APPELLATE JURISDICTION BILL. [H.L.] (Hansard, 16 August 1911)

§ LORD SANDERSON

My Lords, I hope your Lordships will not think it 1130 irrelevant or audacious on my part. if I venture to take this occasion to offer a slight addition to the account which was given by the noble and learned Viscount the Secretary of State for War on the Second Reading of this Bill as to the basis on which the appellate jurisdiction of this House rests. The noble Viscount said— 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. Later the noble and learned Earl on the Woolsack said— 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. I conceive that that is a sufficiently accurate description of what happened up to forty years ago, but neither noble and learned Lord mentioned that in 1873 this House passed the Supreme Court of Judicature Act by which the whole of its appellate jurisdiction was abolished. Parliament, having made that enactment. thought better of it; the operation of the Act was deferred, and eventually in 1876 the Appellate Jurisdiction Act was passed by which the appellate jurisdiction of this House was revived under improved conditions and with certain amendments. In those circumstances I do not think that the jurisdiction of this House eau be correctly described as borrowed from the Crown. I submit that it has been conferred by Statute.

There is one other point which is, perhaps, worth mentioning in view of the discussion which took place on the Second Reading of this Bill. By Section 5 of the Appellate Jurisdiction Act it is enacted that an appeal shall not be heard and determined unless there are present at such hearing not less than three Lords of Appeal, but the Act contains nothing which would prevent any lay Lord from exercising the right of sitting and hearing the appeal and taking part in the decision. I presume that there was a reason for that. It was probably in order to allow Peers specially qualified to sit occasionally as assessors. But, whatever the reason may have been it has never caused any inconvenience, because as a matter of fact no lay Lord ever does exercise the right. In these circumstances 1131 it was quite incorrect for Mr. John Burns to have said that this House is not satisfied with being the highest Court of Appeal. The real fact is that this House, having the right to be the highest Court of Appeal, scrupulously abstains from acting in that way, and leaves it to the Judges. That is not a matter which it is very easy to bring home to the great mass of the electors. I think the noble and learned Earl on the Woolsack mistook their attitude of mind when he said that this House is charged with taking a part in unpopular judgments. It is not supposed that this House declares the law; it is supposed that by some unicameral method it makes the law, and the legislative and judicial functions of the House are confused. I believe the late Lord Selborne, on the Second Reading of the Appellate Jurisdiction Bill, called attention to the possibility that this might happen. It undoubtedly has happened, and I think it is well worth consideration in what way the impression can be removed.

§ THE SECRETARY OF STATE FOR WAR (VISCOUNT HALDANE)

It is quite true, as my noble friend has said, that the Appellate Jurisdiction Act of 1873 gave statutory recognition to the judicial functions of this House. In what I said in moving the Second Reading of this Bill I was referring to the origin of that jurisdiction, which any of your Lordships who are interested in the subject will find set out in Mr. Pike's History of the House of Lords. It is a very old jurisdiction, and how it got transferred from the King in his curia to the King in his Parliament and then to this House is a matter which is buried in considerable historical obscurity. But. there it is. It is quite true that the jurisdiction on the appellate side is a totally different thing from the legislative jurisdiction, and any confusion there has been in the minds of people between the two has arisen from ignorance. Whether hereafter it may be possible to set the seal on the propositions of, this Bill by transferring the jurisdiction to a Supreme Court of Appeal for the Empire is a different question. That, as I said before, seems to me to be the reasonable and natural outcome of the situation. This Bill only deals with the substance and paves the way for Parliament, if hereafter it should think fit, to take that course.