SUPREME COURT OF JUDICATURE AMENDMENT BILL.—(No. 167.) (Hansard, 3 July 1882)

§ EARL CAIRNS
said, that this Bill provided that the Judges of the Court of First Instance should be able to sit in the Court of Appeal. This system had been tried before, and had not been found to work satisfactorily. There were some other matters which could have been better dealt with than was proposed by the Bill. The most important point to which he wished to call attention was with regard to the Court of Appeal. The plan proposed by the Bill was to supplement the Court of Appeal as occasion might require by asking one of the primary Judges to sit in it. When the arrangements were originally made it 1228 was not known what amount of business would have to be transacted by the Court of Appeal. Now, however, that was well known. The Court of Appeal, consisting of six ordinary Judges, usually sat in two divisions, and there was sufficient appellate business to keep both those divisions fully employed during the whole of the judicial year. If either division had to curtail its sittings public business suffered. Some of the Judges of the Appeal Court had to go Circuit, and the result was that for a long period in each legal year one division of the Court of Appeal had to be closed. Great inconvenience was occasioned by the Appeal Judges going Circuit in many other ways than the suspension of the sittings of one division of the Appellate Court. If the obligation to go Circuit were abolished, there would be less difficulty in obtaining the strongest and best men at the Bar as Appeal Judges. There was great danger of the arrangements made by Parliament for the conduct of legal business breaking down by reason of the false economy practised with regard to the Judges. Only the other day he noticed an important libel case was partly tried in London. It raised issues of the highest importance to the character of individuals; but inconsequence of the Judge before whom it was partly tried having to go Circuit the case was adjourned from June to November. It was a public scandal that such a delay of justice should occur, and it happened solely because the Government would not incur the expense of providing a Commissioner to go Circuit in place of the Judge. In the same manner the Court of Appeal was likely to fall into disrepute solely from making the Judges of the Court go Circuit.

§ LORD COLERIDGE
said, the amount of patronage vested in the hands of himself and the Master of the Bolls was no doubt large if they went by numbers; but a great deal of it was merely the patronage of offices which were so extremely slenderly remunerated that it was extremely difficult to get educated gentlemen to stand an examination for them. The Civil Service Commissioners had relieved him of certainly more than half the patronage which the Act of 1879 vested in him. He wished their Lordships to be aware that, so far as he and the Master of the Rolls were concerned, the actual amount of patronage of their 1229 disposal was nothing at all. There had been a reduction in the number of the higher offices, and it was extremely unlikely that one of his age or that the Master of the Rolls would be called upon to exercise their office of patron in regard to any of the remaining offices of the higher rank. Personally, therefore, his interest in this matter of patronage was most infinitesimal. With regard to the Chamber work of Judges, he had to take his share. It was not pleasant work, but he was quite certain that he was a far better Judge in Chambers now than when he first began to act as a Judge sitting in Chambers, because he now knew how the work was done. He was satisfied that nothing could be worse for the general administration of the law than that some of the Judges should neither know nor do anything of Chamber work. With regard to the Court of Appeal, he ventured, to say that it was at this moment doing its work admirably, that it gave general satisfaction to the Profession, and that Judges of that Court did their work much better in consequence of their having to go on Circuit. He thought it would be a bad thing to draw a broad division between the Judges of First Instance and the Judges of Appeal, and to make the post of a Judge of First Instance less desirable to the Bar than at the present time. Less desirable it would certainly become if the line of demarcation between the one class of Judges and the other were widened. He, therefore, held that it would be unwise to exempt the Lords of Appeal from liability to go Circuit, and he trusted that the present system would be continued. In conclusion, he had to say that to the best of his belief there was at the present moment not one appeal which was more than three months old before the Court.

THE LORD CHANCELLOR
, after explaining how the Bill would affect the precedence of certain Judges of the Court of Appeal, said, that the proposals which were made would not introduce an element of constant strength into the Court of Appeal, but would provide for emergencies, such as the illness of individual members of the Court. He thought it a little hard that he should be called upon by the noble and learned Earl on his left to undertake the responsibility of altering the arrangements 1230 made by that noble and learned Earl himself. When the Judicature Act of 1873 was passed he (the Lord Chancellor) proposed a scheme, which he thought adequate to provide for the whole appeal business of the country, founded on the principle that there should be a newly-constituted Court, embracing all the highest judicial power in the country, and capable of sitting in several sub - divisions concurrently. Their Lordships, at the time, concurred with the other House in agreeing to that proposal. If that measure had been allowed to remain as it was passed none of the difficulties since experienced would have been felt, and none of the shifts and devices that had been resorted to would have been found necessary to provide for an efficient Court of Appeal. It was through no fault of his noble and learned Friend, but in consequence of an opposition in that House, headed by the noble Earl the Chairman of Committees, and also in the other House, that Parliament thought fit to change its view and to return to the system of double appeal—first, to a Court specially constituted for the purpose, and afterwards to that House. The scheme provided by the Act of 1873 never came into operation. Instead of it, Parliament established first the appellate system of 1875, and afterwards that of 1876. He, as an individual Member of their Lordships' House, acquiesced, as in duty bound, in the decision of the Legislature, and he gave a pledge, which he had fulfilled, not to attempt hastily to reverse once more that decision. Frequent and constant changes in these things were very much to be deprecated. Long experience might force upon the Legislature the reconsideration of all such arrangements; but he was strongly of opinion that, having made them, it was best to work with them, at least for so considerable a time as to enable their permanent operation to be ascertained. He did not question in the slightest degree either the right or the duty of his noble and learned Friend, if he thought the system had been tried long enough and had not been successful, to urge its reconsideration. But it was a fact, that it was by his noble and learned Friend and the Government of which he was a Member that this system was established in 1876; and the speech of the Lord Chief Justice must 1231 have satisfied their Lordships that if unanimity of judgment in high quarters was desirable before the system was altered, that unanimity did not now exist. His noble and learned Friend thought that the advantages of the system which required the Judges of Appeal to go on Circuit preponderated over the disadvantages in the circumstances in which they were placed. He thought the arguments on both sides had considerable weight; but when there was such a difference of opinion on the subject, and when in the view of the head of the Court dissatisfaction would be produced by the change which the noble and learned Earl suggested in the minds of the Judges of First Instance, especially because of the pecuniary burdens cast upon them, and inasmuch as in all cases of pecuniary burdens the Treasury must be dealt with as well as the heads of the law, he was not prepared, after the system had been in operation only six years, to propose a change. Therefore, they must go on working for some time to come with the present system. According to the Lord Chief Justice, there were really no considerable arrears in the Court of Appeal; the cases had not been sot down for more than throe months. He was happy to assure his noble and learned Friend that no difficulty in inducing men eminent at the Ear to take seats in the Court of Appeal had hitherto been experienced. The only persons who might probably have been appointed to that Court, if they had desired it, and who did not now sit there, were those Law Officers of the Crown who in any circumstances would not be likely to desire judicial promotion until they had served their country' for a considerable time in the offices they now filled. That the Law Officers of the Crown had not desired to receive judicial appointments did not appear to him to show that there was any disinclination from the cause his noble and learned Friend supposed; and, as to all other persons, he could say with the most perfect accuracy that since he held Office there had not been a single instance of these appointments being declined by anyone to whom they had been offered.