THE LORD CHANCELLOR
My Lords, before your Lordships proceed to the Orders of the Day I wish to ask your Lordships to allow me to refer for a few minutes to a Bill which passed through Committee a few days ago and which now stands for Report. The Bill to which I refer is the one to amend the Judicature Act of 1873. As your Lordships are aware, it is a Bill intended to introduce various modifications in matters of detail in the Judicature Act of 1873; and it also contains two car- 1372 dinal provisions—or two provisions which have become most conspicuous in this House—provisions by which are transferred to the Appeal Court established by the Act of 1873 the Scotch Appeals and the Irish Appeals which now come to your Lordships' House. My Lords, considering the course of legislation agreed to by both Houses of Parliament in the Session of 1873, and considering that the Bill of this year, in respect of the matter to which I have referred, is identical with the Bill which I introduced last Session, and which passed your Lordships' House, Her Majesty's Government, in bringing it forward this year, expected—and with good reason expected—that it would not have met any serious opposition in this House. My Lords, in that they have been disappointed. The Government have found—and it has been brought more directly to their attention by Notices of Amendments which have been lately given by Members of your Lordships' House—that from among those who ordinarily are supporters of the Government they must prepare not only not to receive support for this Bill, but to encounter a very general opposition. My Lords, turning to the other side of that House, we should have had no doubt, as we always have had, a loyal support from the Members of the former Cabinet for the measures which they originated: but even on the other side of the House Her Majesty's Government find opinion divided. From declarations which have been made we find that we should have to encounter opposition from the noble and learned Lord who under the late Government was head of the Law in Ireland (Lord O'Hagan), and also from the noble and learned Lord who filled the office of Lord Advocate under the Liberal Government (Lord Moncreiff). My Lords, under these circumstances, the Government have been obliged to admit to themselves—to realize the fact—that it would be impossible to pass the Bill through this House. They have no course to pursue, therefore, but that which I now announce to your Lordships—and I need not say that I deeply regret to announce it—namely, to withdraw the Bill.
§ LORD SELBORNE
My Lords, after hearing what my noble and learned Friend has stated with respect to the 1373 state of opinion among the ordinary supporters of the Government, and what he has also said respecting what he believes to be the state of opinion on this side of the House, it is not for me to express an opinion as to the necessity of the course which my noble and learned Friend has announced:—but, assuming that course to be necessary for him, I think it right to say that I have heard it with very great regret. That regret does not—at least I hope I may say so—arise from any personal feeling of my own in regard to the proposal thus abandoned; but arises from a feeling that the manner in which this question has been dealt with affords grave ground for future anxiety respecting your Lordships' House, and anxiety in a still greater degree with respect to all future attempts to improve the administration of the law in this country. My Lords, there have been circumstances connected with this matter to which it is painful to allude, but to which it is necessary to allude after the announcement we have just heard. The circumstances under which this Bill has been abandoned are not a little extraordinary. The legislation to which this Bill was to give effect was legislation not hastily passed through this House. It was preceded—as on a former occasion I had an opportunity of showing—by a series of inquiries and tentative measures for improving the Appellate Jurisdiction of your Lordships' House; all of those suggested measures having proved failures. Well, my Lords, the Act of 1873 passed through this and the other House of Parliament not without discussion—not without opposition—not without divisions. Last year your Lordships adhered to what you had done in the previous year; notwithstanding the pressure of some, who then assumed to represent feeling in Scotland and in Ireland, you gave your sanction to a Bill which would have transferred to the Court of Ultimate Appeal established for England appeals coming from Scotland and from Ireland. Your Lordships deliberately passed the measure of last year—not without debate, not without discussion, not without divisions,—in which all the arguments against the transfer of the Appellate Jurisdiction of this House were elaborately brought forward and fully heard. It was said, that the transfer had never been recommended by any Committee 1374 or Commission, and that it had been voted by the two Houses of Parliament without full consideration: but, my Lords, those arguments were disposed of in 1873, and were met again last year, when your Lordships again affirmed and gave further effect to the Act of 1873. I say then, my Lords, considering that this legislation was adopted only two years ago under the circumstances which I have stated, and considering that it has never yet been tried or in actual operation, to intercept it now in the manner now announced to us, without any warning or anything else to prepare Parliament and the country for such a proceeding, does seem to me not a little extraordinary. And why is this done? I read in the papers that there has been organized what is called "a Committee," the object of which body is to change your Lordships' own legislation, and to bring back a state of things in connection with your Lordships' House which your Lordships yourselves thought it right to do away with;—this outside committee insists on your Lordhips retaining powers and duties—powers which you gave up two years ago, because you felt that you had not sufficient means of discharging the duties annexed to them. If such an outside organization is to be successful on a question relating to the powers and privileges of your Lordships' House, to what lengths may not such a mode of interference be carried in other matters? I confess, my Lords, I view with astonishment the means by which this result has been brought about. But there is still more to be said: other things have been done, even more extraordinary than what I have been referring to. As the proceedings of the other House of Parliament are communicated to us by Papers sent up to your Lordships' House, I believe I shall not be out of Order in referring to what appears on the Notice Paper of the House of Commons. From that record, my Lords, it would appear that while this Bill, which we now learn is to be abandoned, was yet before your Lordships' House—after it had passed through Committee, and while it was waiting for the next stage, that of Report, which had been postponed—before, therefore, it was possible for the Bill to be sent down for the consideration of the other House of Parliament, or even to be debated on, the 1375 points which had been reserved for discussion in this House upon the Report, a right hon. Gentleman a Member of that House, who might have been supposed to be exceedingly well acquainted with the usages of Parliament (Mr. Spencer Walpole), gives Notice of a Resolution having for its object to obtain the opinion of that House on a most important feature in the Bill still before your Lordships' House. I hope that this is the only instance in our Parliamentary history of such a proceeding as that. I am sure there cannot have been, directly or indirectly, any understanding in this case between that right hon. Gentleman and any Member of the Government. Two years ago, when the Judicature Bill was sent down to the other House, objections were taken here by the noble Lord now on the Woolsack to certain changes which the House of Commons had proposed to make in the Bill, and the making of which it was urged would be in some degree an interference on the part of that other House with the privileges of this House. Neither my noble Friend behind me (Earl Granville) nor myself thought that those proposals went the length of an intended invasion of the Privileges of this House; but when I now see a Bill actually pending in your Lordships' House and which Bill has passed a second reading and gone through Committee—when I see, in the interval during which the further stages of that Bill in your Lordships' House stand postponed, an opportunity taken of inviting the House of Commons to dictate to your Lordships as to the course to be adopted by you in the next stage of that measure, and that on a question affecting peculiarly the powers and duties of your Lordships' House, it appears to me that the precedent is one which may involve consequences going even far beyond the grave consequences which must more immediately result from this proceeding.
§ THE DUKE OF RICHMOND
My Lords, I think I shall exercise a wise discretion if I decline to follow the noble and learned Lord (Lord Selborne) in that part of his observations which had reference to the conduct of the other House of Parliament in the course it has thought proper to pursue.
§ LORD SELBORNE
The other House has done nothing in this matter. 1376 I allude to a Notice given by the right hon. Gentleman (Mr. Walpole.)
§ THE DUKE OF RICHMOND
I understand the noble and learned Lord to advance this argument—that it is not usual that a Resolution should be moved in the other House respecting a Bill which has not yet left this House. Now, I do not think that to discuss the Privileges of the other House could lead to any useful result on this occasion; but on the matter before your Lordships I will just add a little to what has been said by my noble and learned Friend on the Woolsack. My Lords, I hold that it is impossible for a Government to force through a measure of this kind contrary to the wishes and feelings of this House. The noble and learned Lord (Lord Selborne) says that matters are not different now from what they were in 1873:—but as regards the proposal for the transfer of the Appellate Jurisdiction there is this remarkable difference:—In 1873 the noble and learned Lord the late Lord Chancellor of Ireland (Lord O'Hagan), who voted in favour of the Judicature Bill, must be presumed to have been in favour of that portion of it. But if so, he has thought fit to change his views; for he is now one of the most zealous advocates for the retention of an Appellate Jurisdiction by this House. I know that this Session we have not had the benefit of hearing him, but last Session we heard him. Then one of the most eminent legal authorities in Scotland (Lord Moncreiff), who held the office of Lord Advocate under the former Government in 1873—[Lord SELBORNE: No.] Well, if the noble and learned Lord had ceased to be Lord Advocate before that time, of course he is not bound by what was done by the Government of that day; but certainly he is now among the most energetic opponents of the Bill. No one can regret more than I do the course the Government has felt obliged to adopt in respect of the Bill; but seeing the opposition that there is to the Bill, they have arrived at the conclusion that it would be useless to attempt to force it through an unwilling House.
My Lords, I quite concur with the noble Duke that no Government can force a measure of this kind against the feelings of this House; but I do say that, looking at the past history of the Bill, looking at the deliberate assent it received from this House, 1377 and at its great importance, such a measure having been introdueed by the Government ought not to be disposed of by secret communications and without the House having the opportunity of considering the reasons which might be urged in favour of such a proceeding. If the proper Parliamentary course had been taken—if my noble Friend (Lord Redesdale) who has given Notice of an Amendment which would have again raised the question of the transfer of the Appellate Jurisdiction had followed up that Notice—the House would have known what was to be said for and against my noble Friend's proposal; and no doubt the noble and learned Lord on the Woolsack would have been prepared to defend, with his usual power, the proposition contained in the Bill. If after that the measure had been defeated on a division, there would not have been a word to be said against the conduct of Her Majesty's Government. I, for one, should have regretted the loss of the Bill, but I should not have said a word against the Government; but I say it is not fair to this House, and it is not fair to the country, that a measure of this kind should be abandoned on private communications and without a public discussion. That a Bill of this importance should be got rid of in this manner is not, in my opinion, creditable to your Lordships' House, fair to the country, or calculated to do honour to Her Majesty's Government.
§ THE EARL OF DERBY
My Lords, I am anxious that there should be no mistake as to the position which the Government occupy in this matter. We came to the decision announced by my noble and learned Friend on the Woolsack with feelings of the deepest disappointment. I say for myself distinctly—and I know I may say for others—that under no circumstances would we have yielded if we had not in our own mind felt that we were yielding to a pressure of imperative necessity. When I say imperative necessity, what I mean is this—that, in the actual state of feeling prevailing on both sides of the House, I am firmly convinced that if a division were taken on this turning point of the Bill—whether you should part with the Appellate Jurisdiction or not, and that if we were in favour of parting with the power, we should not be able to carry the Bill. I say, and not 1378 for myself only, that I deeply regret the result. Having made up our minds in 1873 to part with the Appellate Jurisdiction of this House, I think it unwise now to retract the concession we made and to endeavour to retain it. My opinion on that point is unaltered; but I do not believe anything would be gained in the interest of good and sound legislation on this question here-after if, instead of abandoning a position which is in our judgment untenable, we endeavoured to force this Bill on the House and failed to pass it, thereby adding to the difficulties of a question which is already sufficiently complicated.
§ EARL GRANVILLE
My Lords, the noble Duke (the Duke of Richmond) said he thought he should exercise a wise discretion in not answering that part of the speech of my noble and learned Friend as to proceedings in the other House of Parliament. The noble Duke not only did not answer it, but he misapprehended it. The complaint was not made against the other House of Parliament, but as to proceedings proposed to be taken by an individual Member. It was, perhaps, discreet of the noble Duke not to try to answer the unanswerable statement of my noble and learned Friend. I fully believe in the regret expressed by the noble and learned Lord on the Woolsack and the noble Earl who has just addressed your Lordships; but I did not understand the noble Duke to express any regret.
§ EARL GRANVILLE
I, of course, apologize—I did not hear my noble Friend. But, passing from that, I must say that as regards the necessity for the course taken by the Government your Lordships have received nothing but assertion. Nothing has been stated to show the imperative necessity of aban-doning the Bill. That necessity has been asserted, but no proof of it has been offered. The noble Duke said that the late Lord Chancellor for Ireland, who was a party to the Judicature Act of 1873, opposed this Bill last year, and he also spoke of Lord Monereiff's opposition; but those facts were known last year, and in the face of those facts your Lordships passed the Bill, and the only reason given by the Government for it not having passed the House of Commons was that another important measure 1379 stood in the way. Let the Bill be discussed in open light; let us have the opinion of the House on it, and do not let it be withdrawn in this manner. As to the arguments against the latter course, I shall not add one word to what has been said by my noble and learned Friend. I entirely agree with him and with my noble Friend (Earl Grey) as to the gravity of such a proceeding. I would ask the noble and learned Lord on the Woolsack whether we are to have any further statement this year; whether the Government intend to propose any amendments of the Act now on the the Statute Book; or whether that measure, which does transfer the English appeals from this House, is, so far as the Government are concerned, to come in force next July?
THE LORD CHANCELLOR
What I desire to state is that the present Bill will be withdrawn. Whether some legislation will not be necessary in respect of the Act of 1873 is a matter which will require consideration. I shall announce the intention of the Government on that matter at the earliest possible moment.
§ LORD WAVENEY
said, he did sincerely regret the withdrawal of the Bill, and he could assure the House that the Lord Justice Clerk and other opponents of the transfer of the Appellate Jurisdiction of their Lordships' House were quite prepared to discuss the question.
§ Order for receiving the Report of Amendments on the first Thursday after the recess at Easter discharged, and Bill (by leave of the House) withdrawn.