HL Deb 08 June 1926 vol 64 cc289-99

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (VISCOUNT CAVE)

My Lords, the purpose of this Bill is to authorise the appointment of two members of the Judicial Committee with experience of Indian law and at a reasonable remuneration. Appeals to the Privy Council, including the special references, have grown very rapidly during the last twenty years, and the Indian appeals especially, which in the years 1906 to 1910 averaged 52, have, I believe, in the last five years averaged 91 per annum. It has often been necessary for the Council to sit in Divisions. It has sometimes been difficult to provide sufficient members of the judiciary both to man the House of Lords when it is sitting on appeals and to man two Divisions of the Privy Council. We never sit now in this House with fewer than five members. It is desirable to have five members sitting in the First Division of the Privy Council and not fewer than three in the Second Division. It is not always easy, with the present material, to provide that number.

I think that even my predecessors in my present office found some difficulty, but mine is greater. Whereas they had the assistance usually of four ex-Lord Chancellors, I have only one upon whom I can rely. Three of our ex-Lord Chancellors, by a chapter of accidents, have their time fully occupied elsewhere, but my noble and learned friend Lord Haldane still gives his invaluable help, both in the judicial work of this House and at the Privy Council, sometimes, I am afraid, without regard for considerations relating to his own health. Also one is able to have the voluntary assistance of those distinguished ex-Judges of the High Court and the Court of Appeal who sit in this House, but it is absolutely necessary that we should have two members of the Privy Council with special experience of the diverse systems of Indian law and able and willing to give the whole of their time to the judicial work when the other tribunal is sitting.

We have had, since 1887, two members of the Court appointed under the Judicature Act of that year, but under terms which provide for them a remuneration which is really not sufficient even to pay their ordinary expenses. One of those, Sir John Edge, retired at the end of May last at the age of 84, and I should like to take this the first opportunity I have had since his retirement, of paying a tribute in a few words to the great public services which he has rendered. He was appointed Chief Justice of the North Western Provinces 40 years ago. He returned to this country in 1898. Since then he has been, firstly, a member of the Council of India, and since the year 1908 an active member of the Judicial Committee of the Privy Council, and I think that not only his knowledge of Indian law but his experience of the Indian character, and his strong common sense, will long be missed by his colleagues on that tribunal. The other member sitting from India is Mr. Ameer Ali, who has also been with us since the year 1909, and who has done, I need hardly say, admirable work, but during the last year or two has sometimes been prevented from sitting by reasons of health.

I think I have said enough to show that some further assistance is required Last year, after consultation with the Secretary of State for India, and with the late Viceroy, who was then here, we proposed to the Government of India that two new members should be appointed at a salary of £4,000 a year each, to be contributed as to one half by this country and as to one half by India. That proposal was brought before the Indian Legislature, but after debate was rejected. I have read the debate and I am not quite sure that all the members who took part fully understood what was proposed, and I am told that it is possible that a different view may be taken at some future time. Of course the matter cannot wait, and what we now propose to Parliament is that His Majesty should have authority to appoint two members of the Judicial Committee of the Privy Council, with special experience of India, at a remuneration of £2,000 per annum each, but that if hereafter India should provide a further sum, then that sum shall go to the members appointed. Meanwhile, we think that a remuneration of £2,000, plus such pension as the person appointed may happen to have, might be accepted as a sufficient remuneration for each of them. Such details as the age of retirement, the qualification for appointment, and matters of that kind, have been discussed with the Secretary of State for India and are inserted in the Bill. It is not proposed that the two members to be appointed should interfere with the appointment of the surviving member appointed under the Act of 1887, but when he vacates his office it is not proposed that any further appointment should be made under that Act. Those are the short details of the proposal. I think every one who is acquainted with the facts will agree that some such measure is required. Of course I am ready to discuss details in Committee. Meantime I ask your Lordships to give the Bill a Second Reading.

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

LORD BANBURY OF SOUTHAM

My Lords, as I understood it, the effect of the Bill is to cost this country £4,000 a year more, and India has refused to contribute anything to the salary of these Judges, who really are appointed to deal with Indian matters. That seems to me to be the effect of the Bill. After the speech of the noble Viscount, the Lord Chancellor, I am loth to do anything to interfere with the Second Reading of the Bill, but at the same time I cannot help expressing my regret that even in such a small matter as £4,000 a year economy seems to be on the side of the Indian Government and not on the side of this Government. I should have hoped that the Indian Government would have paid the salaries of these gentlemen, and that in the parlous state of our finances we should have withheld payment of salary until a better time.

VISCOUNT HALDANE

The noble Lord who has just sat down has spoken as if the Judicial Committee of the Privy Council, in what it does for India, was only an Indian institution, but the Judicial Committee—

LORD BANBURY OF SOUTHAM

I should have said Indian cases, as I understood it.

VISCOUNT HALDANE

The Judicial Committee of the Privy Council is one of the great institutions of the Empire—one of the really living links which remain. The Navy is one, the Judicial Committee is another, and of course there is the Sovereign. But if you take it away, or if you cause it to do its work with insufficient means, all I can say is that it is very bad for the Empire, and you are losing one of the most valuable means of holding the Empire together. It was with great relief that I heard the speech which the Lord Chancellor has made from the Woolsack. He has watched over the Judicial Committee with affectionate care, and now he shows that he is alive to its grievous necessities. I call them grievous necessities advisedly. I have sat there on the Judicial Committee longer than, I think, any Judge alive, unless it be Lord Dunedin, who has sat there since he was Lord President of the Court of Session, and all I can say is that the Committee is getting into a deplorable condition.

I will take India first. The cases from India are, on the average, double what they were twenty years ago, and not only double, but they are not diminishing in importance, and it is urgently necessary that we should have more assistance in Indian appeals. I am never satisfied when I hear that only three Judges have sat in Indian appeals—not that three is not a very good number, but that the Empire expects that we should sit in a Court of five, which is the size of their own Courts in most of the other parts of the Empire. Not only that, but the volume and the importance of the business is increasing. It may be that we are not of the quality and swiftness of our great predecessors, but I am told that to-day an appeal averages two hours and twenty minutes more to dispose of than it did in the days of Lord Cairns and Lord Selborne. That may be either because we are not so quick or because the business is increasing in magnitude and importance. But this is certain, whatever else is obscure, that the Privy Council is not diminishing in its jurisdiction.

I hear great complaints of the Empire having to come to Downing-street to have its appeals heard. It may be that these things are said in the Dominions, but the fact remains that the volume of business is growing and growing. Even from Canada and Australia there come more appeals than ever, and we are just entering at present on a long list of New Zealand appeals. It is not only that, but new Overseas Dependencies of the Crown are bringing their appeals. We are very busy just now with appeals from Palestine. I have been presiding over an appeal from Palestine the last two or three days. We are very busy with appeals from West Africa—a place from which there was no such thing only a short time ago. And from all parts of the Empire new activities and new developments of commerce and industry are bringing more business to the Judicial Committee.

In that state of things I have something to say which I am afraid will be of very little comfort to the noble Lord, Lord Banbury. Not only do I think that it is essential that this country should give some assistance for the provision of two more Judges to sit on the Indian appeals, but we require urgently more Law Lords for disposing of the appeals that come from the rest of the Empire. At this moment how are we carrying on? We beg, borrow, and steal, because we have not got Judges of our own. The President of the Divorce Court is so kind as to come and sit this week. He is a Privy Councillor, and he will help us out of a very awkward difficulty. And, as the Lord Chancellor says, we are not rich in ex-Lord Chancellors, as we used to be. Lord Finlay is serving his country on the International Tribunal at The Hague. Lord Buckmaster is called away to other occupations, and Lord Birkenhead holds a high office of State. There remain the Lord Chancellor and myself, an ex-Lord Chancellor, from what may be called the Lord Chancellor's list. Then, in addition to that, we have six Law Lords, full Law Lords—what in India would be called pukka Law Lords. That makes eight. And then, for the rest, there have been two Judges from India, and I hope there will again be two Judges from India if this Bill passes. That brings us to ten.

What business has to be disposed of? Six years ago the Privy Council was able to do its work sitting in one Division, and this House took the Judges for another Division. That was practically two Divisions of the Law Lords. But it became apparent that the Privy Council, to get through its work, had to sit in two Divisions—the growth in Indian business in itself was enough to account for that—and it does sit in two Divisions, and two Divisions of the Privy Council, and one here, require fifteen Law Lords. I have already done a sum in arithmetic from which your Lordships will perceive that there are only ten Law Lords available, including the two Indians, who cannot sit for the other business. What do we do? The patriotic energy of my noble and learned friend Lord Phillimore and the patriotism of my noble and learned friend Lord Darling and of others come to our assistance, and they, with great public spirit, make up the unfortunately ragged regiment which is all that we have to bring to bear upon our task. That is deplorable. We have to man a tribunal of fifteen in the three Divisions from ten normal Judges and such others as we can get. Somehow we do get them. The patriotism of people is extraordinary. During the strike we had old, retired Judges of over eighty coming down, mainly on foot, long distances from the West End of London to sit, and sit they did. The other day a learned colleague of mine in the Privy Council who was eighty-eight came and sat with us. That is the way we have to get along. But it is not right. It is not really consistent with the duty of the Government towards the Empire to leave it with a state of things like that.

Your Lordships will say that we do not hear about it; it must be going on very well, for nobody complains. Nobody complains because who goes to Downing Street to look at that Court? The Judicial Committee of the Privy Council advises the Sovereign on appeals from the whole of the Empire, except England and Scotland and a part of Ireland. The other appeals come here, and your Lordships dispose of them, and people come and see these beautiful benches. They see a serious and sedate looking body of five sitting and disposing of the appeals, and they say "That is all right." But whoever goes to Downing Street? A great many people from the Dominions go, a great many people from India and from Africa go. There you may see a swarthy local monarch in full uniform, with a great apparatus of staves and banners, attended by his court, coming to listen to the hearing of his appeal against the British Crown. We have these things every now and then. But nobody from this Chamber, so far as I can observe, takes the trouble to turn into Downing Street to look at the supreme tribunal of the Empire doing its work, although every subject of the King-Emperor is entitled to go in there and see that the duty is done.

The neglect of this very important body is deplorable. It may go, and, if it goes, the Empire will go on all right, but a link will have been destroyed, and the link is in the process of being eaten away by sheer neglect and decay at this moment. It is impossible to go on as we are going on just now. We have been working here in the last few days, and we have disposed of a large number of appeals. But that is not because they happen to be short appeals. The appeals sometimes take a week, sometimes a fortnight, to hear, and we sit only four days a week. Be it remembered, too, that the judgments have to be put into writing, and that they are long judgments, and have to be very long judgments, dealing with very intricate affairs. A considerable part of the work done is work done in interpreting such Constitutions as that of Canada where very intricate questions arise involving long training and study, and in which not only the hearing of the case but the writing of the judgments is a matter of very great labour. These things have to be disposed of and unless you have a body of Judges who have been there a good while and are familiar with the work it is impossible for them to cope with that work. Fortunately, I think the Judicial Committee stands to-day high in reputation in the Empire, but that is only because a great deal of trouble has been taken, and it is trouble which could only be taken because the Judges were very willing to work, and did work, very hard. But now we are broken down. There are fewer of us available than there were two or three years ago.

I have added these observations because I wished to bring home to your Lordships the substance of my appeal, which is one not confined to this Bill. I am as certain as that I stand here that the Government will have, and as quickly as possible, to bring forward a Bill for the appointment of two new regular Law Lords who could sit in the Privy Council. Nobody regrets the increase in the number of Judges more than I do. I struggled against it when I was Lord Chancellor and I have always been against it, but there are times when necessity presses these things upon us and necessity is pressing them upon us just now. The work cannot be done without the assistance for which we are asking. Those of your Lordships who have had experience of these things, men like my noble and learned friend Lord Dunedin, know as well as I do what the pressure is that we are under. I have ventured to make these observations relevant to the immediate purpose of this Bill merely to show that my noble and learned friend on the Woolsack is only, in this Bill, dealing with a part of the trouble.

VISCOUNT DUNEDIN

My Lords, the only reason why I trouble your Lordships with a very few remarks lies in the fact that it is just twenty-one years since I had the privilege of pronouncing my first judgment in this House and in the Judicial Committee, and since that date I have been acting, sporadically up to 1913 and absolutely continuously since 1913. The result is that I have been a witness of that development of business of which my noble and learned friend Lord Haldane has just spoken and I have also seen the struggles, the continually increasing struggles, that we have had to make in order to cope with that increasing business. The present Bill deals with the reinforcement of our Tribunal as regards Indian appeals alone and there, indeed, there is the most pressing necessity.

I suppose for a good Judge the first requisite is a certain judicial instinct, the second is that he should have learned the law, and the third undoubtedly is experience. But, besides that, there is another thing that is necessary. It is not necessary perhaps for every member of the Tribunal, but there ought to be somebody there who thoroughly knows the body of law of the system which he is presently administering. That was recognised when the Lords of Appeal were first created. They were created in a much smaller number than their present number—the number was four— and at that time, although it was not actually put in the Act of Parliament, it was undersood that there were to be two Englishmen, an Irishman and a Scotsman. I know my English friends and I am perfectly certain that the typical Englishman of the class of my old and noble friend Lord Banbury would never put up with a compulsory Scotsman unless he knew it was absolutely necessary. It is the same thing that we want in Indian cases and what, unfortunately, in our present circumstances we have not got.

This very day I have been writing a judgment in an Indian case—a most important case—and yet I only had the assistance of one Indian Judge. While I entirely associate myself with what the learned Lord Chancellor has said as to the valuable assistance we have received, it is some time since the Indian Judge who was assisting me left India. I think there ought to be Judges in practical touch with the law as it is administered. I should have been glad, indeed, if I could have had more help—not help so much to make up my own mind as to give me the certainty that I was not going against any current of opinion which was, so to speak, buried in the book and with which I was not familiar. While I think there is no question of the desirability of the present Bill, I would like to say that I thoroughly associate myself with the remark which Lord Haldane has made as to the necessity of increasing our numbers for other purposes. Really the whole question depends upon the numbers of the tribunal. Nobody can say that a tribunal of three may not be a very good tribunal. Suppose, for example, Lord Cairns, Lord Selborne and Lord McNaghten were sitting in one tribunal, you would then have the finest tribunal that has ever sat.

But it is not only a question of three being able to do the work. You have to a certain extent to deal with other susceptibilities. Just as I have always thought that it is the duty of a Judge not only to decide a case right but also to send away the defeated litigant with a feeling that he has had a fair run, so, when you come to interfere with the judgment of High Courts in other parts of the Dominions, you should remember that they have a right to feel that their views have been adequately considered. I think it is only a natural feeling on the part, for instance, of Canada and Australia, where they have tribunals of five and sometimes of seven, that there ought not to be a reversal of the judgments of those tribunals by three sitting here and three only. If that is the case, then I think five should be the minimum number by which we ought to have any important cases adjudicated upon. I shall not go over again the arithmetical sum which Lord Haldane did, but I think a tribunal of five for each of the three Divisions is a perfectly proper tribunal.

LORD JESSEL

My Lords, I think the House ought to be very grateful to Lord Banbury for his criticism of the Bill if for no other reason than that it has provoked two magnificent speeches from Lord Haldane and Lord Dunedin. I should not have spoken myself in this debate if it had not been for the fact that I once sat under Lord Haldane when he gave a superb lecture on the Empire at the University of London on the duties of the Privy Council. In that lecture he showed how the Privy Council bound the Empire together more than any other factor. It seems to me that this debate ought to be considered all over the Empire and that it may have one effect—namely, that India may recognise what this country is doing and supplement the amount of money that is proposed. I am sure if it is known in India what the Mother Country is doing in this respect they will go forward and emulate the generosity of this country.

There is only one provision in the Bill to which I think some exception may be taken, because I have heard many arguments on this matter in another place, and that is the limitation of age. I have heard it argued so many times that the judicial mind does not fail at 72 years of age and when one thinks of the example of Lord Halsbury and other eminent Judges much beyond the age of 72 one is rather apt to have a shock at seeing a provision of this kind put in this Bill. That may be, only a Committee point, but having heard that argument so often expressed by those competent to express an opinion, I am somewhat surprised that the provision should have been put in this Bill.

THE LORD CHANCELLOR

My Lords, this Bill has evoked some very interesting speeches, and I have listened with great interest to what was said by my noble friends Lord Haldane and Lord Dunedin as to the need for appointment of more Lords of Appeal. I do not mean in the slightest degree to express dissent from what they have said. It may well be that at some future time I or a successor of mine may have to bring that matter before your Lordships, but nothing they have said makes this Bill less necessary. Whatever you may do as to other Lords of Appeal you must have two effective Judges with special experience in the difficult and diverse system of law administered in India, I am sure that, whatever happens, something in the nature of this Bill is absolutely necessary. As to what my noble friend Lord Jessel said, I have a good deal of sympathy with him. The nearer I approach to the age of 72 the more I think it not altogether a proper retiring age. The figure was inserted in the Bill to meet views which were expressed on behalf of the Government of India, but I am quite prepared, if any different proposal should be made in Committee of your Lordships' House, to give it full consideration.

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