JUDICIARY (SAFEGUARDING) BILL [H.L.] (Hansard, 28 November 1934)

§ LORD RANKEILLOUR
My Lords, the Bill of which I now move the Second Reading is all but identical with the Bill which was accepted without opposition and passed through your Lordships' House last Session. I understand—in fact, I know—that the Government in the House of Commons were not unfavourable to it, and so far as I know there was no serious opposition in that House. Owing to the exigencies of other business, however, the Government were not able to find time for this Bill, and like many other measures it therefore lapsed. I now beg to move the Second Reading of it again, and I hope that in this Session it will have a better fate.
I said that this Bill was almost identical with the last Bill, but there are two words in the Preamble which are different. In the Bill of last Session these words were found: And whereas by long usage their administration of the law"— that is, the administration of the law by the Judges— is withdrawn from the Parliamentary supervision and discussion to which the conduct of His Majesty's Services is subject. It was put to me front a quarter which I could not disregard that that might he understood as meaning that the administration of the law by the Judges was wholly withdrawn from Parliamentary supervision and discussion; but of course if any member of either House chooses to move a Motion impugning the conduct of one of His Majesty's Judges, Parliament can and will take cognisance of it. Therefore I have altered the wording slightly so that the paragraph now reads thus: And whereas by long usage their administration of the law is withdrawn from the manner of Parliamentary supervision and discussion to which the conduct of His Majesty's Services is subject. 122 This, I think, will make it clear, because in other Services reductions can be moved and can be carried, and the conduct of the Service, whether civil or military, can be impugned or overhauled.
That is not the case with the administration of justice. In the case of the administration of justice it must be done on a specific Motion impugning the conduct of the Judges to such an extent that if it is necessary, according to the charge made, that they should be removed, His Majesty should be advised to remove them from their office; so that there is a real difference. I think these present Words ought entirely to meet the objection and criticism which have been urged. I do not think I need explain the whole matter to your Lordships again. It was gone over very fully during last Session. I now beg to move.

§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, I should like to begin my remarks by again thanking the noble Lord for introducing this Bill. As your Lordships probably know, the subject matter of it has been before this House on several occasions. Let me first remind the House that the noble Lord who is responsible for its introduction raised the issue in a Question in November of last year, and there followed upon it a very full debate, during the course of which I made a long statement tracing an historical survey of the facts upon which the present status arid independence of the Judges are founded. The noble Lord again raised this matter in December of last year, and in response to an invitation he introduced a Bill upon January 29 last. It was read a second time on March 1, and went through the Committee stage on the 15th of that month. It reached the Report stage on the 28th, and was in fact read a third time in this House on April 19; but no time could be found for it in another place. The Bill was again introduced by the noble Lord on November 21 last.
I agree with him that it is not possible to add much to what has already been said here upon the subject on the previous occasions. I endeavoured then to put before your Lordships the attitude of the Government with regard to the introduction of the Economy Act, which, 123 as your Lordships will remember, was the primary cause and gave rise to this question of vital constitutional importance. However unfortunate the circumstances may have been which compelled His Majesty's Government to effect a reduction in the judicial salaries, they did not take the view that their action in so doing in any way affected the independence and prestige of the Judicial Bench, and it is now generally accepted that the Government never intended such a result to take place. It is, I think, matter for satisfaction and congratulation that now half of the cut has been restored. The Government have considered the advisability of introducing a Bill which might relieve any apprehension which may have been entertained upon this subject, but after a thorough investigation of the ways and means through which a satisfactory solution might be discovered, it was found to be most difficult to prepare a Bill which safeguarded the position of the Judges, and at the same time did not raise problems of even greater perplexity than those that existed before.
Everybody agrees that the Judges should he independent of the Executive, but this proposition has nothing to do with the situation which was created by the Economy Act. The reduction in the salary of the Judges was not effected by the action of the Executive, but was brought about by a vote of Parliament, which was embodied in a Statute. Further, the Economy Act was passed by this House as well as by the House of Commons with a full knowledge of what was intended to be done under it. This intention was made clear in the White Paper, which was circulated, containing the proposals for the reduction in the salaries of the Judges, because the exact amount of that reduction was stated in it. Let me quote the wording of it, so far as it affects this subject, for there can be no doubt from its wording as to what purposes it was to be applied: They (the Government) propose further that the salaries of the Judges and of the officers of four Crown Services whose substantive payment is £2,000 a year or more shall be abated by ten per cent. in the case of salaries of less than £5,000 a year, and by twenty per cent. in the case of salaries of £5,000 a year and upwards. Further, it has been suggested that the independence of the Judges rests upon the fact that their salaries are charged 124 upon the Consolidated Fund. The words in the Economy Act which would affect the Judges are the words referring to "persons in His Majesty's Service." It is said that either these words are not effectual for the purpose, because the Judges cannot have been intended so to be described, or that, if the Judges are so referred to, such reference is derogatory to them and is an attempt to force them into the position of subordination to the Crown, a place which they did no doubt occupy before the Act of Settlement was passed. A review of the situation shows that, although it appears to be thought that the salaries of the Judges were ascertained and established as a result of the Act of Settlement, this is not so, for on investigation one finds that, for a long period after the Act of Settlement, the Judges were dependent for their salary upon a yearly Vote of Parliament. It is, however, interesting to see, especially for the purposes of the argument, that while this state of affairs existed the independence of the Judges was looked upon as sufficiently secured, firstly, by the clause which was inserted in their Patent, that their office should he held during good behaviour, supported as it was, by statutory authority; and secondly, by the rule which prevailed in both Houses, that the conduct of a Judge was not to be discussed by Parliament, except upon a Resolution to remove him.
When this aspect of the situation is considered, it must be realised that it could have been open to Parliament, at any time, to repeal the good behaviour provision in the Act of Settlement, just as it would have been able to reduce the salaries of the Judges. In 1931 it was desired to bring the salaries of the Judges into conformity with the general economic situation of the nation, but the change which was felt necessary during the national crisis does not strike a blow at the position or prestige of the Judges to-day. In the long survey which I made upon the occasion when the noble Lord first put his Motion down, an endeavour was made to illustrate that the independence and prestige which our Judges have enjoyed in their position have rested far more upon the great tradition and long usage with which they have always been surrounded, than upon any Statute. The greatest safeguard of all may be found upon these lines, for tradition cannot be repealed, but an Act of 125 Parliament can be, and so long as this is so, there may always be a danger, if the solution to this issue is to be found by placing a declaratory Act upon the Statute Book.
In conclusion, it was in response to a suggestion by me that the noble Lord first introduced this Bill, and while I should wish to be the very first to congratulate him upon his great industry, and also to thank him for the assistance he has given in this matter, I cannot help feeling some difficulty in, satisfying myself that the remedy sought, by the introduction of this Bill, will accomplish what is the sole object of us all—namely, to see that His Majesty's Judges continue to occupy and enjoy that supreme independence which must be imperative for the proper discharge and administration of justice in this country. We shall certainly not oppose the Second Beading of the Bill, but I am afraid, if the noble. Lord will allow me to say so, that he may have to comfort himself, as other legal. reformers have to, by a contemplation of the old Latin line Non vi, sed saepe cadendo. It may be impossible, having regard to the great amount of work before Parliament, to give any assurance that the Bill is likely to reach the Statute Book this Session.

§ VISCOUNT CECIL OF CHELWOOD
My Lords, I am a little sorry that my noble and learned friend on the Woolsack should have thought it necessary to conclude his speech with so many warnings of the great improbability of the success of this measure, because I think it would be a real advantage to the State if the measure were placed on the Statute Book. May I say at once that I have never impugned, and I do not think my noble friend Lord Rankeillour has ever impugned, the intentions of the Government? No one supposes that the Government in 1931 wished to undermine the position of the Judges. I do not think it has ever been suggested in this House. But it is not a question of what they intended to do, but of whether unintentionally they have struck a blow at one of the pillars which uphold that doctrine of independence, and I think your Lordships will do well to regard this matter as one of supreme importance. For my own part I believe that the independence of the Judges is by far the most important guarantee of the liberty of the subject 126 in this country that can possibly be devised, and that the moment you allow, as in some foreign countries recently has been done, the Judges to be at the mercy of the political power, whether in the House of Commons or in the hands of a dictator, you are destroying the great guarantee of the freedom of the people of this country.
I am far from saying that anything very serious has been done by the Government. I do not suggest that, but I do say that it is creating a precedent which might conceivably be used with very disadvantageous effects. The thing that we are afraid of is simply this, that you have made the salaries of the Judges in future rather less secure than they were. Up till now the salaries of the Judges never came before Parliament at all. They were never discussed by Parliament. It is quite true, as my noble friend has pointed out, that an express Motion censuring a Judge was in order, but you were not even allowed to ask a question which reflected on a Judge's conduct—at least, you were not in the other House. I do not know what happens in this House, but I imagine it would be equally out of order in this House. Unless you were prepared to take the formal step of trying to censure the Judge or of moving an Address for his removal, you could not touch his independence. That is merely an illustration of the immense care that has been taken—by building up no doubt on tradition—to preserve the independence of the Judges, and it is obvious that unless their salaries are as independent as their position, as their office, the independence of their office is of very little value to them or to the country.
If you can curtail and whittle away the salary of the Judge it is evident you can destroy his position as a Judge. Therefore it is essential that the same kind of guarantee should he preserved for the salary of a Judge as for his actual position upon the Bench. I know it is said—I do not know that my noble friend said it just now, but it was said on the previous occasion—that it is no use trying to legislate against revolution. It is asked what is the use of passing any measure of this kind, because if a revolution takes place it will all be swept away and until a revolution takes place it is not necessary. I do not quite agree with that. I do not myself regard noble 127 Lords who sit on that Bench as people who are likely to wade through rivers of blood to a new and socialistic state, nor do I regard my noble friends who sit on the other Bench as likely to become the adherents of Sir Oswald Mosley. The two propositions seems about 'equally likely, but the truth remains that we have seen in a number of countries in Europe revolutionary Governments set up, and even where they are not revolutionary you have seen undermined that great security of freedom which consists in the complete independence of the Judges. Therefore anything we can do, any obstacle we can set up which will make that less likely, is well worth while.
I do not say it is conclusive, nothing is conclusive, but it will help if, with the assent of the revolutionaries who sit on that Bench, we are able to reaffirm the independence of Judges. Surely that is a good thing to do. My noble friend said, and said very truly, that the independence of the Judges depends not only upon Statute—it was begun by Statute—but still more upon the accumulated tradition of the country. I agree with him most fully, but the tradition of this country, and thank Heaven for it, is very largely assisted by the action or inaction of Parliament; it is largely built up by the steps which Parliament takes from time to time to affirm general principles. This is an opportunity, as it seems to me, for us to affirm once again this cardinal truth of the independence of Judges, and I earnestly hope the Government will find time, somehow or another, to give an opportunity at any rate to the other House to decide whether they will accept this Bill or not.

§ LORD RANKEILLOUR
My Lords, I only wish to add that I entirely accept what my noble friend who has last spoken has said. I had no kind of intention of impugning the action of the Government in 1931 as meaning that they wished to undermine the independence of the Bench, but what I do say is that the unhappy events of that time, the rush in which everything had to be done, the want of opportunity for consultation and the like, did create doubts even in the highest quarters as to what the effect of the then Statute was, and how far it might serve as a precedent which might be put to disastrous uses later. The only 128 object of this Bill is to make it quite clear that the position of the Judges is not that of His Majesty's servants in the other Services, and I believe if the Bill reaches the Statute Book a real constitutional purpose will have been served.