HL Deb 07 February 1887 vol 310 cc745-52

Order of the Day for the Second Reading read.


, in moving that the Bill be now read a second time, said, that provisions had been introduced in the Act of 1876, apparently under the idea that the only persons who could sit during the Prorogations were the Lords of Appeal in Ordinary. The consideration appeared to have been overlooked that there might be persons competent under the Act to sit and hear the appeals who were not within the description of Lords of Appeal in Ordinary. Indeed, the framer of the Act had so framed the provisions that they were confined to the Lords of Appeal in Ordinary. The result of this had been that during the recent Prorogation, it became impossible for the House to avail itself of the services of those noble and learned Lords like Lord Herschell and Lord Bramwell, who, had they taken the Oath during the ordinary Session, would have been able to give their assistance. It was desirable, therefore, that the power should be extended to all persons capable of sitting and forming part of the Court of Appeal. The next point in the Bill had reference to the provision of the statute, that a Lord of Appeal in Ordinary, by his appointment, was entitled to rank during his life as a Baron; but, upon his ceasing to hold the Office, the provision was made that he should no longer be entitled to a Writ of Summons. No doubt, there was great jealousy among their Lordships as to Life Peerages at that time; but the recent resignation of Lord Blackburn offered an example in point. The noble and learned Lord was a Judge to whom he (Lord Halsbury) thought it was no exaggeration to say that the jurisprudence of the country was deeply indebted for his great learning, his logic, and acuteness. Although a Lord of Appeal might not be desirous of continuing to hold his Office, so as to be bound to attend every day; yet it was extremely inconvenient that, on occasions on which a noble and learned Lord was quite willing to give the advantage of his great learning to their Lordships, the language of the statute should prevent him from any longer affording that assistance, notwithstanding that he still retained the rank and title of Baron. The other provision of the Bill had reference to the constitution of the Judicial Committee of the Privy Council. By the Act constituting the Judicial Committee of the Privy Coun- cil, two small sums, considering the judicial services rendered, were permitted to be given to anyone holding a high judicial office in India, if he came and gave his assistance to the Judicial Committee. The sum appointed to each person was £400 a-year. He proposed, by a section of the Bill, to give power, where there was only one person, to make the sum £800 a-year; and in that way to induce those with judicial learning and experience gained in the great centres of administration in India to give the advantage of them to the Judicial Committee of the Privy Council. He hoped the Bill did not raise any subject of controversy, and would now move its second reading.

Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)


said, he would like to know whether, if he was not mistaken, the Bill was not an attempt to introduce a new class of Life Peers by a sort of side issue?


said, he had no further explanation to make. He was not aware that the Bill professed, or did, in fact, make any alteration in the state of the law, or of the Constitution, with a new class of Barons. The Act of 1876 left the Lord of Appeal on resignation with the rank of Baron, without the right to vote. The present Bill did not profess to make any new class of Life Peers; but it provided that on resignation of the high judicial office, the Baron so created by his appointment and maintaining that rank was not, in future, entitled to a Writ, or to vote in their Lordships' House. The Bill was intended to meet that state of things.


said, he rose, not for the purpose of criticizing the Bill, but rather of supplementing what the noble and learned Lord (the Lord Chancellor) had said in reference to Lord Blackburn—whose character was increasing in public estimation from day to day—as being himself one of the very few Members of their Lordships' House present who remembered Lord Blackburn's first appointment. Lord Campbell, who was Lord Chancellor in Lord Palmerston's Second Administration, had the responsibility of the appointment; and he told us very graphically in his Diary, writing in 1859, on what principle he had made his selection:— I have already got into great disgrace by disposing of my judicial patronage on the principle detur digniori. Having occasion for a new Judge to succeed Erle, made Chief Justice of the Common Pleas, I appointed Blackburn, the fittest man in Westminster Hall, although wearing a stuff gown. The appointment was not popular, for the simple reason that the public did not know Blackburn; and it was censured also, on the ground that Lord Campbell had deliberately passed, over other and more experienced men. The career of Sir Colin Blackburn as a Judge had, however, amply justified the appointment, and shown how well Lord Campbell understood the qualities necessary to constitute a great Judge. He was a great jurist, a strong and learned constitutional lawyer, with a mind so happily constituted that partiality was with him impossible; inflexible in his integrity, inexorable in his pursuit of justice, he dealt out even-handed justice to all suitors who came before him. He had throughout his long career performed with great success the duties of his high office; and his name would be known to posterity as one who, in his own life work, had well illustrated and enforced the principles of our own laws and the foundations of our Constitutional rights and liberties.


said, he entirely agreed with everything that his noble and learned Friend upon the Woolsack had stated with regard to the very great services that Lord Blackburn had rendered. He (Lord Herschell) could himself speak with some knowledge on the subject; for the period of Lord Blackburn's judicial career covered the whole period of his (Lord Herschell's) own professional life; and, having seen the noble and learned Lord constantly discharging his judicial functions, in fulfilment of the duties of the various offices he from time to time filled, there need be no hesitation in saying that those services were most valuable to the country. Lord Blackburn possessed vast stores of knowledge, singular capacity for using them, and a rare grasp of legal principles; and all must regret that circumstances had rendered it necessary that he should perform no longer those great and important public services. He had no intention to oppose the Bill of his noble and learned Friend, which contained various provisions, entirely independent of one another, with which he was in entire sympathy. He thought it right, however, to call attention to one of those provisions, so that, at all events, it might be perfectly clear what was being done; for there could be no doubt that, for the first time, their Lordships would, if they accepted it, sanction the creation of Life Peers, who, without filling an official position, might sit in that House. At the time when the Appellate Jurisdiction Bill was introduced in 1876, it contained a provision that a Lord of Appeal in Ordinary should retain his seat in that House only so long as he held his office—that, in fact, he should be an official Peer; and, though his rank was continued during the term of his natural life, he was not a Life Peer. When the Bill was passing through the House of Commons, a hon. and learned Member moved to omit those words which one section of the present Bill proposed to omit. That Amendment was opposed by the Government of the day—that of Mr. Disraeli—on the ground, among others, that to accept the Amendment would be to trench on the Privileges of the House of Lords; for there could be no doubt the House of Lords viewed with strong repugnance the creation of Life Peerages, and to compel that House to accept Life Peers against its own wish and desire; and the section in question was drawn for the very purpose of preventing the creation of Life Peers, to which their Lordships had expressed such strong objections. On that occasion it had been objected that it would be dangerous to allow a Prime Minister, under the guise of making Law Lords, and inducing them to retire one after the other, to create a number of official Life Peers. For his own part, he confessed he had not much apprehension of such a danger, since a Prime Minister could accomplish such an object in a much more direct manner. Undoubtedly, however, a change was now being made, in that, for the first time, their Lordships were sanctioning the creation of Life Peers—that was to say, Peers of Parliament, occupying seats in that House, and fulfilling all the functions of Peers, without filling any office while they were exercising those functions. For his own part, he did not share in the apprehension which had been expressed with regard to such a course; but was glad to see that that which was looked upon with so much hostility in 1876 could now be introduced by the Lord Chancellor of a Conservative Government with every prospect of success. When objection was taken in the House of Commons to the creation of these Peers, he distinctly remembered that the position of the Law Lords was somewhat ridiculed, on the ground that they were Peers having seats in the House, and then, on retirement, were still Peers, but ceased to have seats in that House. He well remembered the reply given by Mr. Disraeli, when asked what would be the position of these Lords on retirement? "I suppose," was his reply, "they will relapse into the position of Irish Peers." For his part, he hoped that they would no longer relapse into that position. He did not oppose the second reading of the Bill; but he thought it right to call attention to the fact that it was not a mere formal change, but a distinct reversal of what had been hitherto laid down.


said, he most decidedly held that the Act which they were now called upon to amend had not created Life Peerages. It had already been decided that the Crown had not had, and did not then possess, any power to create Life Peers. The words of the Act under consideration were to the effect that the Law Lord should "rank as a Baron," not "be" a Baron. This was not a distinction without a difference. Sir James Parke's creation as a Life Peer was impeached by Lord Lyndhurst, on the ground that the Crown could make no such creation. A Committee of Privileges held that Lord Lyndhurst was right; and, in order to get out of the difficulty, the Minister of the day created Sir James Parke an hereditary Peer, under the title of Baron Wensleydale. The difficulty arose from the confusion of the name "Peer" with the name "Lord of Parliament." The two positions were totally different. A man might be a Peer, and yet not a Lord of Parliament, as was the case with certain Peers of Ireland and Scotland, who had at present no seats in that House, while, on the other hand, the Bishops, who had seats and were Lords of Parliament, were not Peers.


said, he should not have troubled their Lordships if his Father, in 1821, had not stated that he would vote for no payment to an ignoble assistant to the Lord Chancellor. This was not used in an offensive sense; but to show that all Peers, except Spiritual Peers, should be on the same footing. Lord Eldon, whose retiring pension was to be only £4,000 a-year, said that no retired Chancellor should receive his pension unless he sat on appeals in the House of Lords; and had formerly, in 1856, divided the House against the Leaders on both sides—4 against 44 on the Life Peerage Bill, three of the four being Irish Peers. The House of Commons had rejected the Bill, and two hereditary Peers were created, according to his father's (Lord Denman's) advice, who, for 20 years, did all the business in an admirable manner, as a respected Member of their Lordships' House, had at one time wished for Life Peers, as he then thought the agricultural interest too strong. He (Lord Denman) said he was on dangerous ground, as the House of Commons' majority wished to extend the principle of Life Peerages much further; but by their vote they saved the country at least £180,000. They had now the Lord Chancellor and two retired Lord Chancellors sitting in that House, and he thought there was already ample provision for discharging the judicial Business of the House, since those three Peers formed a quorum of themselves; and, beyond them, any Member who chose had the right to sit, both in Session and in Recess, as a Lord of Appeal. In his opinion, the Bill was unnecessary. Why not make Lord Blackburn an hereditary Peer as Lord Wensleydale—whom Lord Lyndhurst and Lord Denman wished to see made a Peer when he was Sir James Parke—had been made? His services certainly entitled Lord Blackburn to that honour. Having been present on the first day of the Appeal, "Bradlaugh v. Clark," he sat till the end, and voted with Lord Blackburn. No one could say that the Act of 1801, imposing a penalty on ministers of the Churches of Scotland and of England, was not now in force; and yet a Scotch Member who had preached in the Established Church had so voted several times; but proof of his preaching would subject him to the fines. But in the case of Mr. Bradlaugh it would be far better to make him ineligible from having lectured against religion than to let him pay penalty or costs, because the Attorney and Solicitor General had told him that he might lawfully affirm, whereas every case from 1849—when his noble Father was opposed by Lord Brougham on religious grounds—scruples founded on religion were the only ones which gave the privilege of affirmation instead of an oath, and it was merely because Sir George Grey had drawn the Act and not Sir Roundell Palmer that the difficulty occurred. He (Lord Denman) considered the Act wholly unnecessary, and if he had any weight in the House he would at once, without previous Notice, move its rejection, as was done by the Earl of Wicklow, supported by Lord Brougham, in 1849, and as was done the other night on the Woman's Suffrage Bill.


, in reply, said, it was not the object of the Bill, nor the effect of its provisions, to create any one a Peer. All it did was to leave a Lord of Appeal in exactly the same position after his resignation that he was in before it with regard to the Peerage.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the whole House on Thursday next.