HL Deb 22 February 1944 vol 130 cc863-77

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The LORD STANMORE in the Chair.]

Clause 1:

Number and distribution of puisne Judges.

1.—(1) The number of puisne Judges of the High Court shall not be less than twenty-five nor more than thirty-two.

(2) Subject as hereinafter provided, whenever the number of the puisne Judges of the High Court is less than thirty-two a new Judge may be appointed by His Majesty by Letters Patent:

Provided that except in the event of the number of such Judges being at any time less than twenty-five His Majesty shall not be advised to make an appointment to fill any vacancy unless the Lord Chancellor with the concurrence of the Treasury is satisfied that the state of business in the High Court requires that the vacancy should be filled.

(4) A puisne Judge of the High Court may be transferred by direction of the Lord Chancellor from one of the Divisions of that Court to another:

Provided that no direction shall be given for the transfer of a puisne Judge from the King's Bench Division, or from the Probate, Divorce and Admiralty Division, without the concurrence of the president of that Division.

VISCOUNT CECIL OF CHELWOOD moved, in the proviso in subsection (2), to leave out "with the concurrence of the Treasury." The noble Viscount said: I have given notice of an Amendment to the first clause of this Bill. I want to explain that it is not intended in any way to be hostile to the Bill, which I warmly approve and hope will be passed. There is one point, however, which seems to me to be of some considerable importance, in principle at any rate, and this I wish to raise before your Lordships. The Bill provides, as your Lordships know, that in certain circumstances additional Judges are to be appointed in the normal way on the recommendation of the Lord Chancellor with the concurrence of the Treasury. The words are these: … His Majesty shall not be advised to make an appointment to fill any vacancy unless the Lord Chancellor with the concurrence of the Treasury is satisfied that the state of business in the High Courts requires that the vacancy should be filled.

That introduces the proposition not only that the Treasury can object, but that unless they concur the appointment cannot be made. That means that the Treasury will have the right, and I suppose the duty, to inquire into all the circumstances of the appointment and to decide whether or not it shall be made.

I cannot help feeling that that is a rather objectionable provision. To begin with, the Treasury are of course frequently litigants in the Courts. The one thing that stands between the taxpayer and oppression by the Treasury is the decision of the Courts, and it does seem to me at any rate unsuitable that the Treasury should be entitled to object to or to modify or in principle to decide upon the desirability of any addition to the Judicial Bench, at all events so far as this Bill is concerned. But quite apart from the par- ticular circumstances of the Treasury, I venture to submit to your Lordships that there are very few things which are more important for the constitutional liberties of this country than the maintenance of the complete independence of the Judicial Bench from any interference by the Government of the country. That is a principle which has a very ancient history in this country, going back, at any rate, to Magna Charta, and it is, apart from its antiquity, a principle of the utmost value. Your Lordships will be well aware that wherever a despotic tyrannical Government is created in any State one of the first things that Government does is to obtain control of the Judicial Bench. Hitler did so, as your Lordships remember. He modified to a very serious extent the composition of an ancient Court, a Court which had a very high reputation in legal circles all over the world, putting upon that Court his own nominees to decide on criminal cases brought before it. In this country we have seen, I think with great admiration, that even under the very great stress of the war our Courts have not hesitated to decide, and to say whenever they thought fit, that the Government have exceeded their constitutional rights in any manner. Yet here we are going—not, I agree, for the first time—to say that for an appointment to the High Court the Treasury are entitled to a veto, and will be entitled indeed to exercise it—that is, to decide whether they will exercise it.

I think that is a very serious matter, at any rate in principle. Not long ago we had an important debate in your Lordships' House as to the danger of the Treasury having a measure of control over our Diplomatic Service. I will not go back on that except to say that, if it is desirable to keep the Diplomatic Service free from Treasury control, it is ten times more desirable to keep the Judicial Bench free. I know that two things may be said in answer. In the first place, it may be said that a precedent was established in that rather ill-omened year 1938, when this was done in the case of an appointment to the Chancery Division. In a way, no doubt, that makes it possible to say that this is only carrying out that precedent. But it is important to realize that if we do the same thing again now, it will be established as a definite part of the constitutional machinery of this country that the Treasury should have the right to veto an appointment to the Judicial Bench in any future case, and it may undoubtedly be used, by those who desire to see that done, as a very powerful argument in favour of any future steps in that direction.

The other thing that may be said is that no harm will be done because the Treasury would not dream of interfering in the normal selection of the Judges, and if they were so ill-advised as to do so their action would be immediately overruled by the Cabinet. It is just that kind of thing which is dangerous. You get a principle established on the plea that it will never be misused; but if it is misused you have no remedy. I cannot help hoping that the Government will reconsider this proposal and agree to the omission of the words "with the concurrence of the Treasury." I cannot see that the omission would in any way interfere with the effectiveness of this proposal. On the contrary, it would make the proposal more effective and the Bill easier to work. I submit that anything that even suggests subordination of the Judicial Bench to the Executive Government in this country is a very dangerous precedent to create. I hope therefore that the Government will feel it possible to reconsider this particular detail of the Bill.

Amendment moved— Page 1, line 13, leave out ("with the concurrence of the Treasury").—(Viscount Cecil of Chelwood.)

LORD ADDISON

I should like to say a few words in support of my noble friend on this Amendment. Your Lordships will remember that a little more than a year ago we had in your Lordships' House an exceedingly interesting and important discussion on the subject of the duties gradually acquired by the head of the Treasury. There was a consensus of opinion at that time that the scope of the power of the head of the Treasury had been extended beyond what it ought to be. All of us who have been intimate in the affairs of government know how difficult it often is for the head of a Department to submit his considered proposals to the Government if, although he may have taken the very best advice obtainable in the country from people who understand the subject, he still has to satisfy somebody or other at the Treasury that it is all right before he can even send his memorandum round to his Cabinet colleagues. That claim, to my personal knowledge, has been asserted on more than one occasion. On more than one occasion I have defied it, and sent my memorandum in to be considered by the Cabinet on its merits, because presumably the head of a Department, with the advice which he obtains, understands his business and knows what is really required in the Department better even than the Principal Assistant Secretary of the Treasury, who has no day-to-day experience or knowledge of the matter. It is for the head of the Department to make his case good before his colleagues, and, if the Chancellor of the Exchequer objects, naturally he will state his abjection and it will be considered as a part of the whole case, which is quite right.

This is a similar case, but even more technical. In this case it is the Lord Chancellor who considers that it is necessary that the number of Judges of the High Court shall be augmented, and the Lord Chancellor, with the advice and knowledge which are at his disposal from day to day, is in a much better position than anybody else to know whether that is or is not necessary. It is for the Lord Chancellor to make his proposal, and, if the Treasury entertain any objection on the ground of public expense, they can state it, and the matter will be dealt with accordingly. To suggest that the Lord Chancellor himself must obtain the concurrence of the Teasury to the proposal that the state of business in the High Court requires the appointment of additional Judges is, I suggest, to put the Treasury in a position to decide matters upon which the Government of the country should rely for advice on the Lord Chancellor himself. It is to exalt the functions of the Treasury beyond the realm of finance into matters on which they are no more qualified than anybody else to express an opinion. They are the custodians of finance, and as such have the first authority, but they are not judges of whether the state of affairs in the Courts is or is not such as should satisfy the Lord Chancellor that there should be another Judge. That is to put the Treasury into a position which I suggest is constitutionally wrong, and I very heartily support my noble friend.

THE LORD CHANCELLOR (VISCOUNT SIMON)

During the speeches which have been made in support of this Amendment, I confess that I have found it difficult to resist the suspicion that there is some misunderstanding. I would ask my noble friend the Leader of the Opposition to do what he is so well capable of doing, notwithstanding the fact that he has already burnt his boats, and that is to listen to the argument. Whatever may be said of me when my Lord Chancellorship ends, I hope it will not be said that I have ever failed to stand up for all the duties which should fall to the Lord Chancellor, and I should be the very last to surrender one scrap of my responsibility in the matter of choosing a Judge. That is not even a matter of which the Cabinet is informed. The appointment is made when the King's pleasure has been taken, and, if the Prime Minister takes an interest in it, he first knows of it when he reads of it in the morning paper. That is essential. I am not sure that I would go back as far as Magna Charta, as did my noble friend, but I would say that it certainly goes back to the Act of Settlement, and it helps to promote the complete integrity and independence of the Judiciary.

This matter, however, concerns a totally different question. It concerns, not the choice of a Judge, but the question of how many puisne Judges there should be. Parliament has always decided that, at any rate in modern times. There is quite a number of Statutes which deal with it. There used to be a fixed number—I think that it was twelve for the King's Bench at one time—and that was settled by Parliament and not by the Lord Chancellor at all. Then there came a period when in certain circumstances the appointment of additional Judges might be authorized. It is not an invasion of the duties of the Lord Chancellor or of the independence of the Judges for a proper authority to decide how many Judges above a certain minimum there should be. It is constantly done, and has always been done, not by the Lord Chancellor but by some other body more immediately responsible to the House of Commons.

In the case of King's Bench Judges, as I pointed out on Second Reading, the provision at this moment is that I, as Lord Chancellor, could get two more King's Bench Judges, but only provided that a. Resolution is carried by both Houses of Parliament, declaring that in view of the state of business in the King's Bench Division one or two more Judges are necessary. That is not an invasion of the independence of the Judges, nor does it diminish the duties or the rights of choice of the Lord Chancellor; it merely amounts to determining whether in our machinery of government we have enough High Court Judges. That is at this moment the way in which the number of King's Bench Judges would be increased. In the case of the Chancery Division, it so happens—there is no merit in the distinction—that the nature of the provision is different. As the law stands, an additional Chancery Judge could be appointed, if the Lord Chancellor wished it, with the concurrence of the Treasury. That is an alternative to the provision, in the case of King's Bench Judges, that there must be a Resolution by both Houses of Parliament.

When this Bill was drawn up—and I had a large responsibility for it, of course—I had to consider which of those two provisions was on the whole preferable. My own experience is—and if my noble friend opposite will carry his mind back to the time when he was a member of the Government, I think he may recall an instance—that it is a very bad plan to say that additional Judges should be obtainable only if a Resolution to that effect is carried in both Houses of Parliament. It is one of the rare cases where it is perhaps as well that Parliamentary power should not extend in that direction. The reason is that it is necessary to pile up a case of justice being denied because justice is delayed; it has to be shown that there is too much work for the Judges to do, in order to carry the Resolution in the House of Commons. When this Bill was drawn, therefore, wisely or unwisely, but quite deliberately—and it commended itself to the House on the Second Reading—the provision was made that there should be a minimum number of Judges which could be maintained without any further question at all. I am speaking of puisne Judges. In certain circumstances they might be increased to thirty-two. Instead of maintaining the existing provision which requires a Resolution of both Houses I and others who considered the matter—and I certainly do not desire to reduce the authority of the Lord Chancellor—though it would be better to say that the number could be increased with the consent of the Treasury.

There is a good deal of misunderstanding, perhaps, in some quarters as to what part is played by the Treasury in connexion with these matters. Appointing an additional puisne Judge means an extra charge on the Consolidated Fund and, speaking as somebody who has been both Chancellor of the Exchequer and Lord Chancellor—in that respect my record is perhaps unique—I tell the House that, even if you are going to do it by a Resolution of both Houses, the Lord Chancellor would certainly tell the Treasury. You have no right to put on the man who is responsible for the finances of the country an additional charge on the Consolidated Fund without his knowledge and approval. It is quite a delusion to suppose that that would not be mentioned by me in any case. I can think of other matters which come on the Consolidated Fund where the same thing would be true. The only thing the Chancellor of the Exchequer would be saying would be, "I agree that there should be another Judge"; he would not be saying, "I am going to find out whom you are going to appoint."

The noble Viscount, Lord Cecil of Chelwood, spoke of the exercise of a "veto" and voiced some noble sentiments regarding the independence of the Judiciary and its not being servile to the Executive. I cannot conceive that the Chancellor of the Exchequer is causing the Judiciary to be servile to himself, because, as it is proposed to put an additional burden on the Consolidated Fund, it is only right that he should say, "Yes, you have a perfectly goad case for that—go ahead and do it." That is not interfering with the independence of the Judiciary at all. It is exactly the same process that goes on in connexion with the Treasury whenever a burden is put on the Consolidated Fund. I cannot see that there is any question of interfering with the independence of the Judiciary. Do not let us use very high, language about this as if this is raising a question fought out in the time of Charles I, and as if this Bill is undermining the integrity and independence of the Judges. With great respect, that suggestion can only proceed from a confusion of what the provision is. The position is that there are twenty-five puisne Judges, and under certain conditions there may be more if the Treasury agree that the state of business in the High Court requires it. That is the law at this moment with reference to the Chancery Judges. I have never heard a human being complain or suggest that the Chancery Judges recently appointed are not completely independent. All I am saying is that, on the whole, this is a better way of dealing with the matter than asking for a Resolution of both Houses of Parliament.

I hope that there has been no confusion on my side. My head is quite clear, and I am saying that there is no reason at all why the authority to have more Judges should not depend on the provision stated in this Bill. It does not, I repeat, in the least interfere with the integrity or independence of the Judges at all. It continues a position that now exists and of which, to the best of my belief, nobody has complained. I hope that your Lordships will take this view. I am very unwilling to see this Bill dealt with at this stage in a way that will raise the question as to whether a Resolution of both Houses of Parliament should be substituted—a far worse system—and I am very anxious indeed to put this provision in force.

May I just add this? I agree that supposing a Lord Chancellor had a case for an extra Judge and the Chancellor of the Exchequer none the less considered that the state of business did not require it, in that event it would be perfectly constitutional for the Lord Chancellor to take his case to the Cabinet and ask the Cabinet to decide. I do not suggest, and the noble Lord opposite, Lord Addison, does not suggest, that that would be improper; but I am not at all sure that the argument of my noble friend Lord Cecil would not involve its being considered improper. It would be a case of the whole Cabinet deciding whether there is to be another Judge and, if I understood the noble Viscount, that would be considered a breach of all the liberties which people have enjoyed from the days of Charles I. I do not agree, of course, but I do not think it is desirable to substitute any other system. If, in the circumstances I have mentioned, I felt I had a good case I should certainly take the matter to the Cabinet, and the Cabinet would decide. There must be some machinery to decide. I do not think that Parliament is willing to give to the Lord Chancellor, when at this moment there are twenty-six Judges authorized, authority to appoint at his own will half a dozen more. That does not seem to me to be any interference with the Bench. What is provided in this Bill is that if I desire to go beyond a certain number, that increase would require the assent of the Chancellor of the Exchequer.

VISCOUNT SAMUEL

The noble Viscount, Lord Cecil, and the noble Lord, Lord Addision, have drawn attention to a principle which is of course of the highest constitutional importance—namely, the complete independence of the Judiciary; but at the same time I am bound to express my agreement with the Lord Chancellor that it is a principle which is not here in question. The noble Viscount, Lord Cecil, said he would oppose any attempt to give to the Treasury the right to veto appointments to the Bench, thereby implying that any particular appointment to the Bench would have to be submitted to the First Lord of the Treasury or to the Chancellor of the Exchequer. That is not so at all. All that the Treasury would have the right to veto would be a claim for an excessive number of Judges.

LORD ADDISON

No, no.

VISCOUNT SAMUEL

Certainly.

LORD ADDISON

No, no.

VISCOUNT SAMUEL

The provision is that His Majesty shall not be advised to make an appointment to fill any vacancy unless the Lord Chancellor with the concurrence of the Treasury is satisfied that the state of business in the High Court requires that the vacancy should be filled.

VISCOUNT CECIL OF CHELWOOD

It has got to be a vacancy. You have got to make a special appointment. There are two processes mixed up.

VISCOUNT SAMUEL

I did not gather that from what the Lord Chancellor said. Perhaps the Lord Chancellor will tell us.

THE LORD CHANCELLOR

I can only give the noble Viscount my own understanding of the Bill. At the present moment, in my judgment, there are not sufficient puisne Judges. The moment this Bill passes, as I told your Lordships on the Second Reading, I shall propose that there shall be three more. That will be filling three vacancies because the total number is here stated to be thirty-two, and at present we have only twenty-nine.

VISCOUNT CECIL OF CHELWOOD

I may have misread the Bill, and if I have done so I apologize, but it seems to me that it is not what the Lord Chancellor thinks it is. He has said with great truth that it is a very inconvenient procedure that when you want a new Judge you have to get a Resolution of Both Houses of Parliament that a new Judge is required. I agree that it is inconvenient and I agree with the general proposal on the whole. The proposal of the Bill, if I understand it aright, is this: that whereas the number of Judges may be up to thirty-two it shall not require any special vote of the two Houses of Parliament that a new Judge should be appointed. That is the first proposition we are going to lay down in this Bill—that thirty-two shall be the standard number of the Judiciary and up to that number it shall not be required that any decision of the two Houses should be made. That is one proposition, and a very important proposition, and one with which I am in hearty sympathy.

Then the Bill goes on to say that before any particular appointment is made, the Lord Chancellor is to advise that the appointment should be made with the concurrence of the Treasury. May I read the words? Provided that except in the event of the number of such Judges being at any time less than twenty-five His Majesty shall not be advised to make an appointment— that is a particular appointment; not a general proposition that a Judge should be made, but that somebody should be appointed to be a Judge— to fill any vacancy unless the Lord Chancellor with the concurrence of the Treasury is satisfied that the state of business in the High Court requires that the vacancy should be filled. That is, not that there should be generally more Judges but that the vacancy, which the appointment is to fill, should be filled. I may be wrong, but that seems to me quite plain that in those circumstances the Treasury is required to concur that a particular appointment should be made.

THE LORD CHANCELLOR

Not of a particular man.

VISCOUNT CECIL OF CHELWOOD

Yes, that is what I read this to mean—that a particular appointment shall be made; and if that is not its meaning then there ought to be words put in to make clear what is the meaning. It is because I dread the possibility of the Treasury being asked to say whether a particular man should be made a Judge or not that I object to the wording as it stands. That is the whole point.

THE LORD CHANCELLOR

May I relieve the noble Viscount? He really is, if he will excuse my saying so, labouring under a delusion. The only person who makes the Judge is the King.

VISCOUNT CECIL OF CHELWOOD

Of course.

THE LORD CHANCELLOR

It is relevant to remember that, because the draftsman had to have it in mind, and the provision is that— … except in the event of the number of such Judges being at any time less than twenty-five His Majesty shall not be advised to make an appointment to fill any vacancy. That is to fill the twenty-sixth, the twenty-seventh, the twenty-ninth, the thirtieth—

VISCOUNT CECIL OF CHELWOOD

Or any one or more.

THE LORD CHANCELLOR

The proviso continues: … His Majesty shall not be advised to make an appointment to fill any vacancy unless the Lord Chancellor with the concurrence of the Treasury is satisfied that the state of business in the High Courts requires that the vacancy should be filled. That proposition, that the state of business in the High Court requires the vacancy to be filled, does not depend upon the selection of any particular individual; yet that is the thing to which the consent of the Treasury has to be given.

VISCOUNT CECIL OF CHELWOOD

It may be so or it may not. You may say the number shall not be increased. That I could understand because that eliminates the question of who shall be appointed, but if you say an appointment shall or shall not be made you surely do make it possible for the Treasury to consider whether in the circumstances that appointment should be made. I cannot doubt that if this Bill were passed in that form and a particular appointment was proposed, the Treasury, following their ordinary procedure, would proceed to examine whether there was a sufficient case for making a Judge and whether that particular man ought to be appointed. It seems to me that is the clear intention, but of course if the Lord Chancellor says definitely that is not the intention, or could not be the intention, then that, to some extent, relieves my anxieties.

THE LORD CHANCELLOR

I wish to relieve my noble friend's anxiety and at the same time I wish to be courteous. I assure him most solemnly that the interpretation which he seeks to put upon the words is one that is not correct.

VISCOUNT SAMUEL

When lawyer meets lawyer then comes a tug-of-war. Sometimes there also comes a confusion of mind. But as a mere layman it certainly seems to me that the Lord Chancellor is right and the noble Viscount is wrong, and that certainly the Treasury have got nothing to do with the matter except to be satisfied that the state of business in the Courts requires additional appointments to the Bench, one or more. If the Lord Chancellor says to the Treasury, "I propose to appoint another Judge and I want your concurrence because the business is congested", the only way in which I think the Treasury could interfere with the particular appointment would be if the Chancellor of the Exchequer were to speak to the Lord Chancellor and say, "Look here, I understand you want to appoint another Judge. I am anxious that my friend Mr. So-and-So should be appointed and I shall not be satisfied that any additional appointment is required unless you appoint him." That, however, would obviously be a dereliction of duty and, if made public, would require at once the resignation of the Chancellor of the Exchequer. Such an eventuality is not merely improbable but in the present state of public affairs, impossible, although no doubt in the eighteenth century or in some other period possibly such action might have been taken.

That brings me to call your Lordships' attention to the fact that one important consideration in this whole matter has been left out of account, and that is the real reason, I take it, why the Treasury are brought into this Bill at all. There has always been for generations past a desire in Parliament to keep a check upon the number of appointments to the Judiciary, which has always been a very valuable form of patronage, and in early generations there was a great temptation to the Governments of the day, who wanted to give positions to supporters of their own, to make additional appointments to the Bench in order to exercise the advantages of patronage. That has been checked by the number of Judges being fixed by Statute, and when the business of the Courts is congested and more Judges have to be appointed, either you have a new Act of Parliament which has had to be passed or else a Resolution passed by both Houses of Parliament. That is the reason for the procedure. Neither of those procedures is very convenient. Therefore in the previous Bill, and in this Bill, the words "concurrence of the Treasury" have been inserted because it has been thought we cannot leave this matter wholly to the Lord Chancellor. We do not know that some Lord Chancellor, at some time or other, might not make unnecessary appointments, when probably there may be too many Judges already and when, if the Judges did not take such long vacations, or if a certain class of business could be relegated to the County Courts instead of the High Courts, it would not be necessary to make those very costly nominations. That, I take it, is the reason for mentioning the concurrence of the Treasury in place of the previous procedure of a Resolution of both Houses of Parliament, and it seems to me quite a reasonable provision.

VISCOUNT CECIL OF CHELWOOD

May I say a word in reply to the noble Viscount who has just spoken? It does appear to me that in the first part of his speech he said I was quite wrong and in the last part that I was quite right, because what he says is that it was clearly necessary to have a check by the Treasury on the appointment of these Judges and that that is the reason why the concurrence of the Treasury has been insisted upon. That is the whole point.

VISCOUNT SAMUEL

On the number of appointments.

VISCOUNT CECIL OF CHELWOOD

You cannot make a man a Judge unless he is within the number and it comes to the same thing in the end. If they have a right to insist on the number then they have a right, and indeed the duty, to consider whether an appointment should be made. And that is what the Bill says, but I do not intend to press my Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR moved, in subsection (4), after "may," to insert "with his consent." The noble and learned Viscount said: I hope my noble friend opposite will deal with me mercifully on this Amendment. It was suggested to me just before the Second Reading that the provision in the Bill for the transfer of a puisne Judge from one Division to another would only be properly applied with the consent of the Judge, and I think that is right. It seems to me that a Judge who has all his life practised let us say at the Chancery Bar, ought not to be removed against his will into another Division dealing with a perfectly different class of business. I must add that I do not think the Amendment I propose really makes any practical difference, because no Lord Chancellor in his senses would ever take a High Court Judge and move him into another Division against his will. It is not likely he would get such good work out of him if he did so, and it would be a very serious breach in the real relations which exist between the Lord Chancellor and his brother Judges. At the same time if anybody feels any anxiety upon the subject it is better to put it beyond doubt. I therefore move to insert in subsection (4) the words "with his consent." I do not think this proposal raises any high constitutional principles, and I hope it may be agreed to without much discussion.

Amendment moved— Page 1, line 22, after ("may") insert ("with the consent")—(The Lord Chancellor)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 agreed to.

Schedule agreed to.