HL Deb 08 July 1873 vol 217 cc10-34

rose, pursuant to Notice, to call the attention of the House to the change in the proposals of the Government in reference to the appellate jurisdiction of this House which has been made since the Judicature Bill passed through this House, and to the consequences involved in this change; and to ask the Government whether they intend, and at what time, in the present Session, to lay before this House a complete scheme for regulating appeals in Scotland and Ireland analogous to the appellate system for England contained in the Judicature Bill, and said: My Lords, the noble Earl the Secretary of State for Foreign Affairs at an earlier part of the evening called your Lordships attention to a question of Order to what he said I was about to state. Now, my Lords, it appeared to me then as it appears now, whether I should not have done right to bring on my Notice as a question of Privilege before the Orders of the Day; but as the Orders were not numerous, and were not likely to occupy much time, I was content to allow them to pass unchallenged. Referring, then, to the Notice I have given, I wish to call your Lordships' attention to a matter which, in my opinion, deeply concerns, not only the Judicature of this country, but also the Privileges of your Lordships' House. The Judicature Bill is so fresh in your Lordships' mind that I need do nothing more than mention one or two circumstances with regard to it which are necessary for my present purpose. The Judicature Bill, which was introduced in this House, was founded mainly upon the recommendations of the Judicature Commission. As to the majority of the proposals contained in that Bill it may be truly said that the public opinion was to a great extent fully matured. That Bill dealt with the Superior Courts of the First Instance in this country—it consolidated them—it amalgamated or "fused" the systems of law which they had to administer. It also proposed to deal with what, up to the time of its introduction, had been the intermediate Courts of Appeal—it amalgamated and strengthened the elements of which they were constituted—and formed one Court of Appeal, the decisions of which should be final and irreversible. The system, so far as England is concerned, which that Bill provided was a complete system. I do not now intend to enter upon any questions which might arise as to the various provisions of the Bill. I am well aware that many of your Lordships were not altogether satisfied with that part of it which—to use an expression somewhat common, though perhaps not altogether correct—took away your Lordships' jurisdiction. But whatever may have been individual opinions as to that or other parts of the Bill, no doubt the system provided by the Bill was, so far as England is concerned, clear, distinct, and complete. The measure, however, made no provision which dealt with any part of the Judicature of Scotland or Ireland, and—without in any way wishing to raise any argument ad hominem against my noble and learned Friend on the Woolsack, but with the view of reminding your Lordships of the nature of the information which we received from him, I shall take the liberty of mentioning what fell from my noble and learned Friend upon this part of the question. The noble and learned Lord in introducing the Bill to your Lordships' House in that part of his most lucid and able speech in which he entered at length into the advantages of a system under which we should have a Court of First Instance and one irreversible appeal from that Court, said— I do not propose to deal by this Bill with the appeals from Scotland or Ireland. Those countries have each their own system of jurisprudence and judicature, with which, so far as their original jurisdiction is concerned, this Bill does not in any way deal. Furthermore, the evidence given before your Lordships' Committee last year by gentlemen conversant with the practice of appeals from Scotland was to the effect that no change was desired in that country. I think the views entertained by the people of Scotland on this subject are entitled to very great respect; it would be an unwise and unnecessary thing to propose changes applicable to that country which the public opinion of that country does not require. As to Ireland, there was also no evidence that any change was wanted. I do not, of course, conceal from myself that if you establish in England a thoroughly good appellate jurisdiction, and find that it works as we hope it will work, opinion both in Scotland and Ireland may probably hereafter tend to the application and adoption of the same system in those countries."—[3 Hansard ccxiv. 348–9.] Nothing can be more satisfactory than that exposition of the principle on which my noble and learned Friend acted, and I have no doubt that these are still his views on the matter. But upon the second reading of the Bill the noble and learned Lord went a little further. He said— With regard, however, to Irish and Scotch appeals, there were constitutional objections to transferring that portion of their Lordships' jurisdiction to what might be represented as an English Court, unless that transfer were made by the desire or with the approval of the two countries. The Act of Union with Scotland expressly provided that no appeals from that country should be decided by an English Court. With that provision standing in the Act of Union with Scotland it would have been a more dangerous question than he should like to raise in this Bill if the Government had proposed to transfer to the new Court of Appeal the power of reviewing the decisions of the Scotch Courts without first ascertaining that such a transfer would be approved by the people of Scotland. A similar objection also applied to Ireland. It could hardly be forgotten by their Lordships that in the last century a sharp controversy between the English and Irish Bar arose out of the authority assumed by the Court of Queen's Bench in England to act as a Court of Appeal in Irish cases. That was ultimately solved in favour of the authority of the Irish House of Lords, and in the Act of Union it was provided that Irish appeals should be brought to the House of Lords of the United Kingdom. If it were now proposed to transfer Irish cases to the Court proposed to be established, the Government might inadvertently and unadvisedly revive that controversy which was settled by the Act of Union, and in the ever-varying currents of opinion in Ireland, with the demand for Home Rule, they might have brought a hornet's nest about them if they had raised that question. If, however, Parliament should now establish a Court such as may commend its judgments, its constitution, its wisdom, and its authority to public opinion both in Scotland and Ireland, and especially if the Court should be established in such a manner as to admit of the introduction of the best elements of the Scotch and Irish Judicatures, they might, after ripe experience, look forward eventually to the further development of that as well as of other parts of the measure. At present it seemed better that their Lordships should begin to do what they saw to be practicable, hoping that if the new Court began well all further improvements would in the result naturally follow, seeing that such improvements, once begun, had a natural tendency to increase and develope themselves."—[3 Hansard, ccxiv. 1738–9.] These observations of my noble and learned Friend were well known throughout the three kingdoms; and so far from giving rise to any disappointment or disapprobation in either Scotland or Ireland, I ant not aware that they have been received otherwise than with approval by the people of those countries. Your Lordships may recollect that the Bill was referred to a Select Committee of the House. Upon that Committee I had the honour of serving. It was a very large Committee, and upon it were several of my noble and learned Friends; in addition to whom, however, was a very large number of what I may call the non-legal Members of the House; and I can only say that in my experience of Select Committees of this House I have never seen a Committee where the attendance was so full, and where the consideration of a Bill was so careful. The Committee sat front day to day, the Members of it assembled at the earliest possible hour, and sat through the whole of the day; the Bill having been so considered was reported to your Lordships' House, and passed the third reading. I recollect, that at the conclusion of the Committee, the noble Earl opposite said—and the statement is one in which your Lordships will all concur—that the passage of the Bill through this House was creditable to the House; that the great object of all appeared to be to facilitate the passage of the measure, subjecting it to a fair, proper, and wholesome criticism at the right time for doing so. But before the Bill left this House a circumstance occurred to which I must refer. Immediately before the third reading of the Bill the noble Lord the Chairman of Committees (Lord Redesdale) proposed a Resolution of which he had given Notice, and that Motion he pressed to a division. The Resolution of my noble Friend was to the effect that one tribunal of ultimate appeal for the hearing of disputed suits from the Courts of all the three kingdoms is more advantageous than separate tribunals for such appeals. Some discussion occurred on that Resolution. I recollect saying that I regretted not being able to support the proposal of the noble Lord, because it appeared to me that its ultimate consequence would be to extend the jurisdiction of the Court to be created by the Bill to appeals from Scotland and Ireland, which I considered that the House had clearly indicated its intention not to do. I must assume that an opinion on the subject similar to my own prevailed also with Her Majesty's Government, for I find that on the division the Motion of the noble Lord was voted against by my noble and learned Friend the Lord. Chancellor, the Marquess of Lansdowne, the Earl of Camperdown, the Marquess of Ripon, Earl Granville, the Earl of Kimberley, the Earl of Morley, Viscount Halifax, the late Lord Chancellor, and others, Members of Her Majesty's Government. The result was that the noble Lord the Chairman of Committees was placed in a minority, and his Resolution was rejected. We are now informed—indeed, I believe I may say we have Parliamentary Notice, being furnished with the proceedings of what goes on in the other House—but, at all events, we know that the proposal of Her Majesty's Government now is that the Court which was created by this Bill as it passed your Lordships' House is to be made a Court of Appeal for Scotland and Ireland as well as for England. That is to say, that that which it was so expressly stated was not to be done will now be done, and that the vote of this House which declared the adoption of the Resolution of the noble Lord the Chairman of Committees to be inexpe- dient is to be overruled. The first observation which I wish to make on the subject is that, in my opinion, the course which has been taken by Her Majesty's Government, though no doubt undesigned, is at the same time a clear, a palpable, and a most serious infringement of the privileges of this House. I have always understood the rule to be this—that it is a Privilege of your Lordships' House that any Bill affecting the limits of the jurisdiction of the House must be commenced in this House, and that having commenced here it cannot be altered elsewhere. This privilege of your Lordships' House is by no means an antiquated privilege which has abated from desuetude, or been abandoned from indisposition to assert it. It never has been departed from in any manner, but has, within the memory of many noble Lords around me, been asserted and allowed. In 1851, when there was before the House of Commons a Bill for the improvement of the Court of Chancery, which contained a clause empowering this House to require the assistance of the Equity in the same manner as it required the assistance of the Common Law Judges in hearing appeals, Lord Lyndhurst called the attention of your Lordships' House to the proposal, which he declared to be a breach of the privileges of your Lordships' House. That appears to be a tolerably harmless provision. It was taking away nothing from the power of this House, but Lord Lyndhurst called the attention of the House to it as a question of Privilege. I find that on the 23rd of June in that year a debate took place on the subject, and Lord Lyndhurst on that occasion, in moving that it be referred to the Committee of Privileges to consider and report what course should be taken, said— This House and the other House of Parliament had been always jealous of any invasion of their privileges, and it was certainly important (particularly at the present moment, when they saw what was passing around them) that their Lordships should exercise caution and vigilance in the maintenance of their just rights and privileges. He had always understood that it was a principle and part of the policy of Parliament that no Bill, affecting in any manner, even remotely, the rights of the Peerage, or of their Lordships' House, the jurisdiction and authority of this House, the manner in which that jurisdiction should be exercised, or the parties employed to sit in that jurisdiction, should originate in the other House of Parliament. That was a principle stated in very distinct terms by Sir William Blackstone (1 Blackstone, 168), and by many other writers who had directed their attention to the subject of the constitution; and in consequence of that principle he now took the liberty of addressing their Lordships."—[3 Hansard, cxvii. 1069–70.] It may be as well that I should read to your Lordships the statement of Sir William Blackstone on the subject. It is somewhat fuller than it was necessary for Lord Lyndhurst to quote for the purpose which he then had in view. The statement of Sir William Blackstone was as follows— All Bills likewise which may in their consequences any way affect the right of the Peerage are by the custom of Parliament to have their first rise and beginning in the House of Peers and to suffer no changes or amendments in the House of Commons. Lord Lyndhurst continued on the occasion to which I am referring— Their Lordships were aware (it was a matter of perfect notoriety—it had appeared in the Votes of the other House")— That, my Lords, can scarcely be out of Order in 1873 which was perfectly in Order in 1851— That a Bill had been brought into the other House for the purpose of improving the administration of justice in the Court of Chancery. Lord Lyndhurst went on to say— Thus far he concurred in the objects of the Bill. The question which remained was, how this assistance was to be obtained? He was quite sure, with reference to the principle he had before stated, it ought not to be obtained through the medium of any Bill introduced into the other House of Parliament. The Bill to which he had referred contained a provision that certain persons should attend their Lordships' House to hear appeals; that they should be summoned; and that, in accordance with such summons, they should attend their Lordships and give their advice and assistance. Could anything be more inconsistent with the known privileges of their Lordships' House, than such a provision in a Bill introduced in the other House? It related to their Lordships' jurisdiction—it related to the manner in which that jurisdiction was to be exercised—it related to persons to assist in the exercise of that jurisdiction. Applying those facts to the principle he had before stated, he begged to say, with some confidence, that it was a direct invasion of the privileges of their Lordships' House."—[3 Hansard, cxvii. 1071.] At the time the late Marquess of Lansdowne was the Leader of the Government in this House, and the noble Earl the present Secretary for Foreign Affairs, who now leads the House, sat beside the Marquess of Lansdowne as a Member of the Government. The discussion continued, and the Lord Chancellor of the day (Lord Truro) said that— The Bill was prepared with an earnest desire to avoid all infringement upon their Lordships' privileges. Although it was quite true that the ancient Judges were in the habit of attending that House, they were in truth the persons who prepared the Bills. When the House had resolved that a law should be adopted for a particular intent and purpose, the Judges prepared the Bill, but this practice not being the case in modern times, the Judges only attended when summoned. The purport of his clause in the Bill which gave occasion to his noble and learned Friend's observations was that the Vice Chancellors and the Master of the Rolls should attend in like manner as the Judges of the Courts of Common Law, and should in like manner give advice and assistance by their opinion upon all questions prepared for their consideration. If the clause should be found to interfere with their Lordships' privileges he trusted it would be so modified as to secure those privileges from any interference whatever. Lord LYNDHURST stated that he had no objection to the substance of the clause; he only wished it to be carried into effect in a constitutional way. It ought not to be introduced into a Bill coming from the House of Commons. The Marquess of LANSDOWNE said. He could assure the noble and learned Lord that the clauses of which he complained had not been inserted in the Bill with any view of violating the privileges of their Lordships House; nor could it be accurately stated that their privileges had been violated until the Bill came up to them containing this objectionable clause. Until the Bill came up to them from the House of Commons, their Lordships were not in a state to say that any clause had been improperly inserted in the Bill by the House of Commons. He had no objection to the Motion. Lord STANLEY vindicated the course pursued by his noble Friend. …. But the argument of the noble Marquess was entirely opposed to the argument of the noble Lord on the Woolsack, who did not consider the clause one violating their privileges, but one which had been studiously framed not to infringe them in any respect. The Duke of RICHMOND claimed the right of the House of Lords to insert money clauses in their Bills. It was a privilege which they always claimed, although it was contested by the House of Commons. The latter Assembly had given directions that any Bill with money clauses inserted should be kicked to the Bar by their Speaker. Of late they had not been so uncourteous. But if this Bill came up with the clause referred to contained in it, he would move that the Lord Chancellor kick it to the Bar. The Marquess of LANSDOWNE intimated the intention of the Government to have the clause withdrawn."—[3 Hansard, cxvii. 1073–75.] The noble Earl opposite (Earl Granville) requires a precedent for the course which I am now pursuing, and I think I have furnished hint with one, which it is not only allowable but absolutely necessary to follow in the present instance. I say so because if we wait until the Bill comes back to us we shall be too late—I mean too late for those who have any good will towards the measure, as I have; because, if the Bill comes up from the other House with a provision which infringes the Privileges of your Lordships' House, it will not become a question of agreement or disagreement with the Commons' Amendments, a question of a Conference or advancing Reasons one way or the other—for no House of Parliament would submit to have its privileges thus dealt with by the other branch of the Legislature. Each House of Parliament is the judge of its own privileges. Let me remind your Lordships of the rule which has been laid down by Lord Coke, and which has been invariably acted upon— Whatever matter arises concerning either House of Parliament ought to be discussed and adjudged in that House to which it relates, and not elsewhere. Now, if a Bill which infringes the Privileges of this House comes up from the other House of Parliament we cannot amend it and we cannot disagree from the Amendments made in it on a question of Privilege. There is only one course which, as far as I know, can be adopted by this House, and that is, to lay the Bill aside. It would be too late to do anything else when the Bill conies up here; and it is therefore important that attention should at once be called to the matter, in order that the provision to which I am referring may be withdrawn while it can be withdrawn.

And now, my Lords, I want to know what is the reason why this infringement of the Privileges of this House should be attempted? Is it to carry out to its logical consequences anything that has been done by your Lordships already? I will show you that not only is that not the case, but that the proposed change will entirely overthrow the principles on which we have proceeded. What were the grounds on which your Lordships were called to agree to the cessation of appeals from England coming to this House? The grounds were two. One ground was advanced much more by my noble and learned Friend the late Lord Chancellor in connection with the measure which he brought forward last year than by my noble and learned Friend on the Woolsack this year. That ground was that so long as you have in this country a Judicial Committee of the Privy Council hearing appeals from the Colonies, and this House hearing appeals from the United Kingdom, you have two co-ordinate and final Courts of Appeal, both of whose decisions are irreversible, and that there was therefore a possibility of collision between those two co-ordinate powers. The ground—and, as I think, the more solid ground—urged with great force by my noble and learned Friend on the Woolsack this year was that it was a good thing in itself to have as perfect a hearing in a Court of First Instance as could be secured, and as strong a Court of Appeal as could be created. My noble and learned Friend urged that the multiplication of appeals was an evil, and that a second appeal was not a good thing in itself. That is a view which has largely prevailed among those for whose opinions I entertain a great respect—among members of the Bench—it is a view which was urged with great force in this House some years ago, and which has been largely adopted by the Press of this country. There is much, I think, to be said in favour of it, although it does not perhaps carry with me the weight which it does with many other persons. Such, however, was the argument which was urged very strongly by my noble and learned Friend on the Woolsack this year. Let us consider it for a few moments. I have always maintained that this was the turning point of the question—where the appeal should he and where it should be heard. It is not necessary to show that so long as there were only some 50 or 60 appeals to be disposed of every year, there was nothing whatever to prevent this House from disposing of them with perfect facility. It was absurd to talk of the inconveniences arising from any irregularity of attendance, because they could easily be obviated; but if you are to have only one Court of Appeal, to which every subject of appeal must come—and I think I mentioned last year that there would be some 400 or 500 of them—perhaps more—it would be quite impossible for this House to undertake that duty and to discharge it satisfactorily. How is that principle to be applied to Scotland and Ireland? Is it a part of the proposal of the Government that they are to deal with Scotland and Ireland as they have dealt with England? Nothing of the kind. We are told that the Government have not quite made up their minds as to what is to be done in the case of Scotland and Ireland in regard to intermediate appeals, but there is a suggestion that they should continue as they are at present. If so, the whole reason that exists for dealing with the English appeals in the way the Bill deals with them fails entirely to apply to the case of Scotland and Ireland, by your leaving them the intermediate appeals they possess. Take the danger of the possibility of a conflict between two great co-ordinate Courts of Appeal—the Judicial Committee of the Privy Council and the House of Lords. What is the proposal with respect to Scotland and Ireland? I understand that the Court of Appeal to be established by the Judicature Bill is to have a paid member from the Scotch Bar and a paid member from the Irish Bar, and at least two ex officio members from Scotland and two from Ireland; and the reason given for that is that, coming from those countries, they should hear Scotch and Irish appeals. The consequence is that, the Court sitting in Divisions, which are not to consist of less than three members—and they are not at all likely to consist of more—you will have Scotch appeals heard by a Division with at least two Scotch members, and the Irish appeals heard by a Division with at least two Irish members. The Indian appeals will be heard by a Division in which at least the two Indian Judges who at present sit in the Judicial Committee will be found; and I suppose you will have the English appeals heard by the English Judges. Thus you will have—not two co-ordinate Courts of Appeal, because the decisions of every one of those Divisions will be irreversible, but you will have a quadrilateral Court of Appeal—four Courts of Appeal deciding according to different grooves and running in different channels of thought; and the possibility suggested to us last year as a reason for making a change—namely, of a difference of opinion between the Judicial Committee and this House in an English case,—will, I say, be turned into the certainty of a difference of opinion between the various Divisions of your Court of Appeal. Well, when this ob- jection is taken, what do we find? Why, that the Government ridicule that idea, quote the example of the Judicial Committee and the House of Lords, and say, "Only look; for 100 years you have had two great co-ordinate Courts of Appeal sitting side by side, yet they have never come into collision; no practical man would take into account such a possibility; you are not to suppose these three or four Divisions are more likely to come into collision than the Judicial Committee and the House of Lords." So that the reason assigned last year as a ground for our parting with our jurisdiction is actually ridiculed this year when it is shown that that possibility has become a certainty in reference to a collision between the different Divisions of your new Appellate Court.

Now, my Lords, is this infringement of our Privileges called for by the public opinion of Scotland and Ireland? The evidence taken before your Lordships' Committee last year may be taken as a fair indication of the feeling of the profession, at all events in regard to Scotch and Irish appeals. No stronger evidence could be imagined of the contentment of the Scotch and Irish with their appeals coining to this House. I think the present Lord Advocate deprecated any change taking the Scotch appeals from this House. Well, your Committee of last year reported accordingly. Has there been any manifestation of public opinion in consequence of the announcement at the beginning of this Session that Scotch and Irish appeals were to be retained in this House? I am not aware of any. I have searched for the opinion of Scotchmen on this great and important proposal. One gentleman representing an important constituency and a supporter of the Government (Mr. Macfie), I find, says— A great amount of ignorance prevailed upon the subject, and that ignorance had been rendered more profound by the misleading articles that had appeared in some of the newspapers which ought to have known better. The amendments which would make the Bill applicable to Scotland had only just been put upon the paper, it would be next week before they could be proposed and discussed, and therefore he thought that on the whole, it would be better to postpone, at any rate until next Session, the proposal to bring Scotland within the scope of the measure. His own view was that the best course to adopt, instead of bringing Scotch appeals to England, and so necessitating a cost which would give the rich suitors an advantage over the poor, would be to create a well-paid and thoroughly efficient Appellate Court in Scotland which should have jurisdiction over all appeals relating to that country. My noble and learned Friend on the Woolsack did not use too strong an expression when he said the Government would be bringing a hornet's-nest about their heads if they opened that question of Scotch and Irish appeals. I see that some Resolutions were adopted the other day at a meeting of the Bar of Ireland, and they amounted to this that it would be a very good thing to have a Central Court of Appeal in London, provided it could sit in Dublin; and it should be profusely ornamented by members of the Irish Bar and Irish Bench. That was very patriotic and sensible, though, perhaps, hardly consistent in expression. Now, there are three views which might be taken in this matter. Scotland and Ireland might say—"We would like to be as you are going to be in England—namely, to have only one hearing and then a great Court of Appeal, extinguishing all intermediate appeals, which cost much money." A second view would be this—"Oh, we are quite content with our Primary Courts; we like our intermediate appeals, and don't want them taken away; and we are willing to go to London for an ultimate appeal." But the third, and much more serious view would be if Scotland and Ireland should say—"How did we ever come to London with our appeals at all; how dill the thing begin? Scotchmen never went to London before the Treaty of Union; and the reason was that whereas they had their own Parliament and their own House of Lords at home until you absorbed them, and since then we have followed them, and come to the House of Lords in London." And suppose the people of Ireland should say—"We did once go to the Court of Queen's Bench in England; but the country was very nearly in rebellion, and in 1780 you had again to legislate and give the thing up. We would not endure it; and we had our appeal to our own House of Lords." The Irish people would not stand it; and the only footing on which they came to London was that their own House of Lords was absorbed in your Lordships' House. But suppose the Scotch and Irish should say—"If that arrangement is to come to an end, we should like to do our own business at home; we should like to have a well paid and thoroughly efficient Court of Appeal in Scotland—as Mr. Macfie suggests. What is the use of two Scotch Judges and one English Judge sitting in London to hear a Scotch case? It would be just as easy to send the English Judge down to hear it in Edinburgh, instead of requiring all the parties, the writers and agents, to come to London with all the consequential expense; would it not be better to have the Scotch appeals heard at home, letting your English Judge go to Edinburgh for the purpose?" An outcry is being raised in Ireland already—I judge from the Press of that country—and being raised, too, by a part of the Press which is not in the habit of demanding "Home Rule"—against the centralization of the proposal now made; and it is being asserted—a thing which is, at least, intelligible—that if there is to be a Court of this kind, it ought to sit in Dublin, and be a strong Court of Appeal. Are these views, my Lords, to be silenced by a complete change in the proposals of the Government made at 24 hours' notice and without any public intimation or discussion? The noble Earl opposite (Earl Granville) intimates that there is a Constitutional objection to this discussion. Well, my Lords, I had a letter this morning from a gentleman in Scotland reminding me of what I had forgotten, of the most singular wording of the Act of Union. Here is the wording of one Article— That no causes in Scotland be cognisable by the Courts of Chancery, Queen's Bench, Common Pleas, or any other Court in Westminster-hall; and that the said Courts, or any other of the like nature, after the Union, shall have no power to cognosce, review, or alter the acts or sentences of the Judicatures within Scotland, or stop the execution of the same."—Article xix. Now, my Lords, do you suppose that the Court which you propose by the Judicature Bill to set up is not a Court "of like nature" with those which the Act of Union stated should not be cognoscible of Scotch causes? Do you suppose that the writing in between two lines of the words "Imperial Court" will alter the nature of the Court? I do not say that, after clear announcement, upon a plain understanding, after full opportunity given to the country to express its opinion, no alteration could be made. What I do say is, that it cannot be clone upon 24 hours' notice, and that what is proposed to be so effected is a clear breach of the Privileges of your Lordships' House. It is a breach of Privilege which if carried into effect will not only not be a logical consequence of what we have agreed to, but will run counter to the principle on which we have acted, and by agreeing to which we shall stultify all that we have done. Further, it is a breach of Privilege which is not even said to be called for, as to which there is no assertion made that the country at large requires it. Indeed, the country at large appears to be profoundly ignorant as to the proposals of Her Majesty's Government. I have no doubt that the proposal has been inadvertently made by the Government. I cannot but think that they have no desire to infringe the privileges of your Lordships' House. I should be sorry indeed to treat this as a party question. The position and the jurisdiction of your Lordships' House may, out of doors, be a matter of party agitation; but inside this House I am unable to conceive a difference of opinion arising between us as to the propriety of our maintaining our just and clear privileges. I am unable to picture to myself a division in this House in which would appear on the one side those who would maintain the Privileges of your Lordships' House, and on the other those who would destroy them. I am equally unable to imagine Her Majesty's Government proposing to lead a party of that description. If they do, of this I am quite sure—that they will find few indeed to follow them. I have, my Lords, shown already that I was justified in calling attention to the subject, and that it would be too late to do so when the Bill came again before your Lordships' House. Then the question would be whether the Bill should or should not be laid aside. I own—speaking for myself—I should regret being obliged to come to the conclusion at which I should then be forced to arrive, and to see a Bill in which I recognize so much good lost for this Session. My Lords, in point of form, I wish to ask Her Majesty's Government whether they intend, and at what time, in the present Session, to lay before this House a complete scheme for regulating appeals in Scotland and Ireland analogous to the Appellate System for England contained in the Judicature Bill.


My Lords, whatever else I may think of the nature of the important subject to which my noble and learned Friend has directed your attention, I can most sincerely say I regret that from ally cause whatever the harmony which has prevailed in your Lordships' House with respect to this important Bill should have been disturbed. Whatever may happen, I shall at all events retain a grateful recollection of my noble and learned Friend's services in promoting the Bill in its earlier stages in your Lordships' House; nor, my Lords, shall I forget the candour and fairness with which this House generally met the proposals of this Bill and endeavoured to bring them to a successful issue; and I shall most deeply regret if for any cause it shall appear to your Lordships, in any contingency that may happen, to be your duty to take a different course. I feel therefore a great difficulty in replying to my noble and learned Friend who has, I think, placed your Lordships and the Government in a position of unprecedented embarrassment by the course he has taken tonight. My noble and learned Friend, in treating of this question, has, I think,—although he has endeavoured to avoid it—made himself fairly amenable to a charge of breach of Order. I do not profess to have had so much experience in your Lordships' House as he has had, but I have been told by some upon whose opinions I rely, that it is a breach of Order in your Lordships' House to refer to speeches delivered in this House in reference to a Bill promoted during the present Session. Whether that be so or not, it will not, I think, be denied that it is in the highest degree inconvenient to enter into a discussion here as to what has passed or may now be passing in the other House of Parliament. My noble and learned Friend has not, to my mind, given any satisfactory reason for taking the course he has adopted in that respect. My noble and learned Friend has said something as to the communication to your Lordships of the Votes and Proceedings of the other House of Parliament; but, my Lords, I am not aware of any Vote passed by the other House upon the subject to which my noble and learned Friend has referred, and I infer, therefore, that my noble and learned Friend alluded to a Notice which may have been placed upon the Papers which by courtesy have been communicated to us by the other House. But, my Lords, I think you will be of opinion that Notices placed for discussion upon the Paper of the other House of Parliament cannot and ought not to be made the subject of discussion in your Lordships' House. It would involve the risk of very serious inconvenience in the way of mutual comment and criticism in each House as to what is going on in the other; and, I venture to think, would greatly increase the difficulty of dealing with any question subject to such treatment. But my noble and learned Friend has not only favoured us with observations on what has appeared on the Votes of the other House, but with what, I presume, were remarks upon observations supposed to have been made in the other House of Parliament. My Lords, to do justice to a subject of this kind its whole history ought to be before us, with all the considerations which may have suggested the taking of a certain course in "another place." But I must decline to follow what would otherwise be my wish—namely, to go fully into that which may have occurred elsewhere. I will endeavour as best I can to answer my noble and learned Friend without transgressing the rules of Order to which I have before referred. Whether my noble and learned Friend was in Order in quoting them or not, nothing could be more accurate than the extracts he read from the observations I made in introducing the Bill and on its second reading in reference to Scotch and Irish Appeals. I have no desire whatever to recede in any way from anything I then said. I stated that on principle I was in favour of bringing all appeals, whether from Scotland or from Ireland, to one Final Court, but that, though I anticipated that ultimately the opinion of Scotland and Ireland would tend that way, I did not yet see signs of such a state of opinion as would justify me in then making that proposal. My noble and learned Friend says that since the Bill left your Lordships' House the Government have made certain proposals. How can I explain the position of that matter without going into an account of what has passed, or may be passing, in "another place?" All I can say is, that the Government did not originate any such proposals. They originated elsewhere; and the Government did not acquiesce in them until they were in possession of certain grounds—what they thought sufficient grounds—for believing that Irish and Scotch opinion desired them, and that the representatives of those opinions were, indeed, prepared, with the aid and concurrence of the party to which my noble and learned Friend belongs, to force those proposals on the Government. That is what I am authorized to state, and what I do state with perfect confidence. I will abstain from going further into what passed within the walls of Parliament, but I am at liberty to state what has occurred outside the walls of Parliament. My noble and learned Friend has referred to a public demonstration of opinion which has occurred in Ireland—first, on the part of the Bar, and, next, on the part of a considerable number of the Judges. I cannot but think that it was a somewhat rhetorical artifice of my noble and learned Friend to comment with much humour and effect upon some of the suggestions of the Irish Bar, which were not of a very practical character. Adopting the principle that there should be one Court of Appeal for the whole country—and not only one Court in the abstract, but the particular Court proposed by the Bill with some additional members—they recommended that that Court should occasionally sit in Dublin. It did not appear to the Government, in estimating the weight of that expression of opinion, that that particular incident or episode was at all of the essence of the matter. Substantially the opinion expressed was, that they apprehended that the efficiency of this House as a Court of Ultimate Appeal would not be permanently as great as heretofore if the stronger elements were withdrawn from it to the great Court of Appeal in England, and that under the circumstances which would be created by the passing of this Bill, they desired that appeals from Ireland should be brought to the same Court. This opinion on the part of the Bar of Ireland, spontaneously expressed, and backed by the opinion of the Judges, and, further, not involving—at all events, as the Government understood—any unreasonable or impossible condition, did go a long way to satisfy one of the conditions necessary to be satisfied before the Bill could be extended to Irish appeals—namely, that if it were done it should be done rather at the request of opinion in Ireland, than forced upon that country by a proposal of the English Government. With regard to Scotland, information reached the Government, in a manner which the Government are accustomed to consider authentic—and I may mention that it related to matters outside the walls of Parliament, in order that I may be consistent in referring to it—that that proposal was desired by those who were naturally looked to as representing opinion in Scotland. I believe that not less than 32 gentlemen in that position met together, without any selection of persons, and were unanimously of opinion in favour of this proposal. I am further informed that since that time—indeed, as recently as Thursday last—a meeting of the Faculty of Advocates was held in Edinburgh, when the same proposition was carried, and that by so large a majority that the minority were not willing to have their numbers ascertained by anything like a division. The practical result is that there has been every indication of a unanimous expression of opinion in favour of the proposal from all who have spoken for Ireland and Scotland, after the very considerable lapse of time which occurred since the Bill was introduced, and after the large opportunities which have been afforded for its consideration, and without the least hint from the Government that their inclination was that way. In the absence, indeed, of any such inclination whatever, these expressions of opinion, apparently without a dissentient voice, were pressed upon them. My noble and learned Friend has only done justice to the Government in saying that if there had been any infringement or any neglect of any Privilege of their Lordships' House, it had been entirely by inadvertence. No question of any breach of Privilege ever occurred to any Member of the Government, nor, as far as I know, to anybody either in your Lordships' House or in the House of Commons. I must state that if my noble and learned Friend had intended to present the question of Privilege in such a very serious aspect, and if such very important consequences might follow front it, it is to be regretted that it did not appear on the face of the Notice; so that we on our part might have been able to look into the matter and see whether the precedents of Parliament to which he referred were altogether such as he supposes. If the matter be such as my noble and learned Friend has represented, it ought to receive, and it will receive, the serious and deliberate consideration of the Government; but we have not been placed in a situation to search for precedents in answer to what has been urged by my noble and learned Friend. But of this I am perfectly sure—that when there has been no intention to invade your Lordships' privileges, your Lordships will not be obliged in their defence to adopt any such extreme course as that which my noble and learned Friend suggested with regard to the Bill when it might be returned to your Lordships' House. It will always be in your Lordships' power to exercise the discretion now frequently exercised by the other House of Parliament when money clauses have inadvertently crept into Bills which have originated in your Lordships' House. The modern practice in cases of breach of privilege has been this:—Each House, when in a clear case its Privileges have been intentionally invaded, will of course have to discharge the duty of maintaining those Privileges; but when they have been invaded unintentionally, and when there is no reason to imagine that any disrespect has been intended, each House, regarding the public interests as well as its own dignity, has indeed always objected to those matters which have been introduced into a Bill, which it deemed to touch its Privileges, but has never thought itself under the necessity of depriving the public of the benefit of a measure otherwise salutary and unobjectionable, on the ground that this is the only proper way of marking its sense of a proposal inconsistent with its Privileges. When Blackstone went the length of saying that not only no Bill affecting the Privileges or the powers of the House of Lords could be introduced in the other, but that not even changes or Amendments could be made in a Bill of that kind by the House of Commons, be went beyond what is justified and warranted by the practice of modern times. I venture to say, with great deference to my noble and learned Friend, that the doctrine that no Bill affecting the Privileges or powers of your Lordships' House should be introduced in the other House would be very inconvenient; and that it would also be very inconvenient if your Lordships were not allowed to introduce an amendment into any Bill, whereby the Privileges of the Commons might be affected. Your Lordships know that a very highly important Bill, affecting the representation of the people, having come from the House of Commons, was altered materially in your Lordships' House. It will require much greater authority than my noble and learned Friend has adduced to induce me to believe that a different rule would be applicable on the part of the House of Commons in the case of Bills originated in your Lordships' House—and this Bill was originated in your Lordships' House. It never entered my mind for a single moment that when the time came for Ireland and Scotland bringing appeals to the same High Court of Appeal as England, Ireland and Scotland should lose the benefit of their local Courts of Appeal. I do not think your Lordships will deem it your duty to take a course which would destroy the Bill. As to the course which has been adopted by the other House with reference to this Bill. I do not think it is inconsistent with the Privileges of your Lordships' House.


My Lords, I shall not venture to join issue with the noble and learned Lord on the Woolsack on a question of law; but the noble and learned Lord appears to think that if Scotch and Irish Judges are added to the Court of Final Appeal to be created by this Bill, there will be an end of all objection to the change made in the other House in the Bill which is complained of by the noble and learned Lord (Lord Cairns). But, in my judgment, such a course will by no means solve the difficulty, because in that case either the Court must be divided into nationalities, or else we shall have Irish and Scotch Judges sitting to hear English appeals, which will certainly be an absurdity. With reference to the constitutional aspect of the case, charges have been made against the present course of the Government. First, that they are invading the Act of Union; and secondly, that they are committing a breach of the Privileges of this House. There can be no doubt that the Act of Union may be repealed or altered by Act of Parliament; but such an Act could only be passed after the people of the country interested had been consulted on the subject. And what are the noble and learned Lord's views as to the proper method of ascertaining the wishes of the people of Scotland and Ireland on this question. Why, a meeting of lawyers is held at Dublin, another in Edinburgh, and a third in a dining-room in London; and the opinion expressed at those meetings is held to be that of the people of Scotland and of Ireland. The noble and learned Lord (the Lord Chancellor) appears to be under the impression that the law is the property of the lawyers, and that no one else should be allowed to say a word in the matter. But, in my opinion, something more than the opinion of a few lawyers is necessary before you can proceed to repeal the solemn Act of Union. There are many means of ascertaining the opinion of the people on this subject. It can be arrived at by means of an inquiry conducted by either a Royal Commission or by Committees of the Houses of Parliament, or else in an informal manner by leaving the subject over for discussion by the people during the Recess. But the Government are going to proceed without any inquiry whatever. Why, if you were going to alter a sewer in Edinburgh under the Local Government Act, you would take more care to ascertain the feelings of the people on the subject than you do when you are going to alter the Act of Union. If you were going to alter the Edinburgh sewer, you would send down a Commissioner, who would hold a Court, would hear both sides, and would invite an expression of opinion generally; but in the present case nothing of the kind has been done in order to ascertain the sentiments of those who will be affected by the measure. This is not the way to deal with a sensitive, and perhaps I may say an irritable, people like the Irish; because, however quiet they may be now when they do not thoroughly understand the point at issue, the time may arrive when the real nature of the change will come home to them, and great dissatisfaction on their part may be the result. Under these circumstances, therefore, it behoves us not to attempt to deal with this subject rashly and without due and careful consideration. In dealing with the question of Privilege, the noble and learned Lord showed considerable skill. The question of Privilege is one of real importance. The privileges of this House extend to matters which concern our own constitution, and it would be rather hard if, while we are debarred from originating or altering Money Bills, and from originating measures dealing with the constitution of the other House, we should be debarred from determining in what manner our own constitution should be changed. I defy the noble and learned Lord to point out one case in which the House of Commons has passed over a breach of its Privileges. This very year the House of Commons ordered a Bill to be laid aside on account of a breach of its Privileges. If we once pass over a breach of Privilege the privilege is gone for ever, because it is a mere matter of usage and precedent, and once it is neglected it disappears altogether. I only ask this House to be as particular with respect to its Privilege as the House of Commons is with regard to its own—and we know that the business of this country is completely blocked because of the pertinacious assertion by the House of Commons of its Privileges, which prevent this House from commencing a considerable number of measures of importance. Should the House of Commons after this notice persist in sending up the Bill, with the clauses relating to the Appellate Jurisdiction of Scotland and Ireland in it, we shall have no alternative left us but either to renounce our Privilege or to assert it. It was a great wrench to some of us to pass this Bill, because it takes away a certain portion of our jurisdiction; but because we thought that it contained much that would be of advantage to the country, and because the legal and general opinion of the country was in its favour, we considered it would not be right to reject it; and I appeal to the testimony of noble Lords opposite to show that no party feeling has prevented us from giving it our heartiest support. We have been asked whether we think it right that all the labour that has been bestowed on this Bill should be thrown away. We have no choice in the matter. The fact that the Bill originated in this House, and that the House of Commons have merely inserted clauses in it, makes no difference in the breach of Privilege which has been committed. The House of Commons does not allow us to introduce clauses into a Money Bill; and should we attempt to introduce clauses into such a Bill the House of Commons would reject it. Under these circumstances, unless we are willing to sacrifice our privilege altogether, if the House of Commons sends up this Bill containing these clauses we shall be compelled to reject it. The result will be that a great reform, much desired by the people of this country, will be postponed, and if the Bill is lost it will be lost not through our act, but through the fault of the House of Commons.


The noble Marquess is in error in assuming that were we to introduce money clauses into a Bill, not exclusively a Money Bill, the House of Commons would reject the entire Bill. They would probably reject the clauses, but not the whole Bill.


agreed that the Act of Union was an instrument that ought to be treated with the greatest respect, though the truth was it had ceased to have much application. The clause in the Act of Union which related to the Appellate Jurisdiction of the House of Lords was applicable to a totally different state of circumstances from the present. It applied to a state of things under which appeals were supposed to by heard by the House of Lords sitting as a House, and not as a kind of Superior Court; whereas, when exercising their appellate jurisdiction, the House now sat as a mere Westminster Hall Court. He thought, he might add, the Members of the Government had some cause to complain that no Notice had been given by the noble and learned Lord that he intended to raise the question of Privilege—it was quite a new idea that had not occurred to any Member of the Government—and they had consequently been deprived of the opportunity of looking into the question, or even of providing themselves with a single book of reference. It was, in fact, a question resting on the opinion of the noble and learned Lord whether there had been a breach of Privilege or not. The matter, however, would be carefully inquired into, and assuredly their Lordships' privileges would be upheld.


pointed out that, so far as the House was in possession of the views of the Scotch people on the subject, they were in favour of maintaining the jurisdiction of the House of Lords over their appeals—so that if it were true that the House of Lords sitting on appeals were a mere Westminster Hall Court, that was the Court the Scotch people preferred. As to the complaint that his noble and learned Friend near him had not given sufficient Notice of the questions which he might raise in the course of his speech, he would merely remark that it was not usual to place an analysis of the intended speech on the Notice Paper; and in the present instance his noble and learned Friend's Notice was intended merely as a warning, and no immediate action was to be taken at the close of the discussion. He hoped that warning would not be lost on the Government, for he was sincerely anxious that the Judicature Bill should become law; for he had always been of opinion that it was not very creditable to the House that the attempts which year after year had been made to deal with the question should have turned out failures. He trusted, therefore, the Government would find the means of preventing the recurrence of any such failure, without, at the same time, seeking to commit a breach of the Privileges of the House, and that the Bill would be speedily passed into law.


defended himself against the charge of not having given sufficient Notice as to the course which he meant to pursue. It was impossible for him to have entered more into detail in giving Notice, than that it was his intention to comment on the changes which had been made in the Bill elsewhere.


thought it would have been much more convenient if the noble and learned Lord had given some indication that he intended to raise the question of Privilege. Such a course would, in his opinion, have tended more to the edification of the House and the public.