HL Deb 04 July 1871 vol 207 cc1090-6

Amendments reported (according to Order).


, who had given Notice of an Amendment to insert at end of the clause the words following:— ("It shall be the duty of every person appointed to act as a paid member of the Judicial Committee under this Act to attend the sittings of the said Committee when summoned thereto unless he shall be prevented by reasonable cause; and every such person shall have the same title to continue to receive the salary hereby provided for him as if he were a judge of one of the Superior Courts holding office during good behaviour but removable by Her Majesty upon an Address of both Houses of Parliament; provided that nothing herein contained shall give to any such person any title to hold or continue in the office of Privy Councillor other than the title which he would have had if this Act had not passed,") said, that though he approved of the principle of the Bill, he thought there were some objections which might impede its coming into practical operation. In the first place, the Judges of the Superior Courts, both of law and equity, were provided with a staff of officers and clerks who were necessary to the performance of their duties. Some of these Judges were now to be transferred to a Court where no such assistance was provided. In the next place, it was proposed to offer to Judges whose tenure of office was thoroughly well defined a position which would be held by them only during the pleasure of the Crown; because as it was required that any persons who should be appointed members of the Judicial Committee should be Privy Councillors, and the Crown could at pleasure remove their names from the Privy Council, they did in effect hold their appointment at the pleasure of the Crown. In addition to this, the cause of the Judges' punctual attendance in their own Courts had been entirely overlooked; but the fact was Judges held office during good behaviour, and it was not good behaviour to be absent during the sitting of their Court. They first of all, as it appeared to him, fell into the serious error of saying nothing about the tenure of office of the Judges; and, having said nothing about that subject, they then inserted an offensive condition by which the Lord President of the Privy Council was to determine whether if one of these appointed members omitted to attend the sittings of the Committee after having been duly summoned, the excuse he might offer for his non-attendance was a reasonable one or not; and if he thought not he might certify such omission to Her Majesty, and thereupon the salary of the member would cease, and a new member might be appointed: in other words, the Lord President of the Council had the power of removing a paid member of the Judicial Committee if, under certain circumstances, he should deem it expedient—a condition which was utterly unconstitutional, and one to which no Judge of the Superior Courts would, he believed, be willing to submit. Again, assuming that the Crown appointed to this tribunal one of the Lord Justices, a Puisne Judge, and two Indian Chief Justices, they would have sitting side by side, and determining the same causes, men in receipt of £6,000, £5,000, and £3,500. Nor was that the worst feature of the disparity, for the Indian assessors would actually have a salary of only £400 a-year. Though these discrepancies in salary were extraordinary enough, the matter was essentially one for the consideration of the Government; but with reference to the office of the Judges, he should ask their Lordships to insert words which would insure our present judicial system being adhered to. The noble and learned Lord then moved, in page 1, line 28, to leave out from ("salary") to ("and") in page 2, line 1.


said, that the suggestions made by his noble and learned Friend (Lord Cairns) had not been overlooked in framing this Bill—indeed, everyone of them had been carefully considered. The Bill itself was a Bill drawn for the purpose of meeting an emergency, correctly described on a former occasion by his noble and learned Friend opposite (Lord Westbury) as one of a very pressing character, and it was not to be regarded as a Bill to provide permanently for the Judicial Committee of the Privy Council. The first objection raised by his noble and learned Friend that evening was, that the learned Judges who were to perform the important duties of sitting on the Judicial Committee would not be provided with clerks. He was somewhat surprised at hearing such an objection from his noble and learned Friend, because his noble and learned Friends sitting around him, who rendered their Lordships such valuable assistance in determining the appeals which came up to the Bar of their Lordships' House, performed their duties without the assistance of clerks or officers; yet he had never found that they shrank from their duties, or were subjected to any inconvenience from the want of such assistance. Moreover, a common law Judge transferred to the Judicial Committee would be relieved from the expense of going circuit, and, from the £500 or £600 thus saved, could afford to employ a clerk if he required one. None of the members of the Committee of Privy Council was provided with a clerk except the Lord Justice, and he did not enjoy that advantage in his capacity of being a member of the Judicial Committee. The fact was, that when the Judicial Committee was constituted it was formed with the idea of having the assistance of the Judges of the Superior Courts, who had retired upon pensions, who it was supposed would be willing to take upon themselves the duties of Judges in so high a Court in consideration of the pensions already awarded to them, and of the high rank of Privy Councillors. That arrangement worked very well until age and infirmity prevented some of the learned Judges from any longer discharging the duties which they had hitherto willingly performed; and from the pressure of circumstances, a different arrangement had become necessary. It was not his view that because the Judges of the Judicial Committee had not clerks there would be any real difficulty in getting Judges to accept the appointment. The next objection was as to the tenure of the Judges. The great difficulty in the way of assenting to the Amendment of the noble and learned Lord lay here. The Judges of the existing courts could not be removed except by an Address from both Houses of Parliament to the Crown; but the Crown was entitled to remove anybody from the Privy Council. To say that the learned Judges proposed by the Bill should have the same tenure as the Judges of the higher Courts was to say that they would not be removable except by an Address of both Houses of Parliament—in other words, that the Crown should not have the power of removing them except on such an Address. The effect of that was to take away from the Crown its right of removing anyone from the Privy Council, which was a sufficient reason for not acceding to the Amendment of the noble and learned Lord. But as since 1834 the High Court of Appeal had been subject to removal, and the qualification of holding during good behaviour had not existed, the provision in the Bill was not likely to be attended with any evil result, or practically to interfere with its working. The next point was that there were no mode of terminating the duties of those learned Judges prescribed in the Bill, in the event of their not attending to the duties of their offices. But surely there could be nothing undignified in a Judge requesting, if he thought proper, to be relieved of the arduous duties which he was unable to perform; in which case, of course, he would retire and cease to receive the salary attaching to the office. He must confess that he heard with some regret the remarks made by his noble and learned Friend on the subject of the payment of the Judges. He must say that he preferred the old system, under which a Judge receiving his pension was content, as many of their Lordships were, to attend, without stipulations, and perform constant and arduous duties. As regarded the pay which the Judges would receive, it was not proposed to interfere in any way with the pensions to which they had become entitled by their previous services, but simply to add an uniform sum of £1,500 a-year to the amount of which they were already in receipt. He hoped that Amendments would not be persisted in, which, while they might interfere with the privileges of the Crown, could not fail to throw practical difficulties in the way of the Bill as it stood.


hoped his noble and learned Friend on the Woolsack would accept the Amendment which had been suggested as the easiest way out of the difficulty, remembering the criticism which the Bill would have to undergo in "another place." As regarded the clerics to the Judges, there was this distinction to be observed—that clerks were assigned to Judges ordinarily because they had a large amount of chamber practice; whereas at the Judicial Committee the duties to be discharged were purely official, and the attendance of clerks became unnecessary. He hoped his noble and learned Friend (Lord Cairns) would not lay any stress upon the difference of salaries between the Judges, this being admitted a temporary expedient intended to meet the present overwhelming necessity, and to be followed hereafter by a measure which it was to be hoped would put the tribunal upon a more fitting basis, both as to position and emoluments. As to the constitution of the Court, it was plain that the limitation of the choice of members to Judges of Westminster Hall, either existing or retired, and to Judges who had held office in the Supreme Court in India, must ultimately be enlarged so as to include within the range of choice Judges of the Superior Courts in Ireland and also in Scotland. At the present moment, the chief pressure existed with regard to the Indian appeals; but hereafter there would obviously be a mass of colonial business for consideration, and it was with regard to these appeals especially that the habits of thought, early training, and practice of the Scotch Judges would enable them to render eminent services. This was not the time for entering into more extensive questions; but his noble and learned Friend who had charge of the Bill would no doubt see the propriety of replacing it as soon as possible with a large and comprehensive measure. It would then be only a matter of common justice that the officers of the Judicial Committee should receive emoluments corresponding to the increased labours they would be called upon to discharge.


said, that nobody thought that the position of any member of the Judicial Committee was in any way affected by the power of the Crown to remove. No doubt in former times the power of the Crown in such matters was of very serious importance when Judges were kept subordinate to the Crown and induced to do unjust and unrighteous things at the bidding of the Crown in order to preserve their offices; but he did not believe that as society was at present constituted, there was the slightest risk that any Judge, whether of the Judicial Committee or of any other Court, would be removed for the exercise of their judicial functions from mere caprice. It was only fit and proper that Judges should be permanent, and that they should not be removed except when they had been guilty of misconduct that could be ascertained by Parliament; but no person in Westminster Hall would entertain the slightest fear that there was any trenching upon principle if to the Judges who were appointed members of the Judicial Committee nothing was said respecting the time during which they should hold their offices. He desired to point out to the Lord Chancellor the necessity for establishing a rota of Judges now that the number of ecclesiastical cases was small. The old practice, if followed, would very much facilitate the constant sitting of the Court.


said, there was nothing in this Bill to show that it was of that temporary character described by the Lord Chancellor; but, on the contrary, there was a provision for the appointment of members of the Judicial Committee from time to time. If this Bill was intended to be temporary, it was unlikely that any of the present Judges in the superior Courts would take office as members of the Committee—especially under the circumstances of their very precarious existence. The scheme now before their Lordships would rather lead the Judges not to take office. It was also extraordinary to anticipate that the Judges would be likely to neglect their duty, so that provision had to be made in the most offensive manner for entailing upon them the consequences of such neglect. The new members of the Committee were to be entirely at the discretion of the Lord President, who, if he thought that reasonable excuse for absence was not given, might certify to Her Majesty, and thereupon such member was to lose his salary; and, although it was not said he should be deprived of his office, it was provided that another person should be appointed in his place. That was a most unusual position in which to place the Judge of a High Court. He should also like to know what, when a new system was introduced, was to become of these four members of the Committee? Were they to continue in office, or to retire on a pension? He believed that the greatest difficulty would be experienced in inducing any of the present Judges to accept the appointments.


thought the noble and learned Lord (Lord Chelmsford) had exaggerated the difficulties that were likely to be experienced in obtaining those who would have to take these important duties upon them. He did not think it unreasonable to provide that if a member of the Judicial Committee ceased to attend the sittings his salary should cease and another member be appointed. The Amendment which had been brought forward without Notice was a decided innovation on the existing condition of affairs. He trusted that the noble and learned Lord would not persevere with this Amendment.

After some further remarks,

Further debate adjourned to Thursday next.