HL Deb 06 July 1871 vol 207 cc1203-15

Adjourned debate on the Amendment moved on Report—[which Amendment was, in Clause 1 (Appointment of additional Members of the Judicial Committee), leave out from ("salary") to ("and") in page 2, line 1]—resumed (according to Order).


said, their Lordships were now proposing very wisely to make a selection from the existing Judges of the Superior Courts, and to offer to them a position of paid members of the Judicial Committee of the Privy Council; but in order to demand the services of those whose services it would be most desirable to have, it seemed to him that their Lordships must be enabled to offer to them an appointment equal in respect of duration and salary to that which they now held. It was for that purpose he had moved the Amendment now before their Lordships.


said, the noble and learned Lord's Amendment pointed to a difficulty; but he thought that with a slight modification it might be adapted to meet his noble and learned Friend's views. In a Bill of this kind, framed for the purpose of meeting an immediate emergency, it would scarcely be right that it should provide for the assistance of those four learned Judges without their being members of the Privy Council. Position in this case was of much more importance than salary. It would surely not be right to make a disparaging difference between those Judges and the other members of the Privy Council. The Amendment of the noble and learned Lord proposed that, although the Judges might be removed from the Privy Council by the Crown, they could not be deprived of the office to which they had been appointed. This would produce an anomaly, for, according to the words of the Amendment, it appeared that, after the removal of one of the Judges from the Privy Council, in which case he could not act, he would receive his salary for nothing, unless it were stopped by a concurrent Vote of the two Houses of Parliament. The Amendment might be altered so as to provide that— Every such person shall, so long as he shall continue to be a Privy Councillor acting under this Act, but no longer, have the same title to continue to receive the salary hereby provided for him as if he were a Judge of one of the Superior Courts holding office during good behaviour, but removable by Her Majesty upon Address of both Houses of Parliament.


pointed out that the Judges to be appointed under this Bill would occupy a totally different position from that held by the other Privy Councillors. The proposal of the noble and learned Lord on the Woolsack, if adopted, would place those Judges on a lower footing than that occupied by the Judges of the most inferior Court in the kingdom, because they would then be removable by a mere stroke of the pen.


said, this was professedly a temporary Bill, introduced to meet an emergency until the Legislature should be enabled to pass a measure regulating the whole course of the appellate tribunals, and its object was to leave the Judicial Committee of the Privy Council very much as it stood, but with the addition of certain members to be appointed at certain salaries. It would not be difficult to find qualified persons to accept that position without interfering with the rights of the Crown in respect to Privy Councillors; and he hoped the point now at issue would be arranged without the necessity of going to a division.


said, he had no doubt that if the terms held out were even less advantageous than they were there would be no difficulty in obtaining persons to take these appointments. The only question was whether they would secure the services of the best men. The difference, however, between the words which he himself proposed and those proposed by the noble and learned Lord on the Woolsack was not such as to induce him to press for a division.

Amendment amended, and agreed to.


proposed an Amendment, with a view to render the Irish and Scotch Judges eligible, as well as their English brethren, to hold the appointments contemplated by that Bill. It was an undeserved slight upon those Judges to omit them from the measure. He therefore moved, in page 1, line 10, after ("Westminster") to insert ("or Dublin or Edinburgh.")


assured the noble Marquess that no slight was intended upon either the Scotch or the Irish Bar. He had only to remind their Lordships that this was but a temporary measure, framed for the removal of the accumulated appeals which now clogged the cars of justice. The noble Marquess's proposition would properly come under consideration when the general measure of law reform was brought forward. The Bill followed, as much as possible, the present formation of the Judicial Committee; but the whole question would remain open for future consideration, when it would be competent for their Lordships to introduce such changes as had been suggested. The Bill was brought in to meet a pressing emergency which would arise in November when the Committee renewed its sittings after the Long Vacation, and consequently it was thought necessary to ask for the assistance of the Judges. He hoped the noble Marquess would not press his Amendment.


rose to call the attention of their Lordships to a point of Order. The Amendment of the noble Marquess could not now be put, as it referred to a part of the clause which had just been amended. It could not now be moved until the third reading.


said, he would withdraw the Amendment.

Amendment (by leave of the House) withdrawn.

Amendment made, in page 2, line 9, leave out from ("him") to ("a") in line 10.

Amendment made, in page 2, line 19, after ("determine") insert ("it shall be the duty of every person appointed to act as a paid member of the Judicial Committee under this Act to attend the sittings of the said Committee when summoned thereto unless he shall be prevented by reasonable cause; and every such person shall, so long as he shall continue to be a privy councillor, acting under this Act, but no longer, have the same titie to continue to receive the salary hereby provided for him as if he were a judge of one of the superior courts holding office during good behaviour but removable by Her Majesty upon an address of both Houses of Parliament.")

Clause 2 (Continuous sittings of and attendance of Members of the Judicial Committee).


said, he objected to this clause, and he should take the opinion of the House on it. The Bill was said to be introduced for a temporary purpose, yet if this clause were carried it would alter the whole constitution of the Committee in a manner which in many cases would be most prejudicial. The Lord President derived his position and authority in the Council from the will of the Sovereign, and not from Parliament, and the power therefore proposed to be given to the Lord President resided, in the Crown, and could be exercised by the Crown. It was unnecessary to create a power that existed at the present time. His second objection to the clause was that it would give power to the Lord President to summon not only the paid, but the unpaid members of the Judicial Committee, and to compel their attendance. A third objection was that the existence of such a power would give occasion to a suspicion—which already existed in a certain degree, though without any ground whatever—that in a certain special class of cases those members only might be summoned whose opinions were known to tend in a certain direction—in short, that the Committee would be "packed."


said, he understood the clause proposed to give to the Judicial Committee of the Privy Council the same power that was enjoyed by every tribunal, of making rules and regulations for the disposal of its own business, and therefore he suggested that it should be done by the Lord President with the consent of the Crown—that was by the Queen in Council affirming them. He admitted that many persons interested in ecclesiastical cases might be under the impression that by the power of issuing summons for the attendance of particular members for a particular class of cases, a Committee holding particular views might be brought together. He had made a suggestion on a former occasion that the Queen in Council should draw up a rota for the attendance of the members, so that no suspicion could arise that particular members were summoned to deal with a particular case. He thought that the clause might be altered on the third reading.


said, that as he read the clause it was proposed that Parliament should give authority to the Queen in Council to manage the business of her own Council. That would be an unseemly proceeding, and it would be better to let the law remain as it was. The best course would be to omit the clause altogether.


said, it had not been the practice of the Judicial Committee of the Privy Council to act under any general orders, but to sit in a desultory way, according to the convenience of the members. Now, however, that it was proposed to appoint paid Judges to sit on the Judicial Committee, he thought it would be well that a regular table of sittings should be drawn up, in a manner somewhat similar to that adopted for regulating the sittings of the Superior Courts. Unless some such course were adopted, there would be some risk that the scheme would fail, and that the arrears of business would not be cleared off after all.

After some further conversation,

Clause struck out.

Clause 3 (Salaries to cease on omission of Members to attend sittings of the Judicial Committee without reasonable excuse) struck out.

THE MARQUESS OF SALISBURY moved to insert a clause repealing the 16th clause of the Church Discipline Act, which had reference to the hearing of ecclesiastical causes before the Judicial Committee. By that section it was required that the Queen should summon to the Judicial Committee, whenever such causes were to be heard, either the Archbishop of Canterbury, the Archbishop of York, or the Bishop of London. But, beside the other great and important duties which these eminent persons had to perform, it generally happened that one or more of them was disqualified from sitting from their having been previously engaged in these cases in the Courts below, and those appeals had to be deferred until such time as one of the three could attend who was in no way connected with the case. This was his first reason for desiring to repeal the clause against which his Amendment was directed. Another and a stronger ground was, that for persons not learned in the law to occupy the position of Judges in the last resort was a very anomalous proceeding. It was undoubtedly true that every Member of their Lordships' House had the prerogative right, though a layman, of sitting and deciding questions of law as a Court of final Appeal; but this state of things had been felt to be such an anomaly that for generations none but law Lords, who had received a legal education and training, had ever taken part in appellate Business of the House. The public would think it a very strange thing for the noble Lord (Lord Overstone) to sit on commercial cases because he might know more about mercantile transactions than the lawyers, or that other noble Lords should insist on sitting on land questions because they were possessed of large landed possessions, and he could see no reason why the Bishops, because they were Bishops, should sit in the Committee on ecclesiastical cases any more than those he had mentioned in these particular cases. The ecclesiastical cases that were brought before the Judicial Committee of the Privy Council were often cases between Bishops and clergymen, and the consequence was, as clergymen were not members of the Judicial Council, that the Church was represented on one side of the question only. A more serious objection was that the Bishop might be deciding on his own case, and it might be that in questions of doctrine and ritual that he was a committed man to certain opinions, having by his previous writing and preaching pledged himself before the world to a particular opinion, and that his views were well known on disputed questions of doctrine which agitated the Church. In fact, those opinions were taken into consideration when he was made a Bishop. It was impossible for such a man to resist the tendency of his thoughts, and of its giving some colour to its judgment; in fact, he could not be an impartial man. It was of the utmost importance that all the Courts of this country should be—as they generally were—above suspicion. The ecclesiastical questions that were brought before the Judicial Committee were frequently of a character which excited men's feelings and passions to the highest degree, and that being so more external precaution should be taken to preserve the impartiality of the tribunal before which they were brought; because, when every precaution was not taken to clear the highest Court in the realm from the faintest suspicion of bias, their decision would not be treated by the excited disputants with that respect which attached to the decisions of other Courts of Law. He had no wish to press his Amendment against the will of the Government, but rather that the Lord President should take the matter into his consideration, with a view to an amendment in that respect; and at the same time he wished it to be understood that in what he had stated he had no wish to throw discredit on the Episcopal Bench.

Moved, after Clause 2, to insert the following clause:— The sixteenth clause of an Act of the third and fourth years of Her Majesty's reign, chapter eighty-six, intituled 'An Act for the better enforcing Church Discipline,' shall be and is hereby repealed."—(The Marquess of Salisbury.)


said, there was no doubt that at the present moment there existed in some minds a strong feeling against certain decisions of the Judicial Committee; but it might perhaps happen that when men's minds were cleared of heat and passion, those who entertained the adverse feelings would look upon the decisions in question as the only ones possible under the circumstances. But the objections of the clergy to the Judicial Committee as a tribunal was not so much the presence of the episcopal element as to its deciding ecclesiastical questions as a lay tribunal: and the effect of removing the Bishops would leave the Judicial Committee a mere lay tribunal, without any training as to matters on which they might be called upon to decide. The objections made against this tribunal would not be remedied by the proposal of the noble Marquess. He had then in his possession a Memorial urging in strong and far from courteous language that the clergy would refuse to be bound by the decisions of a lay tribunal. The simple answer to the question—"What would be thought of lay Lords sitting as Judges of Appeal from the Courts of Law?" as applied to the present case, was that the Bishops were already Judges constituted by law for the trial of causes in their own Courts; and that as the causes coming before the Judicial Committee belonged almost entirely to the regions of theology and Church history, a lay tribunal might find itself in a difficulty in dealing with matters relating to doctrine and practice, unless it had the assistance of some persons who by profession and training were acquainted with such subjects. A Court of Appeal in ecclesiastical causes had existed in England ever since the Reformation, and must continue as long as there was an Established Church in this country.


said, he could not agree with much of what his right rev. Brother had stated. He believed that the mass of those who were now discontented would be far more satisfied if the decisions given by the Committee were purely legal, and that the discontent with the decisions of the Committee to which he alluded arose from the fact that a pseudo-spiritual character was imparted to a tribunal which was in fact nothing more than the highest Court of Appeal as to the proper legal value of certain words and terms, and these lawyers, in consequence of their legal training, were far better qualified to decide than ecclesiastics. His opinion was that the best means of improving the tribunal, and procuring respect for its decisions, would be to enable its legal members to call in the Bishops as assessors in ecclesiastical causes rather than to have them sitting as permanent members of the Court. If the Church of England were disestablished at once there would still be the appeal to the Privy Council upon questions respecting the holding of its property, just as the Court had jurisdiction at the present time over the endowments of non-established religious bodies in the colonies: and what he desired was that the Privy Council should not undertake to decide on the teaching of the Church as the Established Church, but should deal with matters of the kind in their strictly legal signification.


said, he thought his right rev. Brother who had just addressed the House was in error with regard to the last branch of the subject on which he touched. There seemed to be some confusion in reference to this matter. A Court of Appeal was one thing, a Court of Review another. A man who conceived he was wronged in law might appeal to the Court of Queen's Bench and have the question of law settled; but there could be no such appeal on a question of theology or doctrine. The Privy Council received ecclesiastical appeals in exercise of the prerogative of the Queen as head of the Church. Before the Reformation these appeals went to Rome; after it, they lay to the Crown. It had been said that because the Privy Council was a Court of Appeal for the colonies, it was a Court of Appeal for the Church "as by law established." But that was not so. The Judicial Committee had jurisdiction over the property of non-established religious communities in the colonies, just as it had over all other matters upon which an appeal from the colonies lay in law. It was, on the other hand, only in virtue of the Church of England being by law established that ecclesiastical appeals went to the Judicial Committee. Disestablish the Church, and the appeal would be to the Court of Queen's Bench or one of the Courts of Common Law. He maintained that there was no analogy between the cases of appeals to their Lordships' House in civil matters and those which were made on matters ecclesiastical to the Privy Council as representing the prerogative of the Crown. In the administration of that prerogative it had always been part of the constitution of this country that there should be both a spiritual and a temporal law, and he should consider it a great evil if, in order to satisfy any theory that might arise, the old constitutional principle should be entirely set aside. At one time it was urged that there ought not to be any lawyers in the Court; but, while the Church could not dispense with the lawyers, no sudden change of public opinion ought to induce a departure from the constitutional principle that the clerical element should also be represented. A number of persons who reverenced the episcopal office were never satisfied with the embodiment of it which they saw; but it should be remembered that a Bishop was a Judge in his own Court, and it was now proposed to abolish those functions. All that the noble Marquess (the Marquess of Salisbury) had said would apply to those duties as well as to the position of the Bishops in the Judicial Committee. With the deepest respect to the decision of the lawyers in the Privy Council, he must be allowed to say that in some matters that came before them they required ecclesiastical assistance. It had been suggested that there should be clerical assessors; yet they must be judges if their opinion was to be heeded, and if it was not, they would not attend. No three people who could be brought together would be found to be in accord as to an alteration of the present system; but when there was some agreement as to a substantial scheme, he should be glad to support it.


said, that he was inclined to support the proposal of the noble Marquess (the Marquess of Salisbury), not that he had ever heard any valid reasons to his conviction urged against the present constitution of the Judical Committee of Privy Council in such matters. The objections seemed to be rather theoretical than practical, and the objections seemed to fail in accordance among themselves as to a remedy, even if the grievance were established. But for himself he had never been able to see why the Church should be unwilling to intrust the interpretation of her documents to the same high tribunal to which the interpretation of the documents of every other religious body, where properly was concerned, were confidently intrusted—as well as the final disposal of all our highest temporal interests. It would be impossible to intrust such questions to an ecclesiastical body, or to ecclesiastics, or to Judges chosen by ecclesiastics. The decisions would cease to be interpretations; they would become declarations of opinion. They must become the decisions of partisans. To get rid, therefore, of the very suspicion that such might be the case under the existing system, he was inclined, if a change was to be made, to favour the suggestion that the Judicial Committee of Privy Council should consist solely of laymen, without any mixture of ecclesiastics. It was, however, remarkable to observe the change of opinion upon this matter, which had come over certain parties. Some years ago an attempt was made to get rid of laymen altogether in these matters.


explained that the scheme which he then advocated was that in all matters which involved the doctrine of the Church of England an issue should be sent to ecclesiastics, who should return an answer to the lay members of the Privy Council, and they should not be bound to do more than receive that answer and give their judgment.


said, it would be impossible for those laymen to oppose the decision of such authorities on points of Church doctrine, and therefore all such questions would have been virtually decided by ecclesiastics. The views which were now declared by those who were represented by the right rev. Prelate (the Bishop of Winchester) were therefore wholly different from those which were entertained a few years ago. He did not, however, believe that anything would satisfy those members of the Church of England who were now disclaiming all control, and who would equally resist it whether it rested in the hands of clerk or layman, if it were at variance with their own individual views, the decision should rest in clerical hands.


said, the question had been greatly complicated by the use of inaccurate language. The popular impression was that the Queen was Head of the Church; and even the most rev. Prelate (the Archbishop of Canterbury), though he carefully qualified the phrase, had not refrained from using it. In fact, however, there had been only three Sovereigns who had been Heads of the Church—namely, Henry VIII., Edward VI., and Queen Mary. In no sense, and by no monarch, with the exception of those three Sovereigns, had the title "Head of the Church" been enjoyed by the Sovereigns of England. Queen Elizabeth expressly repudiated it; and the claim therefore of the Privy Council to spiritual jurisdiction, so far as its maintainers founded it upon this erroneous notion, was without foundation.


The appeals which before the Reformation went to Rome went after the Reformation to the Crown; that is the sense in which I spoke.


The Sovereign was supreme over all causes, civil as well as ecclesiastical; but, having declared that doctrine, as no one could maintain that the Queen was supreme in civil matters except, according to known rules of law; so in ecclesiastical matters her supremacy was limited by the law of this Church and Realm, according to which, as temporal matters were to be decided by the temporal Courts, so spiritual matters were to be dealt with by spiritual persons. It would be absurd to refer to a mixed tribunal composed partly of spiritual persons and partly of lay persons questions purely temporal, and it was equally absurd to refer to a mixed tribunal questions purely spiritual. Spiritual matters were for the clergy, and matters purely temporal were for the temporal Courts. The supremacy of the Crown ever since the Reformation was exercised by the Court of Delegates. In questions affecting the clergy no doubt civilians were called in to aid that Court; but in questions affecting doctrine the matter was decided by the spiritual members of that Court. As regarded the observations of the most rev. Prelate (the Archbishop of Canterbury), that those persons who formerly advocated the removal of all lay persons from the Court of Final Appeal, were now urging the removal of the spirituality, the reason for the change of position was obvious. Till about 1850 it was supposed that the Judicial Committee of the Privy Council enjoyed some spiritual inheritance, if he might say so, from the Court of Delegates; but that had been repudiated by the Judicial Committee, who claimed nothing more than the construction of legal documents—a task for which lawyers were clearly the best fitted. It was therefore not inconsistent on the part of those persons who were dissatisfied with the decisions of the Privy Council in 1850 to abandon, on further investigation, the plan of reform which they previously advocated, and say that the more legitimate and more constitutional method was that suggested by the noble Marquess.

On Question? Resolved in the Negative.


said, the Bill had been fully discussed on two previous occasions, and he thought there was no reason for delaying the third reading; but he would not press for a third reading if any noble Lord had a further Amendment to propose.

Then Standing Orders Nos. 37 and 38 considered (according to Order), and dispensed with; Bill read 3a; an Amendment made; Bill passed, and sent to the Commons; Bill to be printed, as amended. (No. 246.)