HL Deb 04 March 1872 vol 209 cc1307-14

said, he wished to make a few remarks introductory to the Question which he had put upon the Paper—namely, to ask the Lord Chancellor, Whether it is his intention to bring in before Easter any Bill for the establishment of a Supreme Court of Final Appeal? He congratulated himself that listening to the discussion which had just terminated he had found no reason assigned against the initiation of Bills in that House, such as that in respect to which he desired to elicit information from the Government. Every one admitted that such a measure was not only wanted, but that it ought to originate in their Lordships' House. Those who heard Her Majesty's gracious Speech at the opening of the Session, felt assured that that Bill would be immediately introduced. There had been no earthly reason that he knew of to prevent the Government from giving its attention to that measure during the Recess. Therefore, he should expect with confidence that his noble and learned Friend on the Woolsack would be prepared not only to answer, but to answer in the affirmative, the Question he proposed to put to him—namely, Whether the Government had prepared a measure for the establishment of a Supreme Court of Final Appeal, and if not, why not; and whether such a measure would be introduced before Easter, and if not, why not? He concurred entirely in all the regrets which had been expressed from time to time with regard to the inactivity of their Lordships in the earlier part of the Session; these regrets might be reduced to a stereotyped formula—but he hoped that this measure at least would form an exception to the general rule, and that the Government would lay a Bill on the Table of the House at such a time that it could be fully deliberated upon before Easter, and sent to the Commons shortly after. The necessity for some action in the matter was beyond all precedent—the state of the appellate jurisdiction of the country would scarcely be credited by anyone not actually concerned in it. To this House came all appeals from all the Common Law Courts and Courts of Equity in England, Ireland, and Scotland; but this great demand upon the House was not met in any systematic manner. Their Lordships had no appointed Judges and no appointed times of sitting: the consideration of appeals was not even carried on in a judicial manner, but their Lordships sat as a deliberative assembly, and the sittings were dependent upon the sitting of Parliament. During the Session appeals were heard upon four days of the week, no accident intervening, and the despatch of business was dependent entirely upon the voluntary attendance of such Members of the House as had filled the office of Lord Chancellor and one or two others. Whether one or two of them attended was utterly uncertain, and who they might be was equally uncertain. No suitor could tell beforehand who would hear him or who would determine his suit. Beside this, the sittings were frequently interrupted. The Lord Chancellor had his political duties to attend to; the most serious argument by counsel had to be interrupted at 2 o'clock because the Lord Chancellor had to attend a levee, or even at 1, because the Lord Chancellor had to attend a meeting of the Cabinet by virtue of his office. The result was that appeals were delayed from day to day, or half days only were given to them. The noble and learned Lord on the Woolsack had been diligent, and the appeals had been well kept under; but his diligence did not correct the defects in the tribunal itself, and could not relieve the Legislature from the necessity of amending those defects. A greater sense of decency prevailed in these days; but in Lord Eldon's time, when the Lord Chancellor attended to hear appeals, he occasionally found himself alone, and inasmuch as three Peers were required to make a House, the officers of the House were sometimes obliged to catch a Bishop and invite him to act as dummy; a lay Peer was sometimes pressed into the service; and the Lord Chancellor, gravely assisted by these two mutes, administered justice in a final manner. The improvement of the present day, however, ought only to convince their Lordships of the necessity of doing much more. Upon the Judicial Committee of the Privy Council devolved the duty of deciding not only upon all ecclesiastical and Admiralty appeals, but upon all the appeals that came from the 300,000,000 British subjects in India and all other British colonies. The small improvement made last year could not be regarded as more than a temporary expedient, though it had worked well. It had reduced the number of arrears; but it was by no means a fitting tribunal for finally settling the enormous number of appeals coining from our Courts. What should be done? These two tribunals, co-ordinate, each final, and therefore always in danger of asserting principles contradictory of each other, which no power but Parliament could decide upon, should be consolidated into one great Court of Appeal, presided over by the élite of the law to be selected from the Judges of the other Courts, and competent to deal with all the variety of cases that came before the Judicial Committee, from India and the colonies, and before their Lordships from the Courts of Scotland, Ireland, and all parts of the kingdom. If such a Court were well constituted, made easily accessible and economical, sitting throughout the year, and with its door open for the admission of every appellate suitor, then one appeal ought to be sufficient. There might be cases in which facility should be given for a re-hearing or even a double appeal, but one appeal for the generality of causes would suffice. This was necessary because facilities should not be given to litigious persons—it was to the interest of the State to stop litigation after reasonable facilities had been afforded for obtaining justice. At present the appeals were too numerous. The jury decided upon the questions of fact; but upon questions of law appeals from the Courts of Common Law were carried to the Exchequer Chamber, and it might happen then that three Judges out of the five would overrule the opinion of seven or eight or even eleven Judges. In the Court of Chancery the Lords Justices sometimes sat as a Court of Appeal, sometimes the Lords Justices with the Lord Chancellor, and sometimes the Lord Chancellor by himself. There might be an advantage to the Lord Chancellor in having a subordinate Court of Appeal, because the great part of the jurisdiction of the Court of Chancery consisted of a preventive jurisdiction, such as the granting injunctions. In Scotland matters were in a state which would be insupportable but for the self-love of the people, which led them to attribute perfection to all their institutions. An appeal lay from the sheriff substitute to the sheriff depute; from the sheriff depute to the Court of Sessions; thence to the Lord Ordinary with a right of ultimate appeal to their Lordships' House. With regard to the Judicial Committee he would gladly hail any measure that would eliminate from that body the Bishops who now formed a portion of that tribunal, and he regretted that when last Session a noble Marquess (the Marquess of Salisbury) brought the subject forward he (Lord Westbury), in the impression that the Motion had been abandoned, was not in his place to support him by his vote, because he believed that nothing would more tend than their exclusion to promote the peace of the Church. Such a tribunal as that which he had been advocating would be of little use unless it were composed of the most eminent men selected from the Bench, who were willing to devote the whole of their time and ability to the discharge of the duties which would devolve upon them; and for that it would be necessary to give them a large and liberal remuneration. That was the work which lay before them. There was no quarrel to be apprehended with the House of Commons as to whose right and whose duty it was to be the first to set hands to it. He would not give vent to any suspicion of his own with reference to the preparation of the Bill, but would end as he had begun by asking whether the Bill had been prepared; if not, why not? Would it be brought in immediately, and, if not, when would it be brought in?


said, that his noble and learned Friend (Lord Westbury) had covered a large field in the course of his disquisition upon this very important subject; but he did not complain of the course taken by his noble and learned Friend, for the subject was one in which he had himself personally felt the deepest interest for many years, before he had any opportunity of evincing that interest by the introduction of any practical measure of reform. The Questions put to him by his noble and learned Friend were—first, whether the Bill was prepared; and, secondly, whether it would be immediately introduced into that House? He would state very briefly the exact state of the case in reference to these Questions. In the Session of 1870 two Bills, one for the improvement of the Appellate Jurisdiction and the other for the construction of a High Court of Justice, were passed through their Lordships' House; but owing to the vast pressure of business in the other House it was found impossible to press them through, and the Bills were withdrawn; and again last Session, for the same reason, it was thought to be impossible to introduce them again in the House of Commons with any prospect of being gravely considered, as was befitting the importance of the subject to be dealt with. He need not refer at length to the circumstances which prevented the matter being dealt with last Session; but he would say, simply, that though the Bills were not brought before Parliament the time had not been lost. To prepare Bills of this sort not only required much thought and consideration, but it required, also, that those who had charge of the matter should take every possible opportunity to improve and perfect the measures before submitting them to Parliament. The moment it was ascertained that the Bills could not be introduced in the House of Commons last Session with any chance of their passing in the course of the Session, he set himself actively to work to obtain information such as could conduce to the improvement of Bills intended to effect a work so great as the establishment of a High Court of Justice and a High Court of Appeal. He circulated copies of the Bill among the learned Judges, from many of whom, he had sent the drafts to, including the Lord Chief Justice, he obtained valuable suggestions. He could not represent the Lord Chief Justice as approving everything being done exactly as was proposed in the High Court of Justice Bill; but he admitted that it was a great improvement in the Bill of the year before, and made a considerable number of suggestions for its improvement. Others of the Judges also sent him suggestions—the Master of the Polls and Judges of the Superior Courts—and in this way he had obtained several valuable papers, of which he had made use in improving these Bills. In addition to these, during the Recess he received a most valuable offer from several of the Members of the Judicature Commission, gentlemen with hard work enough of their own to do, who offered to take the Bill for the establishment of a High Court of Justice into their consideration. They formed a sub-committee on the subject, and from time to time he received very valuable suggestions from them; but, as might be expected from the heavy duties which pressed upon them, it was not until the month of January in the present year that he received their final Report. He did not think it was necessary to introduce the two Bills simultaneously; and, that being so, he should have no difficulty in placing the High Court of Justice Bill almost immediately before their Lordships. Some of the alterations made in the Bill he had just mentioned would necessitate modifications in the details of the measure relating to appellate jurisdiction. The Bill had been placed in the hands of the draftsman for this purpose, and he had every expectation of being able to ask the House to read both Bills a first time before Easter. He had had sufficient experience of their Lordships' House to convince him of the difficulty of proceeding swiftly, and the importance of proceeding carefully in reference to matters of this kind. When he entered the House there was the law of bankruptcy to be dealt with, and at that time there were before Parliament three Bills and a Report of a Select Committee of the House of Commons in reference to the subject. He looked through all these, and drew the heads of a Bankruptcy Bill which gave to creditors full power to attend to their own business in the way that seemed best to them, and had abolished imprisonment for debt. This was the fact, notwithstanding the charge sometimes made against the present Government, that they had done nothing for the improvement of the law. It was true, as had been said, that the administration of the appellate jurisdiction was not in nearly so unsatisfactory a state as in the days of Lord Eldon; but he might, nevertheless, mention that on one occasion he argued an appeal which lasted during three days before the Lord Chancellor and two other noble Lords who had never sat on the Woolsack, the last-named Peers being different on each day. He might also state, further, that there were only 15 appeals waiting for hearing in Chancery; and when first the Courts assembled after Hilary Term there were only eight, not one of them being a month old. When first he had the honour of a seat in their Lordships' House there were the arrears of two and a-half Sessions to be cleared away, and this Session commenced with the arrears of half a Session only. He did not mention these facts in any spirit of personal vanity, because other noble Lords had, by their zeal, contributed to bring about this improved condition of affairs, but simply to show that there had been an improvement effected of late years in the conduct of the appellate jurisdiction. Before sitting down he desired to say a few words in reference to what had fallen from the noble Earl (Earl Grey) this evening, as to the Bills of the Government being ill-prepared and badly drawn. Those remarks were not just to those persons who had prepared the very important Bills passed by Her Majesty's Government during the last three Sessions. Never before in three consecutive years had measures of such extreme magnitude and importance been passed. In particular, extreme care and precaution were necessary in preparing the Irish Church Bill and the Irish Land Bill, and he ventured to assert that they were drawn up most carefully. Something had been said about the Habitual Criminals Bill. That was a most useful measure, and the testimony of all the Judges on circuit was that it had worked admirably, and that the number of habitual criminals brought before them was much less than it used to be. Then the Education Bill was one which required to be drawn with extreme care. In point of fact, great attention was bestowed upon it, and no one could justly say that it was an ill-prepared and slovenly Bill. It was only due to those employed in the preparation of these Bills that he should make these remarks. In conclusion, the noble Lord repeated that it was his expectation and belief that the Appellate Jurisdiction Bill and the High Court of Justice Bill would be introduced and read a first time before the Easter Recess.