§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, on the 31st October last your Lordships resolved that an Address should be presented to His Majesty praying him to appoint two 220 to the Bill, to ask you to agree to the appointment of a Select Committee to consider the Bill and to call witnesses. In the event of the Government agreeing to a Commission of Inquiry—I do not mean a Departmental Inquiry but a real Commission of Inquiry—into the whole subject, I would then, of course, be prepared to consider the withdrawal of the Bill pending the findings of that Inquiry.
§ On Question, Whether the word "now" shall stand part of the Motion?
§ Their Lordships divided: Contents, 37; Not-Contents, 20.219
|Aberdeen and Temair, M.||Goschen, V.||Hanworth,L.|
|Dufferin and Ava, M.||Hambleden, V.||Hare, L. (E. Listowel.)|
|Reading, M.||Mersey, V.||Hay, L. (E. Kinnoull.)|
|Zetland, M.||Hutchison of Montrose, L.|
|Aberdare, L.||Marley, L.|
|Dudley, E.||Ampthill, L.||Melchett, L.|
|Lindsey, E.||Balfour of Burleigh. L.||Meldrum, L. (M. Huntly.)|
|Morton, E.||Clwyd, L.||Monkswell, L.|
|Onslow, E.||Craigmyle, L.||Ponsonby of Shulbrede, L.|
|Strafford, E.||Daryngton, L.||Rankeillour, L.|
|Denman, L.||Rennell, L.|
|Elibank, V. [Teller.]||Ernle, L.||Sanderson, L.|
|FitzAlan of Derwent, V.||Gainford, L.||Sandhurst, L. [Teller.]|
|Feversham, E.||Hailsham, V.||Hewart, L.|
|Lucan, E.||Amulree, L.||Merrivale, L.|
|Munster, E.||Conway of Allington, L.||Moynihan, L. [Teller.]|
|Peel, E.||Danesfort, L.||Palmer, L.|
|Plymouth, E.||Dawson of Penn, L. [Teller.]||Rochester. L.|
|Vane, E. (M. Londonderry.)||Fairfax of Cameron, L.||Rockley, L.|
|Gage, L. (V. Gage.)||Stanmore, L.|
§ Judges to the King's Bench Division under the provisions of the relevant sections of the Supreme Court of Judicature (Consolidation) Act, 1925. The step then taken was only a part of the programme upon which His Majesty's advisers had determined for the purpose of dealing with the state of business in the King's Bench Division. At perhaps too great length I described what that step was, and suggested to your Lordships that from the facts and figures then adduced to you two conclusions necessarily emerged. It was in the first place necessary to fill the two vacant Judgeships. And, as it seemed, in normal times the Bench thus strengthened would be able to keep abreast of its current work. But, secondly, the times are not normal. There is a heavy body of accumulated arrears, and no hope that the Bench could, in addition to dealing with its current work, dispose of those arrears 221 within any reasonable time. From this follows logically the conclusion that it is necessary to make some addition—at least temporarily—to the numerical strength of the Bench.
§ The present Bill proceeds with this second part of the Government programme and invites the House to authorise the appointment of yet two more Judges, so that when the Bill has passed through both Houses and His Majesty has made the appointments authorised by it, the total number of Puisne Judges of the King's Bench Division will he nineteen. Further it proposes to remove the necessity for frequent recurrence to Parliament when vacancies fall among the first seventeen Judges. Experience has now demonstrated that the Division requires for the discharge of its work not less than seventeen Puisne Judges in addition to the Lord Chief Justice. It is, therefore, a waste of Parliamentary time—and it may well be, as it was this autumn, a waste of judicial time—that there should be any necessity for formal proceeding in Parliament to enable this number to be maintained. But, as regards the eighteenth and nineteenth Judges—those proposed to be added by the present Bill—there is just cause for keeping the matter within Parliamentary control. This also follows on the argument which I addressed to your Lordships on the former occasion. We believe that the necessity for these two additional Judges is only temporary and that the Bench thus strengthened will be enabled wholly to clear off the arrears, and then to keep fully abreast of its work with a small margin. It may be that we shall prove to be mistaken in this hope. If so, the machinery of the Bill will enable the number to be maintained at eighteen or nineteen, but only so to be maintained when both Houses have expressed their view upon the subject in the light of the facts as then disclosed.
§ Clause 1 of the Bill makes this proposal. As we have had this opportunity of going to Parliament on this subject, it has been deemed wise at the same time to effect certain changes in procedure which can only be effected by the authority of Parliament and which have for some time seemed desirable. They can he described very briefly. Clause 2 of the Bill proposes in effect the appointment of a Lord justice to preside in ordinary course in 222 one of the two Divisions of the Court of Appeal. No real lawyer will claim to know the whole of the law. Some of us have spent our lives in the practice of the Chancery Division; others again have pursued Common Law in the King's Bench Division; others again have mainly confined their attention to Criminal Courts. When in the early seventies the principles of equity and Common Law were fused by the Judicature Acts, an experiment was made of sending. Chancery Judges round circuits. I dare say the stories told of this experiment are in many cases apocryphal, but at any rate the experiment was a short-lived one and has not been repeated.
§ It must be remembered that the Court of Appeal is composed usually of two Divisions. In early days it was expected that there would be three Chancery lawyers and three Common Law lawyers appointed as Lords Justices, and this was the practice for ninny years. One Division of the Court takes Chancery appeals, the other Common Law appeals. Speaking quite generally Admiralty appeals go to the Common Law Courts, divorce and workman's compensation to the Chancery Court, but substantially one Court is the Chancery Appeal Court, the other the Common Law Appeal Court. There are some who think that an ideal division of the judicial strength would be two Common Law Lords Justices and one Chancery colleague in the Common Law Court, and two Chancery Lords Justices and one Common Law colleague in the Chancery Court, and for a Lord Justice familiar with Common Law work to preside in the Common Law Court and a Chancery Lord Justice familiar with Chancery practice to preside in the Chancery Court. As a matter of fact, the two Courts are from time to time constituted in such a way as to include one or more Lords Justices who are specially conversant with the matters under discussion. I am far from saying that you cannot find lawyers whose knowledge and experience of both branches is so great that they could preside with equal facility and success in either Court. I might mention Lord Justice Scrutton.
§ It is sometimes very embarrassing for a Judge to be put down to try cases with which he is not familiar. What would be said of a Lord Chancellor who advised 223 His Majesty to appoint a Common Law King's Counsel to the next vacancy in the Chancery Division? Let me repeat, no lawyer knows the whole of the law, and in advising an appointment a Lord Chancellor has to consider chat part of the Judicature has to be strengthened. Is it the time for the appointment of a man who is a great common lawyer or of a man who is accustomed to and knows how to handle juries, or a man whose practice and experience in the criminal law would render him useful in the Court of Criminal Appeal? It may be extremely embarrassing for a Judge to be put down to work at cases for which he has not had experience at the Bar and has not had time to gain experience on the Bench. He does not like to refuse to sit, although the duty may be cast upon him merely because his appointment is senior in point of time.
A very striking example of this took place last week, which may not have escaped your Lordships' attention. There is at the Law Courts a Commercial Court, over which Judges who have had experience in commercial work are asked to preside. Last Friday one of our most distinguished Judges, and if I may add, one of our most versatile and learned Judges, was asked to preside in the Commercial Court, and this is what he said, if he is correctly reported in the public Press:
It is useless to have a list labelled 'Commercial' if the Judge who has to deal with it has no special experience which qualifies him for trying commercial cases, and if such a Judge is entrusted with the list it is not too much to say that it is a fraud on the important class of litigants who are concerned.
I have already referred to the experience of Chancery Judges on circuit. I believe also there are instances where a King's Bench Judge has not been able to give complete satisfaction when he was asked to take cases in the Chancery Division for a time. The sole object of this clause—it has only one object—is to enable a Lord Justice who is familiar by training or experience with the business to be taken in either of the Courts to preside in that Court.
§ Clause 3 of the Bill is wholly non-controversial. It advances the date on which the Court may in a divorce or nullity case deal with the marriage settlements or with the permanent allowance to be 224 made to a spouse. With regard to settlements, the present practice, as laid down by Statute, is that no petition for variation can be presented until after decree absolute. The result is in any case considerable delay and probably additional expense, and it has been doubted what the position would be if a successful petitioner died after decree absolute but before the order varying the settlement is made striking out the respondent's interest in the petitioner's funds. Similar considerations apply in the case of maintenance. The proposal of the clause is, therefore, that the Registrar should conduct the investigations preliminary to a variation of settlement or to the making of an order for maintenance before decree absolute, but that any order made upon the matter should have effect when the decree absolute has been pronounced.
§ The last clause of the Bill deals with a matter to which my noble and learned friend Lord Merrivale first drew attention in this House by a Bill which he introduced in November of last year. The clause proposes that, in proceedings for nullity, evidence on the question of sexual capacity shall be heard in camera, unless in any case the Judge is satisfied that in the interest of justice any such evidence ought to be heard in open Court. This is a matter on which all those who are most experienced are agreed, and we have the concurrence of Lord Merrivale, as indicated in his own Bill. I gather that the present President of the Probate, Divorce and Admiralty Division is of opinion that a certain amount of injustice results under the present law from the natural reluctance of women to deal with these matters in public. We are also supported by the views of some of the most experienced practitioners in the Court. It would not be appropriate, having regard to the full discussion which took place in November on the more important proposals of this Bill, to address your Lordships at any great length. I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ LORD HEWART
My Lords, it is but seldom that I trouble your Lordships' House, for other reasons and because you have the good fortune as a rule to rise before I am able to get away from 225 the Law Courts; but upon this Bill it seems to me to be quite necessary to say a few very plain words, and I intend, by your leave, to say them. In the first place I do not know whether this House quite appreciates the genesis of this Bill. I shall have a word or two to say in a moment about two at any rate of its clauses, but let me say a word first upon the genesis of this Bill. On November 23 of this year there was sent to me, not by the Lord Chancellor but by a secretary, a letter. I have had experience of five Lord Chancellors now. The others used either to write to me or at any rate to sign the letter, but now it is always from a secretary, and the answer in future will be from a clerk. On November 23 I got a letter from a secretary saying that it had been decided that a certain inquiry should be conducted by a Royal Commission, the terms of reference to which and the members of which were shown on the two accompanying slips; and there followed the terms of reference, of a most exhaustive character.
I will not read them to you; no doubt you have read them in the newspapers, as I did. I wonder who drafted the terms of reference. Nobody, I think, who is now in this House. Unless my judgment is wholly at fault, I think I know this hand. There followed the names of the members of the Commission. Let me say that I was not consulted for one moment as to the terms of reference or as to the personnel of the Commission. And I may remind you that I am not speaking for myself. I happen to be the Lord Chief Justice of England, and I have to think of my office, and of my successors for ever. Not one word was said to me either upon the terms of reference or upon the members of the Commission. Now who are they? Lord Peel, Lord Hanworth, Mr. J. G. Archibald, Mr. Clement Davies, K.C., Mr. W. T. Monckton, K.C., Mr. H. L. Murphy, and Sir Claud Schuster, who wrote the letter. Undoubtedly there are there two well-known King's Counsel, one very able member of the Junior Bar, one distinguished and able solicitor, Mr. Archibald; but for the rest, Lord Peel and Lord Hanworth! We were told in this House—at least your Lordships were told; I was not here, but I read it—that this Commission was going to have the 226 benefit of the experience of a first-rate man of business. Where is he? is that, a reference to my learned and esteemed friend, Mr. Clement Davies? I see no other.
That Royal Commission having been appointed behind my back, this Bill is drafted. Now you would have thought, would you not, that as a mere matter of ordinary courtesy the Lord Chief Justice of England would have been given an opportunity of seeing at any rate a draft or a proof of the Bill, or would have been told what the Bill was going to contain? Not a bit of it! This is Tuesday. I came out of my Court last Friday afternoon, and my invaluable clerk, who had happened—merely happened!—to look through the papers delivered to me, not as Lord Chief Justice but as a member of this House, said: "Here is a document which I think you ought to read," and it was this Bill, the Supreme Court of Judicature (Amendment) Bill. And it was in that purely accidental fashion, at that eleventh hour, that I was made aware of the existence of this Bill. I read it then and there, I handed it to the next senior Judge of the King's Bench Division to read, and I immediately summoned for yesterday (Monday) a meeting of the Judges of the King's Bench Division. What else is going on behind the scenes I do not know, but being attracted by a newspaper contents bill on my way to the Courts this morning I bought a paper which in the ordinary way I should never dream of buying, and I saw a huge headline—I think it is called in Fleet Street a "scare headline"—"Harassed Judges Meet in Secret. Five to do the Work of Eighteen. Greatest Legal Hold-up for Years. S.O.S. For Help." Where does that rubbish come from? That rubbish it is, I will prove to you in a moment.
Now, my Lords, let us look for one moment at what is in this Bill, of which I was made aware in that accidental and, as I think, not quite civil fashion. Let us see what it is. The Bill, which I have read again and again, is divided, like Ancient Gaul, into three parts. No one has any relation to either of the others, but to any one who is accustomed to reading documents it is perfectly obvious that the second clause of this Bill, to which I shall refer in a moment, is an interpolation at a later stage, a gloss by another hand; and I am going to suggest that it 227 is, and is intended to be, a reply to something which I feel it my duty to mention to this House.
Let me first of all deal with Clause 1. Clause 1, as you heard a moment ago, proposes to increase the number of Judges of the King's Bench Division. Yes, but it proposes to make that increase subject to that proviso against which some of us have protested for years. When I was Attorney-General and in another place, in happier days, I protested against a similar clause in a Bill of that day. I was told by those to whom I was compelled to listen that without the proviso, that vacancies in regard to the last two should not be filled up without a special Resolution of both Houses of Parliament, the Bill would never get through. "Why not?" I asked. "Because," I was told, "the Labour members will object." Nothing could have been more untrue. When I had moved the Bill in the House of Commons on that occasion—I shall never forget it—one Labour member got up after another, not to complain of the additions but to ask if we were doing enough. My experience is that the Labour members believe in Judges, they know they will get a fair deal when they come to law. There would not have been the slightest difficulty in carrying that Bill without the proviso. But I did not let the matter rest there. When a like proviso came up again, I protested, and I protested to my dear friend, unhappily no longer here, who was not only a distinguished Judge, but a trust worthy colleague, I mean Lord Cave. I protested against this proviso, and I gave my reasons, and he listened to them with the patience which he always showed, and at the end he said: "I entirely agree with you, and that proviso shall never, never appear again."
What are the objections to it? There are twenty. At this hour I will mention two. The first is that it puts into the hands of the Government Whips the decision from time to time of the question what shall be the composition of the King's Bench Division—in my opinion an intolerable situation. The amount of intrigue, the amount of tacit rebuke or encouragement which that fact renders possible, is something which I cannot describe, but I know it—I know it. And the second matter is this. It has a very, very bad effect upon the practice of lead- 228 ing members of the Bar, who are marked out by somebody as possible appointees. It becomes known—"So-and-so is going to be a Judge, they are going to have the Resolution at last." His practice is destroyed, nobody will brief him in a big case because people think that when the critical time comes he will not be there to attend to it. My Lords, it is not fair to the Bench, it is not fair to the Bar, it is not fair to the public. The proper course is, as I urged on Lord Cave, and as he with his usual candour agreed, to decide the appropriate number of Judges for the King's Bench Division, and when a vacancy occurs by death, retirement or promotion, let that vacancy be filled up without aye or no from any Whip, however potent or however ingenious he may be.
I am not saying for a moment—far be it from me to suggest—that, apart from the proviso, the increase of numbers in this Bill is not right. I think it is most useful. Members of the Bar as a rule do not reach the Bench until they have spent a good many years of their life. Sometimes they take cold in the winter. They are away for a few days. When they are, if they happen to occupy a certain position, you are sure to find paragraphs, inspired from quarters I well know, because I have taken the trouble to ascertain, that they are going to retire. I have been pursued by that kind of thing myself for three years. I regard them now not with contempt, which is an active feeling, but with indifference, which calls for no exertion; but I have been very much annoyed by them. And it is to be expected, where you are dealing with a body of sixteen or twenty men of more or less advanced years—the years vary—that there should from time to time be illness, and it is quite right and proper that there should be—what shall I say? a margin of judicial strength; but it is wholly false to say that there is a large body of accumulated arrears.
Let me, if the House will bear with me for a moment, read the very short letter which I wrote to the secretary, who was good enough to send me the terms of reference and the personnel of the Royal Commission. Having acknowledged his letter, I wrote this:For the moment"—I knew that another moment would come: this is one of the moments, but it is not the last— 229I will say only two things:(1) In my opinion the intended inquiry is wholly unnecessary. During the early period of my judicial office the number of cases awaiting trial in the King's Bench Division was regularly 2,000 and more. The corresponding figure now is under 1,000.I get a return every week. I ponder it with care, I make inquiries about it. I looked at it to-day before I came here. The number is now 139. When I became Lord Chief Justice twelve years and ten months ago the number was over 2,000, and for a long time it varied between 2,000 and 2,200 and 2,300. We have got it down, and down, and down, and even in this term, the worst term of the year, when so large a proportion of the Judges are necessarily absent on circuit, we have steadily reduced the number. We began with over 1,000 causes awaiting trial: the last return, as I say, is 939. And than added this paragraph to my letter:(2) I desire to place it on record that I have not been consulted, either (a) as to the terms of reference or (b) as to the personnel of the proposed Commission.And if I had been I should have had something very plain to say about both.
Well now, here is the Bill, and although I entirely deny the statement that there is in town a large accumulation of arrears—we have heard about Aristotle this afternoon in the last debate, and the phrase of Aristotle is "a statement manifestly at variance with notorious facts"—although that statement is quite untrue, there is something else which is very true, and that is that the work on circuits throughout the country has grown and is growing. Judges find themselves detained longer in the great cities, and some cities not so great, of this country. Sometimes one hears arguments which imply, rather than state, that work on circuit is less important than work in London. I never know why. Is a murder less grave because it is committed in Cumberland than it would be if it were committed in Middlesex? Is an accident on the highway less important because it occurs in Birmingham than it would be if it occurred in London? So far as the intrinsic importance of the cases which are tried, whether civil or criminal, is concerned, there is not an iota to choose between work on circuit and work in London. A writ issued in Middlesex is of no more potency, no more 230 importance, than a writ issued in Liverpool.
And there is another matter. There has been put, by the wisdom of Parliament, upon Judges on circuit the necessity—never contemplated by those who accepted judicial office before that decision was taken—of spending some days on circuit trying divorce cases. I spend days and days myself in various parts of England trying divorce cases, of which, when I began to try them, my ignorance was, what shall I say?—co-extensive with the wisdom of Solomon. But that means that Judges are kept habitually for days longer out of town than they would otherwise be. And for all these reasons and many others which I might mention—I do not want to weary the House, but I can assure the House that I have all these matters at my fingers' ends, and at the tip of my tongue—it seems to me profoundly desirable that the increase of the number of King's Bench Judges which is contemplated in this Bill should be made, and I sincerely hope it will he made, but without that proviso.
Let me add this further. What I am saying now about this proviso, and what Lord Cave agreed with me about it, I communicated to the Lord Chancellor before this Bill was drafted. What the Lord Chancellor intended to say I know not, but I went away with the impression that the proviso was dead. Imagine my surprise when on last Friday afternoon I found the very same proviso in this Bill. I am not going to use adjectives. I have enough experience in another place to learn that adjectives, like blank verse, are not argument, but I have given some reasons, and I could give many more, why in the public interest this proviso is greatly to be deplored. I do therefore most sincerely hope that, although an increase in the number of King's Bench Judges is greatly to be welcomed, that gift will not be fettered or diminished by this indefensible proviso.
Might I add one word further? I remember some years ago advocating at Downing Street, in the presence of a Prime Minister whom I will not name, an addition to the number of King's Bench Judges. I pointed out that the salary of a King's Bench Judge was £5,000 a year. It is not now, but it was then. Deduct Income and Super-Tax 231 calculated, not upon that, but upon his total income, and the £5,000 becomes something less than £2,500, but the fees upon the documents of the cases which he tries pay his salary. A King's Bench Judge is a person who pays his own way, but if it were otherwise I ask what you would think if you were, for example, a director of a great railway company, and some one high up in the employment of that company were to come to you and say "So-and-so is dead; he was a foreman, but we had better not appoint a successor. We shall save his wages. It is quite true that all the overhead charges will go on just the same, rent and rates the same, and the output not the same, for we must close up bay No. 5 and save his wages." Would you not think that that man had gone mad? The Prime Minister answered: "You need not say another word."
Is it the view of this House, and of this country, that Judges cannot be appointed if their appointment involves a slight additional expenditure? I believe it does not. I go to the Law Courts day by day. There is that magnificent building, and an enormous staff of servants, with empty Courts and litigants waiting for their cases to come on. What business could be conducted on those lines? The more true it is that there is a large number of cases awaiting trial—not nearly so large a number as those inflated statements represent—the more grotesque it appears to me that we should be starved in judicial strength, because of what? a couple of thousand pounds a year, when we have overhead charges going on of something over £100,000, and those charges are just the same whether the number of King's Bench Judges is fifteen, seventeen or nineteen. The thing is not worth arguing, and therefore, my Lords, I do sincerely hope that this addition to the number of King's Bench Judges will be made.
May I, without wearying the House, remind your Lordships of what recently occurred, an example of the mischief of this proviso? The Judges voluntarily, before the Long Vacation, in order to grapple with the work which was waiting, consented, and indeed offered, to forego a part of the Long Vacation, and se we resumed a fortnight earlier than usual. But what had happened in the meantime? One Judge had fallen ill, my dear friend Mr. Justice Acton, and very shortly 232 afterwards another Judge, a Judge of great distinction, a brilliant commercial lawyer, Mr. Justice Roche, went to the Court of Appeal. So within a few days we were two Judges short, but their places could not be filled. We had to wait until the moment arrived when there could be a Resolution of your Lordships' House and of the House of Commons. Is that not in itself a. reductio ad absurdum of this proviso, which is going to do—what? Save half a crown!
I say no more upon Clause 1, but I come to Clause 2, which is a very remarkable clause. I do not know how many members of this House have spent their time examining manuscripts or perusing Bills or Statutes. I suggest that this Clause 2, which hears no relation to anything which goes before or anything which comes after, is a later addition, an interpolation, an afterthought. What is it? Let me read it?Subsection (4) of Section 6 of the principal Act "—that is to say the Judicature Act of 1925—shall have effect as if at the end thereof there were inserted the words following…Before we see what the addition is may I remind your Lordships of what the substantive provision of that subsection is? It is that the Lord Chancellor shall be President of the Court of Appeal. That is the whole of subsection (4) of Section 6 of the principal Act. Now, by this Bill, it is proposed to add the words:and may appoint to be Vice-President of that Court one of the Lords Justices of Appeal who shall preside when sitting and acting in any Division of the Court of Appeal if no ex officio Judge of that Court is sitting in that Division.In order to show what that means let me remind you what is the personnel of the Court of Appeal. There are first of all four ex officio members in this order, and in no other order. You might think, from some recent events, about which I held my tongue, though I am not going to do so much longer, that the order had been a little altered, but this is still the order. First of all, of course, the Lord Chancellor. Second, the Lord Chief Justice of England. Let me add, though I am not in the least concerned about myself, I am profoundly concerned about my office and my successors, and I am resolved that if I can secure it that office shall be handed on to my successors undiminished 233 and unimpaired. Third, the Master of the Rolls. I do not, want to say anything offensive, but it is well I should state some of the facts. There was one occasion some years ago when I declined the office of Lord Chancellor. There were two occasions when being Attorney-General I declined the office of Master of the Rolls. Why? Because the only judicial office I desired was that of Lord Chief Justice of England, and by waiting I got it. I got a great deal else which I did not know I was waiting for. After the Master of the Rolls the list of ex officio members is completed by the name of the President of the Probate, Divorce, and Admiralty Division. These are the four ex officio members. Then there follow, as some of your Lordships very well know—others may not—the Lords Justices, and I give them as they appear in the Law List in order of seniority:—Lord Justice Greer, Lord Justice Slesser, Lord Justice Romer, Lord Justice Maugham, Lord Justice Roche.
You know—I am sure, at any rate, some of you know—that the practice is to have two Divisions of the Court of Appeal, one mainly, but not exclusively by any means, concerned with appeals from the Chancery Division—that is called Appeal Court No. 1—and the other concerned mainly, though again not exclusively, with appeals from the King's Bench Division, and that is called Appeal Court No. 2. While in the ordinary way the Master of the Rolls, if the Lord Chancellor is not there and if I am not there, presides in Court No. 1, Court No. 2 is habitually presided over by the senior Common Law Lord Justice. Now nobody has ever had anything but the highest admiration for Lord Justice Romer and Lord Justice Maugham. Nobody, I am sure, has ever failed to recognise the great qualities of that commercial lawyer, Lord Justice Roche. It grieves me that these names should have to be mentioned. This second clause of this Bill compels me to mention them, and I should be a coward if I did not mention them. Lord Justice Greer is actually presiding in Court No. 2, but if he were ill or absent from any cause or if, which God forbid, he found it necessary by reason of ill-health to retire, the next senior man would be Lord Justice Slesser, and the normal and ordinary course would be that Lord Justice Slesser would 234 preside in that Court. Now we at the Law Courts, at any rate, have nothing to do with political opinion; nothing whatever. I hope we never shall. My right honourable friend Lord Justice Slesser holds some opinions with which I may say I profoundly disagree, but he is next senior Lord Justice to-day after Lord Justice Greer.
Let me tell the House what happened. Lord Justice Slesser is a Judge in whom I, at any rate, have complete confidence: a scholar, a lawyer. I have fought him at the Bar, I listened to him for many years on the Bench, I have known him since as a Lord Justice. The other day, within the last fortnight, he came to me—he permits me to say this—in a state of agitation. He told me that he had been informed by the Master of the Rolls that he was not to preside in Appeal Court No. 2, but that lest he should preside the composition of Appeal Court No. 1 and Appeal Court No. 2 would be varied, contrary to the practice of the past sixty years. Lord Justice Slesser came to me, may I add without presumption and without offence, as the permanent head, while I live, of the Judiciary in this country as distinguished from the political head. He came to me for my advice. I said that I could not advise him, that that was a responsibility which I could not and must not be expected to undertake. "But," I said, "I will tell you what I can do. I can tell you what I would do if I were faced with any such menace. I should decline to sit. I would not retire, but I would decline to sit." He thanked me for my advice, and he wrote accordingly to the Master of the Rolls.
There followed silence. The next chapter of the story was this Bill, which by Clause 2 enables the Lord Chancellor to appoint to be Vice-President of the Court of Appeal one—that means any one—of the Lords Justices of Appeal who shall preside when sitting—that is to say, the Lord Chancellor or one of his secretaries, or the secretary of one of his secretaries, by a stroke of the pen or a telephone message to me or somebody can say: "The person to preside in the second Court of Appeal is So-and-so." Why? What has Lord Justice Slesser done that this affront should be put upon him? Here you have the creation of a new office unknown to the Constitution, unknown to the law—Vice-President of the 235 Court of Appeal—and if this kind of thing is to be clone, where is it to stop? Is somebody going to tell me some day: "We are going to have a Vice-President of the King's Bench Division"? Is somebody going to say to the Revenue Judge: "We do not, quite like the way you decide your cases, you decide them too often against the Crown, we shall have another Revenue Judge"? Or is somebody to say to the Judge who takes commercial causes: "We do not agree with your views on policies of marine insurance, we are going to have another Commercial Judge"? Where is it going to stop?
If this sort of privilegium—I use the term deliberately—is to be enacted, where is it to end? The Lord Chancellor read a moment ago a part of what my right honourable friend, my dear brother, Mr. Justice Talbot was moved to say the other day when he was trying commercial causes. I was astounded when I read the words in The Times, and I wrote what was intended to be, and what was in fact, and was treated as, a very friendly letter expressing my astonishment that any Judge of the King's Bench Division should announce his unfitness to try any cause which was assigned to the King's Bench Division. I say that before the Lord Chancellor had thought fit to quote a passage from Mr. Justice Talbot's reported observations he should have had the opportunity of reading the reply which Mr. Justice Talbot wrote to my letter. It was I who asked Mr. Justice Talbot to take that commercial list. Why? Because, apart from the Divisional Court, there were at that moment only three King's Bench Judges in London—Mr. Justice Horridge, who was taking what are called new procedure cases, Mr. Justice Singleton, who was taking revenue cases, and Mr. Justice Talbot. If Mr. Justice Talbot had not been prepared—I agree he was reluctant—to take commercial cases, then commercial cases would have had to wait. We did the best we could, and nobody recognises that more clearly than Mr. Justice Talbot. But I cannot help thinking it is a little unfortunate that that passage from his reported observations should have been cited to this House, which is not aware either of the facts or of the sequel; but, pro tanto, at any rate those observations reinforce what has already been said about the matter of 236 giving us some margin of strength, at a cost of a few pounds a year, in the King's Bench Division.
Let me add one word further upon this point. I suppose that some day, before very long, there will be a General Election. I wonder if the members of your Lordships' House think it desirable that, if this Bill is passed in the present form, when that General Election takes place there should be flaming posters on the wall: "Rigging the Judicial Bench in order to affront a former Labour Minister." Would that be in the interests of national unity? Would that serve the turn of the National Government? But what else is it that this clause is doing? I do not wish to use hard words, because I do not think they add to one's argument, but, knowing the circumstances as I do, knowing the history of this matter as perhaps the draftsman of this Bill did not know it, in my opinion this is a disgraceful clause, and I appeal to your Lordships in the name of what I know every one of you loves so well, fair play and common fairness, to repudiate Clause 2 of this Bill.
One word more, and I will not detain you further. There is something deeper behind all this than appears on the surface. I have not been for twelve years and ten months Lord Chief Justice of England with my eyes closed. I see what is going on; I read what is going on. I remember very well years ago, when I became Attorney-General at the beginning of 1919, when the late Lord Birkenhead first became Lord Chancellor, a little scheme was put before him whereby the Lord Chancellor was to cease to exist, all judicial patronage was to be taken from the Home Secretary, and all powers were to be invested in a new person to be called, after the Continental fashion, a Minister of Justice. And that scheme had strong backing from some entity the origin of which I do not know, the legal foundation for which I do not know, the personnel of which I do not know, called the Lord Chancellor's Department. The Lord Chancellor was to go, the Home Secretary as a person appointing judicial officers was to go, and we were to have a Minister of Justice. Why? It is perfectly obvious why. Because if that were done it would no longer be necessary to have in this country a lawyer as the political head of the Judiciary. You 237 might have a layman, a successful merchant, a successful tradesman. And what would follow that? What would follow would be this—that Minister would be ignorant of the personnel of the Bar; he would not have leaders of the Bar habitually appearing before him in the final Court of Appeal in this House. When a vacancy occurred he would have to turn to somebody and say: "Whom shall I appoint?" And who would that somebody be? The permanent officials of the Lord Chancellor's Department.
All this I have written out at length in a little book published some years ago. I do not knew whether anybody has read it, I do not suggest that anybody should, but this plan, this scheme, ruthlessly, unceasingly, persistently, urged, is as clear to me as is my own face when I look into the mirror in the morning to shave. There is no proposal in this Bill for a Ministry of Justice, but Clause 2 of this Bill is one of the many things that are paving the way. I sincerely hope that this House will have nothing to do with the proviso limiting the proposed number of Judges and will repudiate Clause 2 of the Bill. As to the rest of the Bill I shall say nothing, but I only hope—this is quite serious—that we shall have timely notice, if this Bill is to be given a Second Reading, of the Committee stage, and when that Committee stage comes on, if these, forgive the expression, odious features are not removed, then I will adjourn my Court every day in order to be present here to take part in fighting the obnoxious part of this Bill not only clause by clause, but, as I used to do in happier days years ago in the House of Commons, line by line and word by word.
§ LORD PONSONBY OF SHULBREDE
My Lords, may I appeal to the noble and learned Viscount the Leader of the House owing to the very unexpected and important turn this debate has taken, that it would be to the convenience of your Lordships that the debate should be adjourned now?
§ THE SECRETARY OF STATE FOR WAR (VISCOUNT HAILSHAM)
My Lords, I am quite content that that should happen. It is a little unfortunate, because it does probably mean considerable delay in affording what I thought was a very necessary addition to the strength of the King's Bench Division. It will probably mean 238 considerable delay in getting the Bill through, having regard to the exigences of business in another place, but I am afraid it is inevitable. I do not think the discussion could adequately take place now, and if my noble and learned friend on the Woolsack agrees, it would probably be convenient to adjourn the debate to some other convenient day.
§ LORD HANWORTH
My Lords, before the Question is put I think your Lordships should allow me an opportunity of saying a word. I think I should best consult the dignity of this House and the dignity of the Judiciary and my own by not replying to the general observations which have fallen from the Lord Chief Justice, but upon one question of fact I must say a word. Let me repel at the earliest possible moment the suggestion that I had anything to do with the genesis of Clause 2. I never had anything of any sort or kind to do with it. It is not an interpolation in the Bill by me; it is not a late interpolation in the Bill. The reason I spoke to Lord Justice Slesser was that the Lord Chancellor had told me that the clause was in the Bill. It was in the Bill long before and it was there, if I understand aright, owing to matters which arose in the course of the vacation. The suggestion that the learned Lord Chief Justice knows the facts and has told them to the House of Lords makes me rise in order to say that he has not ascertained the facts. I should have thought that perhaps as an old friend he might have asked me whether or not I had anything to do with Clause 2, whether I was responsible for that interpolation and whether it was in consequence of the attitude that I took up. If he had asked me as an old friend—and we were closely associated as Law Officers together—he would have found there was no foundation of any sort or kind for his suggestion, and I know that the Lord Chancellor when he replies will confirm that statement.
§ LORD HEWART
May I add that I am extremely glad to hear what the Master of the Rolls has said. I stated the facts as I knew them.
§ LORD HEWART
As I knew them. I am not going to enter into recriminations, at any rate now. I can only say that the facts exhibit a most unfortunate coincidence.
§ VISCOUNT HAILSHAM
Perhaps the convenient course would be for somebody to move that the debate be now adjourned. Perhaps the noble Marquess would do that.
§ Moved, That the debate be now adjourned.—(The Marquess of Reading.)
§ On Question, Motion agreed to, and debate adjourned accordingly.