HC Deb 01 April 1935 vol 300 cc130-8

8.48 p.m.


I beg to move, in page 110, line 21, at the end, to insert: Provided that the chief justice shall be a barrister of England or Northern Ireland of at least 15 years standing, or a member of the Faculty of Advocates in Scotland of at least 15 years standing. This manuscript Amendment raises a question which lies in very small corn-pass but which involves a question of considerable principle. Its object is to see that no one shall, be appointed chief justice of the Federal Court which is going to be set up unless he is a person who has had adequate legal training and experience to fit him for the office. The Federal Constitution is a matter of experiment and great importance and on the question whether the Federal Constitution succeeds or not the Federal Court will play a very important part. May I remind the Committee of what is said in regard to this matter in paragraph 322 of the Select Committee's Report: A Federal Court is an essential element in a Federal Constitution. It is at once the interpreter and guardian of the Constitution and a tribunal for the determination of disputes between the constituent units of the Federation. One has only to look—I will not read them—at Clauses 194, 195, 196 and 204 to see what important points will probably arise to be determined by the Federal Court. I would refer particularly to Clause 204 and to the very important jurisdiction which is to be conferred on the Federal Court in regard to the making of rules of court and determining the procedure which shall be followed in the Federal Court.

The object of the Amendment is to see, as I have said, that no one shall be appointed to this very important post unless he has proper legal qualifications. Let me explain the Amendment, because without some explanation the object may be misinterpreted. I want to make it perfectly plain that the term "barrister of England" includes not only English people but also a large number of Indians. Those who are acquainted with the administration of the affairs of the Inns of Court will know that by far the larger percentage of people who are now admitted to the Bar in this country are our Indian fellow subjects. On many occasions it is true to say that something like 75 per cent. or a larger percentage of those who are called by the different Inns of Court are our Indian fellow subjects. In regard to the position of chief justice, for the last 150 years it has been provided, and the rule has invariably been, that only people can be appointed to the most important posts of chief justice of the Supreme Courts of Calcutta, Bombay and Madras who are barristers of experience.

The Bill proposes that two classes of persons who do not possess the qualifications which have been found necessary and which have worked so well for the last 150 years are to be made eligible; first of all members of the Indian Civil Service, and, secondly, as provided in Sub-section (3, c), gentlemen who have been pleaders for at least ten years of a High Court in British India or in a Federated State. As regards the members of the Indian Civil Service, I should be the last person to suggest that members of the Indian Civil Service do not discharge the judicial responsibilities which are imposed upon them with admirable success and the greatest efficiency. There are obviously a large number of questions, for instance, questions relating, as is pointed out in the report of the Select Committee, to native customs and native habits as regards which members of the Indian Civil Service who carry out judicial duties have very special means of knowledge. But it must be remembered that a member of the Indian Civil Service usually has no legal training or qualification in the ordinary sense, and therefore he is obviously not a fit and proper person, or at any rate not the best kind of person, to be appointed to the supremely important office of Chief Justice of the Federal Court, who will have to decide most important questions between one Province and another; questions involving the consideration of matters of pure law.

With regard to the pleaders mentioned in Sub-section (3, c), they are persons who no doubt act as advocates with great success, but in most cases they have not had proper or sufficient legal training for the position in question. What I am asking the Committee to accede to is that the practice which has been followed in regard to the Chief Justices in the three courts which I mentioned for 150 years should be adopted, and that barristers whether they be English or Indian should alone be appointed Chief Justice of the Federal Court. The Amendment is moved at the request of a large number of persons in this country and in India, Englishmen and Indians, who are disturbed at the prospect that there may be appointed to this important office people who have not the highest professional qualifications. Let me read some of the representations which have been made to the General Council of the Bar in this country by the Calcutta Bar Association and the Incorporated Law Society of Calcutta. The representations refer also to the appointment of native pleaders. They say: They are opposed to the proposal that Indian civil service judges should be eligible for permanent appointment as chief justices—(1) because maintenance of the best legal traditions, in the interest of which the Joint Select Committee themselves recommend the recruitment of some judges for the Bars of the United Kingdom, is most essential on the part of the Chief Justice; (2) because it is fundamentally unsound that the head of the supreme Judiciary of a country may be not a lawyer at all and without any legal education, training or tradition; (3) because apart from his judicial work, in the matter of framing rules and circular orders for the subordinate judiciary, certain qualities are required of the Chief Justice which members of the Bar, trained in the profession, naturally profess in a larger measure than any layman, however experienced; (4) because the appointment of a civil service judge to the office of Chief Justice would impair public confidence in the High Court, both on account of his lack of legal training and his service associations with the executive. I move this Amendment because of the desire that to this supremely important post only persons should be appointed who are in every way qualified to carry out the duties properly.

8.39 p.m.


I desire to support the Amendment. As the Bill is drafted, the appointment of judges, including the Chief Justice, is by His Majesty by Warrant under the Royal Sign Manual; and it may be said that it is inconceivable, in these circumstances, that anybody except a fully qualified lawyer would be appointed to the position of Chief Justice of the Federation. The Bill is for all time or for a substantial portion of time to come, and no one can possibly foresee what may be the future. In all federations the federal court has sooner or later to stand up to encroachments on the part of the executive. I do not know a single instance on this side of the Atlantic or within the Empire where the federal court has not had to make a stand against the executive. The possibility that the Executive in this country, in sympathy with the Executive in India, may be in a position in which they can appoint someone other than a lawyer to these important offices is bound to end in the protection for the subject, which the establishment of these federal courts is intended to give, becoming perfectly worthless to the subject. I submit that in the interests of the liberty of the subject it should be utterly impossible at any future time for the Executive, either in this country or in India, to be able to put the subject in that position. It may seem to be a theoretical Amendment, but I hope the Government will be able to see their way to accept the proposal, which has behind it the opinion of many people in India as well as the General Council of the Bar in this country, and thus make it impossible for anything of the nature to which I have referred to occur in the future.

9 p.m.


The Amendment has been proposed so ably that I can add nothing to what has been said, but, as a member of the Bar, I wish to add my weight to the appeal that has been made. For 150 years Chief Justices in India have been people who have been trained barristers, and no reason has been given why there should be a change in this respect now.

9.1 p.m.


With everything that the hon. and learned Member for East Surrey (Mr. Galbraith) and other speakers have said with regard to the importance of the Federal Court I need hardly say that I absolutely and whole-heartedly agree. It would be impossible to overstate the importance of the Federal Court in the development of this Constitution. But when you are considering appointments to a court the first and chief thing is not perhaps so much the minimum qualifications as the method of appointment. That is why it is proposed that the members of the Federal Court, including the Chief Justice, shall be appointed by His Majesty, which of course means on the advice of the Secretary of State and the Ministry in this country, who will be held responsible to this House for any advice they give. That in our view is really the important thing. Whatever qualifications you put in, unless the appointing authority takes the trouble to appoint the best men, then no minimum qualifications will avail at all. At the same time, we are impressed by what has been said as to the fact that this Federal Court will be dealing, almost exclusively, with what may be called pure points of law, of great difficulty.

Nothing that I am going to say with regard to this Amendment must be taken as in any way depreciating the very valuable work that has been done by judges of the Indian Civil Service to-day in the High Court, and I was a little surprised at a phrase used by the hon. and learned Member for East Surrey when he spoke of Indian Civil Service judges of the High Court as men who have not had adequate training or legal experience. He said that he wanted by his Amendment to exclude men who had not had adequate training and legal experience, and his words might have been understood to mean that he wanted to exclude Civil Service judges.


If I unfortunately said so I went further than I intended.

9.5 p.m.


It is right to remind the Committee, when we are considering a proposal to make special legal qualifications necessary for this post, that the judges of the Indian Civil Service start judicial work at the very outset of their careers, and that before they can be appointed to a High Court they have been for some 10 or 12 years in very important judicial positions. It is really untrue to say that men who have had that experience have not had a very considerable legal training, and indeed I might say more legal training than some barristers of 15 years experience have the good fortune to get. But, as I say, as this court will have to deal almost exclusively with pure points of law there is a great deal to be said for the contention that the judge should be a person of legal training in the ordinary sense.

Now I pass to the second part of my hon. and gallant Friend's suggestion, which we cannot accept. He proposed that in addition to excluding the Indian Civil Service judges we should exclude those who under sub-section (3, c) have been for 10 years pleaders in a High Court in British India or in a Federated State. I am not sure whether my hon. and learned Friend realises the category of persons that he would exclude. They have all taken a good legal degree. They have a period of training such as we have in this country and they have to pass a very stiff examination. I might mention men so well known as Sir Dinsha Mulla, who ended his career as a Privy Councillor; and Sir Jamsetzi Kanga. They were men who were called in India.

Accepting the principle that the Chief Justice of this court should be a man of what I should call normal legal training, who has been called to the Bar in the ordinary way, we think it would be quite wrong to draw the suggested distinction between those Indians who came over to this country and were called to the Bar here, and those who were called in their own country. Indeed I think it is the experience of those who are familiar with these matters, that without attempting to draw invidious distinctions at any rate many of those called in India show just as much capacity as, and in individual cases may show more capacity than, those who happen to come over to this country and are called here. Therefore, I say, on behalf of my right hon. Friend the Secretary of State, that he will consider introducing words which will make it clear that the Chief Justice of this court should be a person who was either a barrister, an advocate or a pleader. We appreciate the force of the desire for the successful working of the court which is behind these suggestions, but we cannot accept a suggestion which would qualify an Indian who happened to come over to London to be called and would disqualify those who had been called in their own country.


After the sympathetic reply of my hon. and learned Friend I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.9 p.m.


I beg to move, in page 111, line 7, to leave out "ten" and to insert "fifteen."

The object of this Amendment is to make the qualifying period for the appointment of judges to the Federal Court 15 years instead of 10. I do not think that the figure of 15 years is unreasonable, because if we consider the judicial practice in this country—I am speaking without having gone into the matter, but from my own recollection—I do not think we ever get a man appointed a judge of the High Court who has not been a member of the English Bar for 15 years. I do not know whether the learned Solicitor-General can quote an instance of a man so appointed, but I think the youngest of those appointed have been members of the Bar for well over 20 years. When you are starting a judicial system which is to have work of the utmost importance to do, at least the same period of experience should have been acquired in India as that which is normally acquired in this country before an appointment is made.

9.11 p.m.


I intervene at once and I hope we may not take very long over this point. I agree with my hon. Friend that in most cases judges are unlikely to be appointed when they have had less than 15 years experience. The figure 10 is the figure for our own High Court judges in this country, and we suggest that that would be the right figure to adhere to for the ordinary members of the court. You may get the case of a man called to the Bar late in life, who has made a very rapid advance in his profession and would be quite qualified to fill one of these positions. We do not want to cut him out. The real safeguard is in the common sense of the appointing authority. My right hon. Friend would certainly consider whether in the case of the Chief Justice we might not adopt the figure of 15 years, so as to ensure getting a man with the requisite experience and qualification.


Do I understand that both these considerations are to be taken separately and that there is a definite suggestion that the Secretary of State will alter this time period?


Yes, for the Chief Justice, but we shall stick to the period of 10 years for judges other than the Chief Justice.


Is it not a fact that here we have a situation very different from that in this country Is it not important that you should have men of the greatest experience when you are setting up this new judicial system in India, and would it not be wiser to err in this case in the direction of experience rather than keep to the low figure? Could not we have the same reconsideration of this proposal as in the case of the Chief Justice?

9.14 p.m.


I would agree with the Mover of the Amendment if I thought that age was synonymous with efficiency, but I would remind the Committee that the tendency of modern times in this country is to appoint younger judges. If there is a good man available, even though he has only been a barrister for a period of 10 years, I think there ought to be a chance of appointing him. Do not rule out an able man because he is young. It is not always experience that counts in these matters. A great lawyer is made by other things than experience. If there is a competent authority making the appointment we ought not to limit their field of choice in the manner proposed.

9.16 p.m.


My right hon. and gallant Friend who has just spoken is, if he will allow me to say so, older than I am.


A good deal. But I do not say that I am wiser.


I am grateful to him, as one who is among the seniors, for taking the view that we ought to encourage young men, and I am not going to dissent from that as a general proposition. If you want efficient soldiers, whether generals or privates, you want young men. Julius Caesar, Alexander the Great, Napoleon, all achieved their greatest works before they had attained the age of 30. But when it comes to the appointment of judges, I honestly think that other considerations must apply. I think the more experience they have the better, provided they are not senile—and it is amazing how few of our judges seem to suffer from the effects of age. It must be that the law is a very healthy occupation, because, apparently, they never become senile. It has always seemed to me, indeed, that lawyers resemble port and that the longer they mature the better they are. I hope the Solicitor-General will give earnest consideration to the proposal that 15 years should be the qualifying period.


In view of the very fair and reasonable statement of the Solicitor-General I desire to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

9.18 p.m.


I have not ventured to intervene in the discussion on the somewhat abstruse matters which have been under consideration in connection with this Clause and I have felt the less inclined to intervene on observing the extraordinary co-operation which has been shown among the legal Members of this Committee. I noticed that the Solicitor-General gave an undertaking to consider a certain manuscript Amendment moved from the opposite side. I do not know whether we shall be able to agree with that proposal or not until it appears on the Order Paper, but if we allowed the matter to pass now in silence we might be told afterwards that we had conceded the point by implication. May I say, therefore, that we shall consider this matter at leisure and determine what action we are going to take later.

Clauses 191 to 193 ordered to stand part of the Bill.