HL Deb 01 August 1911 vol 9 cc738-55


Order of the Day for the Second Reading read.


My Lords, I am afraid that this Bill may be open to some of the criticisms which the noble Marquess opposite poured out upon its predecessor, for it is a Bill which proposes to appoint more Judges and to pay for them. But, unfortunately, it is never wholly possible to separate money from policy. That is a thesis of which we have had illustration in the last few weeks in the course of debate, and a thesis which has led no doubt to many views being expressed; but there has never been any reason why we in this House should not have amicable conversations on matters which touch finance, provided they are in the nature of conversations undertaken for the purpose of illustrating policy. I have another apology to make. This Bill is not one which, strictly speaking, concerns the War Department. It belongs to the Department of the noble and learned Earl on the Woolsack, but although he takes the deepest interest in the Bill he has asked me to introduce it, partly because I was with him present at the Imperial Conference, partly because the subject is one in which I have taken great interest for many years, and partly because I have recently been sitting in the Judicial Committee and when at the Bar I had a long experience of these matters.

We think that the problem of how to put the appellate jurisdiction of the Empire on a proper footing will never be adequately solved until there is a real Supreme Court of Appeal for the Empire. At present the appellate jurisdiction is divided between this House and the Judicial Committee of the Privy Council, or rather the Privy Council itself on the Report of the Judicial Committee, and there has been a feeling for a long time that we are reaching a period when a real Imperial Court of Appeal would be more truly in accord with the Constitution of the Empire. That is our view, but it is one thing to have that view and to be able to eat the cherry all at one bite. Before the jurisdiction of this House can be touched Constitutional questions must be discussed. In the course of the debate on the Reconstitution Bill the noble Marquess who leads the Opposition, and, I think, other speakers—Lord Rosebery notably—expressed the view that there was no reason why the Law Lords who represent the appellate side should sit in this House. I think that view was received with a good deal of dissent. But many held the view that the time has come when a Supreme Appeal Court for the Empire is a possible thing. That view is taken in the Dominions. It was considered at the Imperial Conference on a Resolution brought up from New Zealand, and it was also supported in another Resolution from Australia. But until the constitution of this House is generally dealt with a convenient opportunity does not appear to offer for separating what is certainly an important feature of the existence of this House, and therefore we have devoted ourselves to producing the substance and laying the foundations without going the full length.

What we propose to do is to lay the foundations for what is virtually and in substance a single Court of Appeal for the whole Empire, although it will sit under two forms—at times as the Court of Appeal of your Lordships' House and at other times as the Judicial Committee of the Privy Council. At the present time the appellate business of the Empire consists of two parts—the appeals that come from the United Kingdom, which form the greater part of the business and number, I think, over 100 in each year, and the appeals from the Dominions, the Crown Colonies, and the Channel Islands, which form an important but a smaller part of the business. In the year 1910 there were seventy-eight of these appeals. Of these more than half came from India and of the remainder rather more than half came from Canada, the rest being from the remaining parts of the Empire. Your Lordships will see what enormous variety is there presented. I remember once, in a period of three weeks at the Bar, arguing a series of appeals which illustrated the extraordinary character of the business which comes before the supreme tribunal for the rest of the Empire. The first appeal came from Burma; the next came from New Zealand, and dealt with the customs of the Maoris; the third case was from Quebec, and dealt with the old French law; then there was a Roman Dutch appeal from the Cape; an appeal from the Channel Islands; one from Malta; another from Australia; and we finished up by returning to an Indian case—an appeal from the High Court of Bombay. That is what is going on for more than half the year in the Judicial Committee of the Privy Council, and it is enough to mention those cases to show what an important Court it is and what high quality is required in the Judges.

An interesting question to the historian is how the appellate jurisdiction for the United Kingdom came to be separated from that for the remainder of the Empire. By a process analogous to the process by which the House of Commons secured control of finance at the expense of this House, only put into force in a still more drastic fashion, this House has gradually acquired complete control of the appellate administration of justice. That is the case in regard to the United Kingdom, but the jurisdiction of the King in Council remains for the rest of the Empire. Consequently you now have nominally two tribunals. They are quite distinct, but in the main the Judges are the same in both. The nucleus of the Judges are the four regular Law Lords who sit here, the Lord Chancellor, the ex-Lord Chancellor—a very distinguished figure at the present time—and such other members of your Lordships' House as are qualified by having occupied high judicial office to sit in the Judicial Committee. All those are eligible; but in addition, under statutory powers, there are several members of the Judicial Committee who are not members of the House of Lords. There are two Indian ex-Judges who sit practically only on Indian Appeals, and there are the Chief Justices from most of the Dominions who can come specially and sit every now and again on appeals from the Dominions. That is a process which has been put only to a very inconsiderable degree in force, with this exception, that Lord de Villiers, the Chief Justice of South Africa, has sat frequently in the Judicial Committee. The two Courts thus divided consist mainly of the nucleus—the Law Lords and the Lord Chancellor—who sit chiefly in this House; and such as can be spared from that nucleus, strengthened and reinforced by the others of whom I have spoken, sit in the Judicial Committee. The result is that there has been dissatisfaction for a long time past. If the House of Lords is sitting in its legal capacity in strength it is not always possible to detach a very full Court for the Judicial Committee. The noble and learned Earl on the Woolsack exercises great care in that regard, but it is sometimes impossible to secure that the decision of five Judges sitting in a Dominion Court of Appeal shall not be reversed by three or four Judges sitting here, and the result has led to a good deal of misunderstanding.

In this state of things the matter was brought before the recent Imperial Conference. Those of your Lordships who wish to refer to the discussions will find them at page 213 of the Minutes of Proceedings, June 12, and again at page 431, June 20; and you will find at page 236 of the supplementary volume, which contains the documents laid before the Conference, what was actually agreed to. At first New Zealand proposed that every Dominion should have a Judge of its own on the Judicial Committee, but it was pointed out that some of the Dominions had only one or two appeals a year, and for them to spend £5,000 or £6,000 a year on keeping a Judge here would be absurd. That was unanimously dropped. But it was agreed that the Chief Justices or other eminent members of the Bench in those Dominions and the Colonies might well be summoned when there were questions which had to be decided of a character in which local assistance was specially desirable. For instance, New Zealand laws and customs relating to the Maoris seem to make it desirable that there should be someone present familiar with their code of law. That was one of the matters on which the Conference came to an agreement.

Finally eight propositions were agreed to by the Conference. I will read them—

  1. "1. At present, the House of Lords is the Supreme Court of Appeal for the United Kingdom, and the King in Council (in effect the Judicial Committee) is the Supreme Court of Appeal for the rest of the Empire.
  2. 2. It is proposed to take a first step towards combining these Courts into a Supreme Court of Appeal for the Empire, and towards strengthening them by adding to the number of Judges composing them.
  3. 3. The scheme is that the Home Government should add two selected Judges to the Lords of Appeal. There would then be six Law Lords devoting their whole time to sitting in the two Courts.
  4. 4. In addition, the Lord Chancellor would. as now, preside whenever he is present, and all who are now qualified to sit in either the House of Lords or the Judicial Committee would be able so sit as now.
  5. 5. In this way the appeals of the United Kingdom and of the rest of the Empire respectively would be heard by the same Judges who hear them now, with the addition of two Law Lords to both Courts, but the two Courts would both be branches of the Imperial Court of Appeal."
That is foreshadowing a further and formal step which remains to be taken— 6. Except where it is necessary that the House of Lords and the Judicial Committee shall sit simultaneously it is contemplated that the Court shall sit in full strength first at the one and then at the other. The judicial sittings of this House and the sittings of the Judicial Committee take place simultaneously. The result is that it is not possible in either to command that strength which the great appellate tribunal of the Empire, perhaps the most remarkable tribunal and with the most extensive jurisdiction that has ever been known, should possess. It seems wrong that such a tribunal should be condemned to sit in part of its strength, and therefore what is proposed is that the tribunal should sit in its full strength first in the one place and then in the other by an arrangement of the sittings. That will not require to be mathematically carried out, because in the case of Indian appeals two ex-Indian Judges sit. on the Judicial Committee, and when they are there you will not require such a strong body of other Judges on the Committee. But in the main the proposal of the noble and learned Earl on the Woolsack is that the whole strength of the Court should always be commanded, so that the appellate business of the Empire should be held with great power. Your Lordships will see how easy it will be under that arrangement to declare the one Court sitting under its two forms to be a Court that is henceforth to sit under one form—the Supreme Court of Appeal for the Empire. The other two proposals were— 7. It will be necessary that the conditions and method of appeal from different parts of the Empire shall be suited to the local requirements, and it is not practicable to attain uniformity in these respects, at all events at first. But as the Judges will be almost entirely the same for all kinds of appeals, it seems probable that a greater degree of uniformity may be reached. and possibly in time all differences may be effaced. 8. It is further proposed that, in accordance with the wishes expressed by the Dominion Representatives, the practice of the Judicial committee shall be modified so that in Dominion cases any dissentient Judge may be free to give his reasons if His Majesty's consent is given to this change. The meaning of that is simple. The King in Council gives the judgment in a case that comes to the Privy Council, but the King in Council acts upon the report of a board which is the Judicial Committee. As a Privy Councillor never violates the secrets of the Council the opinion of any dissenting Judge is never given. The report consists of various reasons, but dissent is never shown. The Dominions say that the judgments would be more illuminating if they knew the opinion of any dissenting Judge. The noble and learned Earl on the Woolsack sees no difficulty in altering the procedure so that the proceedings there may be more like a hearing and judgment in an ordinary Court. Another point taken was that owing to the Courts being separate and not sitting at the same time there is sometimes divergence of opinion in the Judicial Committee and in this House. That, of course, will be obviated if it is one Court in substance which is always sitting.

I have told your Lordships what the ground of the proposals in this Bill is. Now I come to the Bill itself. There are three clauses. The first provides that the judicial sittings of this House and the sittings of the Judicial Committee shall be arranged as far as is possible in such a manner as not to take place simultaneously; but it. is provided that nothing in the clause shall be construed as requiring the sittings to be held any times other than those prescribed for sittings of the Court of Appeal in England in pursuance of the Judicature Acts, 1873 to 1910, that period being between October and the beginning of August. Clause 2 enacts that His Majesty may appoint two Lords of Appeal in Ordinary under Section 6 of the Appellate Jurisdiction Act, 1876, in addition to the four Lords of Appeal in Ordinary whom he may appoint under Sections 6 and 14 of that Act. That will give six Lords of Appeal together with the Lord Chancellor, the ex-Lord Chancellor, and such other Lords as are qualified to sit, as well as the extra Judges who sit on the Judicial Committee and any Chief Justice or Assessor from the Dominions who may be summoned to attend. The third clause gives effect to the conclusion that it is wrong to differentiate so much as has been done between the salary of a Lord of Appeal and that of a Judge of a Court of Appeal. It is thought that £5,000 a year should be the salary in all cases. The work certainly is not greater; it is a good deal less, and we know that you will get just as eminent Judges on the one footing a8 on the other, and we prefer a footing of uniformity. But that will apply, of course, only to future appointments.

I have now stated the substance of the Bill, and I believe that, if your Lordships see fit to approve of its passage, the Bill, in which His Majesty's Government take a deep interest on account of its Imperial character, will lead to a very great strengthening, not only of the Judicial Committee but of the appellate side of this House, and form the foundation on which hereafter to transfer the whole into a Supreme Court of Appeal for the Empire, with uniform procedure and without the anomalies which by degrees have grown up. The Bill is simple and without complication, and, as I have said, it represents the unanimous opinion of the Premiers in consultation with the Home Ministers during the sittings of the Imperial Conference in June. I beg to move.

Moved, That the Bill be now read 2a.—(Viscount Haldane.)


My Lords, I earnestly hope that your Lordships will give a Second Reading to this Bill, which I consider one of great importance. Indeed the principal link of the Mother Country to the Dominions beyond the seas is now this appeal to the King in Council. I have had occasion to observe the great importance that our fellow-subjects in the Dominions attach to this appeal and to the proper working of the Court. I have had occasion to urge upon the noble and learned Earl on the Woolsack and on his predecessors the importance of this question, and I must say that it has always met with the greatest consideration on their part and that they have endeavoured to the best of their power to make a strong Court of the Judicial Committee of the Privy Council. Whether the Judicial Committee and the House of Lords Court of Appeal should be merged into one Supreme Court of Appeal it is not now necessary for us to discuss. I hope in time to see that done; but in the meantime let us strengthen in every way the Judicial Committee of the Privy Council. Its decisions are watched with great interest in all the Dominions and also in the Crown Colonies, and the knowledge that they can appeal has very great effect. My apology for interfering in this debate is that I first joined the Colonial Office in 1867 and was for six years Secretary of State for the Colonies, and I can say, therefore, from long personal experience that this question of sustaining the dignity and authority of the Judicial Committee is constantly arising; that it is a matter of great importance; and that your Lordships cannot do wrong in passing this Bill.


My Lords, when we were engaged in discussing the reconstitution of this House I remarked that I thought it a pity occasion had not been taken to satisfy the Oversea Dominions in respect of their demand for a strengthening of the Appellate Court in this country. Therefore, like the noble Viscount who has just sat down, I congratulate the Government on having so soon brought forward a measure, and I hope it may satisfy our kinsmen overseas. I am not competent to discuss the provisions of this Bill, but I may say that at the time when the Federation of Australia took place I was then in Queensland, and there was a very powerful intrigue at that time to abrogate altogether this sole remaining link which connects the various parts of the Empire together, and it was solely due to the insistence of Queensland that the right of appeal was retained in regard to Australia. Anything that can tend to promote a greater feeling of confidence in the tribunal which hears the appeals from the outlying parts of the Empire is to be hailed with pleasure, and I endorse the remarks made by the noble Viscount who preceded me.


My Lords, I entirely agree with the opinions expressed by the two noble Lords opposite as to the great desirability of strengthening the Court of Appeal for the outlying Dominions of the Empire. It is most desirable that the Judicial Committee of the Privy Council should be clothed with the highest authority with a view to inspiring the greatest respect in all parts of the Empire. I also feel that much deference must be paid to the conclusions of the Imperial Conference, and as this Bill is founded on their conclusions one cannot but be disposed to receive it with respect. At the same time I must avow to your Lordships that I am not persuaded that this Bill is the right way of dealing with the problem to be faced.

The Government are dealing with what is said to be a deficiency of authority in the Judicial Committee, and are proceeding to constitute one Court which is to embrace both the appellate jurisdiction of this House and the appellate jurisdiction of the Judicial Committee. It is expressly provided that the Court so constituted shall as a rule, almost universally, sit as one Court. If that scheme is carried through, then I submit to your Lordships that you do not require the addition of two Law Lords to this House. You do not want an increase in the Judicial power of this House. Its power is confessedly adequate to the labour thrown upon it. At this time it is very amply furnished with Judicial power, and if appeals from the Dominions are to be heard by the same body, though not sitting here, you will always have the Judicial force of this House at your disposal to hear appeals from the Colonies. If it were proposed to constitute a tribunal composed of the Lord Chancellor, the ex-Lord Chancellor, the other Law Lords who may be available, and six Lords of Appeal in Ordinary and to divide them into two Courts, you might then well have your two Courts working with great efficiency and with great approval on the part of all concerned. But that is not the scheme here. Here it is proposed, for some reason which does not appear, to incur unnecessary expenditure in the creation of two new Lords of Appeal. If the Law Lords in this House are competent to do their work here, they are competent also to hear the cases from the Oversea Dominions.

As I have said, it is not proposed to constitute two Courts. There are practically no arrears in your Lordships' House. Yet it is proposed to increase the number of the Lords of Appeal in Ordinary, not to do work in this House or to do work elsewhere when this House is sitting, but, as it seems to me, for no reason at all. For my part I am very jealous of any increase in the Judiciary, It is important for the high character of the Judiciary that it should not be unnecessarily multiplied. Not long since the question had to be considered of an addition to the strength of the King's Bench Division, and the Joint Committee which considered that matter agreed, reluctantly, to recommend that two additional Judges should be temporarily appointed. They have since been appointed, and with their assistance all the arrears in the King's Bench Division have been disposed of, and it is conceived that these two additional appointments may be in the end, as was intended, only temporary appointments.

The question of expense is a matter of indifference to me, and I confess I do not agree with the proposal to cut down the salary from £6,000 to £5,000 so as to make it equal to that of members of the Court of Appeal. Members of the Court of Appeal not infrequently pass by way of promotion to the Court of Appeal of your Lordships' House, and it seems not inappropriate that there should be with that transition some additional emoluments. The gain is insignificant, and I think the proposal is only put forward as a means of mitigating the expenditure on the creation of two new and unnecessary Lords of Appeal. It is said that this suggestion emanates from the Imperial Conference, but with all respect to that Conference I remember that this matter was brought up first by the representative of New Zealand, and that the suggestions of New Zealand were distinguished for their crude character. They were no sooner made than they had to be abandoned, and what was at length agreed upon was a compromise rather to save the face of the Colonies. I feel very strongly the impropriety of any unnecessary increase in the Judiciary, and I maintain that no case has been made out to show the necessity of appointing two additional Law Lords.


My Lords, though disguised with a genial smile, I think we could see that the noble and learned Viscount opposite was a little perturbed in his mind at finding that he was violating the privileges of the House of Commons. The noble Lord on the Back Bench opposite who spoke last actually ventured to criticise expenditure. Can there be anything more surprising and shocking than that a member of your Lordships' House should criticise expenditure that it may please the representatives of the people to impose on the taxpayers? The noble and learned Viscount said that there had been expressions of opinion in recent debates that the appellate jurisdiction of your Lordships' House might be abolished. That is perfectly true; but one of the reasons for those expressions of opinion was that some politicians of the baser sort have actually used the decisions of your Lordships' House sitting judicially as a stick with which to beat the House as a body sitting politically. That was, of course, disgraceful, and for that reason it became necessary for many of us to say, and to say with conviction, that if the impartial judicial decisions of your Lordships' House were to be used for political purposes, the sooner the judicial jurisdiction was abolished the better. So much for the political side of the question.

This is not a political Bill. It is a Bill of the greatest importance and of a purely legal character, and I feel very much out of place in discussing such a Bill. There are, of course, in your Lordships' House many members well qualified to deal with this subject, but they do not appear to be present at this moment. I must say one or two words, however, in order, if possible, to elicit a little more clearly what is the exact proposition which the Government have laid before Parliament. This is evidently a Bill of the greatest importance, because, as the noble and learned Viscount said, its object is to carry out the recommendations of the Imperial Conference with reference to the establishment of a new Supreme Court of Appeal for the Empire. The noble Lord who has just spoken criticised the proposal of the Government because the Bill provides for the appointment of two new Lords of Appeal. Whether that is a good proposal or not depends very much upon how the Government intend to carry out the provision in practice. If I understood the noble Viscount aright, he indicated that the two new Lords of Appeal were to be specially appointed with a view to being qualified to sit on Colonial appeals. [VISCOUNT HALDANE dissented.] The noble and learned Viscount shakes his head. He did not actually say so; but he called attention to certain resolutions which were debated in the Imperial Conference, the first proposal being that there should be a special member appointed from each of the great Dominions. The noble and learned Viscount said that that proposal did not meet with the favour of the Conference and for very good reasons; and then he went on to say that in substitution for that proposal His Majesty's Government submit this proposal to add two new Lords of Appeal.


It was agreed by everybody that Chief Justices of the Dominions should be made members of the Judicial Committee of the Privy Council and should come over here when appeals were heard from their Dominions. The addition of two Lords of Appeal was agreed on with a view to strengthening the Court for all purposes. The English Common Law extends over the greater part of the Empire, and it was thought that this was the best addition you could make.


I understand, then, that the New Zealand proposal was met partly by a compromise to appoint more Chief Justices to the Privy Council, and partly by the appointment of two new Lords of Appeal who were to be good for all purposes, Colonial and other.


That is so.


And hereafter, as I understand, there will be a Bill introduced to abolish the separate jurisdiction of your Lordships' House, to amalgamate the two jurisdictions, and to have only one Supreme Court of Appeal?


I hope so.


That is a matter of supreme importance, and I do not feel qualified to criticise it. But I am pleased to hear from the noble Viscount that no difficulty is apprehended from too much business being thrown on a single tribunal. There was a time when the decisions of your Lordships' House as a Court of Appeal were very long delayed, but I rather think that that state of things has passed away, and that now the judgments of your Lordships' House are delivered promptly; but if the old state of things were to reappear through working with one Court instead of two it might be a serious matter.


The Bill says "wherever practicable."


The only other matter which I note is that it is proposed to alter the procedure of the Judicial Committee of the Privy Council by establishing minority judgments. I do not know if the noble and learned Earl on the Woolsack and the noble and learned Viscount opposite have consulted with the noble and learned Lords on this side of the House as to whether that is a desirable change. It is evidently one of very great, and in some respects of vital, importance, and unless there has been some understanding between the two legal sides of the House we must reserve liberty of action on this point at a future stage. There is no doubt that His Majesty's Government have been well advised in entering upon these changes, because it is above all things important that the well-considered advice of the Imperial Conference should, if possible be followed up in the Imperial Parliament. From all parts of the Empire men of great distinction have met together and resolved that these changes ought to be carried out, and we cannot blame, but must praise, the Government for having taken an early opportunity of carrying them into effect.


My Lords, I would be sorry to deprive the noble Marquess of the pleasure of thinking that we are violating the privileges of the House of Commons in monetary matters by introducing this Bill, but Bills of this kind have always been brought in in this House, and there is a process on the Third Reading by which we say that the privilege Amendment be agreed to, so that the Bill becomes merely a suggestion to the House of Commons rather than an enactment. With regard to altering the practice hitherto observed by the Judicial Committee of the Privy Council of only delivering one judgment, or one statement of opinion as to the advice to be submitted to the Crown, I would frankly prefer that things should remain as they are. I believe it is better that the Court should all agree on one particular view, for the guidance of other Courts, and experience has proved its desirability. At the same time mine was the voice of one perfectly disregarded at the Conference. The representatives of the Dominions concurred in taking a different view. As these judgments affect them entirely I do not think it is our business to stand in the way of their distinct preference not only for the opinion of the majority of the Court, but also for the opinion of any dissenting critic. I hope and am sure that dissent will be rare and very moderately expressed; but I did not myself feel at liberty to disregard the view put forward by the representatives of the Dominions.

With regard to the other part of the Bill, it is not only very important but rather delicate work that we have to do. This House, having borrowed from the Crown the authority which is still called the decision of the King in Parliament, decides all appeals from the United Kingdom. The Judicial Committee of the Privy Council hears all appeals from all parts of the British Dominions, and there are several and many different codes and kinds of law that have to be administered, There is Indian law, the Roman-Dutch, the old French law dating prior to the French Revolution of 1789, together with the English Common Law and the Statutory laws enacted in some of the Dominions, to say nothing of other systems. The work requires the very best men you can get. The great causes that come to this House from the United Kingdom, and the other causes, some of which are of immense Constitutional importance, that, come before the Judicial Committee of the Privy Council are increasing in number. There has, no doubt, been a marked increase since I have had the honour of sitting on the Woolsack, and if it continues it will certainly mean a great deal more work. I am glad to say there are no arrears, and that yesterday morning I heard that the last case had been finished in the Judicial Committee. All the cases ready for hearing had been despatched by yesterday. Your Lordships will I think find, if you inquire, that there is no reason to complain of any delay in this House, but the work is heavy.

What one has to do sometimes—in fact not infrequently—is to divide the Court into two, and my Judicial colleagues are good enough to leave to me the choice in the composition of the two Courts. I do my very best, and with the assistance of Lord Halsbury, Lord Gorell, Lord Mersey, Lord Ashbourne, and others we do make very good Courts, and I do not think there is anything to complain of. But we have no right to ask Lord Halsbury to serve; nothing but his kindness leads him to do so. An ex-Lord Chancellor is not bound to help, although I am sure that as long as he could be would willingly do so. But we have no claim on him, nor on Lord Ashbourne. nor on Lord Gorell, or the other Lords. It is all gratuitous service that they give. The regular body consists of the Lord Chancellor for the time being and four Lords of Appeal. Speaking for myself, I will go on as long as I can doing my best, but I declare that the time is coming and is near at hand when the combination of the duties of Speaker of one of the Houses of Parliament, of a Judge of the Highest Court of Appeal, of a member of the Cabinet with important and momentous matters to decide, to say nothing of administrative duties relating to lunacy, magistrates, and many other matters, may prove too much for the strength of anybody unless it is mitigated by lightening the burden in some direction.

That was the situation we had to face. The Colonial Premiers had given notice beforehand of resolutions from New Zealand and Australia desiring that there should be an Imperial Court of Appeal, and the New Zealand suggestion was, I think, that it should consist of Judges from all parts of the British Dominions. They wanted the House of Lords and the Judicial Committee of the Privy Council to be fused into one. The difficulty about that was that every single self-governing part of the Dominions is entitled to say what sort of Court it wants to decide its final appeals. We found, as we knew beforehand, that Canada, for instance, was not prepared to say that a Canadian appeal should be heard by a South African, a New Zealand, an Australian, and an Indian Judge, and so forth; and unless you could get the consent of the self-governing Dominions, which they withheld—the point was expressly put to them—it would be very difficult to constitute a Court which would be composed of Judges from all parts of the Dominions. I am very sorry that my noble friend Lord Courtney does not agree to our proposal. I thought I was one of the privileged people who sometimes had the honour of the noble Lord's concurrence, but on this occasion apparently I am not entitled to reckon upon it.

Feeling that with all this heavy and increasing work it is not quite enough to have a nucleus of the Lord Chancellor and four Lords of Appeal I suggested, after conferring with my colleagues, that if the Colonial representatives were not prepared to take Colonial Judges we should add two more of the finest Judges we could get in England for the purpose, and they all fell in with the view and concurred in the resolutions—I think I may so call them—which my noble and learned friend Lord Haldane read to the House. That is the origin and genesis of this proposal, to which Lord Courtney seems to have some aversion. I think it is a reasonable thing to do. The object of saying that the Courts are not to sit simultaneously is that, so far as practicable, we want the fullest strength we can get in trying the appeals from the United Kingdom, and in trying appeals from the British Dominions beyond the seas. We cannot always do that, and we shall be obliged to sit in two bodies. I do not know whether this method of dealing with the subject is strictly logical— I am quite prepared to admit that it may not be—but at the same time I think it is a practical method of dealing with a practical difficulty, and that it will strengthen the Court. It is impossible that it can be too strong. The cases that we have to consider are very heavy, and I think the proposal in the Bill would prove most useful.

I will only refer to one other subject—the question whether the Lords of Appeal in Ordinary ought to sit in this House. May I respectfully suggest a point of view that perhaps has not occurred to your Lordships? I am not particularly enamoured of their sitting here, but the criticism which has been levelled against them is that they have not delivered popular judgments, that they have brought unpopularity upon your Lordships' House by doing justice——


I never said so. On the contrary, the charge I brought was that certain politicians had said that noble and learned Lords had delivered unpopular judgments, and, therefore, that that was another blemish on your Lordships' House, and another reason for attacking it on every platform in England.


I did not mean to convey that the noble Marquess intended to blame the administration of justice, but the real feeling at the bottom of the complaint is one which I think this House or any House may well afford to be superior to. This House loses nothing by containing within its ranks men who give unpopular judgments. I understand what the noble Marquess means, and share his views. I think it is very wrong indeed to blame either this House or the Law Lords who give these judgments. It is certainly unfair to associate the House of Lords, which has nothing to do with them, with the judgments of the Law Lords. At the same time it is dangerous ground, and I believe myself that neither this House nor any House will ever lose by giving judgments which are fair and just, even though they may happen to be unpopular. For my own part, I may say that I am in a singularly favoured position. I have not been a party to any of these judgments. Had I been present I might have committed myself to some very unpopular opinions. I can therefore say all the more freely, I am quite certain that the opinions which have been given by the noble and learned Lords who arrived at those conclusions have been purely their view of what the law required.


My Lords, I cannot help rising to say a single word in regard to what has fallen from the noble and learned Earl on the Woolsack. One reason why every one in this House respects the noble and learned Earl is that he is straightforward and downright, and we are convinced that in any judgment he might give or in any action he might take he would be actuated solely by his opinion of what is right. At the same time it is undoubtedly the fact that the name of the House of Lords being attached to the highest Court of Appeal has prejudicially affected this House in the opinion certainly of the Radical portion of the country. We have had reason to complain more than once that responsible Members of Parliament have not taken the means that they ought to have taken to represent that the opinions entertained in Radical circles on this subject were entertained under misapprehension.


It does not affect one side only. On the last occasion that I contested an election for a seat in the House of Commons I was attacked by Conservative questioners because of the monstrous appointments which it was said the Liberals had made and which it was alleged had led to these labour judgments.


I was not referring to that matter. I was talking about what had been said of this House, more especially in Radical circles, throughout the country. We have on many occasions protested against that. We have held that your Lordships' House was very unfairly treated by such things being said of it, and we have felt that this House might have been protected on some occasions by persons who have neglected to do so. If it were possible to do so under this Bill, I would suggest that His Majesty's Government should take some means of separating the House in its appellate capacity from the name of the House of Lords.

On Question, Bill read 2a, and committed to a Committee of the Whole House on Tuesday next.