HL Deb 20 May 1870 vol 201 cc1041-9

* My Lords, the Petition which I have to present is well entitled to your Lordships' attention, both on account of the persons by whom it is signed and of the subject to which it relates. It is signed by a very large proportion of the principal inhabitants of Singapore of all classes, landowners, merchants, and others, and its object is to complain of a change in the tenure by which the Judges hold their offices since the Colony has come under the direct administration of the Crown by which it is said that their independence has been seriously impaired. Now, it is certainly of the utmost importance not only that justice should be fairly administered in our Colonies, but also that there should be perfect confidence in the independence of the Judges to whom its administration is entrusted, and I am afraid that this Petition, and the information supplied to me by those who have placed it in my hands, clearly show that at this moment no such confidence exists among the inhabitants of the Straits Settlements. But though this is greatly to be regretted, I observe with satisfaction that no complaint of any specific evil that has actually arisen is to be found either in the Petition or in any of the documents by which it is supported. It is not represented to me that the Judges have been unduly influenced in any of their decisions by the Executive Government, that any abuse has yet occurred, or that any want of proper independence has been shown in the conduct of the Chief Justice. I do not observe any complaint of this sort; but what is complained of is, that principles have been asserted and rules laid down which threaten the independence of the Judges, and may lead to evil hereafter. Much alarm of this kind undoubtedly prevails; but it appears to me to have been caused not by anything really faulty in the existing arrangement as to the tenure of office by the Judges, but by a misapprehension on the part of the inhabitants, produced by what I must regard as very indiscreet expressions used by the Governor in a despatch that has been published. I come to this conclusion, because I find that the people of Singapore do not complain of the Judges being removable by the Secretary of State, since a similar power existed when Singapore was under the Indian Government; but what they feel to be a grievance, is that the Governor should have the power of suspending a Judge from his office. Now, if the Governor were invested with an arbitrary power of suspending a Judge at his own pleasure and discretion, I should entirely agree with the petitioners as to the great abuses to which it might lead; but this is not the case. The petitioners overlook the fact that, according to the established practice of our Colonial Service, the Governor is not at liberty to suspend a Judge, except for grave misconduct, and misconduct of such a character that serious public inconvenience would arise from allowing him to continue in the discharge of his duty during the time required for a reference to the Secretary of State. This is the rule that used to be enforced, and I believe that this rule remains unchanged. Nor is this all. When a Judge is suspended by a Governor, the suspension ought never to be confirmed without an inquiry. When I had the honour of holding the seals of the Colonial Department, it was once or twice my painful duty to have to decide on the removal of a Judge, but I never took that step until the charge against the Judge had undergone a careful examination by a Committee of the Privy Council, to which men of high professional eminence were summoned, and before which the Judge had an opportunity of being heard by counsel in his defence. Without such an inquiry no Judge was removed, and it was perfectly well understood that it a Governor suspended a Judge, and subsequent inquiry showed the suspension to have been on insufficient grounds—still more, if it appeared that the Governor had acted from any improper motive, or from a tyrannical disposition—it was not the removal of the Judge, but the recall of the Governor that would follow. A Governor, therefore, exercises the power of suspension under the gravest responsibility, and with the full knowledge of the results which will follow from its abuse. I believe that the origin of this power—which is a very old one in our Colonial practice—was this. In former times, when communication between England and our distant Colonies was much more difficult than at present, more than one case arose in which that disposition to quarrel—which I fear dis- tinguishes small societies) led to disputes between Governors and Judges, and produced a state of things in some instances perfectly intolerable. Communication with the Government at home being slow and uncertain, it was necessary to avert such inconvenience by vesting in the Governor the power of suspending the Judges as well as the other officers of his Government. In the present state of the world, and with the present facilities for communication, such a power is less necessary than it was. But if the necessity for it is less, so also is there less danger of its being abused, because a reference to the Secretary of State can now be so promptly made, that I do not think any Governor would venture rashly to suspend a Judge on insufficient grounds. Let me add that no honest error of judgment on the Bench would ever for a moment be considered a sufficient cause for the suspension of a Judge. Such an error of judgment affords matter for an appeal to the Judicial Committee of the Privy Council—not a ground for suspending a Judge. Conduct that would warrant his suspension must be conduct of a nature to interfere with the public service; and I believe it has always been perfectly well understood that the Governor has not the slightest right to endeavour to influence the Judge in the performance of his judicial duties. That principle I hold to be a cardinal one, and I trust the noble Earl (Earl Granville) will assure me that this is his opinion also. If these rules are acted upon, there can be no real danger to the independence of the Judges, and I think, my Lords, that the apprehension which exists in Singapore has been mainly caused by what I have called an indiscreet expression of the present Governor of the Straits Settlements, who has said, in a despatch that has been published, that the Judges are liable to the control of the Executive, just like other members of the public service. This I hold to be a mistake. It may be necessary in carrying on the government of a Colony for the Governor to suspend a person holding the office of Colonial Secretary, or some similar office, for mere inefficiency and inability to discharge his duties properly, because, otherwise, such difficulties might arise that the public business would come to a dead-lock; but he is not entitled to take this course with respect to a Judge merely because he thinks his judgments have been wrong. There is, as I have said, another mode of bringing wrong judgments under review. The alarm of the inhabitants of Singapore has been increased by another circumstance. The passage in the Governor's despatch to which I have taken objection has been coupled with another despatch addressed by the late Secretary of State for the Colonies (the Duke of Buckingham), in which he lays down the rule that the official members of the Legislative Council are bound to support the Governor by their votes. So far as regards persons holding offices connected with the Executive Government, this rule is, I think, proper and necessary. It would lead to absolute anarchy, and would render it impossible for the government of the Colonies to be carried on, if the Governor could not reckon on being supported in his measures by his subordinate officers. They are at liberty to lay their opinions fully and freely before him, and state to him the objections they may see to any of his measures; but in the last resort he must decide, and it is a wholesome and necessary rule in a Colonial Government that its members must support the Governor. But I cannot think that the Duke of Buckingham meant to apply this rule to the Judges. A Judge stands in a very different position to the members of the Executive Government, and I do not see any difficulty or inconvenience in his being left at liberty, honestly and fairly, to give his vote in opposition to the Governor. Of course, his power must be exercised honestly, and it would be cause for complaint if he should systematically place himself in opposition to the Government. My Lords, I am afraid that those who put this Petition into my hands will hardly be satisfied that I do not go more entirely with them in their complaint. At the same time, when they placed it in my hands, I told them how far I could go. I told them that I should state my opinion as to how far I considered that their grievance could be removed. Allow me to add that I do think there is a degree of apprehension existing in Singapore which, it is very desirable my noble Friend should take measures to remove. I hope that in the answer he will make to me this evening he will state his concurrence in the view I have taken—namely, that a Judge ought not to be disturbed in the posses- sion of his office, except for some grave misconduct and after adequate inquiry. If he does so, I am hopeful that his explanation will go far to remove the existing apprehension. But I also trust he will go farther, and inform me that a despatch will be published in Singapore for the satisfaction of the public, and in which he will lay down, in such clear terms as cannot be misunderstood, what the rules are which regulate the conduct of the Government at home in these matters. My Lords, I will only add one word more. I believe that in these cases of dispute, which, in 99 cases out of 100, are of a personal character, there is some fault on both sides; and what is really wanted is, temper and a sincere desire to promote the public service. I believe that when these qualities exist, and when there is a good selection of men on whom high office in the Colonies is conferred, these difficulties do not arise. I believe, moreover, that for legal offices in our smaller Colonies, it is most desirable that men should be selected not from the narrow circle of the Colonial Bar, divided as that often is by party spirit and personal animosity, but from the larger and wider sphere of the English Bar, where men of honour, high character, and ability, may be obtained for service in the Colonies. No doubt appointments from the English Bar would involve adequate salaries, because men such as are wanted would not sacrifice their prospects at home without sufficient consideration; but, if I am not mistaken, the colonists would be ready to pay adequate salaries if good appointments were made. This is a matter to which I trust the attention of my noble Friend will be directed, and that it will not be lost sight of in any appointments that he has to make. My Lords, I beg to present the Petition of which I gave Notice.

The noble Earl then presented a Petition of landowners, merchants, and other inhabitants of Singapore, praying for greater security for judicial independence.


My Lords, I am extremely obliged to the noble Earl (Earl Grey) for having brought forward this subject, for reasons which I will state later. I have paid the greatest possible attention to every word he has said, and I believe I perfectly agree in every opinion he has expressed. My Lords, there are two points raised by my noble Friend. In the Petition, a copy of which was sent to me, only one of these is referred to—it is a protest against the unconstitutional power given to the Governor to remove or suspend a Judge upon his own responsibility. The noble Earl has raised another point, which has regard to the position which a Chief Justice or Judge ought to hold in the Legislative Council. I entirely agree in the principle the noble Earl has laid down. I think it absolutely impossible for a Government to be carried on if the Members of the Executive were allowed to vote in opposition to the Governor. It is obvious that if that were permitted anarchy and confusion would result. I also agree with the exceptions stated by the noble Earl. The Judges are in a different position from the mere Executive, however distinguished they may be; for I quite agree that more freedom must be allowed to the Judges, partly because they are not connected with Executive office, and partly because they must have the greatest possible independence in their judicial functions. Yet it would be most unbecoming in a Judge or Chief Justice if they were found leading an Opposition, or committing themselves to anything like factious opposition with regard to the Government to be carried on; and I think it would not be creditable either to the Governor or the Chief Justice, although some difference of opinion may arise between them, if they did not avoid the scandal of very decided opposition. With regard to the other question—the irresponsibility of Judges—I thought it, both in principle and practice, so important that, desiring to strengthen, in every possible way, my position on this subject, I directed a Memorandum to be prepared, stating the facts and the arguments on both sides, which was transmitted to my noble Friend the Lord I President of the Council, and I requested him to gather the opinion of those members of the Judicial Committee who had great experience in matters of this sort, and transmit their opinion to me. The I result was, that the Registrar of the I Council drew up a very interesting Memorandum on the subject, some passages of which I should like to read to your Lordships, and the whole of which I shall lay on the Table as well worthy the attention of my noble Friend—and, indeed, of all who take an interest in the subject. The pith of it is this, that it is the opinion of the Judicial Committee that some effectual means must exist for removing Colonial Judges who are guilty of grave misconduct. It is impossible to adopt as cumbrous a method as is adopted in cases of Judges at home; at the same time, it is necessary that they should have a hearing before a perfectly impartial tribunal. The Memorandum shows that it is the almost universal rule, both in the case of removals and suspensions, that there is a hearing before the Privy Council. In the case of removal of a Judge under Burke's Act it is necessary that the case should be brought, of absolute right, before the Privy Council. And so in cases of suspension, as my noble Friend says, in later times—except when the Privy Council refuses to hear, because no appeal is made by the person so suspended—they usually recommend that the matter be referred either to the General Council of the Committee or the Judicial Committee; and it is usually thought by the Lords of the Council, when the Judicial Committee meet on questions of this sort, that the President of the Council and the Colonial Secretary should attend the meetings of the Committee. The Memorandum goes on to state that when the charges are brought against a Judge at the instance of the Legislative Assembly, before the Privy Council, the aspect of affairs is somewhat changed, because, instead of the Judicial Committee acting as a Court of appeal, it is obliged to take on itself something of the character of a Court of primary jurisdiction. The difficulty of procedure, the difficulty as to evidence, the difficulty of getting the issues clearly put, whether with regard to law or fact, in all these casess is found most onerous to the plaintiff, and much less satisfactory to the Lords of the Council. But the Memorandum goes on to state—as my noble Friend put it, with perfect truth—when a Governor of his own accord suspends a Judge, he takes a step of the gravest responsibility. He is obliged to bring a specific charge, and the Judge is entitled to give a full answer. It is the interest of the Governor to bring the matter forward with all the evidence in the clearest manner for his own defence. In point of fact, the Governor is placed almost equally on his trial with the Judge whom he has removed. The opinion of the Privy Council is in favour of that course. If your Lordships will permit me, I will read the last two paragraphs from the Memorandum. I am exceedingly anxious to give full explanations, not only to your Lordships, but also to the petitioners on this subject, and I think it will have a very good effect in the Colonies, when it is known that this is not a mere opinion of the Privy Council, but that it has the authority not only of my noble Friend the noble Earl, but also of those Judges who have the greatest experience in these matters, who entirely approve the system adopted. The Memorandum concludes by stating— The experience of the Lords of the Council, therefore, strongly corroborates the arguments stated in Sir F. Rogers' paper in favour of proceedings by the Governor, subject to a review by the Secretary of State or the Privy Council in England; and they have invariably found that in the cases in which proceedings have originated with the local assemblies, the delay, uncertainty, and expense have been greatly augmented. At the same time, when the misconduct charged is purely judicial, and therefore not properly amenable to the decision of the Executive authority, acting on the advice of law officers or advisers of inferior rank, it would seem that the due maintenance of the independence of Judges requires that judicial acts should only be brought into question before some tribunal of weight and wisdom enough to pronounce definitively upon them; and this function appertains with peculiar fitness to the Privy Council, which, as a Court of Appeal, has to review the decisions of all the Colonial Courts. That opinion, I apprehend, is perfectly in accordance with the wishes and desires of the petitioners. There is also an important Minute of my noble and learned. Friend (Lord Chelmsford); but it is rather long, and therefore I do not read it at length; but I am glad of the opportunity of stating, in general terms, that it is consistent with the views expressed by the noble Earl. The opinion of Dr. Lushington on the matter is given in very brief terms, and I think I may trespass on your Lordships' time by reading what he says. Dr. Lushington states— I entertain no doubt in my own mind that the most efficacious means of proceeding, and productive of the least evil consequences, is that the Governors of the Colonies respectively should be intrusted with the power of investigating any alleged charges against the Judges, and, if in their opinion need be, of suspending them; of course, all the proceedings, and the evidence upon which they act, should be remitted without delay to the Colonial Office, and, if need be, Her Majesty will be advised to remit the case to the consideration of the Privy Council. I apprehend that the Judicial Committee has no peculiar claim to take cognizance of such a case. I think that the propriety of the Colonial Governor being invested with this power, great as it is, would be more apparent if contrasted with any other mode of proceeding than that suggested. My Lords, being thus strengthened by these authorities, I am exceedingly glad that the subject has been brought before the House, as the discussion may prove satisfactory to those who thought themselves aggrieved by the results which have followed the placing of the Settlement under the control of the Colonial Office. With respect to the importance of selecting the best men not only for judicial employments, but for all other employments in the Colonies, that is a subject not at all new to me; and, in the situation I occupy, I feel that there is no one thing in respect to which I can be more useful than in attempting to select both for judicial and civil offices the very best men that can be obtained; and in overcoming the difficulties—which I own are not small, in respect of recommendations of persons who sometimes do not turn out so well, or do not entirely fulfil the character which zealous friends have given them.

Petition ordered to lie on the Table.