CLAUSE 212.—(Rules of Court, etc.) (Hansard, 21 May 1935)

§ The SOLICITOR-GENERAL
I beg to move, in page 121, line 33, to leave out from "may" to "fix," in line 40.
When this Clause was being considered in Committee my Noble Friend the Member for Hastings (Lord E. Percy) stressed the great importance of doing what could be done to see that constitutional issues were dealt with by a panel of the same judges. What he was afraid of was that when appellate jurisdiction was conferred on the Federal Court we might get, for example, four or five new judges appointed in order to deal with ordinary appellant work, and he was very anxious to prevent any constitutional issue being tried by four or five judges who had not had previous experience in constitutional cases instead of by those always available who had been sitting from the outset. There was great difficulty in inserting a rigid provision of that kind in the Bill. After all, the Chief Justice of the Federal Courts must be able to arrange his personnel as he likes, according to the circumstances of the daily routine, and it would be very difficult to make a statutory provision as to how he was to arrange for his judges to sit.
On the other hand, we quite agree with the points my Noble Friend made. Speaking for myself, I think it is inconceivable that the Chief Justice of the Federal Court should not be as fully alive to them as any Member of this House, but we have gone some way to meet my Noble Friend's suggestion by slightly altering the proviso of Clause 212 and by a "pointer" in the Bill to show 991 the general intention of Parliament that constitutional issues should be dealt with by a special Division; it being, of course, quite obvious that the personnel of that Division would be the judges who had the greatest experience at the time in dealing with constitutional cases. We therefore provide that if the Federal Legislature should confer appellate jurisdiction on the Federal Court, the rules, which of course have to be approved by the Governor-General, shall provide for the constitution of a special Division of the Court for the purpose of deciding all constitutional cases, that is to say, all the cases which would be within the jurisdiction of the court even if its appellate jurisdiction had not been enlarged. We think it is impossible to go further in tying the hands of the Chief Justice.

§ Mr. MOLSON
I beg to move, in page line 7, to leave out from "case," to the end of the Sub-section, and to insert: unless the court direct to the contrary the judgment of the court shall be pronounced by the president of the court or such other member of the court hearing the case as the President of the court directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the court.? The purpose of this Amendment is to provide that in the Federal Court only one judgment shall be delivered. In this country, in the case of the Judicial Committee of the Privy Council, where, of course, they are advising His Majesty, only one judgment is given, which is that of the majority of the court. In the case of the House of Lords there may be as many judgments or speeches as there are Law Lords sitting, and I think the learned Solicitor-General will agree that inconvenience does frequently arise from the 992 fact that there are a number of speeches each of which lays down the law in a slightly different way, or, in laying down the law, defines it in different words. When some subsequent ease arises the decision on it may depend on which of the learned Law Lords had defined the law most accurately. The words of this Amendment have been taken out of the Act of 1906, which set up the Court of Criminal Appeal. If the Government should take the view that it would be desirable that dissenting judgments should be delivered I should like respectfully to suggest that they might move an Amendment in another place to give a judge who wishes to give a dissenting opinion leave to defend that dissenting opinion; but I do urge upon them that where the majority of the court are laying down the law there can be no disadvantage, and there may be a great advantage, in having only one judgment which definitely does define the law in one set of terms.

§ Mr. C. WILLIAMS
I beg to second the Amendment.
I have always felt that when three judges are deciding a case in the courts their judgment should seem to the public as if it were the judgment of the whole of them, because if dissenting judgments are published, as might be the case under the Clause as it stands, we raise matters of controversy, and I do not think that is a sound precedent, as a general rule, in connection with the law courts. I think the Government will probably be able to accept this Amendment, which on the whole seems to me a most suitable one, and I feel sure that if they cannot accept the whole of it or the particular words in which it is framed they will accept now the principle, which does seem to be sound.

§ Brigadier - General Sir HENRY CROFT
I should like to put myself in the unique position of supporting the hon. Member for Doncaster (Mr. Molson) and to express the hope that his Amendment may be accepted, because I feel that it would clarify judgments in the eyes of ordinary Indian citizens. We in this country are of ten puzzled by the law, but, with that kind of "horse sense" which this country fortunately possesses, we accept the final decision in spite of the anomalies created by judgments of 993 different courts. I remember one case in which I was interested. Knowing very little about the law I was very pleased to find that we had won our case, as I thought, and we all had a supper that night. Then we found there was an appeal, and in the Appeal Court two judges went against us and one was for us, so that we were "all square at the turn."

§ Mr. COCKS
You had no supper that night.

§ Sir H. CROFT
No, we had no supper that night. We in turn appealed to the House of Lords, and of the five Lords of Appeal there were three against us and two for us. It was a very remarkable case, but we said "That is British justice," and we accepted the verdict, which had gone against us. But the Indian mind, only lately brought into touch with Western democratic ideas, might not understand the processes of mind which allowed us to think that was perfect justice. Where there is a clear judgment—and I gather that is the position in my hon. Friend's mind—it would simplify matters, especially in the eyes of a population 92 percent. of whom are illiterate, to have it stated by one judge. I have great pleasure in supporting the Amendment of my hon. Friend.

§ The ATTORNEY-GENERAL
The views expressed by my hon. Friends would have been well worthy of attention if they had been directed to judgments given by the final court. There is a great deal to be said for the view that when a court is delivering a judgment which must be right because it cannot be wrong—because nobody can be allowed to say it is wrong—that the judgment should be given by the court as a whole through the lips of one of its members. My hon. Friend who moved the Amendment said he took it direct from the Act setting up the Court of Criminal Appeal. That Act requires the decision of the court to be expressed by one member of the court, and no other member has power to give a dissenting judgment. Perhaps I may remind hon. Members that that court is to all intents and purposes a final court of appeal. It is true that there may be an appeal to the House of Lords upon the fiat of the Attorney-General, but this is very seldom asked 994 for, and is still less seldom given, and then only in very exceptional circum stances when there is an important point of law.
The reason for the Bill being drafted as it is, so as to permit the Federal Court to deliver judgments through the mouths of all its members, whether they be dissenting or concurring judgments, is that it is possible to appeal from that court to the Privy Council. It is desirable that the Privy Council should have the different points of view which have been accepted by members of the tribunal. Once that appeal is assumed, it is in the interests of justice, and of the litigant who may have been unsuccessful in the penultimate court, that he should know what is the effect of the arguments of counsel upon the tribunal. It seemed very desirable, having regard to the possibility of appeal to the Privy Council, that the Privy Council should know whether the members of the Federal Court were unanimous in their judgment, and the extent to which Members of the court accepted the arguments of an appellant to the Privy Council.
I am not to be understood as in the least criticising the views which have been expressed as to the importance of securing as much clarity as possible in the expression of legal decisions. I sympathise very much with the hon. and gallant Member for Bournemouth in the unfortuante legal experience which he had, but I hope that he will not regret the knowledge which be derived, at some cost to himself, of British justice. On the whole, we ask the House to prefer the provision contained in the Bill to that suggested by my hon. Friend the Member for Doncaster (Mr. Molson).

§ Mr. MOLSON
In view of the reply of my right hon. and learned Friend, I beg to ask leave to withdraw the Amendment.