HL Deb 22 January 1929 vol 72 cc731-40

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (LORD HAILSHAM)

My Lords, the Bill which I have the privilege of submitting to your Lordships is one which is designed to strengthen the members of the Judicial Committee of the Privy Council, more especially from the point of view of dealing with Indian appeals. I am quite sure that in this House I need say nothing as to the importance of maintaining the efficiency of the Judicial Committee or of providing a tribunal worthy of acting as the link of Empire which in my judgment the Judicial Committee has done in the past and is doing to-day.

The concrete proposals which I have to put before your Lordships are two in number. The first clause of the Bill, the Second Reading of which I am moving, is in effect a reproduction of a measure which, in one shape or another, has passed your Lordships' House twice at least during the last three years. In 1926 a Bill was introduced and passed through this House to provide for two extra members of the Judicial Committee, who should be specially appointed for the purpose of dealing with Indian appeals and who should be paid out of the funds of this country a salary of£2,000 a year. It was explained at that time to your Lordships that it was hoped that India would be prepared to make a corresponding payment of£2,000 per year, but that meanwhile the Bill only provided for the payment from the British Exchequer. That Bill passed this House and passed most of its stages in another place, but at the end of the Session, unfortunately, through lack of time, it could not be placed upon the Statute Book. Last year in the Administration of Justice Bill the provisions of that Bill were reproduced and again passed through all stages in this House. In another place, owing to the exigencies of time and the fact that there was a certain amount of discussion about that particular part of the Administration of Justice Bill, that part had to be dropped in order that the rest of the Bill might be saved and become an Act. Accordingly once more our hopes were disappointed.

On this occasion I thought it right that the Bill should be first of all introduced in another place, so that we might be assured that we should not be asking your Lordships again to consider a measure which your Lordships had twice approved with no certainty that if you approved it once more it would be any more fortunate than on previous occasions. I am glad therefore that on this occasion the Government have been able to secure passage of the Bill in another place, so that if it should again meet your Lordships' approval it will find a place on the Statute Book. The provisions of the first clause, therefore, are provisions which have been twice approved here and which provide for two members of the Privy Council being appointed who shall be primarily charged with the duties of hearing Indian appeals and who shall strengthen the Judicial Committee to the extent necessary to achieve that end.

But I have added in Clause 2 a new provision which requires some little explanation and justification. When the part of the Bill to which I have referred came before, this House in 1926 the late Viscount Haldane made a speech in which he expressed the view that the measures that we were taking, although they were quite correct in themselves, did not go far enough, because in his view it was essential that the whole of the Supreme Tribunal, both here and in the Judicial Committee, should be strengthened, as he then thought, by the addition of two extra Law Lords. At that time my predecessor thought that the position was not sufficiently serious to warrant us in asking Parliament to make that provision. But since 1926 the position has radically altered, and I should like if I may, in a. few sentences, to explain to your Lordships what that position is.

In order to constitute a full House which normally sits to hear appeals from England, Scotland and Northern Ireland, it is the practice in these days to have not less than five Lords sitting, so that it shall not be possible, as has sometimes happened in the past, that a unanimous judgment of the Court of Appeal confirming a judgment of the Court below should be reversed by two to one in this House. Accordingly we require first of all five qualified persons to sit in this House. In the Judicial Committee it is now necessary constantly and consistently that the Judicial Committee should sit in two divisions, one division occupied with the hearing of Indian appeals and the other occupied with the hearing either of Dominion appeals or appeals from the Crown Colonies. For Dominion appeals it is essential in these days that there should be a Board of not less than five. For Indian appeals it is eminently desirable that five should be provided, but both for Indian and Crown Colony appeals it is sometimes possible to arrange for a quorum of three. Therefore, in order to have a full sitting and to carry on the work one requires fifteen persons upon whom one can rely and at least thirteen for the business to go on at all.

In order to meet that demand there are at present the Lord Chancellor, six Lords of Appeal in Ordinary, and if Clause 1 of this Bill is agreed to, the two extra Indian members for whom provision is made. That being so, the Lord Chancellor of to-day has nine persons upon whom he has a right to call for judicial service and the balance has to be made up entirely by volunteer help. When my predecessor considered the position some two and a half years ago, he was able to reckon that he could have at one time or another the assistance of three ex-Lord Chancellors, four members of your Lordships' House who had held high judicial office and were therefore qualified, and at least two other Privy Councillors who could sit in the Judicial Committee—a total of nine to add to the nine regular attendants, making eighteen in all. Unhappily the position is very different to-day. Instead of three ex-Lord Chancellors I can rely only upon one. Lord Finlay, owing to advancing years, cannot hope to do more than perform his duties at The Hague and therefore he is very unlikely to be able to assist us here again. Lord Haldane, whose great and long public service well deserve the tributes paid here and elsewhere, is unhappily no longer with us. We are left only with the assistance of Lord Buckmaster as an ex-Lord Chancellor, and if Lord Buckmaster were not here I should be disposed to say something of the debt which we all owe to him for the invaluable service that he so willingly gives, sometimes, I fear, even at the risk of his own health. But he is here, and I hope that we shall have the advantage of his assistance at any rate from time to time.

Of the two Privy Councillors upon whom Lord Cave could rely, one, Lord Sinha, is dead, and the other, Lord Salvesen, is not always able to be with us. Of the four other judicial persons who are from time to time able to help us two are well over eighty and the other two are approaching that age, and, however willing they may be to render service, your Lordships will see that it is not possible to expect from them anything like a continuous attendance. If, therefore, I have to find from those volunteers three persons regularly, I think that is quite as much as I can hope to achieve. During last year, in the month of July, both Dominion appeals and Indian appeals were being heard, and the result was that it was impossible, although there was work waiting to be done to constitute this House for the purpose of hearing appeals, and there could be no English, Irish or Scottish appeals heard during that month. Last term, when judicial business was recommenced in October, I had to inform the Registrar of the Privy Council that it was impossible to take any Dominion appeals because we could not constitute a Court of five for them. I am sure your Lordships will agree that this is a very undesirable state of affairs, and I think I am asking the minimum for which I can with any safety ask if I invite Parliament to give me one extra Law Lord in order to make up a regular available staff of ten, leaving only three places to fill from volunteers.

It might be said that the position demanded the stronger measure, which Lord Haldane thought necessary, of having two additional Law Lords. There are two reasons why I have not adopted this view. In the first place, it is most important, in these days especially, that no expenditure should be incurred which cannot be shown to be absolutely necessary; and in the second place, one has to remember that the quality of these tribunals is at least as important as quantity, that it is not enough merely to have extra members, and that it is not an easy thing for the English and Scottish Bars to find a sufficient number of persons of the supreme judicial qualities that are demanded for efficient work on these tribunals as they are constituted to-day. I am confident that we can find, and can regularly expect to find, the necessary number if I add one extra Law Lord. I am not so sure that I should be able to rely upon keeping up the quality if the Bar had to provide two besides those for whom provision is already made. I think I can confidently assert that the work which is being done in these tribunals to-day is as high in quality as it has ever been, and I am confident that if the provision that I am asking for to-day is made it will be possible to keep up the efficient and regular despatch of business without any impairment of the standard of the work that is being done, but frankly I do not think that I can hope to keep the work going regularly without the provision for which I ask your Lordships this afternoon. I hope that these few expressions of the reasons that have led the Government to the conclusions that I have laid before your Lordships will persuade you to make provision for this great work, and to enable us to carry on and maintain the high standard of judicial reputation and judicial efficiency which I am glad to believe that the Supreme Tribunals of this country have always demanded, and demand especially at the present time. I beg to move.

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

LORD PARMOOR

My Lords, I rise to support the Second Reading of this Bill. I think that the Lord Chancellor has made an unanswerable demand for further judicial assistance in the Privy Council. I think it is of primary importance from every point of view that the Judicial Committee and your Lordships' House on its judicial side should be maintained in a very high state of efficiency and that ample judicial experience should be at the command of the Privy Council. There are two points upon which I should like to say a word. I hardly quite agree with the Lord Chancellor that it would not be possible at the present time to get two judicial members of adequate knowledge and authority to be appointed Lords of Appeal. If two such were necessary, I should have thought that there was ample judicial knowledge amongst the leading members of the Bar to supply them. I make no comment on the fact that only one is asked for, as I believe that when one has been appointed there will be a sufficiency of judicial members to do the work in this House, but, if it were found that they were not sufficient, no doubt the Lord Chancellor for the time being would bring the matter forward again.

There is one point that I should like to mention in connection with the Judicial Committee of the Privy Council. I do not know whether the Lord Chancellor describes as merely a volunteer a member of the Judicial Committee appointed directly and not as a consequence of holding any other office. I may say that for ten or twelve years I was a constant member of the Judicial Committee, having been specially appointed in order that there might be an adequate number of members to hear appeals, particularly from Canada and the Dominions. There is one other matter. I am rather alarmed to notice the very large extent to which Indian appeals form the judicial work of the Judicial Committee. I only want to make this suggestion at the present time. I think it would be a mistake if the Judicial Committee of the Privy Council became anything of the nature of an ordinary Court of Appeal on Indian questions. If a further Court of Appeal on Indian questions is desired, it should, I think, be appointed in India as similar bodies have been appointed in our other great Dominions. What the effect of that might ultimately be I do not know, but I certainly agree that at the present time further assistance is needed and that that assistance is very specially needed in connection with Indian appeals. We all know what was the view of the late Lord Haldane upon the proposals in this Bill. All my colleagues here were heartily in assent with him while he was here to help us, and we now hope that a matter so dear to his mind will be carried to fruition and that the Second Reading of this Bill will be passed without opposition.

LORD BUCKMASTER

My Lords, at different times during the last twenty-three years Resolutions have been before this House, and another place, asking in one form or another for an increase of judicial strength, and I have felt it my duty on every one of those occasions, both here and elsewhere, to oppose the proposal. To this Bill I desire to give nothing but my most unhesitating and unqualified support, and I should be glad if your Lordships will permit me, for a short time, to explain what may appear to be an apparent inconsistency in my conduct. I have always opposed, and shall continue to oppose, proposals for the increase of our judicial strength in the Courts of this country, until something is done for the re-arrangement of our business. I have always thought that it was impossible to accept the position that the whole machinery of our provincial administration of justice can be the same now as it was over one hundred years ago, when the areas were assigned which constitute the different Assize areas to-day.

I have been satisfied that by a proper re-arrangement of our work and the proper application of the utmost energy at the spot where most needed, we should be able to secure such economy in our judicial methods as would avoid the necessity for further Judges. I have on every occasion been defeated, but I cannot say that I have wholly failed. After those twenty years of periodical contest a Bill has been passed containing a clause which provides that it is no longer necessary for Judges to go, with all the solemn ceremony of the Assize Court, and open Assizes in towns where they are informed in advance there is no work for them to do. After having achieved that triumph, it seems to me possible that after the lapse of many more years somebody who shall succeed to my mantle will be able to secure further reforms.

There is, however, no means which you can suggest by any alteration whatever in the arrangement of our Courts, or by economy of work, which will meet the situation as the Lord Chancellor has explained it. There are required fifteen men to be constantly sitting, and there are only some ten on whom you have a right to rely. It is perfectly true that the demand is based upon this, that five men are supposed to be essential to constitute a Court. It is never any use attempting to reason with a superstition. You can always reason with something based on logic, because you may hope to meet and defeat it, but the superstition that five men are necessary to constitute an appeal court is something against which no amount of logic can prevail. It is perfectly true that a humble individual like myself who has now had the honour of sitting for nearly fourteen years, is convinced that three Judges constitute by far the most competent tribunal that you can get, but it is not the least use attempting to explain that to any of the Courts or places from which these appeals proceed. They are quite determined that you shall have five and not three, and are convinced that they are being treated with scant ceremony, and that there is an indifference shown to their demands, if you do not fill up the full number. Consequently some Bill such as this is necessarily required.

There are one or two things further that I desire to say. In the first place a great part of our work is undoubtedly due to the very large increase in Indian appeals. We have not before us the figures which show exactly how these appeals stand, but whatever are the numbers they must be dealt with. Delay in the administration of justice is equivalent to denial of justice, and gives opportunity to that most evil of all evil citizens, the man who trades on the prospect of the prolongation of litigation in order to extort from his adversary terms to which he is not entitled. Expedition is of the utmost value if you wish to get your justice respected. What strikes me is this: With respect to the great Dominions and nearly all the Crown Possessions there are regulations of a rather strict order with regard to appeals. With regard to the Dominions, the regulations are very strict indeed, and special leave to appeal is only granted, or should only be granted, by the Board where the question involved is not a matter between two litigants alone but is a question which, if settled, must affect a large number of other people in the place, or where there are exceptional circumstances which justify an appeal.

Appeals from India come under different conditions. In the case of India there is a right of appeal where the sum of 10,000 rupees, which is the equivalent of£750, is involved, or where it is thought a difficult question of law is involved. It is not a difficult general question of law, but one as between two people. Of course where two wholly illiterate people enter into a wholly unintelligible conflict the question of law is necessarily difficult. The consequence is that the appeals from India proceed with such a volume and rapidity as seems to me to require investigation. The time when that limit was fixed must have been a time when money was worth more than it is to-day, and it seems to me that that condition alone might lead to considering, of course in connection with the Government of India, whether the amount should not possibly be increased, or some other means provided, so that these appeals should not come forward in the unchecked flood by which the Privy Council is being inundated.

It is sometimes said that if you have such a large volume of appeals that fact shows how much confidence there is in the tribunal. It has always seemed to me that that is a back-handed compliment. A large number of appeals may mean many things. It may mean dissatisfaction with the Court of First Instance, or it may mean dissatisfaction with the Court of Appeal; because, if you have a good Court of First Instance and a bad Court of Appeal a litigant may very well think that he has a chance of upsetting a good judgment by trying to get a bad one. And it is perfectly impossible to reason from the number of your appeals to the quality of your Courts. It is dependent upon totally different considerations. I feel quite certain that the Lord Chancellor will not take umbrage at what I am suggesting. I know that this is a long and difficult thing. I know that it often happens that the tenure of the Woolsack by any individual is brief or interrupted. Perhaps the noble and learned Lord will permit me to add that the prospect of his continuing to occupy it is the only thing that would reconcile me to the return of the present Government. But it is, of course, a matter of enormous consequence that there should be some continuity of work in this matter, or the labours of one man are forgotten and thrown aside. I hope he will not fear that his tenure is so insecure that he will not put his hand at once to this most important thing.

Finally, I hope it will not be thought that in supporting this measure, as I most whole-heartedly do, I overlook the fact that it is going to throw an extra burden, though it may be a slight one, upon our public expenditure. I want our public expenditure watched with the most jealous eye. I want Governments to think in terms of shillings where now they think in terms of pounds. I want them to notice, and to receive the warning, that the tide of public expense and the tide of public distress rise together wave by wave, and that you will never get the second to cease until you have checked the first; and I am bound to say I am filled with some alarm when I see that we have 1,500,000 people out of work, and you find people of eminence who are supposed to have charge of our finances saying they see no reason to criticise the affairs of our trade. I would not have supported even this slight addition to our annual burden, trivial, ridiculous as, of course, it would be in relation to the whole amount, if I had not been absolutely satisfied that, in the best interests of what I regard as one of the highest assets of this country, this Bill is required.

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