§ THE LORD CHANCELLOR (VISCOUNT CAVE) had given Notice to move, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division requires that vacancies (not exceeding two) should be filled in the number of Puisne Judges of the King's Bench Division, notwithstanding that the number of those Judges amounts to fifteen or upwards, and praying that His Majesty will be graciously pleased to fill such vacancies accordingly, in pursuance of the Supreme Court of Judicature (Consolidation) Act, 1925.
§ The noble and learned Viscount said: My Lords, I have once more to move this 363 Resolution which will authorise the raising of the number of Puisne Judges of the King's Bench Division from fifteen to seventeen, an increase which requires the sanction of a Resolution of both Houses of Parliament. I last moved this Resolution about three years ago, in December, 1924, when the House was satisfied that the state of business required these two additional Judges authorised by the Act of 1910. The Resolution was passed by both Houses of Parliament and two new Judges were appointed. Since that time owing to the regrettable death of that very learned Judge, Mr. Justice Fraser, and the transfer of Mr. Justice Greer to the Court of Appeal, the number has been again reduced to fifteen, and I am convinced that the number should be restored.
§ The number of cases for trial at the beginning of the current term, the Michaelmas term, was 920, somewhat less than three years ago, in 1924, probably because during the interval, except during the last few months, we have had the full complement of seventeen Judges. The number is a good deal higher than it was a year ago, at Michaelmas, 1926, when the number of cases awaiting trial was only 656, but there is this new feature, that jury actions, actions triable by jury, which of course take up more of the Judge's time than non-jury actions, have, owing to recent legislation, greatly increased. While, at Michaelmas of last year, out of 646 actions awaiting trial 465 were jury cases, to-day out of the 920 awaiting trial 673 are cases triable by jury, so that more judicial time is required now than then. It is also important at times when the circuits are held to keep a sufficient number of Judges in London. Even with seventeen Judges the number remaining in London after the wants of the circuits have been supplied has frequently fallen to as low a number as five or six Judges, and sometimes even less. These Judges have to deal with the ordinary London business, to furnish Judges for Divisional Courts and for the Court of Criminal Appeal, which sits every week, and to hear the Revenue cases and furnish a Judge to preside over the Railway and Canal Commission. With only fifteen Judges it is really an impossible task.
§ I will just say a few words about the cost. The cost of the two extra Judges 364 with their clerks would be £10,800. I do not say that the Court fees which will be earned by the work performed by these two Judges will cover the expense. The Court fees are low and it is impossible for a Judge to earn by Court fees enough to pay his own remuneration. But I do say that the legal department as a whole more than pays its way. The most productive items are not the Court fees, but the fees for proceedings which never come into Court, which never come to trial, and also the fees for non-contentious probates. If these be included there is to-day a surplus of receipts over expenses, a surplus more than sufficient to pay for the two additional Judges. I think that when there is a surplus it is the suitors who ought to have the first call upon that surplus rather than the general fund of the Exchequer.
§ One other point. Observations were made on the last occasion when your Lordships debated this matter on the waste of judicial power which occurs on some of the circuits—the holding of Assizes in places where there are few or even no cases to be heard, Assizes held in some of the small towns in the country. Since that time we have endeavoured to improve this state of things by Section I of the Administration of Justice Act, 1925. Under that section, if it appears to the Lord Chief Justice that there is no business, or no substantial amount of business, to be transacted at any coming Assize, he may, with the concurrence of the Lord Chancellor, direct that the Assize shall not be held, and provision is then made for disposing elsewhere of such cases as may be standing for hearing at that Assize. I believe that to be a very useful provision. I am not sure that enough use has yet been made of it. I think it might be more used, and if that, were done I believe that the effect would be to reduce the time spent on circuits and so relieve the Judges of some avoidable expenditure of time and effort. I suggest to your Lordships that there is a case for reappointing these Judges, and I beg to move the Resolution that stands in my name.
§ Moved, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division requires that vacancies (not exceeding two) should be filled in the number of Puisne Judges of the 365 King's Bench Division, notwithstanding that the number of those Judges amounts to fifteen or upwards, and praying that His Majesty will be graciously pleased to fill such vacancies accordingly, in pursuance of the Supreme Court of Judicature (Consolidation) Act, 1925.—(The Lord Chancellor.)
§ VISCOUNT HALDANE
My Lords, the profession to which I belong is naturally desirous of ideal efficiency, and if it were a question only of an ideal system the arguments which have been used from the Woolsack just now would be arguments which would be fully deserving of consideration; but it is more than that. The question to-day, as the Government put it before us in other instances, is whether we can get on, having regard to the imperative requirements of economy, with what we already possess, and if I am asked to say whether it is proved that we cannot get on without these ideal requirements, then my answer is that I do not think that we can say more than that it is not proved. The amount of business has increased in some respects, but not in very material respects or to a very material amount. There are still possibilities of providing more judicial assistance. The long vacation is a very long vacation for the legal profession, and it could be at any rate slightly shortened. A few days would make a great difference, and this would be only in harmony with what is approved in other directions. Then the power to transfer to the Chancery Division non-jury cases is a power that has not so far been very extensively exercised, at any rate in very recent years.
There are other ways in which a little more judicial strength could be provided—enough, I think, to get over the difficulties with which we are faced. Constant drains are made on the judicial time. It is too much the habit to ask Judges to come and give assistance to the Government of the day and to the public in taking the chair at various inquiries. It is a bad practice. It takes the Judges away from their proper business and into the consideration of things which are not germane to their province. Nevertheless the practice is there, and you may take it into account in saying that you require a rather higher proportion of judicial strength than you used to require. But that is not the question that I am 366 putting. The question is whether, at a time when economy is imperatively enforced upon us—I think unduly and without a proper regard to efficiency, although I do not think that this applies in this case—the question is whether the case for economy is not made out as a general principle so strongly as to call upon us to endure, if endure be not too strong a word, what we have until a time when we are more able to be luxurious as regards judicial requirements.
There are other judicial requirements which I am not going to discuss now, but which to my mind are much more imperative than that which is brought before us to-day. There is no apparent willingness to attend to these things because the newspapers do not allude to them and because they are not advertised. But it is the business of the Government to study all these things and, if there is money available, to strengthen the judicial system in these other respects which more urgently require it. For these reasons I have my doubts as to whether the Lord Chancellor has made out his case. It is a case which ought to be put forward not only by public opinion and in the newspapers, but with regard to the only considerations which ought to count. I do not propose to divide, against the Motion, because I think that the responsibility lies with the Government and the Government alone can pronounce upon it, but I do desire to put on record this doubt as to whether a case has been made out.
§ LORD BUCKMASTER
My Lords, in 1828 Lord Brougham, speaking in the House of Commons, pointed out in terms of rhetoric that I, will neither reproduce nor attempt to imitate that, above and beyond all other advantages that this country enjoyed, the greatest of all was to be found in securing the prompt, pure and cheap administration of justice. At the end of a century I should like to re-echo what he said. If I thought that the Resolution which has been proposed from the Woolsack was the best method by which those objects could be secured, the noble and learned Viscount would find no warmer supporter in the House than myself. But I regret to say that I cannot take that view. The case that the noble and learned Viscount has made amounts to no more than this: that at the beginning of this term there were a certain number of cases for trial in excess 367 of what there have been, and more than there ought to be for their due despatch. But he never attempted for a single moment to show you how those arrears had arisen or to investigate whether it is possible by some other means than this to secure that they should be removed.
It is now twenty years since this class of Motion has come before the Houses of Parliament. I remember well that in 1907, when a Motion was made (not under the present Act, but under an Act which has now become obsolete) for the appointment of a further Judge, I did my very best in another place to prevent its passage. I pointed out that the waste of judicial time on circuit and the mal-arrangement of business ought first to be remedied before the Government came down to the House and asked for what, after all, is a perfectly simple remedy—I do not doubt it—and may be an effective one, but is a remedy which will most undoubtedly conceal instead of healing the defects that have given rise to the necessity. On that occasion I was solemnly promised that the reforms for which I asked should be set on foot, and as twenty years have now elapsed I hope that I shall not be thought impatient if I ask once more that this be done. Perhaps I may find some little encouragement, comparing small things with great, in remembering that Lord Brougham's speech, which he delivered in 1828, was made in support of establishing a system of county courts, which was ultimately established in 1847.
The real complaint lies in this. Our circuit system has many advantages, but it arises out of a time when swift transit was almost impossible and when people were landlocked in the places where they were born. To-day steam and petrol have practically annihilated distances, and the reasons why it was then necessary to distribute justice from the centre right round to the circumference are to a large extent changed. It is not merely that you want power to say that in any place where there is going to be no work the paraphernalia of justice shall not be exhibited like a show. That is an obvious thing, and one would not have thought it possible that it could have endured all these years but should require so much debate in order to enable somebody to say, with the consent of the Lord Chancellor: 368 "If there is no work to be done, please do not go." You want something more than that. What you need is a reorganisation of the circuits. You want a re-arrangement of the centres. You want to secure that the places to which the judicial strength goes are the centres of population towards which you can gather all the different cases that need trial in the immediate district. I believe that if you did that, and at the same time did a thing which I believe to be of enormous consequence, and that is increase the power and the pay of the County Court Judges, you would have gone a very long way indeed to remedy not merely the present grievance, due to obstruction of business, but a much larger and wider-spread grievance, which is the cost of the administration of the law.
Those are things which it is of no use expanding. I do not really think for a moment that I can do more than perhaps languidly interest one or two of your Lordships in the matter. I know that it will be said that it is a lawyer's business. It is primarily a lawyer's business, but ultimately it is the business of the whole community, and it is a matter which I think ought to demand much more attention than it has hitherto received. It is perfectly true that branches of the system of English justice are spread over the whole world, but unfortunately its roots very largely are founded in sawdust, and it is not a very pleasant matter examining the soil from which they spring.
The circuit system does not end the matter. It is only the beginning. The whole thing ought to be inquired into and thoroughly exhausted, before these Resolutions are put before the House. In 1873 a great attempt was made to unify the Courts of Justice in London. It was a magnificent scheme, and, of course, to a large extent it was defeated by what I hope the House will not resent if I call the ingrained conservatism of a great profession. The Chancery Judges did not like going to the Common Law side, and the King's Bench objected to going into Chancery. They intended to keep as they were, and they did keep as they were. Nevertheless, the Act of 1873 did provide that a Judge who was a Judge of the High Court of Chancery should 369 have power to try any cases coming before the High Courts of Justice, and at the present moment the Courts of Chancery are manned by men of whom it is superfluous to speak in praise, and who are perfectly competent to try cases brought in the King's Bench Division, just us those who sit on the Bench in the King's Bench Division are men of the highest legal attainments.
Why are they not to try Common Law cases in the Chancery Division? There are twenty-one Judges of the High Court of Justice, and why cannot they together devote their minds, energies and attention to clearing up the lists. If you tell me that it cannot be done, then I would like to know why it, cannot be done. I have sat and practised in the Chancery side when the non-jury list was tried, and tried, I believe and am informed, to the universal satisfaction, of the people who came to have their cases heard. Why cannot it be done again? Has any attempt been made to do it? I would like to know that. Has there been any transference to the Chancery Division of non-jury cases during the last two years? If not, why not? Is it that the Chancery Division is overworked? I do not think that will be the answer. There must be some other answer, and until these things are answered, although I know quite well that your Lordships are going to pass this Resolution, and I know quite well that if I were to attempt to divide the House it would be considered a fractious thing for me to do—until you do take some step to resist these Motions becoming automatic, you will never get the system inquired into and the grievances removed.
I do not wish to say more, except on one small thing. I thought at one time that I ought, in order to give effect to the strong feeling which I hold, to put down an Amendment to this Resolution—an Amendment to the effect that in exercising the power which I have no doubt your Lordships are going to confer, the Lord Chancellor should not appoint any man over fifty-five years of ago. I did not put it down, first because I have the greatest possible reliance upon the wisdom and sense of the noble and learned Viscount on the Woolsack, and I have no doubt that he will attend to any suggestion which I may make on the subject, without the necessity of a formal Resolution. 370 I attach the greatest possible importance to the point. The Commission presided over by Lord St. Aldwyn reported that seventy or seventy-two years was the age limit which ought to be fixed for a Judge of first instance. If you appoint a man who is over fifty-five, you must remember that it takes fifteen years to qualify for a pension, and he will be past seventy when the time comes that he is qualified to retire.
I regard that as giving possibility for grave dangers. It is perfectly true that there are many men who are startling illustrations of the fact that three score years and ten is by no means the limit of man's full mental activities. I have had the pleasure of practising before many, and there are many living to-day; but it is not universally true, and your Lordships must remember that if you once get a Judge upon the Bench whose faculties are failing by reason of the slow progress of years, there is no means whatever by which you can get rid of him, and the resulting difficulties which may arise may be very great. There has not been so much occasion recently to call attention to this fact, but I take the evidence before the Commission over which Lord St. Aldwyn presided and of which, I think, Lord Darling was a member. There will be found a statement of mine which I was prepared to support, in every detail, pointing out the grievous disadvantages which had arisen, amounting in some cases to possible miscarriages of justice, owing to the fact that men of the highest possible integrity were sitting upon the Bench when they were long past the age when they were fitted to do so.
It is a very serious thing, and I speak with more freedom, to-day, because I do not think that there is any trace of it existing at present in the Courts to which this Motion relates; but it is of no use considering what is existing merely to-day, without bearing in mind the evils which have existed in the past, and taking steps to see that they do not recur. No one can doubt that as the years go by one's mental and physical activities are lessened, and that slowly but certainly, though it may be with a gentle hand, the doors are closed that lead to the four great avenues of sense. It is of the greatest importance that in Courts of first instance, where they administer not only civil but criminal 371 justice, those who sit there shall be men of the highest mental and physical perfection, in order that justice may be fairly administered and no man can make complaint.
§ LORD HEWART
My Lords, it was not my intention to make any remark at all upon this matter. I rather came down here in order to witness what I expected would be the complete unanimity with which the proposal just laid before the House would be received in all quarters. But I am bound to say, having listened to the two speeches which have just been delivered, that there are some remarks in them which I could not possibly hear without attempting at any rate to answer them. I desire to abstain, in spite of the rather rhetorical language to which the House has been listening, from saying anything of a provocative character. But I cannot help observing that the two speeches which have just been made in opposition—or at any rate with a suggestion of opposition—to the proposal of the Government come from very distinguished lawyers who won their laurels, not in the King's Bench Division, but in the practice of equity.
§ LORD BUCKMASTER
I beg the noble and learned Lord's pardon. I practised in the King's Bench Division for years before I went to the Chancery Division.
§ LORD HEWART
I can only say that such was the fame that the noble and learned Lord achieved in the latter part of his career that it tended in the memories of most of us to obscure the work which he had done in the King's Bench Division. But however that may be, and admitting as I do very cheerfully that those noble and learned Lords are well qualified to speak of the work in every department of the High Court, I cannot help thinking that there is some complete misconception. At the beginning of this term there were, as has been pointed out, something like one thousand causes awaiting trial in the King's Bench Division alone. There is no particular magic in the number of causes awaiting trial at the beginning of the term, any more than there is in the number of causes awaiting trial at the end of the term; though apparently some writers in the Press think that all you have to do is to subtract 372 one figure from the other, and you know how much work has been done. Every member of this House, of course, is well aware that causes are being entered every day, and the real measure of the work which has been done is not obtained from comparing the figures at the beginning and at the end, but by ascertaining, as I do from a return made to me every week, what is the total volume of work disposed of.
At the beginning of the term there were nearly one thousand causes awaiting trial in the King's Bench Division. According to the last weekly return which I have received there are still nearly, though not quite, one thousand causes awaiting trial. Now who is put to inconvenience by that tact? One would think from some observations that one reads—and let me say at once the only objection that I have ever heard to this proposal has hitherto come from a few writers in the Press — one would think that this is a suggestion made to relieve the labours of His Majesty's Judges. Nothing could be further from the truth. A Judge can but try one case at a time. He must try that case with proper care and patience, and the only effect of having too small a supply of Judges is that the public are kept waiting for the trial of their causes. There is no extra strain put upon any individual Judge. And, though I should be the last to put the matter upon the ground of merely financial argument, what you have at the present time is an enormous building in the Strand, with a considerable number of empty Courts, and yet a thousand causes awaiting trial. Why? Because there are not Judges to try them.
Now, why are there not Judges to try them? One of the speeches to which we have just listened has suggested that the reason is—and I was not merely sorry, I was grieved to hear the expression—waste of time on circuits. I do not know and I will not too curiously inquire, what exactly was the experience of that noble and learned Lord with regard to circuits. But speaking for myself, I practised for nearly ten years on the Northern Circuit and as Judge I have been the Northern Circuit, the North-Eastern Circuit, the Western Circuit and the South-East Circuit. I have never known or heard of waste of time on circuits. What I do 373 know is this, that while the Judges sit in London until a quarter past or half past four in the afternoon—and that makes quite a sufficiently long day if proper care and attention are given to the business—on circuit, in order to get through the work, we sit until five, six, seven o'clock, and sometimes later, not without protest on the part of the Bar, the solicitors, the witnesses and the jury. The amount of time which is spent day by day on circuit by the learned Judges is not less, but greater, than the amount of time which they spend upon the causes in London. And, to go further, I cannot comprehend the suggested antithesis between work in London and work on circuit. What is the intrinsic degree of greater importance between, let me say, a running-down case commenced by writ issued in Middlesex, and a running-down case commenced by writ issued out of the Liverpool District Registry, or the Birmingham District Registry? Case for case, they are of just the same importance, I submit, wherever the writ may happen to be issued.
And as for the argument—the rather entertaining argument, if I may be allowed to say so—that the difficulty could be got over by transferring a large batch of cases from the King's Bench Division to the Chancery Division, I can only say I have never been led to suppose that the Chancery Judges were so little employed that they could take over work from the King's Bench Division. This I do know, that a few years ago, when it was suggested that those very-busy Judges might be able to find a little time to spare, the bankruptcy work was transferred from the King's Bench to the Chancery Division. But I am indeed astonished to hear that there is so little employment for the Judges of the Chancery Division that they might be expected to be ready and willing to relieve the King's Bench lists. Those who observe these matters from a distance may take a very cheerful view of the difficulties of others who day by day have to grapple with them.
During the last few years the demands upon the time of King's Bench Judges have been greatly increased. Not only have you a Court of Criminal Appeal which sits practically every week—it does, indeed, as a rule, contrive to dispose of its work in the course of one day, 374 but that is only because the Judges take the papers home with them and read them on Saturday and Sunday—but, in addition to the steady demands of the Court of Criminal Appeal, which really occupies three Judges practically one day in each week during the term, you have also now the circumstance that in most of the large Assize towns the Judges try a particular kind of divorce case. I myself have tried on circuit many hundreds of divorce cases, a thing which I never expected to do, and I might even say non haec in fœderaveni. But there the cases are, and they have to be tried. And one result of that arrangement is that the time which King's Bench Judges would otherwise spend on circuit is somewhat—and not slightly—increased. The only persons who suffer inconvenience from the shortage of Judges are the public. And if they cared—and I wish they would—to look into the finance of the matter, they would see for themselves what are the standing charges, what are (as they would be called in a business house) the overhead, the permanent, the establishment charges; and when they came to do the sum and to observe what the net cost of two further Judges is, after you have diminished their salaries by the deduction of Income Tax and Super-Tax, and after yon have corrected the accounts by bringing into the credit side the fees upon the cases which they will try, I wonder what the public would say.
But I end as I began. Nothing is further from my wish than to put the matter upon any such basis as that. I have such a belief in the prevailing good sense of my fellow-countrymen that I am quite sure the very last thing they would deliberately desire would be to delay even for a little the administration of justice in order to save the sum of £10,000 a year. Not having intended to utter a word on this occasion but being provoked by the speeches which I heard, I venture to make to this House another suggestion. Is not the real pity of the matter this—that the section in this Statute has been passed in the form that it has? Is it really beneficial, is it not rather intolerable that periodically when it is desired to bring the number of Judges to the proper strength there should be debates in both Houses of Parliament and articles in the Press not always, to say the least of it, marked by sound information 375 or by good sense? Yet the administration of justice is exposed to this periodical review. Why? Because those who are responsible for that legislation have inserted a proviso that when the number of King's Bench Judges stands at a certain figure there may be no addition without a Resolution of both Houses.
I venture to suggest that it is highly desirable that this proviso should be reconsidered. I suggest that it is most important on grounds of a fundamental character that when a vacancy occurs on the Judicial Bench it should at once be filled, and that there should be no possibility of putting off the appointment of a Judge until convenience or some personal consideration or something else may serve. Certainly it would be a calamity if the existing law should ever tempt anybody to decide the matter, not by reference to its merits, but by reference to the question, under whose auspices and at the hands of which Government shall the vacancies be filled? On public grounds and on no other grounds I hope that this proposal will be accepted.
§ LORD DARLING
My Lords, I hope your Lordships will excuse me if I say a few words upon this subject, if only upon the ground of having sat for many years in the King's Bench Division, partly under the presidency of the noble Lord who has just addressed you. I was a member of the Royal Commission of which Lord St. Aldwyn was Chairman. That Commission was appointed because there had been a Joint Select Committee of both Houses of Parliament in 1909 to consider how the best use could be made of the judicial system. In consequence of that Commission two additional Judges were appointed in 1910, which brought the number of Judges in the King's Bench to eighteen. In November, 1911, that number was down to sixteen and it was found that public business and convenience gravely suffered. In consequence of that a Royal Commission was appointed in December, 1912, of which I was a member. The Commission sat during a great part of 1913 and reported before the end of that year. We made two Reports. As the proceedings went on it was found that the public business was gravely suffering because no addition was made to the sixteen Judges, and we issued an Interim Report. I may mention 376 that there were very few lawyers on the Royal Commission, but I do not think I need mention their names. Because the public interest was suffering that Interim Report was issued, and one Judge was at once appointed.
Then we went on with our work and made a Final Report before the end of the year. That Final Report led to the present position and I desire to echo every word that the Lord Chief Justice has said as to the undesirability, whenever a Judge dies or retires, of having such a discussion as this in both Houses of Parliament. Your Lordships will forgive me one word of deep regret at the cause of the present discussion in your Lordships' House. It was after I retired from the Bench that Mr. Justice Fraser was appointed. He was a most learned and capable lawyer and might have looked forward to adorning the Bench for many years. I only repeat the sentiments of the Lord Chief Justice himself when I say that the King's Bench greatly lost by Mr. Justice Fraser's untimely death. But the occasion has arisen, in however melancholy a fashion, and it must be dealt with. I think it is absolutely necessary that these two Judges should be immediately appointed.
When it is said that the State has to pay the whole of a Judge's salary and his clerk's salary and so on, it is generally forgotten that the great part of the Judge's work in the King's Bench is in the trying of criminal cases which bring in no fees. Nobody pays for being accused of the crime of murder or of burglary or anything of that kind. All that is an absolute charge upon the State. The money expended upon it, of course, is most remunerative because people are put away who would rob or kill us if that were not done. But as I say, a great part of the time of the King's Bench, as distinguished from that of the Chancery Division, is passed in trying cases which from their very nature are absolutely unremunerative as to fees, and all that is earned in the way of fees is earned in respect of other duties.
I agree with a great deal of what my noble and learned friend, Lord Buck-master, said. Many attempts have been made to reform the circuit system. It has long seemed to me, and this Report shows it, that it is unwise and unnecessary to continue the circuit system much 377 as it was when started by the earliest of the Plantagenets. There are places in England which were very important in those days and to which the Judges naturally rode. Liverpool and Birmingham hardly existed; probably did not then exist. I remember the time when Birmingham came in, when I was myself already a Queen's Counsel on the Oxford Circuit. Therefore, I think it is impossible to say that the circuit system is so perfect that it admits of no possible change or improvement. Many suggestions have been made as to how it could be improved and I am certain that some of them might with advantage be adopted. The noble and learned Lord, Lord Buck-master, was not really so unfortunate as the Lord Chief Justice supposed. He did not pass all his time in the Chancery Division. I should have been very sorry for him if he had. For a year at least he had the advantage of going the Oxford Circuit, and I have no doubt it was there that he commenced the study of the circuit business and came to the conclusion that in some respects it might be improved.
But what is the difficulty about improving it? It is not that the lawyers have not made suggestions. There have been plenty. The difficulty is that if you attempt to touch the circuit system you arouse opposition from every town which loses its Assize. The members for those towns and for the counties in which those towns are situated are all brought up to oppose the proposal, and they get the support of those in Assize towns and counties which are not to be disestablished by saying to them: "You had better support us in keeping the Assize in our town because you will be the next to be attacked." It has happened more than once that when suggestions have been made they have not passed the other House of Parliament. It would be much easier to pass such a law here than to pass it in the other House.
There have been other suggestions made. I believe Lord Buckmaster was perfectly right when he said the Commission of 1913 advised that Judges should retire at seventy-two. I know the question was much debated. I remember Lord Sumner—I wish he were here—then Mr. Justice Hamilton, was called as a witness and gave most forcible reasons why you should not always remove 378 Judges from the Bench when they had come to that age. He pointed out to the Committee that it was not only necessary that a Judge should be active physically but also that he should have long experience, and that when a man has been a long time on the Bench he has, if physically fit, an amount of experience which it is very desirable the State should not throw away. I served for twenty-six years as a Judge of the King's Bench. I am sorry to say I was two years over seventy-two when I retired, but Lord Buckmaster knows, because I was sitting with him only last week, that I am still competent for the milder efforts of the Judicial Committee of the Privy Council. I admit that some people are exceptional, but I was not. Instead of being strong, I had enough illnesses when I was young to have killed many bigger men, but I did not have them of late years. You cannot very well fix a definite age and say at that age the Bench shall be cleared of everybody who has reached it. It is a difficult subject and it is a dangerous subject. But there are those, and I should like to say it of myself, who do not wait till the statutory day arrives. I acted upon what I remember Goldsmith said of a person that heBends to the grave with unperceived decay,While resignation gently slopes the way.I have a remedy myself for some of these evils, which I do not mention for the first time to-day. I have advocated it over and over again previously. I was a member of this Committee of 1913 and one of the witnesses called before that Committee was the Lord Chancellor of the day, Lord Loreburn, and I had the honour of cross-examining the Lord Chancellor. Your Lordships can read it on page 180 of the Report. Question 4449 is this:—Do you remember, was it not proposed by a Judge that the long vacation should be shortened?—I do not recollect it, but I think I know who was the Judge.4450. Who do you think?—I think it was Mr. Justice Darling, probably. I do not think I opposed it, did I?4451. Did you support it?—I think I did, but I do not recollect.The Commission, in making their Report, which appears on page 37, said as follows:—The Master of the Rolls on being asked his opinion said: 'Again speaking my own 379 personal view, and not in the least expressing the view of any of my colleagues, I do not feel any serious objection to the shortening of the long vacation, by say a fortnight, if it were accompanied by a Saturday holiday.'I think the Master of the Rolls then was Sir Herbert Cozens-Hardy. The Saturday holiday now exists.
§ LORD DARLING
Oh, yes. Practically nothing is done, or very very little is done, on a Saturday. I was there long enough to see that. But the long vacation has not since then been shortened by a day. It still ends on October 12. The Report goes on in this way:—The reasons ordinarily given against this change are that the work of a Judge requires unflagging alertness; that anything less than the utmost patience, attention and appreciation on the part of a Judge is a distinct injustice inflicted on the suitor; and that during the entire hearing of a cause, or criminal trial, the Judge needs the full possession and exercise of all his faculties in order to arrive at the truth, which one or other of the litigants always—and each from time to time—is probably trying to conceal from his opponent, and especially, or at least, consequently, from the Judge, being, moreover, aided in this endeavour by advocates often as able and experienced as the Judge himself. Lord Sumner in his evidence insisted on the necessity for 'mental relief from the perpetual contemplation of human nature not at its best.'The Report goes on:—We have, though not without hesitation, come to the conclusion—while admitting the force of the arguments above referred to—that the part of the year devoted to vacation is at present longer than is really required for securing, to Judges and others, sufficient relief and change to maintain the efficiency of the Court of King's Bench; and we recommend that the long vacation should be reduced to two months, lasting from the 1st of August to the 1st of October.I was a party to that recommendation, and not only that, but I have often urged upon the Judges who were my own contemporaries that the proper people to take the lead in the shortening of the long vacation were not the newspapers, not people in the House of Commons, but the Judges themselves, and that it would be far more becoming of them to admit that the long vacation was longer than other businesses ever take and that they 380 themselves as public servants should do their best to see that it was shortened. I have always regretted these debates, which go on from time to time, and the fact that the Judges did not take the opportunity of themselves proposing that that recommendation should be acted upon and so putting themselves at the head of a movement which, I believe, would be to the public advantage.
There is one other matter. Judges and leaders of the Bar who receive very high fees can afford to take these long holidays, but the ordinary, humbler members of the Bar cannot afford, and do not know what to do with, the long vacation when they have got it. As for the leaders, if they have not had a long enough holiday they have made enough money to be able not to work for another fortnight, but let the vacation end and let the business begin without them. It is not only those who work in the Courts and are always busy in the Courts, it is other people, it is the public at large, it is that far larger number of those who cannot afford the long vacation, not the small number who can afford it, who should be considered. I am sorry to have detained your Lordships so long. To me it is no new subject. I would recommend now as forcibly as I was led to recommend in 1914, that though of course the number of Judges should be kept up to the full number, as the Lord Chancellor proposes, something should be done besides just keeping up numbers. I hope that something may be done towards providing that the Judges should work longer, to the benefit of the public, than they are able to do under the present system.
§ LORD HANWORTH
My Lords, I would ask your Lordships' indulgence to enable me to remove what I think may be a false impression. It occurred to me that perhaps adequate consideration has not been given to the fact that there is another demand which is made upon the Judges of the King's Bench Division and also upon the Judges of the Chancery Division. That demand is made by the Court of Appeal, over which I have the honour to preside in one Division. The Court of Appeal, I believe, unlike the court of appeal in any other of the great legal countries, sits on five days a week throughout the whole of terms. The demand that is made upon 381 the members of the Court of Appeal is extremely concentrated, and very often it causes one or other of the members of the Court to be indisposed and unable to sit for some part of a term. Unhappily it is so at the present time. It was so during, I think, every term last year.
I think I may say, although I have been but a short time on the Bench, not more than some four years, that I have never known a single term when we have not had to make a demand on the Judges of the King's Bench Division or the Chancery Division to come to assist us and so make up the quorum of three members which is necessary for hearing final appeals. It must not be forgotten that by making that demand we are seriously inconveniencing both the Judges of the Chancery Division and of the King's Bench Division, and indeed sometimes it is quite impossible to get assistance from the King's Bench Division, because of the demands made upon those Judges by the circuits and the small number who remain in town. In every one of those instances I have to ask the approval of the Lord Chancellor and also of the Lord Chief Justice, and the Lord Chief Justice is sometimes, although willing, quite unable to respond in consequence of the demands which those who are associated with him in the King's Bench Division have to fulfil. I should like your Lordships, therefore, to give your consideration to the demands of the Court of Appeal when you are considering whether this Motion should be accepted.
That was all I had intended to say, but I could not listen to what has been said by my noble and learned friend Lord Darling without offering some few observations immediately in answer to them. I think Lord Darling has forgotten that if and so far as some of the Judges do not sit on Saturday, they do not sit because they agreed to sit at an earlier hour in the morning and to a later time in the afternoon, in order that they might make good the full time of which they are relieved by some of them not sitting on Saturday. He has also overlooked the fact, as fact it is, that the three Judges who sit in the Court of Criminal Appeal have a very severe task, which they have to take home, which consumes a large part of Saturday and even a large part of Sunday, as many of them have told me, 382 in preparation of the cases which they have to hear in the Court of Criminal Appeal, when they have to consider whether or not an appeal should be allowed. More than that, both in the Chancery Division and in the King's Bench Division there is always a Judge in attendance on Saturdays.
In regard to the question of the long vacation, I should like to dissociate myself from the remarks made by a predecessor of mine, who apparently succumbed to the blandishments of Lord Darling or suffered from his cross-examination—I really do not know which it was. This question of the long vacation is sometimes introduced as if it was entirely an anachronism. I saw an article in some paper about the time when the Courts sat again, which called it an Anglo-Saxon survival. I wonder how lately Lord Darling read the great speech on legal reform delivered in 1828 by Lord Brougham—that magnificent speech which took six hours in delivery and in which Lord Brougham pleaded with all the energy that he could command for an adequate relief, from the point of view of the Bar as well as of the Judges, from the arduous duties which they had to perform. He pointed out at that time, just 100 years ago, that if you were to get really good work and the best work done by your Judges, and, what is equally important, by the Bar who assist them, you must have an adequate and sufficient long vacation. Speaking for myself, I have never found the long vacation too long. If you will allow me to make a personal revelation, at the end of a long term, after the arduous and concentrated work of the Court of Appeal, I think I may safely say on behalf of my colleagues and myself we do need a very considerable rest. If you are to shorten the long vacation without giving some compensation in the form of lengthening other holidays, I should confidently look forward to a number of cases where, owing to indisposition, you would not be able to secure the full number of Judges at work either in the Court of Appeal or in the King's Bench Division.
The consideration of this matter is not so simple as Lord Darling would have us believe. Many minds have given their attention to it. Those who have given consideration to the responsible work 383 that is thrown upon the Judges and the necessity for experience in those Judges have recognised that you do not get good work until you have men of a comparatively mature age, and if you are appointing Judges of a comparatively mature age you will of necessity require to give a very considerable amount of leisure. It is sometimes said that the Judges sit only from a quarter past ten to a quarter past four or, as we do in the Court of Appeal, from half past ten to four. Is it supposed that our work is then done? Yesterday I delivered in the Court with my colleagues two judgments on recondite matters under the Revenue Acts, and I suppose that each of those judgments involved something like four hours' labour. In the course of this term I think we have delivered five considered judgments, and I do not believe that I am overstating the case when I say that each of those judgments has taken something like four hours' labour. If Saturday were taken away from us we could not get through the work.
I say nothing of the other little work that falls upon me, but I do say on behalf of my colleagues and myself that it would be absolutely impossible to get through the work entrusted to us if we did not have the opportunity of considering our judgments on Saturday and if we did not have an adequate long vacation, a part of which is sometimes used for the purpose of dealing with a heavy judgment. It is on those grounds that I venture most strongly to dissociate myself from the observations of the noble and learned Lord, Lord Darling, and to support this Motion on the ground that the Court of Appeal, as well as the other Courts, makes this demand upon the Judges.
§ THE LORD CHANCELLOR
My Lords, most of the points that have been made by speakers in this debate have already been dealt with by later speakers, and I propose, out of respect to the noble Lords who have put questions to me, merely to endeavour shortly to answer those questions. First it was asked, I think by the noble and learned Viscount on the Front Opposition Bench and by my noble friend Lord Buckmaster, whether it was proposed to transfer some of the non-jury work from the King's Bench Division to the Chancery 384 Division. As your Lordships know, bankruptcy work was so transferred not long ago, and quite recently I made an order for the transfer of the Succession Duty cases. I have from time to time considered the transfer of other non-jury work, but of course the process must depend upon the time that the Chancery Judges have to spare as compared with the Judges of the other Division, and I can only assure noble Lords that I have not lost sight of that point.
Something was said, I think by Lord Buckmaster, about the waste of time on circuit. I think that the Lord Chief Justice, in the course of his notable contribution to the debate, rather misunderstood that expression. No one that I know of has ever said that the Judges when on circuit waste their time. They work exceedingly hard, sitting very much later than the Judges in London and filling every moment of the time at their disposal. What my noble friend referred to was the fact that on certain occasions Assizes are held where there is little or no work to be done; and that the time occupied by the Judge in going to the Assize town, in opening the Assize and in performing purely formal duties, could profitably be saved. On that point I have already said that I think that the Act of 1925 will very shortly provide a certain amount of remedy.
Lord Buckmaster also raised a point about the age at which Judges should be appointed, and he suggested the age of fifty-five. This is a delicate subject for many of us here, but for myself I cannot possibly accept so low an age as that. I think that there are many men who at sixty, or even over sixty, are at their very best and most suited to perform the duties of a Judge. I agree that at the other end of the scale, when you come to consider the question of the retiring age, there may be more to be said—to be said, no doubt, on both sides—but I will remind the House that in the Bill recently passed for the appointment of new members of the Judicial Committee the retiring age of seventy-two was inserted. However, it is a delicate matter for the man of seventy-one to discuss, and the point is, no doubt, one which may be profitably considered again at some future time.
The last point to which I wish to refer is that raised by the noble Lord. 385 Lord Hewart, who suggested that the proviso in the Act which dates, I think, from 1910, under which this kind of discussion periodically takes place, ought to be repealed. I agree that, if Parliament is satisfied that the time has come to make this increase in the Judiciary permanent, then the proviso ought to go. I will only say that I have had the matter in mind and that I will further consider the question that it raises before I introduce, as I shall have to introduce next year, a new Judicature Bill dealing with the work of the Courts. While all these things are being considered, do not let us slip back into the condition in which we found ourselves in 1924 before two extra Judges were appointed. Do not let us allow the work to fall greatly into arrear and only then intervene to appoint additional Judges. If we appoint these additional Judges today, I think that the Courts will be able to keep up with their work.
§ On Question, Motion agreed to, and Address ordered to be presented to His Majesty by the Lords with White Staves.