SECOND READING. (Hansard, 18 July 1870)

THE LORD CHANCELLOR
, in moving that the Bill be now read a second time, said, the measure was introduced in fulfilment of an obligation into which he entered a short time since, when his noble and learned Friend Lord Westbury 403 brought before their Lordships' consideration the fact that there was a very heavy arrear of appeals from India, which could not be heard by the Judicial Committee of Privy Council, owing in a great degree to the present constitution of that Court, and owing also to some causes which existed in India. He had himself stated that one of the difficulties connected with the constitution of the Judicial Committee was that Judges of the Superior Courts were made ipso facto members of the Judicial Committee by the Act establishing that tribunal; but that, with regard to all other persons, there was only a power of appointing two persons to sit at one time as members of the Judicial Committee. The choice being thus limited, it was found that the members actually holding other judicial offices had little time to attend to the business of the Judicial Committee. The Chiefs of the Courts of Common Law could hardly on any occasion attend; the Master of the Rolls attended from time to time, and also one or other, and sometimes both, of the Lords Justices of Appeal. The retired Judges who were members likewise attended. There was a great advantage in putting on the Committee eminent members of the Bar, who, having retired from practice, were yet willing to devote themselves to this duty. At the present time nobody was under any obligation other than a moral one to attend the sittings of the Judicial Committee; and it was very difficult, under the circumstances he had mentioned, to maintain the Court as a tribunal sitting regularly de die in diem, like the other tribunals of the country during Term. The object of the present Bill, therefore, was twofold—firstly, to increase the number of persons who might be placed by Her Majesty on the Judicial Committee; and, secondly, to secure a special payment to a certain number of members—namely, four—of the Committee, in order that those who received such special payment, independently of any pension to which they might be entitled, should be held bound to attend the business of the Judicial Committee, as all other Judges were bound to attend the Courts to which they were attached. To effect that object, what the Bill proposed was this—to authorize Her Majesty, after the passing of the Act, by warrant under Her sign manual, to appoint two persons 404 who had filled the office of Judge of any of the High Courts of Judicature in India, or the office of Legal Member on the Council of the Governor General of India, to be members of the Judicial Committee; and it was proposed that there should be paid to each of those persons, during the time he serves as member of the Committee, a salary not exceeding £1,000 a year in addition to their pensions. In the case of the Chief Judge of the High Court of Calcutta retiring, he received a pension of, he thought, £2,000; and the Legal Member of the Council of the Governor General also had a considerable pension on his retirement. In addition to their pensions, those persons, on being appointed members of the Judicial Committee, would each receive £1,000 per annum; by which means he thought there would be no difficulty in securing their regular attendance, except during the vacations, for the despatch of appeals coming from India. It was proposed also to take power to appoint as members of the Committee any of the following persons, not exceeding two—that was to say, any person who had held the office of Judge of the Supreme Court of any possession of Her Majesty other than India, and any person being a barrister of not less than 15 years' standing; and each of them would be paid an annual sum, including any pension to which he may be entitled, so that the whole shall not exceed £2,500 a year. In that way it was thought they might place on the Judicial Committee members of the Bar who, having attained eminence and distinction in their profession, might be desirous of retiring to the quiet and much more dignified position of holding an office in which they might be eminently useful. He thought there would be no difficulty in finding men of that character in whom the public would have perfect confidence. The Bill further authorized the payment to any member of the Council other than those holding judicial office, or those appointed under this Act, an annual sum not exceeding £500. This especially referred to any of the retired Judges who might be members of the Judicial Committee. A Judge desirous of retiring from the Common Law Courts or the Court of Chancery had a pension allowed him. If he retired from the Common Law Courts he saved the expenses of the circuits, or about £500, and he would also have the £500 405 now proposed to give him, making a difference to him of £1,000 a year altogether, in addition to the pension he actually received. In that manner it was thought they might obtain for the Judical Committee members who would undertake the positive duty of regularly attending its sittings in the mode he had described. Lastly, the Bill contained a clause enabling the Judicial Committee to sit, if it thought fit, in two sections. That, he hoped, would have the effect of disposing of the present arrear of appeals from India, because they might place in each of those sections—having thus secured members bound to attend—a Judge from India, and also another Judge under an obligation to attend from the two members to be appointed in addition to the present Judicial Committee. And they would only want in each case a third person to preside, who might be found among the ordinary members of the Judicial Committee, all of whom now attended from time to time, but most of whom did not think it reasonable that they should be under the actual necessity of attending regularly from week to week and from day to day in the way in which the ordinary tribunals sat. There had been intimated to him some objections with reference to the appointment in the first instance of the Judges in any Court in India, and it had been suggested that in some Courts there were native Judges whom it would not be desirable to appoint as members of the Judicial Committee. It was not, however, very probable that they would be Privy Councillors, and none could be appointed who were not; but, if it was thought desirable, there could be no objection to confine the appointment to the Chief Justice in each Court; while, with reference to the colonial Judges, the appointment might be limited to the Chief Justice of the Supreme Court of any Colony. Although at present there was not an instance of any person being made a Privy Councillor who had come from any part of Her Majesty's dominions other than India, yet he had known at least one Canadian Judge who would have been a very suitable person for such a position; and he could not but think that, as the importance of colonial tribunals increased, there might be found coming from the Cape, from Canada, or from Australia, some who 406 would be worthy of being placed on the Judicial Committee. Under these circumstances, he trusted that their Lordships would be disposed to read the Bill a second time.

§ LORD CAIRNS
said, that although from the state of the House it did not seem that much interest was taken in this Bill, yet it was a subject of great public importance, on which he desired to make some observations. With regard to the 2nd clause, which gave power to appoint two Privy Councillors who had held the office of Judge in any High Court of Judicature in India, there ought to be a clear and positive definition on the face of the Bill as to what persons could be appointed and what offices they must have held—because owing to the constitution of the High Court of Bengal there might be appointed persons who would be quite unsuitable for the Judicial Committee, and who had never had a case argued before them. The practice had been to treat the Chief Justice of Bengal as a person who was ex officio qualified to sit on the Judicial Committee, and he thought it would be desirable to continue that practice. There were now three ex-Chief Justices of Bengal, two of whom had rendered very efficient service, and he regretted that power was not taken by the Bill to appoint all three—the amount of remuneration, if it was limited, being divided among them. By the 3rd clause it was proposed to appoint on the Judicial Committee any person who had hold the office of Judge in the Supreme Court of any country other than India, and the consequences might be the appointment of the Chief Justices of Sierra Leone, the Straits Settlements, Gambia, the Mauritius, or any of the Colonies whose Chief Justices were of a different stamp from those whom it was desirable to appoint on the Judicial Committee. To the 4th clause there was a still more serious objection, its object being to give to Judges who were entitled to a retiring pension a sum of £500 a year, in addition to their pension for their services on the Judicial Committee. There was in this country an ample scale of retiring pensions for Judges, and attached to the receipt of those pensions there was always considered to be the obligation—no doubt 407 an imperfect one—to give some portion of their time to the transaction of the judicial business of the country. As soon, however, as there was introduced a system of picking and choosing and bribing a retired Judge with £500 a year; extra, an end was put to the honourable; understanding which now prevailed; for it was utterly impossible to maintain that obligation when a payment was made to some persons for their attendance, and he hoped his noble and learned Friend would consider that point. He also trusted that a reconsideration would be given to the proposal to divide the Judicial Committee into two portions, a step which he held to be quite unnecessary and which might lead to the effect of their decisions being weakened.

THE LORD CHANCELLOR
said, the division was not to be permanent.

§ LORD CAIRNS
said, that at any rate for some time there would be two divisions by whom decisions would be given. At a further stage of this Bill, when he hoped it would attract more interest, he should invite the attention of their Lordships to the points he had enumerated.

THE LORD CHANCELLOR
thought his noble and learned Friend had misunderstood the effect of the last clause. It was not intended that there should be two permanent divisions; but changes might be made from time to time, so long as it was necessary to have two divisions, and any number of combinations might be made of the members of the Judicial Committee. Comment had always been made on the decisions of the Committee, and, he feared, it would continue to be made.