HL Deb 19 May 1874 vol 219 cc456-66

Order of the day for the Second Reading, read.

Moved, "That the Bill be now read 2a"—(The, Lord Chancellor.)


said, he would remind their Lordships that he had placed on the Paper, Notice of a Resolution, the effect of which would be to continue their Lordships' House as the Final Court of Appeal for England, Ireland, and Scotland. The Resolution necessarily applied to the Judicature Act, which had been passed last Session, in regard to England, but he hoped their Lordships would permit him to take advantage of the present Bill to indicate the course he proposed to ask their Lordships to adopt in order to remove all objections to the continuance of the Appellate Jurisdiction in their Lordships' House; for it would be wrong in him to make any proposal adverse to the Court of Appeal constituted by this Bill, unless he could suggest some better tribunal, and that he believed he could do. The course which he should recommend, was, in short, that they should revert to the practice of ancient times. In those days it was not the practice for the whole House to exercise its jurisdiction in private cases. The Journals of the proceedings of the House commenced with the first year of the reign of Henry VIII. So far back as that time it was recorded in those Journals that at the commencement of a new Parliament certain Peers were appointed "Triers of Petitions," and among the reasons for appointing them was this one—"that justice may be more quickly, commodiously, and diligently performed." The custom prevailed even before the House began to keep Journals, as might be seen in the Rolls of Parliament. It would appear that Bishops and Abbots were the persons chiefly appointed, probably because in olden times they were, from the education they had received, best qualified to exercise the legal jurisdiction of their Lordships' House. With these were associated the Judges, the Serjeants-at-Law, and others. The appointment of Triers of Petitions at the opening of every Parliament was continued at the present day; but their functions had been absorbed into the jurisdiction of the whole House; and now-a-days no Spiritual Lords were ever appointed Triers. In the lapse of time—he doubted whether it was very much earlier than the reign of Charles H.—the whole House claimed to exorcise that jurisdiction; but for a very long period the practice was abandoned, and the hearing of appeals was left to the Law Lords exclusively. Though in practice he believed no injury had arisen to any one from the lay Lords taking part in the judicial business, the House, when abandoning that practice, was only returning to what was the ancient practice of naming particular Peers to perform those functions. As he had stated, at the commencement of each Parliament, there was a regular appointment in Norman French of Receivers and Triers of Petitions; and they were appointed to try Petitions not only from all parts of the United Kingdom, but also from Gascony and the Islands beyond the seas—the Channel Islands. Now, what he would propose was a strict return to the old practice by actually appointing Triers, who should be Law Lords, to hear the appeals brought to their Lordships' House. Three objections were urged against the House of Lords as the Supreme Court of Appeal. The first was, that Peers not in any way qualified, either by intellect or legal training, might, if they chose to do so, sit to hear and determine appeals, which required the utmost legal learning and experience; the second, that the Court was one which did not sit throughout the whole of the legal year; and the third, that there might be a time when there would not be in their Lordships' House a sufficient number of qualified Peers to administer the law in appeal cases. He thought that the first of those objections could be met conclusively by the plan he had just indicated—the appointment of Triers—which would be no more than the revival of an ancient constitutional precedent. The Triers to hear appeals would be specially nominated, and no other Member of the House would be allowed to interfere with them in the discharge of that duty. The second objection in volved a constitutional point, as a proposal that one House of Parliament should be allowed to sit when the other was not, had met with strong opposition—but the same objection would not be felt to permitting the Triers of Petitions to sit throughout the legal year as the persons delegated by the House to ad minister law. No political or legislative business could be transacted by them, for the Triers would only sit for the discharge of judicial functions, a duty to which the Commons made no claim. As to the third objection—the insufficient number of qualified Peers—last Session he proposed, with the view of meeting it, the bringing in of certain judicial person ages to represent the Law in their Lord ships' House as the Bishops did the Church. This would entail no additional expense whatever. He knew that his noble Friend on the Woolsack had been very unwilling to see the House part with its legal jurisdiction, and in order to prevent that from being done, had pro posed an alternative plan on a Select Committee upstairs. When the noble and learned Lord who introduced the Bill of last year (Lord Selborne) was practising barrister, he had a very extensive practice at the bar of their Lordships' House, and therefore his experience enabled him to judge of the manner in which justice was administered by that House. Well, when it was proposed to appoint two Deputy Speakers to act under the Lord Chancellor, the noble and learned Lord, who was at that time a Member of the House of Commons, asked whether it would not be better, if possible, to establish a good Court of Appeal in the House of Lords for the Three Kingdoms, than to constitute for the purpose a new tribunal, the success of which no one could foretell.


wished to make a few remarks upon this Bill. There were many things in it which could not be discussed with advantage by a lay Peer; but still it was a measure which was attracting a great deal of attention in Ireland, and he therefore wished to make a few observations. In the first place, he desired to congratulate the noble and learned Lord on the Woolsack on the approval his measure had received from the general public, and he understood that since the Bill had been printed, the objections which had been at first felt to it in some quarters had been a good deal modified. At the same time he wished his noble and learned Friend had preserved their Lordships' House as the Final Court of Appeal. He would remind their Lordships that even when introducing the English Judicature Bill the noble and learned Lord (Lord Selborne) said there was no evidence that in Ireland there was a desire for any other Court of Final Appeal than the House of Lords, and that he proposed to leave things as they were till Irish opinion demanded a change. He quite agreed, however, with the decision to which the noble and learned Lord had come with regard to placing Irish and Scotch Judges on the Court of Appeal. Had he Yielded to the demand that a proportion of the Court should necessarily consist of Irish and Scotch Judges, the result would have been the introduction into the Judicature of a system similar to that which had heretofore prevailed in Ireland, and which was so very unsatisfactory, of appointing persons to important offices, whether magisterial or executive, or that of a juror, because they belonged to a particular religious denomination. He was glad that the jurisdiction of the Court for Land Cases Reserved was to be transferred to the new Court of Intermediate Appeal, and that the jurisdiction of the Landed Estates Court was to be enlarged. The delays in the Landed Estate Court had been considerable. He had been a petitioner in one case in which there was only a single creditor. He filed his petition in 1862, but did not succeed in getting a sale till 1865. He did not receive his money till a year after that; and owing to a fall in the Funds, which occurred in the interval, he lost several hundred pounds. He was petitioner in another case, and although the proceedings were commenced in 1862, they were not concluded yet. He saw that it was proposed they should still retain at the head of the Exchequer Division of the Court a Judge bearing the title of Lord Chief Baron. Now, it was proposed to abolish the Barons of the Exchequer, and they would therefore have a Chief Baron who would be Chief over nobody. It was a verbal criticism, no doubt, but he could not see the force of retaining the title of Chief Baron for a Judge who would have no Barons sitting with him. He was no advocate of unnecessary offices; but there was an opinion in Ireland that the proposed reduction in the number of Judges was not wise. He knew that there was an opinion abroad which was not fair to the Irish Bench—it was said that they were over-manned, and that some of the Irish Judges had not enough to do. But that was a mistake. He could speak of all the Common Law Judges; but he was informed that there was one Judge in Ireland who sat from 10 in the morning till 5 in the evening during ten months of the year. It might be that a better distribution of the judicial business was called for. It was intended to reduce the number of the circuits to five, and he was further informed that all the Judges would be on circuit at the same time. He thought it would have been better to transfer the existing Court of Bankruptcy to that Division of the Court of Judicature which was to be composed of the present Court of Exchequer rather than, as was proposed, to the Chancery Division. The six circuits could then be maintained, and one Judge could remain in town whilst the circuits were out. There was another point, and that not the least important, which also required consideration. He referred to the salaries and position of the future Judges of Appeal in Ireland. Attention had been called to-day by a very eminent Judge to the Court of Intermediate Appeal—and information had reached him to the same effect—that none of the Puisne Judges in Ireland would take the office of Lord Justice of Appeal, because the pay would be only the same as that of Puisne Judge, while the Registrar of the Puisne Judge who took the office would lose £200 a-year. He thought it would be well if his noble and learned Friend raised the salary of the Lords Justices of Appeal to £4,500 a-year—to make the position of Lord Justice so far preferable to that of ordinary Judges, that the best men on the Irish Bench and Bar would seek the office. He did not know that he need say any more. He observed that by the 35th clause power was given to the Lord Lieutenant in Council to abolish any of the Divisions of the High Court. This was, he was aware, copied from the English Act, and was a power not likely at present to be exercised; but still he was of opinion that in a matter of so much importance, it would have been better for Parliament to have kept the power in its own hands.


thought that this was not the time for going into the details of the Bill—but he would repeat his approval of the general principle of the measure. It appeared to him impossible to avoid establishing a High Court of Judicature in Ireland, as one had been established for England by the Act of last year. An Intermediate Court of Appeal was an absolute necessity, and without it justice could not be effectually done in Ireland. The majority of cases which came before the existing Courts were so small that they would not bear the expense of an appeal to England; the majority were disposed of finally on the first appeal, and so they would continue to be. The question as to the constitution of the High Court of Ultimate Appeal for the United Kingdom was not yet before their Lordships—It would be raised on the Resolution of which the noble Lord the Chairman of Committees had given Notice, urging such a new constitution of their Lordships' House for the discharge of judicial business as might make it a complete and satisfactory Appellate tribunal for the whole Empire. He thought the noble Lord's proposition was worthy of great consideration. He did not know that it had ever been thoroughly discussed as the case of England; but certainly it never had been as the case of Ireland or of Scotland. He entertained a very strong opinion on the subject; and in Ireland the feeling was decided, and he believed universal, for the maintenance of the ancient Appellate Jurisdiction of their Lordships' House. He would ask his noble and learned Friend on the Woolsack to postpone the Committee on the Bill as long as possible Its details would have to be carefully examined, and both branches of the legal profession in Ireland were taking steps to have it considered accordingly. He did not think it at all so clear as his noble and learned Friend supposed, that there was an excess of judicial strength in Ireland. It was his opinion, and that of others, that this Bill would very much increase the business of the Superior Courts in that country and he hoped that his noble and learned Friend would pause before he pressed the reduction of the number of Irish Judges, without adequate inquiry or careful preparation for the future.


My Lords, my noble Friend the Chairman of Committees, who is invariable on the view he takes of the Appellate Jurisdiction of this House, has adopted a very legitimate course on this occasion, his object being not so much to invite discussion as to indicate the proposal he will submit to your Lordships when the Bill to amend the Judicature Act of last year comes to be discussed by this House. That being so, I will not detain your Lordships at any length on this point. I may, however, observe in relation to my noble Friend's reference to the antiquated practice of appointing Triers, which it appears is still kept up at the commencement of each Parliament, that if your Lordships will look to the proceedings which were taken three years ago before a Select Committee, you will find that we then went into the whole question, and considered the plan of appointing Triers. I do not seek to disguise that it was always my wish to find means to preserve the Appellate Jurisdiction of this House, and with that view I made some proposals to the Committee; but those proposals were not received with much approbation either in this House or out of it. I am sure, however, that the proposition of my noble Friend will be considered with great interest and attention by your Lordships when he brings it before the House. My Lords, as something has been said about the opinion of Scotland and Ireland on the subject of the Appellate Jurisdiction of this House, I wish that there should be no mistake on this point. I have seen the statement made—and I think it has been repeated to-night—that it was the unanimous opinion of the Scotch Judges that the ultimate appeal to this House should be retained for Scotland. Now, the Lord Justice General has been good enough to forward me the resolution or resolutions, for there are two, of the Scotch Judges on this subject. In the first of these they state that while they value very highly the Appellate Jurisdiction of this House, and think that the way in which justice has been administered here has been of great benefit to Scotland, yet as, by the Act of last Session that jurisdiction was abolished in the case of England, and if it were now to cease in respect of Ireland, that might afford a practical objection to its being retained for Scotland. The resolution then goes on to say that the Judges are unanimously of opinion that the retention of the Appellate Jurisdiction of this House for England, Ireland, and Scotland would be preferable to the plan proposed by the other Bill of a Supreme Court of Ultimate Appeal. As I understand it, the Judges express themselves to this effect—"We should like Scotch appeals to go to the House of Lords, but not Scotch appeals alone. We would have you undo the Act of last Session, and retain the House of Lords as the Ultimate Court of Appeal for England, Ireland, and Scotland." And, my Lords, though the opinion expressed in Ireland is not before me, I believe I am correct in stating it to be this—that the Appellate Jurisdiction of your Lordships' House ought not to be retained for Irish appeals alone, but that it ought to be retained in the full manner proposed by my noble Friend the Chairman of Committees. With respect to what my noble and learned Friend the late Lord Chancellor of Ireland (Lord O'Hagan) has said on this subject, I cannot help feeling some regret that last Session, when we were engaged in considering the question of abolishing this Ultimate Jurisdiction in the case of England, we had not the advantage of hearing from him that it was a mistake which we ought not to have fallen into, and that we ought not to have consented to abandon our function of giving final judgment on appeals. As to the objections made to the details of the Bill now before the House by my noble Friend (the Earl of Belmore), nothing is more agreeable to me than criticism coming from one connected with Ireland, and who brings such intelligence to bear upon all subjects to which he addresses himself. As to our retaining the title of Lord Chief Baron, this is only follow- ing the precedent in the English Act. The titles of the Chiefs of the Courts do not suggest that there are other Judges of inferior rank with somewhat similar titles, but will suggest that the persons who bear these titles are Judges of high Judicial rank. We are now fusing all the Courts into one, and we retain these titles with the view of having a certain number of the greatest judicial officers in the Supreme Court. Now, as to the business to be discharged by the Irish Puisne Judges after the passing of the Bill, the Court of Exchequer Chamber in which the Puisne Judges now sit for a considerable portion of their time, will be swept away. In the next place one Judge will preside over the Court for the criminal business of the city and the county of Dublin, instead of two. Again, the Court for Crown Cases Reserved will be abolished; and in the Divisions of the High Court two or three Judges may sit instead of the present number of four for each of the Common Law Courts. Then there will be only five circuits instead of six. What is proposed to be done in Ireland with respect to reducing the number of the Judges is only a following of what Parliament did last year when it dispensed with three of the English Judges. If, as my noble and learned Friend (Lord O'Hagan) anticipates, there should be a considerable increase of litigation in the Irish Courts under this Bill—though I do not know that such a result is to be desired—Parliament will be always ready to hear a representation as to additional judicial strength being required. My noble Friend (the Earl of Belmore) suggests that the Bankruptcy Court should be transferred to the Court of Exchequer instead of, as he says, to the Court of Chancery. But my noble Friend is under a misapprehension in supposing that the Court of Bankruptcy is to be abolished under the Bill. The question of Bankruptcy jurisdiction is different in Ireland from what it is in England. In England bankruptcy is scattered throughout the whole country, and is administered by the County Court Judges. In Ireland it is not so—there, bankruptcy is administered in Dublin alone, and by two Judges who sit in that city. Those two Judges are preserved—and for the simple reason that they cannot be dispensed with. It is the appeals in bankruptcy that are dealt with by this Bill and they are transferred to the Chancery Division of the Supreme Court for decision. Then we come to the Court of Appeal, and the noble Earl repeats observations which we have seen elsewhere not long ago. All I can say, my Lords, is that I am not afraid of not being able to obtain competent Judges for the Court of Appeal in Ireland. At the same time I am not going to unsay what I said when the question of the English Court of Appeal was before Parliament last year. I regret that the salary of the Judges of the Court of Appeal in this country was settled by the other House of Parliament at £5,000 instead of at £6,000—the sum which I think was fixed by your Lordships' House. But taking into account the difference of things in the two countries I think a Judicial salary of £4,000 a-year in Ireland may be very fairly regarded as equivalent to one of £5,000 in England; and, therefore, having regard to what was done by Parliament last year, I am of opinion that you could not propose a higher salary than £4,000 for the Judges of Appeal in Ireland. Parliament ought not to be niggardly in these matters; but you must open up the whole question as regards both countries if you go into the objection as to the salaries in Ireland. My noble Friend said he understood that on the terms offered, no Puisne Judge in Ireland would accept a Justiceship of Appeal. I think it would be better to defer that till the time comes for appointing to the office. The offer would probably then be answered in a more satisfactory manner. As to the Committee on the Bill, I propose to take it either on the Tuesday or on the Thursday in the week after the Whitsuntide Recess.


In reference to a quotation made by the noble Lord the Chairman of the Committees from a speech made by me in the House of Commons some years ago, I think my opinion last year is at least an answer to any opinion I may have expressed on the same subject in former years. I do not claim any authority for my opinion, but if it had any authority I think my present opinion is better than my opinion some years ago, and my present opinion is most deliberately my opinion of last year. I should view with regret any disposition on your Lordships' part to undo what you did last year. The opinions of the profession in Scotland and Ireland ought, of course, to be received with respectful consideration. I must, however, remark that the opinion expressed by the Lord Chief Justice of England was known a year before my Bill was introduced; the Bill itself was in the hands of the English Judges the moment it was introduced. I heard no objection from any of the Judges to the constitution of the new Court of Ultimate Appeal, and several of the Judges expressed their concurrence in the views of the Lord Chief Justice. From Scotland or Ireland no objection whatever was offered; and afterwards, as everybody knew, they asked, not that English appeals should still go to the House of Lords, but that Scotch and Irish appeals should go, under proper arrangements, to the new Court of Appeal.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday the 2nd of June next.