HL Deb 01 November 1950 vol 169 cc19-25

2.44 p.m.

THE LORD CHANCELLOR (VIS-COUNT JOWITT) rose to move, That this House, in discharge of its constitutional duty to act as the ultimate appellate tribunal in appeals from Eng-land, Scotland and Northern Ireland, orders that a Committee, which shall include all Lords qualified under Section 5 of the Appellate Jurisdiction Act, 1876, as amended by any subsequent enactment, be appointed to hear, during the present Session, such Appeals as may be referred to them in order to secure the due expedition of Public and Judicial Business; and that the Committee have leave to report to the House from time to time. The noble and learned Viscount said: My Lords, I rise to move the Motion which stands in my name on the Order Paper. This is the fourth time that I have moved this Motion, but the circumstances in which I am moving it to-day are rather different from those which prevailed on the previous occasions.

As your Lordships will remember, in the old days before the war this House used to meet at four o'clock or a quarter-past four for the conduct of its Legislative Business, and that left the Chamber free during the course of the day for the con-duct of the Judicial Business. Since the war, for reasons which we well under-stand, the House in its legislative capacity —at any rate on Tuesdays and Wednesdays, and sometimes on Thursdays—is meeting at half-past two. That has given rise to very considerable difficulty. I am quite satisfied—and in this I think I carry with me all those who have the conduct of judicial work as members of your Lordships' House—that it is impossible to do justice to the cases which come before us if we have to try them in bits and pieces, half a day on Tuesday, half a day on Wednesday and sometimes half a day on Thursday. This is an exception to the normal rule that two halves are equal to one whole, because when one day's work is finished it is necessary for those concerned to start again the next day by reminding the court of what has happened the day before.

What is to be done? On previous occasions when I have moved a Motion on this matter, I was able to tell your Lordships that it was inevitable, owing to the fact that great noise would be occasioned by building work which was in progress. I pointed out that we could not tolerate that noise while we were sitting in our legislative capacity, and that consequently we must allow the authorities to make their noise for the rest of the time—that is to say, when we should have been sitting in our judicial capacity. The plan we devised, there-fore, was this. We set up an Appellate Committee to whom all cases have been automatically referred. In due course, that Committee deliver on the Floor of the House the judgment to which they have come as a result of hearing the argument in the Committee upstairs, thereby ensuring that the old system by which this House is itself the supreme Tribunal is adhered to.

I must be candid with your Lordships and tell you quite frankly that at the present time I cannot make any such excuse. I am assured by the Ministry of Works that, notwithstanding the repairs which are to be carried out to this Chamber, complete silence will reign throughout the Palace of Westminster. I confess that I am exceedingly sceptical about that assurance, because I know full well that if you tap a waterpipe anywhere in this Palace the noise reverberates throughout the whole building. I should be quite wrong, however, in view of the information that I have had given to me, if I were any longer to put my case on the ground of noise of building operations. This raises a very important question, which really comes to this: Are we or are we rot to resume the old habit whereby we started our proceedings at four o'clock or thereabouts? If so, then this Chamber—be it this Chamber or the other Chamber—will be available in the course of the day for our judicial work. If not, it seems to me inevitable that we shall have to go on with the present arrangement, whereby we have an Appellate Committee sitting in a room upstairs.

The noble Marquess, the father of the present noble Marquess who leads the Opposition—to whose opinion in these matters we all pay great weight—was most insistent that this House derived great benefit from the fact that the Lords of Appeal in Ordinary were members of this House; and, equally, I may say that the Lords of Appeal in Ordinary, in their turn, have derived great benefit from being members of this House. There have been occasions, your Lordships will remember, when we have been swayed to no small extent by the opinion which the noble and learned Lords have given in this House.

I am not asking your Lordships to come to any final decision on this matter now. It seems to me obvious that this is a matter which the noble Viscount the Leader of the House must consider, in conjunction with the noble Marquess the Leader of the Opposition and the noble Viscount the Leader of the Liberal Party. It is a matter to which I think they must now face up; and it is for them to decide what is the right thing to do and what best accords with the general wishes of the House. This Motion is designed to be of a temporary character only. I think we should be wise in this matter not to act precipitately, and therefore in moving the Motion which stands in my name I wish to make it quite plain that I do not anticipate that this arrangement, whatever conclusion your Lordships may reach, will last indefinitely. As I have said, I believe that the time has now arrived when this matter must be considered by the leaders of the various Parties in this House, in order that they may best express the wishes of the majority of the House and have due regard to Public Business. Let it not be forgotten that the Public Business which we are performing in our legislative capacity is of very great importance, and we must see that proper time is given to carry that out. I beg to move the Motion standing in my name, at the same time commending this matter to your Lord-ships as one which needs consideration.

Moved, That this House, in discharge of its constitutional duty to act as the ultimate appellate tribunal in appeals from England, Scotland and Northern Ireland, orders that a Committee, which shall include all Lords qualified under Section 5 of the Appellate Jurisdiction Act, 1876, as amended by any subsequent enactment, be appointed to hear, during the present Session, such appeals as may be referred to them in order to secure the due expedition of Public and Judicial Business; and that the Committee have leave to report to the House from time to time.—(The Lord Chancellor.)

2.50 p.m.

VISCOUNT SIMON

My Lords, as I was the predecessor of the noble and learned Viscount the Lord Chancellor in the office which he now holds, and as this difficult question first arose in my time. I think I ought to rise to say that at the present time, in my opinion, no other course than that which the Lord Chancellor has just explained is open to us. I happened to come in at rather the intermediate period. Before the days when I had the responsibility on the Woolsack, the normal practice, as the Lord Chancellor has said, was for appeals to this House in its judicial capacity to start in the mornings at 10.30 and to continue till four o'clock or perhaps a quarter to four. Then the House resumed in its other capacity, and the Lord Chancellor presided over our deliberations as a political and legislative Assembly. That is where the plan is possibly, for a reason I shall indicate in a moment, a very good one.

Historically, however, I think it will be found that all this difficulty had its origin in the black-out. During the early days of the last war, when there was a black-out, and especially in the winter, there was a general feeling here that for legislative purposes the House ought to meet earlier in the afternoon. That has now become so habitual that I think most of your Lordships would find it a considerable strain to postpone our meetings to a later hour. Associated with that was the development of the services of the House of Lords restaurant. I fancy that in the days of rationing the wives of some of your Lordships found it not inconvenient to turn their husbands out to get the luncheon which is there provided, rather than have to consider rations, points and all the rest of the problem and feed them at home. Any-how, these customs grow quickly. It is quite clear to me, and to most of your Lordships, that it will not be easy to find a way of getting back to the old system, though I am glad that the Lord Chancellor has indicated that what he is now proposing is itself only of an interim and temporary character.

The noble and learned Viscount has mentioned one reason why there may be cause for regret if the judicial work of the House of Lords is carried on at the same time that your Lordships are sitting here for Public and Legislative Business. But I think there is a second reason that ought also to be mentioned. The first reason, one that the Lord Chancellor did mention, is of much importance. The Law Lords who give their skilled services to the community in the highest Tribunal are, of course, primarily engaged in their judicial work; and if. as I think is probably the case at this moment, the Appellate Committee are sitting with five Law Lords, it follows necessarily that because those members of this House— and of course they are just as much members of this House as anybody else is— cannot be in two places at once, then to a large extent they cease to be available, at any rate in full measure, for our other Business. Whilst it is a good tradition that a Law Lord should not, because he is a member of the House of Lords, take part in political controversy, no one who has had experience of this House will doubt that it was a great advantage from time to time to have the presence here of a Law Lord when debate was in progress. In many cases these noble and learned Lords have made what I think we shall all agree have been valuable contributions. That situation we are, to some extent, forfeiting for the time being, and I shall regret it if it is permanent.

There is, however, a second reason which I must beg leave to mention, and which I believe is even more important. The result of the arrangement which we are for the time being carrying on is that the Lord Chancellor of the day is hardly ever able to sit and preside over the Judicial Business of the House. I know very well that my noble and learned friend on the Woolsack does the best he can. The moment that your Lordships adjourn, even for a few days, my noble and learned friend finds some appeal and presides over it, because for the moment he is free at half-past two to do it. In ordinary circumstances, of course, he is not free, for, like other people, he cannot be in two places at once. Therefore, we are in danger of getting into a new system under which the Lord Chancellor, who is the head of the law, the man who appoints the judges, the man who is the natural contact between the Government on the one hand and the administration of justice on the other, is unable—not disqualified but unable—to sit and to preside over appeals to this House.

I must say that I regard this as a serious matter. Of course, Lord Chancellors like Lord Haldane, Lord Herschell, Lord Halsbury or Lord Hailsham constantly carried out both duties; and, for what it was worth, in my time I did my utmost to undertake both, though I could not do so much as my predecessors had done. But not until we consider its full implication in our constitutional development shall we appreciate that this decision, which sounds as though it were a mere decision of procedure taken merely to meet the convenience of the moment, has implicit in it quite possibly serious consequences. I mention that point now only because I think it should be in our minds. As I say, I do not think it is possible at present to take any other view than that which the Lord Chancellor has so candidly put before us. Therefore I trust that we shall accept his Motion.

On Question, Motion agreed to.