HC Deb 04 February 1944 vol 396 cc1532-41
Flight-Lieutenant Challen (Hampstead)

I beg to move, in page 1, to leave out lines 10 to 15, and to insert: Provided that whenever the whole number of the puisne judges of the High Court amounts to twenty-five or upwards, a vacancy occurring among those judges shall not be filled unless and until an address is presented to His Majesty from both Houses of Parliament representing that the state of business in the High Court requires that the vacancy should be filled, but, where such an address has been presented, it shall be lawful for His Majesty from time to time without any further address to fill any vacancy which may arise among the said judges at any time within a period of one year next after the date of the presentation to His Majesty of that address. The object of the Amendment, in respect of which there is also a consequential Amendment to the Schedule, is to maintain the present position as laid down by Parliament in the Act of 1925. By that Act Parliament has some control and influence over the appointment of additional judges. The number of High Court judges is limited by Act of Parliament; but some considerable time ago, when the question arose of appointing additional judges over that minimum figure, Parliament laid down that, in the case of the appointment of judges of the King's Bench Division, these additional judges should not be appointed by His Majesty unless and until a report was presented by both Houses representing that the state of business required it. The wording of this Clause is actually the wording of the relevant Sub-section of Section 11 of the Act of 1925, with certain modifications to bring it into line with the principle which is being established by this new Bill. I am not questioning the principle of the new Bill in dealing with High Court judges as a whole instead of judges of each Division; but if the position is to be altered then the same principles should apply to the High Court judges as apply at present to the judges of the King's Bench Division.

Parliament has always been very jealous of its control over the court of King's Bench for obvious reasons. If we are to maintain that principle—and I submit that we should maintain it—then it follows that the principle must apply to the appointment of all additional High Court judges. There are very good reasons why, when the Executive come to the conclusion that they wish to have additional judges, over and above the minimum laid down by Parliament they should come to the House of Commons and state their reasons, and give opportunities to Members of this House to make suggestions and to have the subject ventilated, and give opportunities for Ministers of the Crown to explain what is the state of business in the High Court and why additional judges are required. It may well be that opinions differ on whether these judges should be appointed, and on this particular issue, differences of opinion certainly have manifested themselves. I am not questioning the desirability of appointing some additional judges for the purpose of taking divorce work, but for that purpose, a simple Bill would have been sufficient, instead of altering the existing system by which Parliament actually has the control over the appointment of additional judges.

I do not want to go into history or into a disquisition on the origin of and reasons for Parliament's jealousy in the case of the appointment of His Majesty's judges. But I suggest that, in time of war, when we are all agreed that legislation requires to be directed mainly towards war aims, we are hardly in a position to give the attention we might like to give to constitutional points, or to decide whether a particular constitutional principle is of sufficient magnitude to be retained, or sufficiently unimportant to be abolished. At such a time we ought to leave these constitutional points alone. At another time, when we can give our minds to the subject more clearly and give greater attention to it, Parliament may well consider whether it really wants to maintain its control over His Majesty's judges, but I maintain that at the present time, with the business that is before the House of Commons, it is not right to bring in a Bill which abolishes that control of Parliament. Surely, at the present time, when we are dealing with the removal of a constitutional safeguard, we should ask our selves, "Is this legislation really necessary?" If the answer is—as I think it obviously is—in the negative, let us retain the present position by which the House of Commons, by a very simple procedure, puts through an Address to the Crown indicating its wish to have additional judges appointed. It is provided, in the event of a vacancy occurring very shortly after the appointment, that the position still remains and a new judge can be appointed. Let us have an opportunity of ventilating the matter and of hearing what the Attorney-General and Law Officers have to say with regard to the necessity of such an appointment, instead of letting the safeguard go and leaving it entirely to the Executive.

Dr. Russell Thomas (Southampton)

In supporting the Amendment which has been so ably moved by my hon. and gallant Friend, I wish to say that I am specially concerned that we should not take advantage of the circumstances of the present times in a way which we might regret very much in future. I think my hon. and gallant Friend has made that point extremely clear, and I hope it has been convincing to the Attorney-General. I do not want to add much to what he said because I spoke at some length on the Second Reading, but I would repeat my regret that Parliament is handing over its remaining powers in this way. I regretted very much the Measure passed a few years ago, which started this process, and I am afraid this Bill is completing the process begun at that time. There is a great danger— although hon. Members may not realise it to-day—of handing over completely to the Executive Government the choice of judges. We all trust the Government at the present time; we feel they are undertaking a great task, but nevertheless we are developing an authoritarian type of State which might be the pattern of things to come. That may be necessary during the war, but it may well be that when this war is over, authoritarianism will thrive and at such a time it will be extremely important that the judiciary should be completely free from the Executive. A future Lord Chancellor might not have the same sense of liberty and honour as our present Lord Chancellor. He might well act as a tool of the Government, and the Government might put in men who would remind our progeny of the timeservers to whom I referred last week. The Bench might be filled with people anxious for promotion and willing to accept the commands of the Executive. If that were to happen, it would be another way of getting around the Act of Settlement, which endeavoured to establish the independence of the judiciary, by not permitting a Judge to be removed except on an Address of both Houses of Parliament. Parliament thought it had made sure of the independence of the judiciary in that way, but what I have suggested may be found in the future to be a way of undermining the effect of the Act of Settlement itself. Without troubling the House with past history, I am sure hon. Members will be able to bring to mind what happened before that enactment and how James II had taken to himself the dispensing power with the connivance of his judges. Indeed I believe the then Chief Justice of England, Chief Justice Herbert, acted as his minion at the time and held that the laws of England were the King's laws. We all know how this eventually cost him his throne and led to the specific condemnation of the dispensing power in the Bill of Rights. In circumstances such as I have indicated, it would not be a question of the King's laws in times to come, but of laws proposed by a bureaucratic Government. Unfortunately, these are more difficult to deal with. You can deal with a King but not with a bureaucracy because it winds its tentacles around everything. Chief Justice Herbert also contended that the King could dispense with the laws, especially the penal law, whilst the Pre- rogative and matters of Government could not be taken away or restrained by Statute. This Bill might well be the means of undermining the whole of the power of Parliament. We must bear that in mind, not as regards to-day, or to-morrow, but as in relation to future years when an unscrupulous Government controlled by a sprawling bureaucracy, might well put that evil intention into effect.

Mr. Moelwyn Hughes (Carmarthen)

I regret I shall be unable to follow the hon. Member for Southampton (Dr. Russell Thomas) in his historical meanderings, linking up this small Amendment with the large mass of our constitutional history, including the Bill of Rights. I have only a feeling of slight regret that his ingenuity did not manage to connect this Amendment with Magna Charta. The Committee might, perhaps, be reminded that this Bill fixes the number of the Judges of the High Court at a minimum of 25 and a maximum of 32 and gives the Lord Chancellor the right, when the number is less than 32, to fill up the vacancies as the state of business demands. This commonsense method of giving power to the one who recommends His Majesty how these vacancies should be filled, has been called unconstitutional and bureaucratic, as if it were something of which Parliament had never seen or heard. In fact, the principle that vacancies should be filled at the discretion of the Lord Chancellor has already been accepted twice by this House. The Judicature Act provides for six Chancery Judges. If a vacancy occurs, and the number falls to five, the Lord Chancellor may or may not fill it, according to the state of business in the Division. When two additional judges were added to the King's Bench Division, provision was made that, for 12 months after a Resolution, it would not be necessary to come to this House, and the Lord Chancellor could fill a vacancy within those twelve months at his own discretion, depending, of course, on the state of business. The principle has been recognised twice and there is no reason—constitutional, bureaucratic, anti-bureaucratic or otherwise—which could compel the Committees to accept this Amendment, and I hope it will be rejected.

Major Petherick (Penryn and Falmouth)

I support the Amendment moved by my hon. and gallant Friend. I do not know whether there is more legislation in war time than in peace time, but it is extremely difficult for any Member of Parliament to be able to follow all that is produced, and some small, apparently innocent and technical Bill, is apt to slip through, containing an important constitutional point without anyone really noticing it. My hon. and gallant Friend drew my attention to this Sub-section the other day, and I think there is an important constitutional point involved. I was very surprised to hear an eminent lawyer like the hon. and learned Member for Carmarthen (Mr. Moelwyn Hughes) make a disparaging remark about the speech of my hon. Friend the Member for Southampton (Dr. Russell Thomas). The hon. and learned Member suggested that it was strange that the hon. Member for Southampton had gone back so far into history as to refer to Magna Charta. That is a disparaging suggestion about Magna Charta itself which, surely, is the foundation of all the liberties of Britain. It seems very curious that such a remark should come from a member of the legal profession. I noticed the other day that all the lawyers in the House—with one or two notable exceptions—were cheering this Bill almost to the echo. The legal profession is perhaps the strongest trade union represented in the House of Commons and in the country—I am not sure that I need except the doctors. Without being unkind one may say that naturally they do not view with great disfavour, anything which increases the number of prizes in their profession. However, I do not think that is the main point.

The hon. and learned Member failed to recognise the essential point in this matter. He said, and it is quite true, that there are precedents under which the Lord Chancellor can fill up vacancies. We know that is the case, but what we are trying to establish is that the Lord Chancellor shall not have the right to add to the total number of judges without coming to Parliament. Now, admittedly, the power to appoint judges may conceivably become dangerous, but there is the constitutional foothold kept by the High Court of Parliament over the judges. Supporting the Executive wanted to pack the Bench by adding to its numbers it could not at present do so. What is the position under the Bill, what are our objections and what is the reason for our Amendment? We do not object to the increase in the number of judges because the state of business at the present time demands that that should be done. But what we do object to, is the removal of one of the last vestiges of power Parliament has over the numbers of judges.

In the old days, judges were appointed quanzdiu se bene gesserint, and held their office purely and simply at the pleasure of the King. I would like to mention the case of Chief Justice Jeffreys, who was an extremely good lawyer but, unfortunately, suffered from two disadvantages,—gallstones and an exaggerated eye for the main chance. Some of his judgments culminated in the Bloody—if I may use an unparliamentary, but, by now, hallowed expression, Mr. Williams—Assize, and he achieved much unfavourable notoriety by his decisions at that time. The whole of the 17th century contained a series of struggles by Parliament to assert the right independence and integrity of the judges. Indeed, an indication of this was put into the Bill of Rights and into the Act of Settlement. The implication in the Act of Settlement about juries is very strong and it has become a well established fact that our judges are not above the law but apart from the law. Perhaps the most recent emphasis laid upon that was in 1933, when judges' salaries were to be cut down, and they declared that they were not subject to having their salaries reduced, but were independent, although owning allegiance to the Crown.

Anything we do to undermine that position may be highly dangerous, and I think Parliament should adhere to its two remaining powers. One is that it can remove a judge who is guilty of neglect or any enormity, and the other is the power it still preserves to limit the numbers of judges. It is true that they have been limited up to 32 at the moment, but between 25 and 32 there are, after all, seven vacancies. I admit that is not very much, but it is something, and I maintain that we ought to preserve our very small foothold in the general position.

The Attorney-General (Sir Donald Somervell)

The speeches to which we have listened might, I think, have had some relevance if this Bill had given the Lord Chancellor an unlimited power as to the number of judges of the High Court he could appoint. In fact, it does nothing of the kind. It limits the number to 32. Reference has been made to the Bill of Rights and the Act of Settlement, bat, until 1910, there was no provision for coming to Parliament for a Resolution that judges could be appointed. There was never any question of coming to Parliament for a Resolution up to 1910 though the number had been raised in successive stages, having regard to the increased work, since 1688.

Major Petherick

The question did not arise then.

The Attorney-General

Yes it did; the numbers were increased. The point I am making is this: that in 1910 it was decided that more judges were required, and that, instead of putting up the number without qualification, it was thought that circumstances might arise in which you could do without the one or two additions to the establishment. Instead of the number being put up to 17 without qualification it was put up with a provision about a Resolution afterwards, if there was a vacancy after twelve months. There is no constitutional point involved here. We propose this alteration merely on the important practical ground that the provision that you must come to Parliament for a Resolution inevitably tends to a certain delay and, to some extent, means waiting until the evil of arrears has arisen before you make the appointment which is necessary to keep abreast of the work.

Dr. Russell Thomas

The right hon. and learned Gentleman is making that as an excuse. Even when arrears were accumulating, you would be well warned there would be ample time for the House of Commons to appoint judges.

The Attorney-General

That seems to strengthen my point. Under the Resolution system you have to find Parliamentary time and so on and the tendency has been to wait. We do not want that situation to arise; we want the establishment to be kept up unless it is clear that a judge has become unnecessary and the appointment need not be filled. In other words, the position is that Parliament has put up the establishment of judges to 32. If it happens that there is a vacancy and it is unnecessary to fill it, the Lord Chancellor need not fill it. Therefore, I hope the Committee will reject the Amendment and accept the principle embodied in the Bill, which does not raise any constitutional principle and will, I think, be found to be a better, more satisfactory and a prompter procedure than that which was adopted under the 1910 Act.

Mr. Thorne (Plaistow)

Are the two extra judges required because there are so many divorce cases coming up?

The Attorney-General

Yes, Sir.

Mr. Thorne

Then why not try to alter the mentality of the people of this country?

The Attorney-General

I think my hon. Friend, with his experience, would be better able to do that than I could.

Amendment negatived.

Clause ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

Schedule agreed to.

Bill reported, without Amendment.

Motion made, and Question proposed, "That the Bill be now read the Third time."

Mr. Douglas (Battersea, North)

Before we take leave of the Bill, I should like to ask the Ministers who will be responsible for operating it, to do so without any hesitation. It has long been a scandal that our law has been worked on the principle that to waste the time of a judge for an hour or two is a dreadful offence, but that it does not matter if you waste the time of a score of litigants, lawyers and Witnesses and keep them hanging about the courts for days at a time.

Reference has been made to constitutional principles. I think it is the first principle of our Constitution that justice should not be denied or delayed. Delay, in many matters, is extremely serious, and cannot possibly be compensated. There is no means in our law, except in a very few cases of monetary claims, in which there is any remedy. That applies, above all things, to the question which has brought this matter to an issue—that of divorce. People do not take divorce proceedings as a rule, unless they have been absolutely driven to do so. It is the last resort, when they have come to the conclusion that there is no remedy and that their homes have been completely and finally broken up. To deprive people in those circumstances of the remedy to which they are entitled and to cause them in many cases, in undefended suits, to wait for many months and, after they get a decree nisi, to wait for another six months before it becomes absolute, is a shocking state of things. I hope the powers that are given under the Bill will be operated without any hesitation in order to remedy these delays.

Mr. Ivor Thomas (Keighley)

I should not have risen had it not been for the remarks of my hon. Friend, with whom, on this occasion, I feel bound to disagree. To the general principle that justice should not be delayed there are exceptions. I am shocked, not by the delays that occur in the matter of divorce but by the levity with which hundreds of cases are rushed through in a few minutes. In the interest of the parties concerned and in the general interests of society, the courts should not be in a hurry to dissolve the bonds of matrimony. I trust, therefore, that the Bill will not be used for that purpose, but that the judges will do their best to keep marriages together and not dissolve them.

Question put, and agreed to.

Bill read the Third time, and passed.