APPELLATE JURISDICTION BILL. [H.L.] (Hansard, 15 April 1913)

§ THE LORD CHANCELLOR (VISCOUNT HALDANE)

My Lords, I rise to move the Second Reading of this Bill. The Bill proposes to do three things—first, to add two to the number, at present four, of Lords of Appeal appointed under the Appellate Jurisdiction Act, 1876; secondly, to enable those Lords of Appeal who are qualified, if they so desire, to be members of the Court of Appeal in England and to sit there on occasions; and, thirdly, to 100 amend the provisions of the Judicial Committee Act, 1895, by increasing from five to seven the number of those Judges of Dominion Courts who may, on being added to the Privy Council, become members of the Judicial Committee. These are the three purposes of the Bill; and I will only add that it is proposed that the new Lords of Appeal should be on exactly the same footing and terms as the existing Lords of Appeal. For obvious reasons, which I am sure it is unnecessary for me to go into, no distinction whatever will be made.

I pass to the justification for the Bill itself, which is to be found in the Resolution passed unanimously at the Imperial Conference in 1911, and in the state of business. The whole question of the Supreme Tribunal of Appeal of the Empire was a good deal discussed at the Imperial Conference. Various Dominions made various suggestions. One Dominion suggested that Dominion Judges should sit on the Judicial Committee. But as the result of thrashing that question out at the Conference it became apparent that what was really wanted by the Dominions was that on occasion when desirable a Judge of the Supreme Court of a Dominion should be able to come over and take his place on the Judicial Committee and hear appeals from that Dominion. That has already been the practice to a considerable extent. The Chief Justice of Canada sat regularly with the Judicial Committee in hearing appeals which were not before him in Canada; and in the same way other Judges from other Dominions have sat on the Judicial Committee here for the hearing of appeals from their Dominions. That, of course, is a very different thing from having a Judge from each Dominion or Judges from some of the Dominions sitting always on the Judicial Committee and hearing appeals from other Dominions. The Conference finally expressed a preference for the modified arrangement I have suggested rather than the more' ambitious arrangement which was at first foreshadowed.

There was another subject discussed at the Conference. At first it was thought that the form of giving judgment in the Judicial Committee should be like the form of giving judgment in this House, where noble and learned Lords express their opinions in public and the decision come to is the decision of the majority. In the 101 Judicial Committee, as your Lordships know, the rule of secrecy is observed, and the judgment is always the judgment of the Judicial Committee, whatever may have been the differences of opinion on that Committee. It was thought by some of the representatives of the Dominions—I think by most of them at first—that they would prefer that it should be otherwise, and that the analogy of this House should be followed; but subsequent correspondence with the Colonial Secretary has brought them practically unanimously, I think, to the view that they prefer, for the present at any rate, that the existing arrangement should continue. We therefore take no power in this Bill to deal with that question—for a two-fold reason: first, that the balance of opinion is, as I have stated, at present adverse to it; and, secondly, that the change can be made at any time by an Order in Council without any provision in an Act of Parliament.

What the Imperial Conference ultimately resolved, and on this it was unanimous, was that the Imperial Government should be requested to appoint two more Law Lords to sit on the Judicial Committee and in this House, so that the Supreme Court of Appeal might be stronger in point of numbers. They also recommended that the two additional Law Lords should be English Judges. I do not think that was meant to be construed in any narrow way; it simply meant that they should be men of great experience and judicial capacity. This proposition, if it receives effect, would thus increase the number of Lords of Appeal to six, in addition to whom there would be the Lord Chancellor and the ex-Lord Chancellors, who are, I need not say, a great source of strength in constituting tribunals, especially when the sittings have to be in two divisions, one at the Judicial Committee and the other in this House. Thus there will be nine at all events, and generally there is some, other noble Lord who, having had high judicial experience, is ready and willing to take part in the adjudication of causes. We have several noble and learned Lords who fulfil these conditions at the present time. What was desired was that the Judicial Committee should sit with not less than four, and if possible five, members at a time, and even more when the cases were important, and that in this House those sitting to hear appeals should not number less than four or live, with possibly 102 more in certain cases. This Resolution of the Imperial Conference was accepted by His Majesty's Government, and the Bill the Second Reading of which I am now moving is introduced in fulfilment of that compact.

But the Bill has another foundation—the foundation of desirability, which amounts almost to necessity in present circumstances. The Supreme Tribunal of the Empire is that of the King in Council so far as those portions of the Empire outside the United Kingdom are concerned, and this House so far as England, Ireland, and Scotland are concerned. It may be that in the future this House will be reconstituted in such a fashion that it will not be natural or logical that appeals should any longer lie to it, but should rather lie to the Supreme Tribunal of the Empire sitting in two divisions, one for those parts of the Empire which are outside the United Kingdom and the other for the United Kingdom. It is a question which we do not in this Bill at all prejudge. All that we do in this Bill is so to make the appointments that no difficulty shall be created if that question comes to be a practical one. You will have the materials which you can combine into a different kind of Supreme Court of the Empire from the form in which that Court exists in its two parts at the present time.

Turning to the necessity for making a change, the case is, I think, a very strong one. Appeals to the Privy Council and to the House of Lords are certainly not diminishing in number, and they tend to increase in importance. That is remarkably so in the case of the Dominions. Cases of vast importance, Constitutional cases and cases affecting great issues of property, come before us in numbers which are tending to increase. Very often these cases cannot be disposed of under several days' careful hearing. Apart from these there are special references such as took place the other day upon an important question, which took up much time and required the best tribunal we could constitute. I have no hesitation in saying that under present circumstances it is impossible for the two tribunals to live up to the standard which I have indicated—the standard, namely, that you should always have as powerful a tribunal as you can get together for dealing with particular cases. At the present moment two of the Lords of Appeal are sitting in the Judicial 103 Committee with two other members of that Committee disposing of Indian appeals, and in this House I am at present sitting with two other Lords of Appeal and we constitute a tribunal of only three. We do cur best to give the cases the closest attention, and an attention sufficiently lung to enable all points to be adequately considered; but I confess that I should feel much happier in some of these important cases if I were sitting with four colleagues instead of only two; and in the Judicial Committee that is so much the case that we often have to suspend the sittings of this House altogether. For example, last July we thought it expedient to make provision so that the Canadian appeals should all be taken together, and we suspended the sittings of this House and sat in cur full strength in the Judicial Committee for over a month to dispose of those cases. We made a satisfactory tribunal with the assistance of the Chief Justice of Canada, but it meant the complete suspension of the Judicial sittings of this House; and so it will continue unless we have the tribunal in such strength that we can have sittings in both places where necessary.

In the circumstances I have not the smallest hesitation in saving that the passing of this measure is a necessary preliminary to putting the Supreme Tribunal of the Empire, both in this House and at the Judicial Committee, upon a proper footing. The Bill takes the steps, and no more than the steps, that are necessary for that purpose; and aiming as it does at that object, I commend it to your Lordships' favourable consideration as a Bill which certainly will make an immense improvement in the situation over the state of things which exists at the present time. I beg to move.