HL Deb 08 December 1915 vol 20 cc550-7

[SECOND READING.]

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (LORD) BUCKMASTER)

My Lords, the object of this till is to enable the Judicial Committee of the Privy Council to sit in more than one Division at the same time. Although circumstances of war have rendered this Bill urgent, it is not proposed by the Government that its operation should be confined to the period of hostilities. As your Lordships know, the Judicial Committee of the Privy Council is the final appeal for all the Courts in the whole of the Empire, and in addition it has thrown upon it the duty of determining appeals in all cases from the Prize Courts. At the present moment the result of that is that there are twenty-eight appeals from the different parts of our Dominions with regard to Prize Court matters, and although only a few of these are entered for trial at any moment the others might be pressed on and put down for hearing, with the result that the Judicial Committee would have before them for decision a very large volume of extremely important business. The result of that must necessarily be that the other work will be thrown into arrear, and I am sure that your Lordsips, all of whom have some experience of judicial matters, will know that there can be nothing more disadvantageous to the proper administration of justice than the sense that the time for the disposal of any case is limited by the desire to dispose of the case that is to follow. Justice administered in haste is always liable to become unjust, and I am quite satisfied that nothing could be more undesirable for the proper and effectual despatch of the business in the Privy Council than that there should be a heavy list of arrears awaiting disposal.

There is another added disadvantage from which the Judicial Committee suffer in that respect, due to the fact that many of their cases are cases in which the counsel who attend are not English counsel. A great opportunity is afforded for the mixing of counsel from the Bars of all the Dominions, and the opportunity is one which I am pleased to say is very freely used by counsel particularly from the Dominion of Canada. These counsel come over for the purpose of having their cases heard, and it would be a most unfortunate circumstance if it were necessary to send any of them back before their case was properly disposed of. I am sure that your Lordships will feel as I do that it is impossible to attach too much importance to the good that is gained from the practice before the Judicial Committee of the Privy Council of Colonial counsel. It is not merely the mingling of the two Bars which I think is of great service, but the Judicial Committee have the advantage of having counsel before them who are familiar with the local circumstances out of which the case has arisen.

If these Prize Court cases come on for hearing, as I anticipate, the result will certainly be that the other work will be put on one side. The Prize Court cases are urgent, and must be determined at once. At the same time I am pleased to be able to tell your Lordships that the judicial business before this House, although I can see no signs whatever of its flagging in quantity or importance, has none the less been dealt with so effectually during this term that at the present moment nearly all the cases down for hearing have been despatched. There are two or three still remaining, but it is fair to say that the work before your Lordships' House is well up to date. If, therefore, at the beginning of next term there was no urgent work before your Lordships' House it would be possible to use the members of this House who sit here judicially for the purpose of forming a second Division in the Privy Council, and by this means it would be possible to proceed with the two classes of cases at the same time—the Prize Court cases which require rather a special tribunal, and the ordinary work of the Privy Council—and thus both Divisions of the Privy Council would sit at the highest possible standard of judicial strength. I mention that as I regard it of the greatest possible importance. If the result of passing this Bill was to produce a set of circumstances in which it was thought that there were two Divisions of the Privy Council and that one was not of equal judicial authority to the other, nothing but disaster would follow. But I feel quite satisfied that nothing of the sort need or will ensue under this Bill, because in order to safeguard the possibility of such an event a provision has been introduced that this Bill should only operate with the consent of the Lord Chancellor for the time being and the Lord President of the Council. I feel quite satisfied that any holder of my office would exercise the utmost vigilance in order to secure no weakening of judicial authority in the Privy Council, and I feel equally certain that the Lord President would regard it as his first duty to see that the high standard hitherto maintained in that body is maintained in the two Divisions.

I have only to add that I have placed the Bill for consideration before my noble and learned friends Lord Halsbury, Lord Haldane, and Lord Loreburn. Lord Haldane is an ardent supporter of the Bill. I think I am right in saving that it has the complete approval of Lord Loreburn, although he has some little uncertainty as to whether it is necessary; but the Law Officers are satisfied that it is necessary, and certainly if it is I feel sure it has his support. With regard to Lord Halsbury, I much regret that it was impossible for me to place the Bill before him so as to give him sufficient time for full consideration, but he most considerately spoke to me about the matter, and although I cannot honestly say that the Bill has the advantage of his blessing I think I can safely say that it has not the disadvantage of his ban. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

LORD MUIR-MACKENZIE

My Lords, I should like to be allowed to say a few words upon this Bill. My only excuse for doing so is that it has been my lot to be associated for a great many years with these matters under the direction of successive Lord Chancellors, and in that way I happen to be very familiar with the subject and the way these things are worked. I think that this Bill, though a modest measure, is a very useful one and quite practicable; and there can be no doubt that, assuming it is necessary to pass a Bill of this kind, it ought to be passed at once, because, as the noble and learned Lord has mentioned, there are a great many appeals accruing in the various Prize Courts, and they are matters which ought to be dealt with at once. It is also eminently necessary, as my noble and learned friend has said, that the Colonial appeals should not be delayed. There is, therefore, a very clear case, if it is a possible and proper thing to do, for empowering the Judicial Committee now to sit in two Divisions.

Then comes the question whether there are sufficient persons duly qualified to maintain two adequate Courts. The Lord Chancellor has stated, and I venture to agree with him, that there are sufficient qualified persons, many of whom sit in your Lordships' House as well as in the Privy Council, and there are others who form a sufficient number and certainly a competent tribunal for making up two Courts to deal at the same time with these classes of cases. It happens that the strength of the Court is at the moment diminished by the absence of two very important Lords of Appeal. It is a matter of deep regret that Lord Dunedin just now is suffering from a prolonged illness. As for Lord Moulton, while he is undoubtedly serving his country without stint it is the case that as a legal luminary he may scarcely be said any longer to exist. His services have not for a long time been at the disposal of this House. That being so, it seems that it may be necessary to bear in mind at some future time that when it was thought that an addition might be made to the labours of these tribunals the number of those competent to deal with them was, even under the disadvantageous circumstances that I have mentioned, adequate for the purpose. When economy becomes again a factor in its proper place in the administration of our national affairs, perhaps this will be borne in mind.

Assuming that this Bill is to pass, I hope it does not mean that, it is the last word that we shall hear from the noble and learned Lord on the Woolsack about the Judicial Committee. On the contrary, I hope it may be an indication that he sees that there is a great future for the Judicial Committee of the Privy Council, and I trust that at a not very distant day a Bill dealing with that very large and very interesting subject will be presented to your Lordships' House. I presume that the Lord Chancellor intends to proceed rapidly with this Bill, and that the Committee stage will be taken very shortly. I therefore venture to mention two or three points which occur to me on reading the Bill and which I would ask him to be kind enough to consider before he deals with the Bill in Committee. The points that I desire to mention arise on subsection (2) of the one main clause of the Bill. I would suggest for the noble and learned Lord's consideration that it might be desirable to give a power under the rule both as to the place of sitting and as to the quorum of each Division of the Court I am not prepared at this moment to offer any arguments upon either of those points, but I have thought sufficiently about them to regard them as worthy of the Lord Chancellor's consideration.

There is one other point which I venture to think is of considerable importance. A very large rule-making power is given in subsection (2), so large as to include— such adaptations in the enactments relating to the Judicial Committee as may be necessary for giving effect to this Act. You will observe that under that, by means of rules, all the Acts of Parliament relating to the Judicial Committee may be modified so as to give effect to this Bill. I have been for thirty-five years without having any opinion of my own upon any legal subject, but having at last an opinion of my own I would venture to say to the House that I have always thought that a rule-making power ought not to go so far as to allow the modification of existing Acts of Parliament except in matters of practice and procedure and things of that nature. Here is one of the strongest instances I have ever seen of that which I have ventured to say I do not think is desirable. I believe I am not going too far in saying that, under the power here given, the number of the Judicial Committee might be increased, and I think there are other large things that might be done under this power on the ground that they would give effect to this Bill.

The noble and learned Lord has said that the number competent to take part in the business of this tribunal is ufficient just now. But supposing he thought at some future time that it was insufficient, would he not be able to make a modification of the Act of William IV which constituted the Judicial Committee and add further members or even alter their qualifications? I think that would be possible under the Bill as it stands, and I do not think it ought to be. I venture to suggest to the Lord Chancellor that he should at least make it quite clear that the rules referred to in this subsection are rules which come in every respect within the provisions of the Rules Publication Act—that is to say, that they cannot become absolute and effective without first having been published in the London Gazette. I can imagine that the Lord Chancellor would say that that would raise a difficulty in one of the important matters that he desires to deal with at this moment—namely, the making of an Order enabling the Judicial Committee to sit in two Divisions. The answer to that, which no doubt the Lord Chancellor knows as well as I do, is that rules can be made provisional and can be acted upon, but nevertheless the rules are published in the same way as any others and have to be considered in the light of any representations that are made before they are finally adopted. I would ask the Lord Chancellor to be good enough to consider the rule-making power he has here in the light of those three or four amendments which I have ventured to suggest.

LORD PARMOOR

My Lords, the noble Lord who has just sat down has had a unique experience in these matters, and I think your Lordships must not take too seriously his statement that he has not very often exercised his own authority or had his own way in matters of this kind. On the Bill generally, I agree entirely with what has been said by the noble and learned Lord on the Woolsack. It is not necessary to emphasise that point. But I will say a word or two on the special subject raised by the noble Lord opposite. The concluding words of subsection (2) of Clause 1 are these— for making such adaptations in the enactments relating to the Judicial Committee as may be necessary for giving effect to this Act. The result of these words is to give a rule-making power which may and could override special enactments of the Legislature dealing with the Privy Council. I do not think that is right. I do not think that special legislation ought to be repealed by rules and orders. If special legislation of this kind is intended to be altered, it ought to be altered by the Legislature itself. I agree with what the noble Lord opposite has said, that as regards the constitution and the jurisdiction of tile Judicial Committee of the Privy Council very important matters might arise. In that the Judicial Committee of the Privy Council is the Imperial tribunal, I think it is due not only to this country but to all our Dominions that no alteration should be made in its constitution except by legislative authority and in practically the most solemn and the most direct way that you can deal with a question of this sort. Therefore I object very much that the Committee who formulate these rules should have the power of interfering with specific enactments of the Legislature.

THE LORD CHANCELLOR

My Lords, I will say one or two words, in reply to what has been said, which I hope will relieve the anxiety of my noble friend Lord Muir-Mackenzie. In the first place, I do not think it would be possible for the rules to do anything of the character that he suggests. I do not see how you can make rules to enable an existing body to sit in two Divisions in such a manner as to take away the authority or power of either Division or to add to the legislative power under which one Division now sits. The whole point in the Bill is that instead of sitting in one Division the Judicial Committee of the Privy Council may sit in two Divisions, and certainly nothing is done to impair or endanger in the slightest degree the position or power of the Judicial Committee as now constituted. I desire to say that at once, lest it might be thought that this Bill by some obscure and indirect manner attempted to create such a power. It would be most undesirable were such a thing possible. But I should be glad, indeed, to have the assistance of the noble Lord in making any alteration in the last words of subsection (2) of Clause 1 to prevent the possibility of such a thing, not taking place, but being reasonably misapprehended. Certainly there was no intention that anything of the kind should occur. It is difficult to interpose between these rules and their operation the lapse of any long period of time, because it may be that you want them effective at once. It is sometimes difficult to know in advance exactly everything that is required.

With regard to the other amendments mentioned by the noble Lord, I think, if I may say so with respect, both suggestions are undesirable. It is very undesirable to fix by rule the number of the Judicial Committee of the Privy Council who should sit, and extremely undesirable to fix the place where they should sit. After all, it is a great Imperial tribunal; and it may be in the future that such a body may sit in any part of the Empire. Therefore I think it would be unwise to limit in any way whatever the place where they may sit. Subject to that I am grateful to the noble Lord for what he has said with regard to the Bill.

LORD MUIR-MACKENZIE

My Lords, I apologise to my noble and learned friend for my imperfect exposition of my view on this subject. I did not use many words with regard to the place of sitting, but the idea in my own mind was to facilitate where Sit might sit. I do not happen to know at this moment where the second Division may sit, and that is why I asked my noble and learned friend to consider the point.

On Question, Bill read 2a and committed to a Committee of the Whole House To-morrow.