§ Lord Wharncliffe
rose to call their Lordships' attention to the Commons' Reasons for "disagreeing to one of the Amendments made by their Lordships in the above Bill." The Bill as it came from the Commons gave the appointment to certain offices in the Courts of Law to the Lord Lieutenant. Their Lordships had altered that Clause, and placed their patronage 1945 in the hands of the Judges of those Courts. The objection of the Commons to the Amendment was, that so far as the records relative to these appointments were extant, or could be traced, the patronage to these offices appeared to have been vested in the Lord Lieutenant of Ireland. He was of opinion, that the patronage should still, according to ancient usage, be continued in the Lord Lieutenant; and therefore he should move that their Lordships do not insist on their Amendment to this Bill.
The Lord Chancellor
said, he could see no reason whatever for departing from the opinion which he had formerly expressed on this subject. He would state to their Lordships what was the position of this question. There was no doubt, that by the Common Law of England and Ireland, the appointment of these ministerial offices was in the Judges. No one, he conceived, could controvert that proposition. He would admit, however, that the Common Law might in this, as in other respects, be controlled by prescription. But prescription in Ireland, except with reference to certain offices, was the same as in England. The case of Chief Baron O'Grady, of the Court of Exchequer in Ireland, was illustrative of this point. The question there turned entirely on prescription. Prescription was there opposed to the claim set up at Common Law, and the decision was against the Chief Baron, that which he resisted being justified by prescription. But many cases could be cited to prove that the Common Law gave to certain officers the appointment to particular situations. Thus, at a long antecedent period, when the Crown claimed the right to appoint to certain offices which had been ordinarily disposed of by the custos rotulorum, it was held that, by the Common Law, the appointment was vested in that officer, and the decision was against the Crown. Now, with respect to the present case. By the 1st of George IV. all these sinecure offices were abolished as nuisances, and compensation was granted to the parties holding them. New offices, of an efficient description, were created—duties were attached to those offices, for which working men were required; and, unless a specific Clause had been introduced into the Act of Parliament depriving the Judges of the right to nominate persons to those offices, they would have possessed that right. Now, he would say that it was 1946 most improper to introduce such a Clause. What was the mode adopted here, under similar circumstances? What was done here, when a similar reform was made? Why, the Common Law was allowed to take its course, and the appointment of offices in the respective Courts was left to the Judges. Nothing could be more proper or reasonable. The Judges had a right to appoint their own officers, who drew up their own proceedings—who registered their own acts—for which the Judges were alone responsible. Now, what was the case with respect to Ireland? The 1st of George IV. abolished these useless offices. New offices were created—new officers were appointed—new salaries were granted—and a different description of duties was marked out. If the Act had stopped here, the appointment of officers would have rested with the Judges; but, by an express Clause, that power was taken away from the Judges. That was not the course taken in the English case; and, by adopting such a principle, they would be putting the Judges of Ireland on a different footing from the Judges of England. Such a proceeding he viewed as unwise, as unjust, as degrading towards the Judges of Ireland. But it was argued that these appointments formed part of the patronage of the Lord Lieutenant of Ireland; and what was this mighty patronage that was so strongly contended for? Why, if a Lord Lieutenant was so fortunate as to hold that office for ten or fifteen years he might chance to have the appointment of one single individual as Master, with a salary of 1,000l. a-year, for the performance of most laborious duties. Such was the patronage claimed for the Lord Lieutenant. It was to secure such patronage as this that the Irish Judges were to be placed on a different footing from the Judges of England. It would be most unwise and unjust to place the Irish Judges on a different footing from those of England. There ought to be no disparity between them; and such an uncalled for distinction would certainly be looked on as an insult to Ireland. He was certain that those venerable and learned men, the Judges of Ireland, did not care for their patronage of these offices; but they must feel sensibly the distinction that was sought to be made, because it evidently threw a slur upon them; and, knowing the respect that was due to themselves, they could not, without the greatest dissatisfaction, 1947 see themselves placed on a footing inferior to that of the Judges of this country. On these grounds he justified his adherence to the opinions which he had formerly stated. He was sorry to dissent on this occasion from his noble Friend, for whose abilities he entertained the greatest respect. But nothing which he had heard from his noble Friend had shaken his opinion; and, therefore, he felt it to be his duty to vote against his noble Friend's proposition.
said, he had moved the Amendment which had been objected to; and therefore, though his noble and learned Friend on the Woolsack had advanced arguments in favour that were conclusive, he wished to offer a few observations on the subject. A Bill relative to these sinecures had been laid on the Table of the House of Commons two Sessions ago by Lord Eliot. The Bill contained a Clause giving the patronage of certain offices in the Courts to the Judges. That measure had been delayed, why he knew not; and had been at length abandoned. The Bill then before them was introduced in the present Session; but the Irish Judges had never been consulted about it. Not one of them had been asked what course it would be proper to take with reference to his own Court or with regard to public good. In that Bill a Clause was introduced giving the patronage of these offices to the Lord Lieutenant of Ireland. Deeming the Bill highly objectionable in the form in which it stood, he had prepared an Amendment, which he brought before the notice of their Lordships whilst the Bill was in the Committee. The noble Lord the President of the Council, who was present, had requested him, in his place and openly,—for he was not stating anything that had taken place privately in the matter,—to delay his Amendment for a day or two, whilst he cousulted his Colleagues respecting its insertion, and accordingly the further consideration of the Bill and the Amendment was put off for two or three days, during which interval he felt morally, though he could not say he was possitively, certain the noble Lord had consulted his Colleagues and obtained their consent to his Amendment; for, on the reconsideration of the measure, it was adopted, as he had already stated unanimously. The noble Lord now proposed to strike out his Amendment, and to restore the Bill to its original state, and he 1948 gave a jobbing reason. [Lord Wharncliffe: The reasons are not mine, but those of the Commons.] Aye, but the noble Lord had adopted those reasons as his own, and had urged them on their Lordships' attention. He therefore repeated that the noble Lord gave a jobbing reason for his proceedings, and stated that his Motion was in order to let the Lord Lieutenant have some patronage at his disposal. Now he had consulted with two noble Lords, Members of that House, who had held the distinguished post of Lord Lieutenant, with respect to the propriety of his views, and both those noble Lords—he alluded to his noble Friend the Marquess of Normanby, and to another noble Friend, Earl Fortescue—and they unanimously came to the conclusion that the patronage in question ought to be the gift of the Judges. Those noble Lords were neither of them present in order to support those views with their votes, or they would most certainly have done so; they were absent under the supposition, no doubt, that the Amendment in the Bill by which their views were realized having been carried unanimously, there would be no further question about it. A noble Lord also, a late Lord Chancellor (Lord Cottenham), who, he regretted to observe, was not in his place, had also supported his Amendment, and had expressed his satisfaction with it. He trusted, therefore, their Lordships would not depart from the dignified course which they had already pursued towards the Judges of Ireland, but that having once unanimously assented to the maintenance of the rights and privileges of that venerable and upright body of men, they would persevere in that course, and they would, he hoped, listen to the advice, he would not say obey the mandate, of the noble and learned Lord who presided on the Woolsack, whose Counsels were always so valuable in his estimation, that if he had expressed his disapprobation of any measure which he (Lord Campbell) had brought forward, and say that it ought to be thrown out, he should acquiesce implicitly in such an opinion. He hoped their Lordships would persist in adhering to the Amendment which they had so unanimously adopted.
The Earl of Wicklow
said, that the Lord Chancellor was the responsible Law Officer of the Crown in their Lordships' House; and it was by his advice and opinion that their Lordships ought to be 1949 guided in respect of Bills such as that under discussion: indeed, he strongly felt that their Lordships were in a manner bound to act in the way that the noble and learned Lord had expressed it to be his intention to proceed with regard to the Amendment, and to persist in maintaining it against the Commons' House. At all events, he hoped their Lordships would not suffer the objects which that Amendment was calculated to effect to be defeated by the extraordinary conduct which had been resorted to for that purpose. The noble Lord the President of the Council had urged in defence of the alteration made in the Bill, that it was the act of the House of Commons, and that that House had deliberately persisted in it upon a conference being had with them on this point. He wished to speak with all due respect of the House of Commons; but of what was the House of Commons composed at that period of the Session? Why, literally speaking, the House of Commons at the present moment consisted of a few hangers-on of the Government, who were merely kept together for the purpose of enabling the remaining business of the Session to be gone through. What was the other reason assigned by the noble Lord, the President of the Council, for assenting to the omission of the Amendment? Why, that some patronage ought to be at the disposal of the Lord Lieutenant of Ireland; and, in order to do this, the noble Lord called upon them to rob the Judges in Ireland of a right which was theirs by Common Law, in order to bestow it upon the Lord Lieutenant. He felt excessively sorry, that on the last day of the Session, Her Majesty's Ministers were found in their places advocating principles which could not fail to be offensive to Ireland and her people; and that was the mode in which the noble and learned Lord on the Woolsack had stated the question to their Lordships. The noble and learned Lord had stated truly, that anything which showed distrust or suspicion, or by which contumely was thrown upon the Judges of Ireland, must be offensive to the people of that country. That was the way the noble and learned Lord had put the case. The whole Bar of Ireland had expressed their feelings on the subject of the Amendment. He had received a letter himself from the learned Chief Justice of the Common Pleas on the subject, and other noble Lords had received communications 1950 relative to the same matter from several learned Judges: and what did they all say? They unanimously expressed not only a wish that the Bill should remain in the state in which it was after the Amendment of the noble and learned Lord opposite had been introduced, but they also slated that not one of them had been consulted as to their wishes on the subject by the Government. He trusted, therefore, under these circumstances, that their Lordships would persist in their Amendment. The result of that course would doubtless be that the Bill would fall to the ground. It had already been before the Legislature during two successive Sessions, and the only effect of this delay would be that when the Government brought it forward again in the ensuing Session, the Irish Members would be prepared to express their sentiments on the subject, and to protect the rights and privileges of their Judges. Their Lordships were arrived at the last period of the Session, and he called upon them to maintain, in their last act of legislation, a fair and equitable dealing towards the Irish people, and not to cast an insult upon their Judges by placing them upon a different footing to that which was insured to the Judges of England.
The Earl of Haddington
said, that if any stranger had entered the House without being previously aware of the exact question before their Lordships, he would have supposed that they were debating some one of the great vital topics which struck home to the hearts of the people of Ireland, and that, in short, their Lordships were discussing the "justice to Ireland" question. Now, what was the subject under consideration? and, notwithstanding the ad captandum arguments that had been addressed to their Lordships, did the people of Ireland, he would ask, care one farthing respecting the matter? The question was, whether certain patronage now in the gift of the Irish Judges should remain at their disposal or be transferred to the Lord Lieutenant of Ireland. That was the question, and he would confidently ask their Lordships if the people of Ireland could by any possibility ever attach any nationality to such a subject of debate, or consider it as of the slightest importance to them, generally speaking. The Amendment under consideration did not originate with the Government, but was proposed by, and adopted 1951 at the suggestion of, the noble and learned Lord opposite, who had conceived such a sudden regard and respect for his noble and learned Friend on the Woolsack.
protested that he had always entertained a high respect for the noble and learned Lord.
The Earl of Haddington
The noble and learned Lord on the Woolsack, however had not considered it necessary to introduce any Amendment into the Bill, or he would have done so. Besides if the Judges in Ireland were so dissatisfied with the Bill, why had they not complained to the Government?
The Earl of Wicklow
Because the only part of the Bill to which they objected was altered when the Amendment of the noble Lord (Campbell) was carried.
The Earl of Haddington
That was very true, but why did they not, when the Bill was introduced as it originally stood, protest against it if they considered themselves so much insulted or aggrieved by any particular Clause. The fact was, the office of Lord Lieutenant of Ireland had very little patronage attached to it, and this was felt to be an inconvenience. The Bill proposed to remedy it in some degree—and the question was, how the patronage conferred upon the Lord Lieutenant could be disposed of by him. That functionary was in a very responsible position. He was watched most narrowly by the Irish people, and though the duties of his position never called upon him for any very active exercise of power, he was still considered as responsible for the acts of the subordinates of Government, and was consequently very much in the eye of the public. He therefore would defy any Lord Lieutenant to make an appointment under the present Bill which should be an unfit one. He did not mean by this to deny the fitness of the Judges to make the appointments in question, but he merely meant to assert the propriety of vesting the power to make them in the Lord Lieutenant. He should vote against the Motion of his noble and learned Friend on the Woolsack with great reluctance: but the Bill was in his opinion a good Bill; it saved the country 18,000l, a-year, and he must therefore do so. If their Lordships chose to act upon the advice tendered to them by the noble and learned Lord, and to disagree with the Amendments of 1952 the Commons, the Bill would be lost. Now as the Bill was a good Bill, and as it was calculated to effect a great saving besides many useful objects, he should, though very unwillingly vote against the Motion of the noble and learned Lord on the Woolsack.
The Marquess of Clanricarde
said, that the conduct of the Government upon this measure was marked by considerable vacillation and indecision. The noble Lord the President of the Council had first consulted his colleagues respecting the Amendment of the noble and learned Lord near him (Lord Campbell) and then had permitted it to be inserted in the Bill. When the Bill came up from the Commons both the noble Lord and the noble Earl (Haddington) opposite had declared the difference of opinion in it between their Lordships' House and the Commons' House to be unimportant; and yet, after consulting their Colleagues again, they came to a contrary conclusion and determine upon persisting in the Commons' Amendment, though the noble and learned Lord on the Woolsack had expressly stated that the result would be injurious to the Judges of Ireland. The decision of their Lordships on this point would be narrowly observed. He hoped they would not offer so grave an insult to the Judges of Ireland, as the Bill would convey, merely for the purpose of claiming a share of patronage for the Lord Lieutenant. He took the course which he was then pursuing simply on that ground. He had received in common with other noble Lords a letter from Lord Chief Justice Doherty, who had expressed his sentiments strongly against the proceeding. The noble and learned Lord on the Woolsack had said truly, that though the patronage ought to be given to the Judges by the present Bill, he would not put their claim to it on that footing, but would assert it to be theirs by virtue of the Common Law, and the noble and learned Lord had also very justly stated that the question was one affecting the dignity of the Judges of Ireland. It was in order that they might not be subjected to a great and serious slight that the Judges had claimed the patronage, and he still hoped the Government would bear in mind the precedent that had been established by the practice in the English Courts, and not show the people of Ireland that they would not hesitate to cast a slur upon their Judges, if by so doing they 1953 would secure a share of patronage to the Lord Lieutenant.
§ Their Lordships divided on Question, whether to insist?—Content 13; Not-Content 22: Majority 9.