will be in the evening of his life instead of in his full maturity. That would be a very unfortunate thing to happen.

Let us suppose that this particular Clause is put into operation and we recruit the new member of the Privy Council from practising barristers of 14 years' standing. Let us say that a man becomes a barrister at 21. After prac- tice of 14 years his age would be between 35 and 40. He is not to be retired under, this scheme until he is 72. What man of standing and position, of such position and standing as we should like to find in a member of the Judicial Committee, of the Privy Council, is going to accept a job of that kind, if he has to work 20 or 30 years for a pension of£1,000 a year? An ordinary Judge in England receives a pension of£3,500 a year and a Nisi Prius Judge in India receives I believe after 12 years' service—the English limit is 15 years—a pension the amount of which I do not know but it is considerably in excess of£1,000 a year, and yet when we are looking for someone to fulfil one of the most important positions in the whole judicial system of the country, namely, a seat on the Judicial Committee of the Privy Council, we are offering a man, if we are to get him, say, at 40, and he has not served a term long enough to earn a pension elsewhere, the prospect of a pension of£1,000 a year.

I do not suppose that a suggestion to enlarge the pension will meet with favour from the back benches opposite, but I would point out that this is really an important Imperial question. I should like to point out what must be within the knowledge of most hon. Members what a very wonderful institution the Privy Council is. The world has never seen anything like it. All the Empire countries overseas which have their own judicial system, their courts of first instance and their courts of appeal are content to look for their ultimate decisions to this great tribunal of the Mother Country. There has been nothing like it since the Roman Empire, nothing like since those words were used which are so familiar to us: Hast thou appealed unto Caesar? unto Caesar shalt thou go! The world has seen nothing like the voluntary system obtaining in our Empire, where all the States come voluntarily to the Mother Country for their ultimate decisions, for the ultimate settlement of quarrels in their own lands, which they bring voluntarily for final arbitrament to His Majesty's Privy Council. We cannot be too careful when we are called upon to choose those who occupy such an important position. The only way in which we can show our gratitude and appreciation is in being very careful that we get the best men available to sit in this Council, which obtains and desrves the confidence of everyone.

I suggest to those who have introduced the Bill that they might consider whether they could not increase the pension to be earned, with the view that it would give them a call on younger men. The Solicitor-General has already outlined, tactfully, what must be obvious, that if we are going to compose the Privy Council solely of men of mature experience and consequently of mature years, we must take them with nature's failings as well as nature's advantages. It is a disastrous thing to contemplate that a man may travel thousands of miles here to present his case to this ultimate tribunal and find it composed of men of mature years, and, partly through weariness, perhaps after a long sitting on a hot day, it becomes obvious that the attention of the older members of the tribunal cannot be fully concentrated upon the case. We have to take human nature as it is, and it is inevitable if we compose a tribunal of those who have ripe experience and who are ripe in years that they cannot always concentrate on the case that attention which is so essential to the dignity, the good work and the practical work of the tribunal. I suggest that the arguments which I have advanced are worthy of consideration, and I hope that those responsible for the Bill will take steps to facilitate the finding of good men for the ultimate tribunal of the Empire, by offering a little larger reward than a pension of£1,000 a year.


I agree with the hon. and learned Member for Bassetlaw (Sir E. Hume-Williams) as to the importance of the Judicial Committee of the Privy Council, and I also agree that if difficulties have arisen recently in regard to the matter it only emphasises the importance of getting a tribunal which will command the highest possible respect and the services of the best people. I should like to raise a question which I hope will be in order. I do not want to be out of order, because I think the question is much too important to risk my being interrupted by any breach of the Rules, which would he accidental on my part. The question is relevant in a way to discipline, and it is this: how far is it wise for a Judge to intermingle judicial and commercial functions? I relate it to this Bill in this way—if I am ruled out of order I shall take advantage of another occasion to raise the matter—that the Solicitor-General stated that, in addition to the regular members of the Committee, there can be a call on the services of ex-Lord Chancellors, and if the services of an ex-Lord Chancellor are not available the need for a new permanent member becomes greater. That is the relevance which my remarks will have to the Bill. It seems to me highly undesirable that a man should sit in the highest possible court of the land, whether it is the House of Lords or the Judicial Committee of the Privy. Council, to-day judging great commercial cases with the knowledge in the public mind that the next day he may desert that office and himself engage in commerce, but it is far more undesirable if the knowledge exists that he may engage in commerce one day and the next day may resume his judicial office. I do not want to say any more because everyone will agree that this is a matter of public principle. Whether he considers it proper to draw a pension from the State at the same time as he is engaged in his commercial pursuits is a matter of taste, and is not so important, but I submit to the House that a very grave difficulty will arise and the dignity and authority of our courts will be seriously undermined if we are to have this new rule under which a man may mingle the two activities.


I should like in a few sentences to call attention to one point which has not been mentioned. Every hon. Member will agree with the great importance of the Judicial Committee of the Privy Council to the Empire. The hon. and learned Member for Bassetlaw (Sir E. Hulme-Williams) has pointed out that the jurisdiction of the Privy Council is greater than that of any other tribunal in the history of the world, but it has this curious difference over every other tribunal; all other tribunals are compulsory whereas the jurisdiction of the Privy Council is a voluntary one depending on the goodwill and confidence of our people over- seas. It is because our people overseas have confidence in the Judicial Committee that they are prepared to come here and have their cases finally determined. It is therefore, of the utmost importance that we should do everything in our power to make the Judicial Committee worthy of that confidence. I think we have been somewhat to blame in the past. The provision now being made is overdue; certainly the arrangements for the meeting of the Judicial Council and the hearing of appeals are not now satisfactory.

But there is one point in the Bill which the Government no doubt have introduced for the purpose of securing the confidence of the people overseas, and that is the provision they have made that the two additional members of the Judicial Committee should retire from office at the age of 72. It must be admitted that in the course of nature with old age comes infirmity of mind and body and, consequently, in accordance with the recommendation of the Royal Commission of 1914, the age of 72 has been selected as the age at which the new members of the Judicial Committee should retire from their office. The Bill proposes the appointment of a seventh Lord of Appeal. That such an appointment is necessary no one will deny, but if it is thought that the new members of the Judicial committee on attaining the age of 72 should retire why is not a similar provision made with regard to the appointment of the Lord of Appeal? It must be borne in mind that the Lord of Appeal, although he will sit in the House of Lords, will have to sit with his colleagues on the Judicial Committee of the Privy Council. Why should one man be required to retire at 72 and another man be regarded as exempt from the infirmities which inevitably attach themselves to old age? It may be that the Government have overlooked this point, but. I hope they will give favourable consideration during the Committee stage when the point that an age limit should be fixed not only for the new members of the Judicial Committee of the Privy Council but also for the Lord of Appeal it is proposed to appoint.


I entirely agree with the contention that these appointments are of the utmost importance from a national point of view and also from an Empire point of view, and I agree also, in spite of what may have been said by some of my hon. Friends on this side, that we ought to appoint Judges in sufficient numbers to meet all the situations which arise; and more than that, that we ought to pay the Judges a sufficient emolument to remove from them the temptation to mix up in situations upon which ultimately they may have to decide. I have listened carefully to the sums which have been suggested should be paid to the judges. I am not sure that I am in a position to say whether the amounts suggested are right or wrong, but certainly we are confronted to-day with the spectacle of one who has been a Judge and may again be a judge of Appeal, in either a voluntary or other capacity, setting himself up to auction, seeking new positions, and making it clear in the Press in every public form that he is out for a great deal more than anything he has hitherto received. With that spectacle in front of us, we should make it quite clear in connection with our Judges of Appeal that at least there will be no place for such a man in the High Court in any future cases that may arise. If this Bill is for the purpose of getting Judges who will act on their salaries and salaries alone, not looking for further emoluments in other forms, I shall be glad indeed to support it so that we may rid our Bench of the type of person who at the present time is so openly offering himself to public auction.


I should like to add one sentence or two in support of what the hon. and learned Member for Londonderry (Sir M. Macnaghten) has said, that this is a suitable opportunity for extending the age limit not only to the Judges of the Privy Council but also to the Judges in the other Supreme Court of this country. It is rather an anomaly that out of these two Supreme Courts only one should be subjected to the operation of an age limit. One would suppose that such a provision would operate in both Courts or not at all. If it is going to operate in the case of one of these Supreme Courts it would naturally follow that it would operate in the case of the other, and I support the suggestion of the hon. and learned Member for Londonderry that this Bill seems to be a suitable opportunity for bringing into operation what is generally felt to be a much needed reform.


I rise to ask one question with regard to the effect of Clause 2. Probably if I had had an opportunity of consulting previous Acts, it would not have been necessary for me to put the point. Under Clause 2 His Majesty may appoint one Lord of Appeal in addition to the six which have been appointed under the Statute to which reference has been made. Is it intended that this shall be a permanent addition to the number of Lords of Appeal in Ordinary who are at present appointed? I understand that the position is that six Lords of Appeal in Ordinary are provided for under the Statute, and this Clause says that His Majesty may appoint one. Does that mean that he may appoint one now or that in future the Court is to be permanently seven instead of six? I hope it is the latter, because otherwise we shall be in a similarly unfortunate position as we are in now in regard to Judges, when the Government have to come to the House for the power to appoint one or two Judges. It happens sometimes that the Government do not like to incur the alleged unpopularity attaching to a resolution of that character. I hope that a similar position will not arise out of this Clause, but that the Clause will allow seven permanent Lords of Appeal to be appointed.

The ATTORNEY-GENERAL (Sir Thomas lnskip)

I will answer the last question first. Clause 2 has been drawn so as to avoid the necessity of the course which the hon. Member holds should not be necessary. The appointment is of a permissive character, that is to say if it should prove to be unnecessary owing to some unexpected decline in the amount of judicial business, there is no compulsion on the Lord Chancellor to appoint a Lord of Appeal. On the other hand, it will never be necessary to come to either House to carry a resolution as a condition for the new appointment. One or two other matters have been raised, and about them all I need say is that they shall receive the attention—I say this with all sincerity—which they deserve. My hon. and learned Friend the Member for Bassetlaw (Sir E. Hume- Williams) raised the question of the amount of pension. He will realise how unusual it is for the Government to be invited to propose to the House a larger expenditure than that which the Government have offered to incur. The whole of the circumstances, of course, have been reviewed, and I am sure that, if this House finds that it is impossible or difficult to get the very best men for these two important positions, it will be willing on a future occasion to supplement what undoubtedly is a modest pension so far as the claim on the Consolidated Fund is concerned.

With reference to the age limit, as is well known, the matter has often been discussed, and it has generally been found that some of the most eminent and almost indispensable members of our judicial bench in the House of Lords and in one or two of the other tribunals, would have been ruled out by the age limit having been fixed at 72 years of age. I quite agree that very good cases of that sort ought not to prevent a rule, if it be a good rule, and now that this age limit has been put into this Bill, perhaps an opportunity of observing its working in practice will arise, and it may be that in future we may have an application of the same age limit to other members of the judicial bench.

I refer with a little hesitation to the general question raised, and quite properly raised, by the hon. Member for North Aberdeen (Mr. W. Benn). I do not wish to say anything now about it, nor indeed do I contemplate saying anything about it at any future time. These events occur, and they make people think. I must not be taken in the least to criticise my Noble Friend, who has taken a course which, as I said on the last occasion, I think he was perfectly entitled to take, so far as the rules and constitutional practice are concerned. But I believe that on the whole the best check upon any errors of judgment will be public opinion which, coupled with the high sense of duty which has always been observed by all members—and by my Noble Friend also, I am bound to say—of the judicial bench, will ensure the same perfection of service which has most happily characterised the members of our judicial tribunals.

1.0 p.m.

It is a great satisfaction to have from the benches opposite a proposal that the emoluments of our Judges may possibly have to be considered with a view to securing the very best members of the profession that can be secured. It is a remarkable tribute to the members of our judicial tribunals that, although the emoluments to-day compared with times past are on the low side, not the least difficulty has been experienced in finding the very best and highest talents for the purpose of manning these tribunals on which we depend.


I hope the learned Attorney-General will understand that I raised the point about emoluments purely with reference to legal emoluments. I am not referring to any higher emoluments that it is possible for a Judge to get by going into commerce.


The hon. Member referred to what he called legal emoluments. I am not aware of any case where any Judge, while he has been exercising judicial emoluments, has at the same time sought to earn commercial emoluments.


What does the learned Attorney-General mean by "exercising judicial emoluments?"


Enjoying judicial emoluments.


Here is a case in point. Lord Birkenhead is enjoying judicial emoluments and exercising commercial functions at the same time.


I do not want to get into any controversy, because I recognise the important character of the observations of the hon. Gentleman. But I must not be taken to agree with the hon. Gentleman that the£5,000 pension is in consideration of the exercise of judicial duties presently performed. I tried to make that plain on the Financial Resolution, and I wish to repeat it to-day. I hope that what I have said points to sufficient consideration of the matters that have been raised, and I am obliged to the House for giving us the Second Reading of this Bill, which is so necessary.


I can appreciate the difficulty of the Labour party in making reference to this question. There are considerable differences in the figures of emoluments and the circumstances under which they are received. I do not think, however, that we should fail to note once more the situation as it stands to-day in contrast to the whole question of pensions. An hon. and learned Member referred to the age of retirement and mentioned certain very striking facts. It is contended that 72 years of age should be taken as requisite for retirement in a case where the mentality requires to be at its very best. On the other hand, in the Police Force men are obliged, or practically obliged, to retire at the age of 55. They are able, thereafter, to take up another vocation. As the Attorney-General has said in reference to another little matter, facts like these cause people to think. That is why I have sought on occasions of this kind to mark the contrast between those who are placed in high positions and the favour which they receive from all parties apparently in this House, and the situation which confronts the poorer people of our country. Special reference has been made to the outstanding personality of a Member of the other House in regard to his position in the legal fraternity. That Noble Lord has been famous in the past as one who wields, metaphorically, a silver, shining sword; but he has, in this case, shown himself to be identified rather with that cross of gold, on which, it has been said, the working man is crucified. Reference was made this afternoon to that saying which is associated with the Roman Empire: Hest thou appealed unto Caesar? Unto Caesar shalt thou go. I reckon that there is a better message than that for Lord Birkenhead. It is: Render to Caesar the things that are Caesar's and to God the things that are God's. I do not think it is a very perfect example to the body of working people, who are called upon to exercise a self-sacrificial devotion and consideration for the interests of the country at large. In this case, which concerns the whole Empire, I do not think it is at all a satisfactory example for anyone avowedly to take up the position that he is intent upon securing all he can possibly lay claim to from the legal standpoint. We are told that there are some past considerations, but he evidently wants to make up for that in the future, both legally and in the commercial arena. He has also referred to certain statements made here, and his Lordship considers that it is a poor enough position for any man to reckon that he is not worth more than£400 a year. My idea is that a man is not called upon by the highest authority to put any particular price upon himself. We are counselled to walk humbly with God and to place our services at the disposal of others. We are counselled that: He that findeth his life shall lose it; and he that loseth his life for My sake, shall find it. I submit that these are far more excellent and exemplary propositions not only to make profession of, but to walk therein.


Before the Second Reading of this Bill, I want to place on record my opposition to the pensions in this Bill just as I did to the pensions in the other Bill. The Attorney-General complained that£1,000 a year was too small a pension, but he forgot that it was payable after only five years' service and a man can be appointed to this position at the age of 67—after he has lived a life. If the Attorney-General is justified in saying that£1,000 a year in those circumstances is too small, what about the working man, who starts work at the age of 14 and finishes at the age of 65, and after 51 years' service gets a pension of£26 a year? My opposition applies both to those pensions and also to the pension for the Lord of Appeal. In my opinion, nobody can justify such a huge pension and, at least, before it is granted the working-class ought to be considered. Hon. Members opposite argue that these men are entitled to large pensions because they are learned; but we reply that the working man, in many instances, has to serve a long time and devote much skill to learning his trade, and, after all, that he only receives£26 a year. There is growing in this country an impression that the men who do the hardest and dirtiest work are entitled only to the lowest pensions, while the men who have the nicest and cleanest work to do are entitled to the large pensions. It reminds me that when I was working in the pit, an old gentleman who had made money out of property said to me: "Mr. Batey, never take your coat off to work. If you do, you will never make money." There was a lot of truth in that advice. Since then I have kept my coat on as much as possible, and the more I have kept it on, the bigger salary I have got. That school of thought to which I have referred, is growing in this country. Only our movement will smash it, and I want to make my protest against these large pensions.

Question put, and agreed to.

Bill read a Second Time, and committed to a Standing Committee.