§ 2.34 p.m.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT) had given Notice that he would move to resolve:
§ That this House, while insisting on the constitutional duties of the House of Lords as the Supreme Court of Appeal, in order to facilitate the judicial work of the House during the emergency caused by the building operations now in progress, approves the adoption of the following procedure until such operations are concluded, viz.:
§ That all Petitions of Appeal shall, after presentation to the House, be referred to an Appellate Committee, which shall include persons qualified under Section 5 of the Appellate Jurisdiction Act, 1876, as amended by any subsequent enactment, with an instruction to hear Appeals when and where the Lord Chancellor may determine. Such Committee shall, after the hearing, make a report to the House and upon the Motion for the consideration of the Report, the Lords shall deliver their opinions to the House and the House shall thereupon give judgment.
§ The noble and learned Viscount said: My Lords, I rise to move the first Resolution which stands in my name on the Order Paper. I do so with very great reluctance. This is an illustration of the fact that misfortune sometimes overtakes the most worthy people, and there are few more worthy than your Lordships' House in general, and the official members thereof in particular.
§ The facts are these. As your Lordships well know, we have allowed the other place to use our Chamber and for the time being we find ourselves here. While we find ourselves here, there are 738 in connection with the construction of the new Chamber considerable and elaborate building operations now in progress outside, in order that room may be found for a method of heating the new Chamber. I do not know how far it is inconveniencing your Lordships at present—I hope very little, because the operations have been suspended whilst the House is sitting. But I live on the premises, and I speak rather feelingly about it. I gather, however, that what we are enduring to-day is as nothing compared to what will happen to us in the future. We are being chastised with whips to-day; the scorpions are ahead of us, because the builders are going to start driving piles. I am informed, and verily believe, that when they were driving the piles for Lambeth Bridge, the House then sitting in its old Chamber, found the noise so intolerable that your Lordships asked for the pile driving to be stopped.
§ The trouble about this new building is that this new heating chamber has to be ready by August of 1949. The work is already very much behind date, and it appears not improbable that there will be no heating when the new building is ready. The Minister of Works has been to see me and has impressed upon me the absolute necessity of getting on with the work and spending as much time on it as possible. Though he will withhold operations during those hours in which your Lordships sit here in a legislative capacity, he does ask, in the interests of getting the work completed, that he may be allowed to continue with it during such hours (generally in the mornings) as the House sits in its judicial capacity. I feel that we have no option but to meet his request, so far as we can. I would point out, in parenthesis, that if it means that the House in its legislative capacity is to meet at the time when normally it meets in its judicial capacity nothing would be gained.
That being so, I have put this Motion upon the paper and, if I may, I would ask your Lordships to consider it. The Motion commences in this way:
That this House, while insisting on the constitutional duties of the House of Lords as the Supreme Court of Appeal …
I pause there for a moment. I want your Lordships to remember that the Supreme Court of Appeal is not a particular group of Judges; it is this House itself; and a sitting of the Law Lords (as they are
commonly called), is nothing but a Sitting of the House. It takes place in this Chamber; the Mace is there; and it is very right and very important constitutionally that that principle should be remembered. When this matter was raised some two and a half years ago, I remember asking a question of the late Lord Salisbury—and on matters of this sort, in whatever quarter of the House we sat, we regarded him as the father and the constitutional guardian of our rights and privileges. Speaking in a Committee he said that he regarded it as a matter of the utmost importance that the Judges should be, and should regard themselves as, members of the House. He said that the House had been greatly enriched by the presence of the Judges, and I countered by saying that the Judges had been immensely privileged to be members of this House. If I recall the last few months I can easily give your Lordships illustrations of the way in which we have benefited by the opinions of the Judges expressed here.
§ Let it be said, of course, that the Judges are perfectly entitled to express their opinions on any question which arises. Whether they do so, or whether they do not, on any particularly burning political question, is a matter for their own good sense and good judgment. There is no limitation whatever upon their right to speak. I remember—and I know the noble Viscount, Lord Swinton, will remember—the speech which was made by Lord Simonds on the Companies Bill. I confess that I was so convinced and converted by that speech that I persuaded my colleagues to withdraw a whole clause, and the Bill, as it finally came before your Lordships' House, was radically different in that respect from the Bill which had been introduced. Only recently, on the Criminal Justice Bill, we had contributions from the Judges which, in some respects, if not all, must profoundly affect the discussions which your Lordships' House will have on that measure. Therefore, I, and I am sure all your Lordships, attach the very greatest importance to the preservation of the doctrine that the Judges are members of your Lordships' House in the fullest degree, and that a meeting of the House for judicial business is, in fact, a meeting of the House. From that it 740 follows that if we are habitually to meet in a Committee room, and if we are to continue to meet in that Committee room at the same time as the House is sitting for its legislative business, it may be impossible for the Judges who are taking part in the judicial work to continue to attend your Lordships' House. That will be a great loss to your Lordships, and to the Judges, and I therefore thought it right to emphasise, in my opening words, the constitutional duties of the House of Lords itself as the Supreme Court of Appeal.
In the second sentence I say this—
… in order to facilitate the judicial work of the House during the emergency caused by the building operations now in progress ….
I make it plain, therefore, that this Motion is simply and solely a matter of tiding over an emergency. If, as may well happen from time to time, by reason of rain or other causes, the noise is suspended (as I like to think it will) there is no reason why the proceedings during that time should not, as before, take place in this particular Chamber. But believing as I do that there will be many days on which it will be almost intolerable to sit here and listen to the details of, let me say, an Income Tax case, what time outside the piles are being driven home, we must obviously do something to see that the litigants have their cases heard. I see no other course but for the time being to move to some other convenient place in the Palace of Westminster, and there hear the arguments. By way of illustrating and emphasising the fact that no constitutional departure is involved, I hope to be able—as I propose and intend—when the next Session starts and we resume the hearing of these cases, to preside personally over those of your Lordships who are hearing these cases. It follows, therefore, that I might well have to adjourn, in order to come back and take my seat on the Woolsack when the House meets for its legislative work.
§ That, my Lords, is all I have to say. The proposal is that we shall have some convenient place where, in comparative silence, I hope, these cases can be heard. We shall hear the arguments, but we shall not, of course, deliver any decisions. We shall then adjourn the matter to this House, and in this House, as before, the noble and learned Lords will pronounce 741 their opinions, in order to emphasise the fact in the future, while this temporary emergency lasts, that the decisions are, as in the past, the decisions of your Lordships' House and not of a group or section of the House. It may happen from time to time that the Lords who are hearing a case may decide to continue at some time when this House is sitting in its legislative capacity, the circumstances being such that none of them can possibly be concerned in what is taking place here. It will be for them to decide. As a general rule if any one of their Lordships hearing a case thinks it possible—possible, not probable—that he may be concerned or interested in what is taking place in your Lordships' House, it will be his duty to come here, and therefore the Committee will have to be adjourned.
§ That being so I propose the Resolution standing in my name. It is definitely a temporary solution of a temporary difficulty. I can understand anyone being nervous about it. I hope that the fact that we are taking these steps to meet a temporary emergency will never be used by anyone as a ground for saying that that which has been done temporarily, in view of an emergency, shall become a permanent feature of our Constitution. On that understanding and in that hope I beg to move the first Resolution which stands in my name on the Order Paper.
§ Moved to resolve: That this House, while insisting on the constitutional duties of the House of Lords as the Supreme Court of Appeal, in order to facilitate the judicial work of the House during the emergency caused by the building operations now in progress, approves the adoption of the following procedure until such operations are concluded, viz.:
§ That all appeals shall, on being set down for hearing, be referred to an Appellate Committee, which shall include persons qualified under s. 5 of the Appellate Jurisdiction Act, 1876, as amended by any subsequent enactment, with an instruction to hear the appeals when and where the Lord Chancellor may determine. Such Committee shall, after the hearing, make a report to the House and upon the Motion for the consideration of the Report, the Lords shall deliver their opinions to the House and the House shall thereupon give judgment.—(The Lord Chancellor.)742
§ 2.48 p.m.
§ VISCOUNT SIMON
My Lords, perhaps I may be allowed to say a word or two upon this matter. I would say at once, for myself and, I believe, for others who have some special acquaintance with the judicial work of the House, that I think the proposal of the noble and learned Viscount the Lord Chancellor must be accepted. In view of the facts which he has set before us regarding impending noises just outside, which would make it impossible to hear the arguments and to concentrate upon the question before the House when it is sitting in its judicial capacity, there is nothing to be done for the time being but to move to another room. I confess that I am one of those who—to adopt the Lord Chancellor's own expression—feel a little nervous about this; and I will explain in a few sentences the reason for my anxiety. If, indeed, this is I purely temporary arrangement, as the Lord Chancellor undoubtedly means it to be and as the terms of the Resolution suggest that it should be, very well; it is a practical expedient which we shall have to adopt in a time of difficulty, and nothing else in particular will result. But, of course, it is in itself a remarkable departure from our traditional system, and it does contain within itself the seeds of a possible development which I should greatly deplore.
Your Lordships will forgive me for a moment if I explain how it strikes me. Hitherto, it has always been the case that the House of Lords has discharged its two great functions—one, the function of dealing with public business, whether legislation or discussion of another kind; the other, its judicial function—in the same building, with the one and only Mace on the Woolsack. For convenience, the Lord Chancellor, when he presides over judicial sittings, moves up nearer to the point where counsel stand to argue, but theoretically it is the Woolsack on which he is sitting. Now these two functions of the House are discharged alternatively. They never go on together, at the same time. The whole procedure of the House, when it is acting in a judicial capacity, is the procedure with which all your Lordships are familiar. It begins with Prayers—the Mace being on the Woolsack—and at normal times, more often than not, the Lord Chancellor presides. When a decision is reached, it 743 is put to the vote of the House, and is carried by a majority. The day's work ends with the moving of the Adjournment. It is an operation of the House. Incidentally, it is an operation which any member of your Lordships' House is at liberty at least to attend. I believe there have been one or two cases where members of your Lordships' House who are not usually regarded as learned in the law have wished to offer a few observations, but by the general good sense of this Assembly they have been suitably suppressed.
But the fact is, as I say, that the judicial work is part of the work of this House. The reason why that is important—I am glad that my noble and learned friend the Lord Chancellor emphasised this, and I am sure he will excuse me if I do so too—is that the Lord Chancellor himself is the President of this Assembly, in whichever capacity it is acting. Consequently, these two different functions cannot go on at the same time. The Law Lords, who are most valued members of this House for every purpose, are, of course, specially appointed and specially paid in order that they may be members of this Supreme Judicial Tribunal. Of course, they can constitute the Tribunal—as they often do—without any other member being present, but often the Lord Chancellor himself presides. When he does not, an ex-Lord Chancellor, for what he may be worth, is available, and in some cases devotes a great deal of time to taking the Lord Chancellor's place for that particular purpose. If we were to drift into a system by which we allowed these two functions to continue side by side, I believe that in time the position of the Lord Chancellor would be most seriously prejudiced, because it would mean that he could not take part in judicial work.
We were all delighted to hear the noble and learned Viscount on the Woolsack say just now that he hoped in the period which is now approaching to be able to take more opportunities of dealing with judicial business himself. I do not in the least reproach the noble and learned Viscount. The reason he has not been available as frequently as some Lord Chancellors—to speak quite frankly—is because his colleagues in the Cabinet find him so invaluable a member that they are constantly calling upon his assistance, and 744 because they find he is so admirable an exponent of the policy which they advance, whether he is entirely in favour of it or not. For the moment those who are concerned with getting correct decisions on judicial appeals are often deprived of his guidance and leadership. When we think of how this double ròle was fulfilled by Lord Brougham or by Lord Lyndhurst or, to come to more modern times, by Lord Haldane or Lord Birkenhead, it is quite manifest how important it is that the Chancellor's position should be a dual one. If we can keep it as a dual position, as I think it ought to be, and insist that this is a purely temporary arrangement and that we must return to the principle that for both functions the House must live and work in the same place, I have no sort of regret that we should carry out this proposal. Indeed, as the noble and learned Viscount said, as a practical matter it is quite inevitable.
I was glad indeed to hear the noble and learned Viscount say firmly that he, for one, is quite determined that this temporary change shall not affect the resumption of our ordinary procedure. This is really an important matter. It perhaps affects ex-Lord Chancellors more than anybody else. Consequently I have to ask myself where I shall be if these two functions are conducted side by side. It was an Irish Member of the House of Commons who said long ago that, not being a bird, he could not be in two places at once. I suffer from the same disadvantage. It seems to me most important to insist that this is a purely temporary arrangement to meet a special emergency, and that it is not the beginning, and is not to be used as the beginning, of a change which I think would most seriously prejudice the true functions and conduct of your Lordships' House.
§ 2.55 p.m.
My Lords, as a Deputy Chairman of Committees I should like to support this Motion. I think it is an admirable illustration of the flexibility of the British system in general and of your Lordships' House in particular. If we are to get on with the work before the House, we must make some provision to meet the present difficulties. The proposal now before your Lordships is not entirely without precedent, for on many occasions since the House has 745 met at 2.30 p.m., a Select Committee has continued to sit while the House has been in session here. There is only one point which I think your Lordships ought to keep in mind. This Court of Parliament in your Lordships' House is the oldest existing court in the world. Not even that of the Vatican is older. It has continued, more or less in its present state, for the last 600 years, and probably for a great deal longer. It is most important that nothing should be done which could in any way contravene the ancient and important rôle that it plays in the Constitution. From what the noble and learned Viscount on the Woolsack has said, I am satisfied that the traditions of the House, which are in his keeping and in the keeping of the learned Clerk of the Parliaments, who knows so much about this, will be adequately safeguarded.
§ 2.55 p.m.
§ VISCOUNT HAILSHAM
My Lords, as an ex-Lord Chancellor I should like to add one word. I quite agree with the noble and learned Viscount the Lord Chancellor when he says it is inevitable that we should adopt this procedure, but I should like to put in a word of caution. I noticed that he said the Committee might be sitting simultaneously with this House. I do not think that is desirable or necessary. He said that any Law Lord who desired to attend in this House when the Committee were sitting would be at liberty to postulate that, and to ask the Committee not to sit. I would go further, and say that there should be no sitting of the Judicial Committee when the House is sitting, because it is important to maintain the fiction, so to speak, that the Committee are this House, sitting in Committee. I do not like the suggestion (it did not appear in the noble and learned Viscount's Motion but it did appear in his speech) that the Committee might be constituted simultaneously with the House and might continue sitting, notwithstanding the meeting of the House. If that be conceded, then I shall have no further objection. I have great reluctance in agreeing to it, because, as the noble and learned Viscount on the Woolsack and my noble and learned friend Lord Simon said, I think it is opening a door which might easily be forced.
§ 2.57 p.m.
§ VISCOUNT MAUGHAM
My Lords, to my mind the Motion before the House is 746 one which must be approved. The step that is being taken is inevitable. I would add only that, in my opinion, this Motion does not result in any constitutional change whatsoever. What will happen is that the Committee will be appointed; and before the Committee certain legal arguments will be exchanged between counsel and the noble Lords who sit on the Committee—and sometimes between noble Lords themselves, because differences of opinion have been known. When opinion has been given in that place, which will not be the House of Lords, the matter will then return to the real Tribunal, the most ancient Court that is known in the world, as my noble friend has said, where the really technical legal business will be discharged by a Motion that the appeal be allowed or varied or dismissed. So there is really no constitutional change. I see no reason to doubt that when building operations are over we shall all return to our old places and once more be comparatively happy.
§ 3.1 p.m.
§ THE LORD CHANCELLOR
My Lords, I thank your Lordships for the way in which this Motion has been received. Perhaps I may remind you that this Order is for the present Session only. When the next Session begins, the Order will, of course, come up again for renewal, and in the light of the experience we have gained in the meantime we shall decide what to do about it. I hesitated to refer to my own position. I feel great regret that I am not able at the present time to devote as much time to my judicial work as used to be the case. I believe it to be of the greatest importance that the Lord Chancellor should be able to give a considerable part of his time to judicial work. By far the most important task he has to perform—I think it is as important a function as any Minister has to perform—is to select the Judges. I am quite certain he cannot do that efficiently unless he is kept in close touch with the Bar and hears cases argued from time to time. Therefore, if I have been unable to do it (and I have not been able to do as much as I should like), it is not that the spirit is not willing; it is, unfortunately, that the flesh, is weak and that, like the bird to which the noble and learned 747 Viscount, Lord Simon, referred, I cannot be in two places at once.
§ On Question, Motion agreed to, and ordered accordingly.