CONSIDERATION OF COMMONS' AMENDMENTS. (Hansard, 9 August 1875)

§ LORD SELBORNE

complained that the Amendments were presented in an almost, if not wholly, unintelligible form, and pointed out that the existing practice of the House as to Bills of importance, returned with extensive amendments and alterations from the Commons, was highly inconvenient. Unless the alterations made, with their whole con-text were clearly indicated in a reprint, there was a danger of the House passing over slips and errors which would have to be amended subsequently. There were two points in these Amendments of critical importance, on which he deemed it an imperative duty to offer some observations. The first related to the repeal of that portion of the 15th section of the Act of 1873 which provided that no new appointment of Puisne Judges should be made to the Queen's Bench, Common Pleas, or Exchequer Division of the High Court of Justice till the number of Puisne Judges should be reduced to 12. The House of Commons had repealed that limitation on the number of the Puisne Judges. It was very much to be regretted that before the working of the new system could be tried, there should be any alteration in that respect. It tended more than he could wish to encourage and confirm an idea, which previous experience only gave too much colour to, that no reform of the law could be reconciled with public economy—that whenever there were increased establishments those augmentations must be made perpetual, and resistance would be offered to every attempt to effect further improvement with the least possible amount of cost to the public. To increase the number of Judges, unless it was really necessary, would not tend to increase the estimation in which they were held. It would not tend to greater expedition, energy, and efficiency in the disposal of business. In 1867 three new Judges were added to the existing number, expressly that they might do the business of the Election Petitions—business which only occupied a short period of their time, except in the year immediately after a General Election. The Act which added them was a temporary one, and was continued 762 from time to time till now. That having been done, in the Autumn of the same year the Judicature Commission was appointed to consider, among other subjects, the number of the Judges. The Commission recommended no increase; but they did recommend that three Judges should be taken annually from among the number of the Puisne Judges, and made for the year members of the Court of Appeal according to the constitution of that Court which they recommended. In 1869 the deliberate opinion of that Commission was that 12 Puisne Judges were adequate to discharge the business of the Courts of First Instance; and the scheme of the Act of 1873 was, in that respect, in perfect harmony with the Report of the Commission in 1869. That Report was signed—without any difference of opinion on this point—by all the eminent Judges, and other members of the Legal Profession, who sat upon the Commission. The operation of the Act of 1873, and also of the present Bill would relieve the Judges from attendance in the Court of Exchequer Chamber, which usually involved the attendance of five or six Judges for four or five weeks in the year. It should also be observed that the change made by the Act of 1873 would not be sudden. At present there were 15 Judges; and, as the process of reduction to 12 would be gradual. Parliament would have an opportunity of interposing, if necessary, whenever there was any actual experience of any evil resulting from the reduction. He did not doubt that there was a considerable pressure and block of business at present; but he could not help looking at that in connection with some extraordinary and exceptional cases, such as the Tichborne Case, which, on the first trial, occupied one Judge for nearly a year, and on the second occupied three Judges for nearly another year. Again, it had been the general rule, subject, no doubt, to exceptions in cases of emergency, that the three Judges chosen in each particular year to try Election Petitions should not go Circuit; while they were not on Circuit they had the time at their own disposal, and he had been told that some of those Judges who would be the last to neglect their duty had found leisure, during those intervals, to visit remote parts of the world. It had been recommended by a Committee of the House 763 of Commons that two Judges should always sit together to try Election Petitions; but if Election Petitions were not very unlike other cases, there would be quite a luxurious waste of judicial power if this recommendation were adopted. If, however, the Committee considered this recommendation a reasonable one, they must also have considered that there could not be such a heavy pressure on the Common Law Judges. He would not object to have 18 Judges, or any number that might be required, if experience proved it necessary; but, until the Act of 1873 was in operation, there could be no such experience. The new arrangements and the extension of the Chancery practice of single Judges sitting—and if there was to be a permanent Court of Intermediate Appeal the reason why single Judges should sit would obtain additional force—would be found, in his opinion, to remove that pressure of business which was complained of. He came now to the second important point. Considerable changes had been made by the House of Commons in the constitution of the Intermediate Court of Appeal. From the ordinary channels of information, he had seen that, according to an Amendment proposed by the Attorney General, instead of three additional Judges, only one was to be nominated by the Crown, while one or more Judges might be borrowed from the Court of Queen's Bench, Common Pleas, and Exchequer should it be necessary, to assist in the Court of Appeal. The Bill, as it left that House, proposed five ordinary and five ex officio Members of the Court of Appeal. He doubted at the time the sufficiency of such a tribunal; but now there were to be five ex officio and only three ordinary Judges. Judges of First Instance were to be borrowed from their respective Courts; and if they could be so borrowed as to be substantially available for the increase of the strength of the Court of Appeal, this circumstance strongly confirmed his impression that it was not clear that the present number of Judges in the Courts of First Instance was absolutely required for the discharge of the business there. For his part, he regretted greatly the increase in the Court of Appeal Judges taken from the Court of First Instance, there being only three permanent Judges; it looked exceedingly like a modification of the present Court 764 of Exchequer Chamber, the constitution of which was certainly not satisfactory. He could not help disapproving the changes made by the Bill; and the only satisfactory thing, to his mind, was that the measure was only to last for a single year, and that in another Session the whole subject might be dealt with in a manner unprejudiced by anything which was done now. As it was, the entire question affecting the Courts of Appeal was left in an imperfect and provisional state. He did not wish to see this question become the subject of legislation every year; but he did hope that next year the subject would be dealt with, not, as it had now been dealt with, under mixed political and professional influences, reflecting no mature or deliberate judgment either of the Government or of the Legislature, but with the sole aim of providing the best Appellate system for the administration of justice.

THE LORD CHANCELLOR

said, that if the hour had been earlier and the audience more encouraging, he should have been glad to enter at length into some of the points mentioned by his noble and learned Friend. He entirely concurred with him in regretting the form in which the Bill came back to that House. The record of Amendments did not accurately represent the Amendments actually made in the other House, and such inaccuracies ought to be prevented for the future. By the omission of the word "not" the Lord Chancellor had been made one of the permanent Judges of the Court of Appeal. As to the length of the Amendments, deducting the clauses sent down in red ink, which came back as Amendments, but were only technically so, the real Amendments made in the other House might be comprised in a couple of pages. One material Amendment was that by which the present number of Puisne Judges was kept at 15, instead of being reduced to 12. He was bound to say that there was the strongest possible feeling against this reduction, not only on the part of the Judicial Bench and at the Bar, as represented in the House of Commons, but also among the Representatives of large communities like Lancashire. He believed the number of Judges might be reduced, as a matter of trial, to 12 Puisne Judges, if the Assizes were excluded; but he had satisfied himself that with only 12 Puisne Judges the Circuit work could not be done, even if only one 765 Judge were left to do the Chamber work in London. His noble and learned Friend had dwelt on the evil of any unnecessary multiplications of Judges. Now, he must express his belief that the number of Judges could not be reduced to the lowest point compatible with efficiency until we had broken up the system which prevailed in the Common Law Courts of having more Judges than one to sit as Judges of First Instance. That system, he thought, could not continue to exist. At present the Judicial Committee of the Privy Council was the most extravagantly paid Court in the country, for there were four paid Judges, costing the country £20,000 a-year, to dispose of only 100 cases in a year. With respect to the Appellate Court, the whole change consisted in this—that instead of the Crown appointing three extra Judges, each of the Divisions should be asked to appoint a Judge to assist the Court of Appeal, when necessary. He denied altogether that the Court of Appeal would be in any degree a weak one. He proposed to make some further Amendments, in order to correct some of the obvious mistakes left in the clauses, and also to vary the Amendment concerning costs, by giving a discretionary power to the Judge on good cause being shown.