HL Deb 11 May 1882 vol 269 cc448-54

, in rising to ask Her Majesty's Government, Why it is that no judicial appointment has been made under the Act of 1876 consequent on the death of Sir James Colvile and the resignation of Sir Montague Smith? said, he wished briefly to explain why he put the Question. Their Lordships would, perhaps, remember that several years ago, when the business of the Judicial Committee of the Privy Council was very much in arrear, an Act was passed authorizing the appointment of four paid Judges of the Judicial Committee. Some years afterwards, when the question of the Appellate Jurisdiction was under consideration, a proposal was made, and accepted by Parliament, that the whole of the appellate business—both that which had previously gone before the Judicial Committee of the Privy Council and that which came before their Lordships' House—should in future be dis- posed of by one Court of Appeal, and that the Judicial Committee and the appellate jurisdiction of that House should come to an end. This arrangement, again, was the subject of alteration and legislation in 1876, and the two appellate tribunals were continued. It was considered, however, that, although Parliament was not prepared to amalgamate the two jurisdictions, there would be a great advantage in having the two tribunals, as far as conveniently could be done, composed of the same Judges. By that means, although there would not be a single tribunal, there would be great similarity, if not identity, in the principles of the decisions. Power was given to appoint, in the first instance, two Lords of Appeal, with salaries, and holding peerages for life. Then it was provided by the same Act of Parliament that, as soon as two of the four paid members of the Judicial Committee died or resigned, a third Lord of Appeal might be appointed; and again, in the same way, if the remaining two members died or resigned, a fourth Lord of Appeal might be appointed. Therefore, in the result, there would be four Lords of Appeal in that House with salaries and life Peerages. The same Act of Parliament provided that the Lords of Appeal, whether two, three, or four in number, should, as far as the Business of that House would permit, sit on the Judicial Committee of the Privy Council. In this way there would be in the first instance, and still more when there were four Lords of Appeal, almost an identity in the composition of the two tribunals. Several months ago the country was deprived, by death, of the valuable services of Sir James Colvile, and since then a further loss had occurred by the resignation of Sir Montague Smith. It was very desirable that the Judicial Committee should be as strong as possible, the appeals which came before it being of great importance, involving, as they did, property of great value and large amounts, and also Constitutional questions. But at present the composition of the Judicial Committee was not at all satisfactory, although he wished to speak with the greatest respect of the eminent persons who sat upon it. Sir Barnes Peacock had had no judicial experience in this country, and his connection with the Bar was not of old standing. Another member of the Judicial Committee was Sir Arthur Hobhouse, who had never filled any judicial office. The only member of the Committee who had filled a high judicial post in this country was Sir Robert Collier, who, as would be remembered, had been on the Bench for a very short time. He never remembered a time before when the Judicial Committee had only one member who had filled high judicial office. He did not think that was a satisfactory state of things, especially in regard to our Colonies. Appeals from decisions of Judges of high eminence were heard by the Judicial Committee, which thus became one of the strongest bonds between the Colonies and the Mother Country. He wished it to be understood that he did not admit that the Government had any discretion in the matter. It was quite true that the words of the Act were that, in the circumstances which had arisen, the Crown "may" appoint a Lord of Appeal. But it was perfectly clear that when a public duty had to be performed words in themselves permissive carried with them an obligation from which the Government could not recede. Though the words were permissive, it could not be supposed that the Government had any discretion in filling up the vacancy. When Parliament had once expressed clearly what the Judicial Services of the country should be, that Service must be kept up. There was no option in the matter. There was one case in which a discretion might be exercised by the Government, and that was if the Government were about to submit a measure to Parliament for making some alterations in the constitution of the Courts; but when they were not going to do that, he considered that they had no choice but to make the appointment and fill up the vacancy. He hoped the Government would make the Judicial Committee as strong as it could be made, and that an assurance would be given by his noble and learned Friend that the office would be filled up without delay.


said, that his noble and learned Friend was perfectly accurate in his statement of the terms of the Act of Parliament. He could not entirely agree with him in the concluding part of his observations, as to the nature of the power given to the Crown by the words of the Act, and the obligations of the Government with regard to an appointment of this kind. But his noble and learned Frend must not conclude that the Government were not going to fill up the vacancy. The Government were going to fill it up. The only question was as to the manner in which that should be done. He demurred to the statement of his noble and learned Friend that because the Act created salaried Judges, the word "may" ought of necessity to be read as "must," and that immediately on the happening of a vacancy the Government were under an obligation to appoint a salaried Judge to that vacancy. Suppose the Government had the advantage in the Judicial Committee not only of the services of the eminent persons who ordinarily served there, but also of other Judges who had retired from the Bench after long experience, in full possession of their powers and willing to give their assistance. In those circumstances, with all deference to his noble and learned Friend, he did not think it would necessarily be the duty of the Government to create an additional Judge, unless he was really wanted. That was, in point of fact, the view of the Head of the Government. His right hon. Friend was quite prepared to perform the duty of appointing a new Law Lord upon the occurrence of these two vacancies; but he desired, first, to be satisfied that the circumstances made it necessary, for the proper and satisfactory administration of justice, to impose that additional charge upon the country. Now, at the time when the vacancies referred to took place, the state of business before the Judicial Committee was not such as to make a new appointment urgently necessary, but it admitted of time being taken for the consideration of the matter. The arrears had been kept down, and the business before the Privy Council was much less than in former years. In January last, assistance had been given by Lord Blackburn and Lord Watson, and again, occasionally, since Parliament met, by these learned Lords and by himself and by Mr. Justice Hannen; therefore, looking at the state of business at the time referred to, it did not appear to him that the question then required immediate decision. As regarded the Judges who now sat at the Privy Council, he quite agreed as to the great abilities, merits, and services of those learned persons; and he thought there was no reason to doubt that the manner in which they discharged their duties had given satisfaction to the suitors. It was true that the only salaried Judge there who had filled a judicial office in this country was Sir Robert Collier; but two of the other Judges, who now ordinarily sat in that tribunal had filled judicial offices, and had considerable experience in India. Though Sir Arthur Hobhouse had never had a seat on the Judicial Bench, he was admirably qualified, by his learning and experience and practice at the Chancery Bar in this country, for the position which he now filled at the Privy Council. It should be remembered that Sir James Stephen also left his practice at the Bar in England and went to India, and when he returned to this country his noble and learned Friend did not think that he was otherwise than well qualified to discharge the duties of a Judge of the High Court and properly fill that eminent position, and he (the Lord Chancellor) could say the same of Sir Arthur Hobhouse; therefore, the circumstances which had been referred to had not left any doubt in his mind that the legal business, both in that House and before the Judicial Committee, had been, and was being, well and efficiently performed. He was, at the same time, quite sensible of the advantage of strengthening the permanent and salaried element in the Judicial Committee; and there were, at the present moment, circumstances connected with the state of the business in the Appellate branch of the Supreme Court which made this appear to be the proper time for doing so. He thought it was proper to state his intention before long to submit a measure which he hoped would not lead to much difference of opinion, and would strengthen the Court of Appeal, and prevent those occasional emergencies which had sometimes arisen. His noble and learned Friend was aware that the Act of 1875 gave the power from time to time of borrowing Judges from the Courts of First Instance. But that power was fettered by a very inconvenient condition, preventing it from being used in Assize time, which he hoped to remove. He also thought it would be desirable to give to those Members of that House, or of the Judicial Committee, who might be qualified by judicial service in the Supreme Court, or in the Courts out of which it had been formed, on the request of the Lord Chancellor, and if willing to do so, to assist at any time in the Court of Appeal. In that manner the Lord Chancellor might sometimes be able to arrange the business of the Appeal Court in a more satisfactory manner. These alterations would be proposed, and they appeared to him to be desirable. It was also desirable that the existing vacancy should be filled up by a learned Judge, who should be at once a Member of the Judicial Tribunal of their Lordships' House and of the Privy Council. He would undertake to say that that would be done as soon as the deliberations necessary as to the proper person to be so appointed were completed.


said, he felt great pleasure at the latter part of the statement of his noble and learned Friend on the Woolsack. He wished to make a remark with reference to the present Court of Appeal. At this moment that was the only part of the judicial system which was not working altogether satisfactorily. That was due to a want of strength, not in the quality, but the number of the Judges. The Court of Appeal at Westminster was the only Court which had any considerable amount of arrear, both in point of numbers and also in what was more important, time. By the reduction made in the Common Law by abolishing the two great offices of Lord Chief Justice of the Common Pleas and Lord Chief Baron, the number of ex-officio members of the Court of Appeal had been diminished. The effect was that if any one of the ordinary Judges was incapacitated, even for a few days, from illness the Court must cease to sit, except for interlocutory business, unless it could procure the assistance either of his noble and learned Friend on the Woolsack, Sir James Hannen, or himself. Both his noble and learned Friend on the Woolsack and Sir James Hannen had a great deal to attend to besides sitting at the Court of Appeal; and, as regarded himself, he could say that he never sat in that Court without some inconvenience. In the present satisfactory state of business in the High Court that inconvenience was not so great as formerly; but still some inconvenience did attach to the performance of that duty. He felt sure, therefore, that the Profession would hail with great satisfaction any measure proposed by the Government which would enable a num- ber of Judges to supply the places of those who were temporarily incapacitated by illness from performing their duties in the Court of Appeal.