§ Debate resumed (according to Order) on the Motion for the Second Reading, moved on Tuesday last by the Lord Chancellor.
§ THE MARQUESS OF READING
My Lords, I need scarcely tell your Lordships that I approach this subject of debate with very great regret, but it has become necessary to discuss the matters which formed the subject of the powerful speech delivered by the Lord Chief Justice last Tuesday. I intend to confine my observations, certainly at this stage, merely to the points of high public importance and do not intend to refer at all to the minor controversies regarding the Bill. I desire also to avoid all references to personal matters, saving so far as they have a direct bearing upon the momentous questions before us. We must all remember—what I have had in mind ever since Tuesday—that we have not yet heard the Government's reply to the speech which was made, and I am following the tradition of which my noble and learned friend (Lord Hewart) is himself one of the chief exponents, that is, that there must be a suspension of judgment until the whole case has been heard.
I desire also to tell your Lordships that when I came to the House on Tuesday last 367 I had no knowledge whatever of any of the incidents to which reference was made on that occasion. I knew nothing except that following the usual practice, having looked at the Orders of the Day, I saw that there was down the Supreme Court of Judicature (Amendment) Bill and I hoped that I should be in attendance to listen to, and if necessary take part in, the debate. It cannot be denied that the statements made by the Lord Chief Justice in his speech were of a very disturbing character—I make that observation because we have not yet heard an explanation of it—and would lead your Lordships' House to the conclusion that the Lord Chief Justice had been treated with a lack of the respect and courtesy due to him and to the high and distinguished office he holds.
You will forgive me, my Lords, if I detain you for a moment or two upon the position of the Lord Chief Justice, because I speak with some seven years' experience of it, and I know what the office entails. I would desire also to state at once that during the whole period that I was in office, holding this position of Lord Chief Justice, no question of this character ever occurred. There never was the slightest difficulty. There were various Lord Chancellors, and also of different political views, but never for one moment was there any idea in my mind that I was not being treated as Lord Chief Justice with proper attention and respect, and indeed, there was not the slightest justification for it. I held the office during the period of seven years, but I would just make this qualification that during a considerable part of the time I was engaged in work in connection with the War and had the advantage of Lord Darling's presence as senior Judge; he did all the Lord Chief Justice's work during my absence.
The one outstanding consideration in what fell from the Lord Chief Justice in regard to the failure to consult him and so forth, is that he is the permanent head of the Judiciary. Of course the Lord Chancellor is the supreme head undoubtedly, but the Lord Chancellor may change, as your Lordships know, according to whether or not his Government remains or falls. The Lord Chief Justice retains his position during his life. It is a very independent position. He has a great responsibility, and it has also to 368 be remembered that he has far greater opportunity of being in contact with both members of the Bench and of the Bar than the Lord Chancellor. That necessarily follows of course. He is engaged every day in the work of the Courts, and, as I know from my own experience, has to devote part of his time when he is not sitting in Court to matters of administration, which often take a considerable time.
I want to guard myself in my observations to your Lordships against any impression that I have come to a conclusion upon the matters to which reference is being made. I naturally have not, because I have yet to hear what has to be said on the other side, and I am merely making these observations subject to this, that an explanation, an elaboration of facts, observations made by the Lord Chancellor may change the view which at present upon the facts as presented I do hold temporarily. I do not want to detain your Lordships because I am quite sure that you are very anxious to hear the reply from the Lord Chancellor or, it may be—I do not know—from my noble friend the Leader of the House. I do not dwell further upon this part of the case. I pass from that, reserving a final conclusion until we have heard what is to be said in answer to the very serious criticisms and observations that were made in the speech of the Lord Chief Justice.
I now approach Clause 2; that is the clause which enables the appointment of a Vice-President of the Court of Appeal to be made. That has led also to some very strong comment by the Lord Chief Justice. I repeat in regard to this that I know nothing whatever of the incidents which he related and which concerned to some extent, and led to an interpolation on the last occasion by, my noble and learned friend Lord Hanworth; I know nothing of them. I am sure your Lordships heard with satisfaction, and as you would expect, the statement from Lord Hanworth, which also, as I gathered, was accepted by the Lord Chief Justice. This clause is introducing a perfectly new appointment in the Court of Appeal which has existed for some sixty years. I am not going to trouble your Lordships with details as to the working of that Court of Appeal; but it sits in 369 two Divisions usually, it may possibly now sit in a third. And what happens is that normally, in the absence of the Lord Chancellor or of the Lord Chief Justice, who have other work to attend to, the Master of the Rolls presides in one Court. In the other Court, the senior Lord Justice of Appeal presides; at this moment it is Lord Justice Greer. I am not quite sure than, I fully appreciate why it is that the Government think it desirable to appoint a Vice-President, but I am far from saying that there may not be good reasons. They have examined the question and they have come to the conclusion that it is necessary. We can exercise our judgment on it when the matter comes up for consideration, especially if it comes up for consideration in Committee.
The important allegation, the grave allegation, made is that the object of this clause is to prevent Lord Justice Slesser, who is the next in seniority to Lord Justice Greer, from presiding in this other Court of Appeal should Lord Justice Greer be il[...] or should he, for some unfortunate reason that we hope will not happen, be prevented from attending in Court. In that case Lord Justice Slesser, according to the practice that has existed for some sixty years, he being the senior Judge, would be the president of that Court. If a Vice-President is appointed under this Bill the effect of that may be, and would be, unless Lord Justice Slesser were appointed, that he would not preside in that Court as otherwise he had a right to expect. An even more serious suggestion was made—because have looked with care at every word of the speech of my noble and learned friend, and I think I am right in. saying it was only a suggestion—that one of the reasons for doing this as affecting Lord Justice Slesser (if that were the object of it) was that he was appointed by a Labour Government and had been a member of that Labour Government as Solicitor-General.
§ LORD HEWART Forgive me for interrupting. I did not make that suggestion. The suggestion I made was that a large part of the public might well think that it was so.
§ THE MARQUESS OF READING
I am much obliged to my noble and learned friend for what he has said. I really did 370 not intend to convey more than this, that it was a suggestion that would be used in other places and put forward as an example of the way in which this Government was acting, allowing its political views to influence the procedure of appointments in the Court of Appeal and to the Judiciary. That is as grave an allegation, if it could be made, as one has ever heard in relation to Judges. I say at once and without hesitation that I cannot believe, and I refuse to believe, that this Government was actuated by any such considerations. It seems to me quite inconceivable that that should be so. No Government, whatever Government was in power, would attempt to affect the position of a Lord Justice or of a Judge because he belonged to a Party which was in Opposition to the Government. That really is a matter we need not discuss. I am sure that none of your Lordships would take a different view upon it.
Our judicial system is one of which we are justly proud in this country and we keep politics entirely out of it. As an example, may I say, in regard to the present members of the Court of Appeal, that I really do not know what the political views of the majority of the members of that Court ever were, or have been, or whether they ever had any, and I do not suppose anybody else does either. Let me say also, because I think it should be said with regard to Lord Justice Slesser, that he has held his appointment since 1929, and never have I heard the faintest suggestion that he was actuated in any way in the work he was doing, in the conduct of a case or in the decision at which he arrived, by the political views which he held, at any rate when he was appointed. One other observation with regard to it. He has been a Lord Justice of Appeal since 1929, he has discharged his duties honourably according to the responsibilities of the office to which he was appointed, and no one will suggest that he has not borne the burden of responsibility which the other Judges in the Court there have borne and that he has not contributed his share in arriving at the decisions of the Court.
I most earnestly hope that we shall find some way by which we may get rid of this impossible suggestion. It may be 371 a suggestion made outside your Lordships' House; it would certainly not be made here. It may be said in the country, if this matter is allowed to remain unanswered in some form that for some reason or other, because of his political views, he had suffered what I think really could only be described as an indignity. When I have made that observation may I remind your Lordships—because it is well to bear in mind, especially as some outside may think that they see some deep laid plot in the fact that Lord Justice Slesser was appointed by the Labour Government—that the appointment of such a Judge is in the hands of the Prime Minister. The present Prime Minister and the Government made the appointment, and without doubt he did what other Prime Ministers would have done in the circumstances, he consulted his Lord Chancellor, and the appointment was made upon the advice of the Lord Chancellor. I am perfectly sure that it would not be made otherwise. Therefore of all absurd suggestions that have ever been made—we now know it is not made here—the suggestion that any difficulties which may have occurred with Lord Justice Slesser are because of his political opinions is the most absurd. That suggestion must be disposed of once and for all.
I am very anxious not to detain your Lordships but I want to deal with this most important matter as best I can. I do not know, I have not heard yet, what the Government's answer is with regard to what has been said, but what I do feel—and I hope that your Lordships, irrespective of Party in a matter of this kind, will agree with the view—is that this clause, with the injurious effect which it may be said to have upon Lord Justice Slesser and the indignity which it may be thought to put upon him, must be dealt with in some manner, that it should absolutely disappear and be removed from the Bill. I have wondered how this could be done. I see difficulties in the way. I do not know exactly all the pros and cons of the argument in favour of the appointment for the first time of a Vice-President of the Court of Appeal, but I do say, as I have indicated already, that that matter to me, and I am sure to your Lordships, is not a matter of cardinal importance. The question upon which we have to come to a conclusion is that 372 it is vital that it should not go out from this House, and, I would add, in a Government Bill, that there was any ground whatever, however futile, however wrong, for suggesting that it was introduced for political reasons. I have wondered whether we could not find a way out of it.
I have suggested, and I am suggesting now to His Majesty's Government and to the Lord Chancellor for his consideration, that if they wish this clause to stand, if they think it important that they should have a Vice-President appointed, they should undertake to introduce into it a proviso to the effect that this clause shall have no operation as regards any present members of the Court of Appeal.
Let me explain. We shall hear what the arguments are for the appointment of a Vice-President. Assuming that there are grounds in the present conditions of the Court why it is necessary to make a change, the difficulty I see then in dropping the clause is that at some future day exactly the same kind of considerations will be raised—that is to say, if we do not have the clause now appointing a Vice-President, if that be the view of your Lordships' House. If the clause should be adopted then it should be made operative only as regards Lords Justices appointed in the future, so that no Lord Justice would be in a position to say, as Lord Justice Slesser in my view is entitled to say: "I became a Lord Justice of Appeal in accordance with the constitution of the Court, and with the practice and tradition of the Court, whereby, in due process of time, if I become senior member, I should preside in that Court." Nothing that happens now should take that away.
It is in order to meet that position that I make the suggestion which, if adopted, would once for all get rid of any such idea, because anybody who is now a Lord Justice and has performed the duties of his office since the date of his appointment will know that nothing that can be done in regard to the appointment of a Vice-President can affect his position. Any Lord Justice appointed in the future will know that there is a provision which enables the Government to appoint a Vice-President of the Court if they think it necessary, and in that 373 case if he accepts the appointment he can really have no grievance. That is the reason why I have made the suggestion which I ask the noble and learned Viscount and the Lord Chancellor to consider. So far as I am concerned, I say at once that if that is accepted I am personally satisfied in regard to this clause, subject to any question of principle that may he raised in Committee as to whether a Vice-President should be appointed. But we do get rid of this unpleasant—and I cannot resist saying unfortunate—impression that may be created by the clause as it stands at present. I leave the matter there and I shall not detain your Lordships further save to say that my sole object in this matter, as I am sure it is the object of all your Lordships, is to deal fairly and justly with an honourable man who holds an honourable office and has discharged it honourably. We seek in every way we possibly can to prevent its being thought in any quarter that there is any indignity or affront imposed upon him.
§ LORD PONSONBY OF SHULBREDE
My Lords, if I venture to intervene in this debate between these high judicial authorities it is because, on behalf of the Opposition, I want to call attention to the political and the constitutional aspects of this Bill, which the debate last Tuesday and the speech we have just heard from the noble Marquess show to be a matter of very grave importance. It affects your Lordships' House and it affects our political differences. We here, in your Lordships' House, receive from time to time Bills of this description, the technical details of which only a small minority of your Lordships have the capacity really to understand. We, therefore, trust the judicial authorities to come before this House with a Bill upon which they are agreed, about which the high judicial authorities have concerned themselves and have come to complete accord. We naturally are therefore disposed to accept such a Bill without question.
Now, what has happened in this case? Whatever doubt there may be as to the controversial aspects that have arisen during the course of this debate, there can be no doubt whatever that the story related by the noble and learned Lord the Lord Chief Justice of England, so far as it concerns himself, is a story of the 374 neglect—and one might almost say incivility—shown to a very high judicial authority. It came as a shock to us that a Bill should be prepared which could give rise to a speech such as we heard last Tuesday. Therefore we charge the Government—for it is the Government who are responsible—with introducing in your Lordships' House a Bill so ill-prepared that when it came up for a Second Reading, which in the ordinary course is generally a formality and agreed, it gave rise to a speech such as, I suppose, has not been delivered in this House on the occasion of a Bill of this sort in the whole of its history. I propose before, I sit down to move a Motion. I should have liked to have moved the rejection of this Bill, that it be read a second time this (lay six months, but I find that according to our Standing Orders I could not do that without notice. But I shall move that this debate be adjourned again, and there will be conditions upon which I shall withdraw that Motion and not divide the House upon it.
The noble Viscount the Leader of the House, in an interjection last Tuesday, said there was necessity for expedition in the passage of this Bill and in the appointment of the two extra Judges. My noble friends on this side of the House are in full agreement with the appointment of the two Judges, are in full agreement with the necessary expedition of that part of the Bill. It is not we who are delaying it. It is the Government who produced this delay. It still can be done expeditiously if the Government adopt a certain course. If the Government continue with this Bill it will be delayed considerably. This is the Second Reading which is going to be taken this afternoon. The Committee stage, if the Bill remains as it is, will be taken after the Christmas Recess and is going to be fought, we are told, line by line and word by word. There is going to he, delay there, and there will be delay on the Report stage and probably a Division on the Third Reading.
Now, my Lords, if expedition is required, it only remains for the Government to withdraw this measure now, to introduce after the Recess a measure agreed to by the high judicial authorities, and it will be passed in a couple of days. Do not let us be charged with obstruction. Do not let us be charged with dilatory 375 methods. We are making a suggestion which will get the appointment of these Judges quickly through this House, to everybody's satisfaction. The Government have made a grave error. The quicker they admit that error the quicker will this legislation be passed.
The noble Marquess who has just spoken made a suggestion with regard to Clause 2. It is on Clause 2 that a certain aspect of this question arises which we on this side of the House are not content to leave without expressing an opinion. We want to know why that clause was inserted. I have read through very carefully, twice or three times, the explanation given by the noble and learned Viscount on the Woolsack when he moved the Second Reading of this measure. Not having either a legal or a judicial mind his explanation conveys nothing to me. But there are certain facts which convey a good deal to me. One of those facts is that the Master of the Rolls asked Lord Justice Slesser to take a step down, to allow himself to be superseded. Lord Justice Slesser refused, and he woke up a few mornings later to find that he was going to be coerced by legislation. We want to know why. The noble Marquess who has just spoken has told your Lordships that Lord Justice Slesser, since he has been a Judge, has not uttered a word of politics, has not been guilty of any political bias and has received nothing but commendation and praise for the work which he has done on the Bench.
Why is he to be superseded? The noble Marquess said—and this is the one point upon which I disagree with him—that the suggestion that it was from a political motive was inconceivable. It is not at all inconceivable. This is a disagreeable subject, and I do not desire to enter into it at any great length, but if anybody supposes that holding Labour views does not lay one open to social and professional ostracism, he is making a great mistake. Plenty of examples could be given; I could give some personally. But we do not want to enter into that, we only want to say that it is a well known fact, and that if the public outside this House are accepting Clause 2 of this Bill in that way, it is nothing to be surprised at. The only way to remove that stigma is not by explanation, is not by pouring pæans of praise on Lord Justice Slesser, 376 but by withdrawing Clause 2 of this Bill. I do not want to enter into the technicalities of the proviso to Clause 1. The noble Lord, the Lord Chief Justice, explained that very fully and very clearly in his speech on Tuesday, and had he been consulted there is no doubt that the proviso to Clause 1 would not have appeared in the Bill at all.
I have intervened on behalf of the Opposition because we believe that in this matter a very serious question has been raised. There has been negligence on the part of the Government in not getting the proper preparation of a technical Bill which, when it appeared in your Lordships' House, was found to contain highly disputable, highly controversial and rather offensive provisions. I have intervened because I recognise, however hotly it may be denied—and they always hotly deny these aspersions on politicians—that my colleague in the Government of 1924 has suffered, and is suffering now, for his political views. There can be no other reason. He was promoted to the Bench from being a Law Officer of the Crown. That is an absolutely usual, recognised and normal method of promotion, and there is nothing against him because of the way in which he has discharged his duties. There is nothing whatever against him with regard to the expression of his political views since he has been on the Bench. No amount of assuring us that he is an exemplary Judge will satisfy us; and if I move that the debate be adjourned again, I do so in order to ask the Government to withdraw this Bill and, for the sake of getting through the appointment of two Judges expeditiously, to reintroduce the Bill after the Recess. By that means everybody will be satisfied and the object for which the Bill has been mainly drafted will be achieved in the best way possible. I beg to move.
§ Moved, That the debate be now adjourned.—(Lord Ponsonby of Shulbrede.)
§ LORD HANWORTH
My Lords, when I came to the House this afternoon I thought it would be unnecessary for me to trouble your Lordships with any words from me, but the noble Lord who has just sat down was good enough to send me a message, when I arrived in the House, telling me that he was going to move a Motion in order that I might have the opportunity—the right—to address your 377 Lordships again. He wished me to know that he thought I should desire to speak again to your Lordships, and so he intended to move the Motion which he has moved in order to ensure that I should have a right to address your Lordships and not have to ask for that courtesy to be extended to me. I am grateful to the noble Lord for sending me that notice, and in response to it I rise at once to say in a very few words what I thought it would have been quite unnecessary for me to repeat.
I made a very short statement on Tuesday; the Lord Chief Justice, Lord Hewart, accepted my statement. I thought that that was the end of the matter, and I thought that it would be quite unnecessary for me to say a single word again to your Lordships. But having regard to the message sent to me and the observations made by the noble Lord, I desire to say a very few sentences, and to speak with all reserve on such an occasion as this. Ever since Lord Justice Slesser was appointed in 1929 our relations have always been cordial. He has sat by my side through months and months; I have had the pleasure anti the honour of sitting by his side now for some weeks. I left the Court this afternoon when he was sitting by my side. Our relations have been so courteous that on some occasions he has been good enough to send to me, as one of his friends, some of the works which he has written, inscribed, if I recollect rightly, with words certainly of regard if not of closer association.
It often happens that when we are going to our rooms of a morning we may come across a Judge who is passing in the passage. It so happened—I think I am right in the date for I have been able to verify it by letters written to me by him—that I met Lord Justice Slesser on November 20 of this year, just a few weeks ago, and he then said to me something which called my attention to the fact that he regarded not only the possibility, but the right which would fall upon him to preside in the Second Court in certain events, which I hope are happily far distant. At that time I had received the draft of this clause, and once more I desire to say, in the plainest and strongest language Coat I can command, and I beg your Lordships to accept my word, I had nothing to do with the 378 genesis of that clause, nothing whatever. I have been Master of the Rolls for eleven years. I have had the honour to preside over the Court of Appeal for eleven years, and on that ground I beg your Lordships to accept my word that I had no part or lot in the genesis of the clause. It was sent to me and I have got the clause as sent to me. It bears date November 5. I was speaking on November 20—
May I proceed? I was conscious of this clause, and I thought it would be at the very least an unfriendly act if I allowed the matter to pass sub silentio. I said to Lord Justice Slesser that I was by no means sure that the position would be maintained and that as of right he would, in the ordinary course, succeed to the presidency of the other Court. I thought that that was only a fair thing for one friend to say to another. I was conscious of that clause being in existence. I knew no more, but I said that to him—namely, that thought it was an uncertainty as to whether that right would fall upon him. He thereupon wrote me a letter, after which he told me that he had gone to the Lord Chief Justice. The Lord Chief Justice made no communication to me of any sort or kind, although I had been a friend of his for many years and enjoyed his friendship, which to me was a matter not only of satisfaction, but of great pleasure. We had been associated as Law Officers, we had gone to the Paris Conference together, we had, on many occasions, fought battles together, and for my part I shall always speak with gratification that I had, and did, enjoy that friendship—but no communication of any sort was made to me by the Lord Chief Justice at all, and, acting as I thought I had acted in the matter, in friendship to Lord Justice Slesser, the matter rested there.
I heard nothing more about it until the observations were made in this House by the Lord Chief Justice, who said that this clause was "a later addition, an 379 interpolation, an afterthought;"and then went to say that he (Lord Justice Slesser)thanked me for my advice, and he wrote accordingly to the Master of the Rolls. There followed silence.Later in his speech the Lord Chief Justice said:Knowing the circumstances as I do, knowing the history of this matter as perhaps the draftsmen of this Bill did not know it, in my opinion this is a disgraceful clause.Perhaps I have spoken too strongly. I have spoken strongly because I have felt strongly, but I am going to say no more. Once More I am going to ask your Lordships to accept the statement I have made, that I had nothing to do with the genesis of this clause, that I acted in friendship when I spoke to Lord Justice Slesser, and that I came down to this House without knowledge that I should be charged by the Lord Chief Justice with having interpolated that clause. I repeat what I have said as a member of this House and as Master of the Rolls, and I can only ask your Lordships to treat me with that courtesy with which, so far, you have always treated me, and ask you to believe me.
§ THE SECRETARY OF STATE FOR WAR (VISCOUNT HAILSHAM)
My Lords, I do not think that during the period for which I have had the honour to be a member of your Lordships' House there has ever been a debate in which I have intervened with greater reluctance than the present. Like the Master of the Rolls I think I may claim a long-standing friendship with my noble friend the Lord Chief Justice of England. He and I, in the same year, succeeded, he to the headship of the Bench, myself to the Leadership of the Bar. For years we were accustomed to be associated together in those traditional toasts. Constantly I have listened with admiration and delight to the speeches which he used to make, and outside that professional relationship I have always believed, and I still believe, that our relations have been of the most cordial and friendly character.
§ VISCOUNT HAILSHAM
I hope that nothing I say this afternoon will mar or strain that friendship, but, my Lords, 380 there is only one reason which induces me to make any observations at all. I do not propose to deal with the details as to the communications which passed between my noble and learned friend the Lord Chief Justice and my noble and learned friend on the Woolsack. Those are matters which certainly were not known to me, and are only now known to me from statements on each side, and those are details which will be more conveniently dealt with by my noble and learned friend himself when he comes to reply. The only reason which induces me to say anything is one which I regard as a paramount duty.
It has been a long-established and well recognised tradition of this country that a civil servant is debarred from any right to defend himself or take any part in public controversy. The speech which my noble and learned friend the Lord Chief Justice made contained, certainly to my understanding, and I think to the understanding of most of those who heard it, a scathing and a sensational attack upon the head of the Lord Chancellor's Department, my friend Sir Claud Schuster. I should be failing in my duty to Sir Claud Schuster, knowing that he is debarred so long -as he remains in his office from making any reply, if I were not to take up the cudgels on his behalf, and if I were not to tell your Lordships, as I propose to do, not only that he is incapable of such conduct as is imputed to him, but also that I can lay before your Lordships facts which I think will satisfy you that the impression which the Lord Chief Justice, no doubt quite sincerely, held, is one which is based on false premises, and one which will not bear close investigation. Let me indicate what is the nature of the charge which was made last Tuesday, because some of your Lordships, at any rate, may only have gathered impressions of it from the public Press, and it is important that I should define what it is against which I am defending.
My noble and learned friend the Lord Chief Justice told us that some fifteen years ago, at the beginning of the year 1919, when Lord Birkenhead first became Lord Chancellor, a plot was hatched.
I will read the words: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 lowers 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 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 some yearn ago. I do not know 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.Then my noble friend went on to say—or rather I think he said earlier, that Clause 1 was in pursuance of that plan, and Clause 2, he says here, was one of the things that were paving the way.
I have not delivered that with the emphasis and the mastery of forensic skill which my noble friend possesses, but, hearing that quotation, I do not think your Lordships will doubt that I was not exaggerating when I said that the impression conveyed by that language is that there was a plot hatched by the permanent officials of the Lord Chancellor's Department, that is to say, by Sir Claud Schuster and those who were working under him, to substitute for the Lord Chancellor a Minister of Justice in order that they might have the say as to 382 who should be appointed to the judicial offices of this country. That seems to me the plain meaning of those words. If anybody tells me that they do not mean anything of the kind, that it is not suggested that there was any such scheme or plot, that it is not suggested that the permanent officials of the Lord Chancellor's Department were a party to the scheme or plot, I should be very glad to hear it, but I should be very much surprised. And it is because that scheme is laid down as the foundation on which rested the main attack which the noble and learned Lord launched against those who were guilty of the scheme, that I am bound to come here and tell your Lordships that I can show that that is an absolute delusion, that there was no such scheme ever hatched, and that the whole theory that this is all part of a plot to get rid of the protagonist against this new bureaucracy because he has the courage to stand against these permanent officials is a complete mistake.
There has been in the past a plan for a Ministry of Justice. It ante-dates Sir Claud Schuster, because I have even traced it back to 1836, in the time of Lord Brougham. But, so far as the present century is concerned, the scheme became an active one in the time of the late Lord Haldane when he was first Lord Chancellor in the year 1913, at which time Sir Claud Schuster was neither the Permanent Secretary nor attached to the Lord Chancellor's Department. It was set out by him in evidence which he gave, after he had ceased to be Lord. Chancellor, to the Royal Commission in 1915, and it was the subject of an address delivered by the President of the Law Society to the Law Society in January, 1918. It is not relevant to discuss whether the scheme is a good one or a bad one. I believe it is a very bad one, but that is neither here nor there. What is relevant is to see whether or not it was part of a plot, inspired by these nefarious motives at the instance of the Permanent Secretary to the Lord Chancellor. When in 1918 the President of the Law Society mooted this plan in his presidential address two things happened. First of all the Bar Council set up a committee to investigate and report upon the scheme. The report was prepared during that year by the late Sir Philip Gregory, drafted by him, and adopted unanimously by the committee. In discussing that 383 draft report Sir Philip Gregory put himself in communication with Sir Claud Schuster, who was then the Secretary to the Lord Chancellor. The report, with which Sir Claud Schuster assisted Sir Philip Gregory, and in which he entirely concurred then and now, was a report utterly condemning the scheme.
In addition to that, it was the duty of Sir Claud Schuster to prepare a memorandum for the Lord Chancellor, the late Lord Finlay, setting out, naturally as fairly as he could, the considerations, the arguments one way or the other. I have read the document which was then prepared, and I am satisfied that no impartial person who read that document could fail to see very plainly that the man who drew it, although he was stating each side as fairly as might be, had the very strongest bias against the proposals. In 1919, as the Lord Chief Justice says, Lord Birkenhead became Lord Chancellor. In 1921 there was a public statement made by Lord Haldane in which he advocated this plan, and thereupon Lord Birkenhead wrote a letter to The Times, which was drafted by Sir Claud Schuster, pointing out that he entirely disapproved of any such proposal. In 1922, in a book which has been published, called "Points of View," there is an article by Lord Birkenhead entitled "A Ministry of Justice." That article was drafted by Sir Claud Schuster, was settled in consultation between him and Lord Birkenhead, and every word of it had his entire approval and accord.
Under those circumstances is it not plain that, whatever else may be doubtful, it is impossible to suppose that there is in existence this plot or plan or scheme—I care not what epithet you label it with—this ruthless and persistent endeavour by the Permanent Chief of the Lord Chancellor's Department to get rid of the Lord Chancellor's office and to substitute a Minister of Justice. He has been fighting against it all his life ever since he has been there, and most of your Lordships know that Sir Claud Schuster has been the author and instigator of a great many of the law reforms which have been passed during the last few years by successive Lord Chancellors, of which I think the most formidable list of all is the list which has been passed by the present occupant of the Woolsack, my noble and learned friend the present Lord Chancellor.
384 These things were done, as I know, because I was talking about this to him years ago when I was Lord Chancellor myself. One main reason which spurred him on to greater activity was his anxiety to ensure that is should be impossible to say, as some reformers would like to say, that you have got to get rid of the Lord Chancellor's office and substitute a Minister of Justice, because otherwise you cannot effectively carry out reforms of the law. It was in order to disprove that fallacy once and for all that, among other reasons, Sir Claud Schuster has devoted himself, with so much energy and with so much success, to ensuring that these reforms shall, in fact, be carried out under our existing plan.
Now this is not a trivial matter, because your Lordships see that this is the foundation on which the whole suspicions of the Lord Chief Justice are built up, and if I show your Lordships that the whole premise is false, I hope even my noble friend may be inclined to reconsider his criticism and his conclusion. It does not, fortunately, rest there. My noble friend the Lord Chief Justice went on to say that he found as part of this dark design—
§ VISCOUNT HAILSHAM
Do your Lordships not think it is a dark design, such a plan so carried out as he suggests? But if my noble friend did not mean to imply it was either a design or that it was sinister or secret, I am very glad to accept his statement.
§ VISCOUNT HAILSHAM
I um very glad indeed if the noble Lord did not intend it, which is, after all, important. But let us put aside epithets, which do not assist. My noble friend the Lord Chief Justice told us that there was in Clause 1 of the Bill the proviso with regard to the extra two Judges. I am coming in a moment to discuss the Bill itself, but I would like to refer to what he said about that. My noble friend told us that the proviso was—I have forgotten the epithet—I think a most mischievous and sinister one, because it handed over to the Whips the chance to determine who should be and who should not be members of the King's Bench Division. It—and now I am quoting his exact words: 385puts 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.My noble friend explained that years ago when he was Attorney-General he was compelled to introduce the Bill which contained that proviso.
§ VISCOUNT HAILSHAM
I quote his actual language:When I was Attorney-General and in another place, in happier days—
§ VISCOUNT HAILSHAM
I sympathise with my noble friend, perhaps we might both say that—I protested against a similar clause in a Bill of that day. I was told by those to whom I was compelled to listen"—I suppose the Prime Minister or the Lord Chancellor—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 [...] got up after another, not to complain, but to ask if we were doing enough.My noble and learned friend goes on a little later to say:There would not have been the slightest difficulty in carrying that Bill without the proviso.My noble friend will forgive me if I say that while I entirely accept that, as I accept anything he says, as being an entirely accurate statement of his recollection, his recollection has played hint false, and the reason I say that is this. There are only three. Bills, so far as I have been able to ascertain, which deal with the question of this proviso. The first was in the year 1910, both the other two were in the year 1925. It so happens that my noble friend was not only not a Law Officer, he was not even a member of the House of Commons, when the Bill of 1910 was introduced and became law, so it is plain, I think, that his recollection as to this discussion on the Bill and as to the advisability of trying to pass the Bill without the proviso, must have been mistaken, and that he must be mixing up the only thing I think he ever did do with regard to this when he was a member of 386 the House of Commons, and that is, moving from time to time the Resolution, pursuant to the proviso, to get an extra one or two Judges appointed. It is impossible that my noble friend should be right in thinking that any such discussion about passing the Bill with or without the proviso could have happened because, as I said, he was not even a member of the House of Commons when it was passed.
In 1925, when the other two Bills—the first limiting the operation of the proviso and the second consolidating the law—were discussed my noble friend, although a member of your Lordships' House, did not, so far as I have been able to trace, either take part in any debate or attend the meetings of the House at which the subject was discussed. It is fair also to add that on the two occasions when he moved the Resolution there was no such incident of one Labour member after another getting up and asking if we were doing enough. On the first occasion the only Labour member who spoke was Mr. Clynes, and he spoke complaining of Judges being taken away from judicial work. On the second occasion the noble. Lord, Lord Strabolgi, spoke and he spoke to complain of quite a different matter which I do not want to go into unless it is desired, and there was one remark incidentally in passing in which he said he thought the case for an extra Judge was justified; the congestion of business had been made out. Beyond that there was no reference to the subject from the. Labour Benches. So my noble friend will forgive me if I say that even a Lord Chief Justice is not always accurate in his recollection.
I want, if I may, to tell your Lordships how this wicked proviso really came into existence. It is a little important because it is suggested that it has the most sinister effect. It came into existence, as I have told your Lordships, in the year 1910, and its genesis was in a Report of a Joint Select Committee in 1909. That Joint Select Committee was unanimous, and it reported that two extra Judges should be appointed, hut that the addition to the establishment should not be permanent, and the Report goes on in these words:They, therefore, recommend that the provision for these additional Judges should 387 be made in the first instance on the footing that vacancies subsequently occurring should remain unfilled, unless the express sanction of Parliament is given, until the present establishment is again reached.The members of the Committee included the Duke of Devonshire, Earl Cawdor, Lord Belper, Lord Welby, and Lord Courtney of Penwith. The members from the other place were Mr. Akers-Douglas (afterwards Lord Chilston), Mr. Ellis, Mr. Haldane, Sir John Kennaway, and Sir Thomas Whittaker—not exactly people who would be trying to bring forward a scheme for subordinating the Judicial Bench to the caprice of the Chief Whip.
A Bill was introduced containing the clause. It was discussed in both Houses. The late Lord Halsbury took part in our debate. Lord Loreburn was then Lord Chancellor and moved the Bill. In another place Sir William Robson, as Attorney-General, moved the Bill, and Mr. John Rawlinson, Mr. Lancelot Sanderson, Sir Frederick Low, Mr. Akers-Douglas, and Lord Merrivale all took part in the discussion, and I see that at a later stage Lord Oxford, Lord Parmoor, and Lord Reading also joined in the debate. There were a number of matters discussed, but in none of the speeches was it even suggested that the clause was open to any such objection as that which my noble friend now finds incorporated in it. I mention these facts because it makes one wonder a little whether there is any foundation for the suggestion that the proviso has this objectional character. In fact, I can here speak with a little knowledge because during the last twelve years I have been in office as a member of the Cabinet for nearly ten; I was Attorney-General for nearly six, I was Lord Chancellor for some little time, and I have been taken into confidence, I am glad to think, by the present Lord Chancellor when occasion arose; and I know that the proviso has no such operation as is suggested.
Let me tell your Lordships exactly what does happen. It happens from time to time that there is a shortage of Judges. That is to say, that one or other of the vacancies or both of the vacancies have been created by death or resignation, and that there is in consequence a tendency for arrears to increase and for the work to get behind.
388 The Lord Chancellor takes counsel with whoever he may think fit. I have no doubt—I certainly know it was true in my day, and I have no doubt it would be true in the time of any Lord Chancellor—that he would consult, among others, the Lord Chief Justice, he would consult with the Attorney-General of the day, and probably with some other people whom he thought he could take into his confidence. When he decides that a case is made out he brings the matter before the Cabinet. The Cabinet consider his memorandum, his arguments, and the Cabinet decide that it is essential that these vacancies shall be filled. Thereupon the Leader of each House of Parliament is instructed by the Cabinet to get the necessary Resolution brought forward.
Until that moment no Whip comes into it at all. But when that has been decided then, no doubt, the Leader of each House consults the Chief Whip in the House as to the most appropriate day on which the business can be taken, whether it shall be on Monday or Tuesday, or whether it shall be this week or the next. But to suggest that the Government Whips have in their hands the decision of the question of what shall be the composition of the King's Bench Division is an absolute delusion. It is not true. Whips have no more to say with regard to that than they have with regard to any other business which it has been decided as a matter of policy by the Cabinet shall be introduced and with regard to which they are consulted, not as to whether it shall be introduced, but as to what is the most convenient time table in order to pass it through. That is how the thing works, and that is the only way it can work. So far as I know, it has never been suggested until last Tuesday that it could have any such mischievous results as my noble friend imagines, and I hope that perhaps the Lord Chief Justice, now that he realises that he was a little mistaken in his recollection as to the genesis of the clause, may be inclined to revise his views as to its operation.
Now I turn from that in order, if I may, to say a few words about the clause in this Bill, its genesis and its operation. At the present moment, under the law as it stands, there are on the King's Bench Division one Lord Chief Justice 389 and fifteen Puisne Judges, and there is power under the Act of 1910, now consolidated in the Act of 1925, by Resolution of each House of Parliament to increase the number up to seventeen. We have been satisfied—and here I am glad to think the Lord Chief Justice agrees—that fifteen is not enough, and that it is not only important to raise the number up to seventeen, but that there seems no prospect of its being possible usefully to allow it to drop below seventeen. Therefore the Bill provides that in future it shall not be necessary to get a Resolution of both Houses in order to replace a vacancy when the number of Judges falls below seventeen, but that seventeen shall be the permanent number, in addition, of course, to the Lord Chief Justice.
That was the first and main provision of the Bill, but that, unfortunately, did not seem to us completely to deal with the situation. It did not deal. with the situation because in our view, and I am coming to this in a little more detail presently, there are serious arrears in the King's Bench Division. There is a serious delay in the trial of actions set down in that Division and that is a grave public mischief. It is almost as bad to deny speedy justice as to deny justice altogether. It is important, it is vitally important, that it should be possible for cases to come on and be disposed of within a reasonable time of their being set down. Now, if we make this seventeen a permanent number we probably prevent any deterioration in the position, but we do not do anything to ameliorate the position, and in our view it was essential that it should be put right.
Accordingly the Government decided on two different things. First of all we decided that we would see whether, by taking counsel, we could find some way of so improving the arrangements with regard either to circuit, or to procedure or to anything else, of so improving the procedure as to lessen any waste of time, to speed up the trials, and shorten litigation in such a way as to make it possible to get through a larger volume of work. For that purpose we appointed a Commission. I have a word to say about its composition in a moment. Meanwhile there were the arrears, tending, if anything, to increase. Were we to rest satisfied while we were waiting for a Royal Commission, which, however expeditious, must take many months, 390 and not pass a new Bill in order to deal with the situation? We thought that the only way to deal with the existing arrears was to appoint temporarily two extra Judges who could continue as long as was necessary in order to work down the figures to a reasonable level. Originally—I hope I am not betraying any Cabinet secret—the proposal was that we should appoint two extra Judges temporarily and make no provision to replace them as they fell out. That was because they were intended only as a temporary expedient until these arrears were worked down and until this Commission reported. But it was pointed out that that might not meet the situation, because it might quite easily happen that one or other of the twenty men, as there would then be on the Bench, would fall ill or perhaps, unhappily, die, or might have to resign before the arrears had been dealt with.
Accordingly we had to find some expedient to ensure that while appointing two temporary Judges, if one Judge fell out, not necessarily one of those two, but one of the nineteen, before the arrears had been swept away, we should be able, without a new Act of Parliament, to replace him, and we took a time-honoured expedient which had stood on the Statute Book a quarter of a century, the expedient of saying that if either of the two extra temporary Judges fell out, if the number fell below the nineteen, that then it should be possible to replace that vacancy on a Resolution of each House of Parliament. That is all there is in that clause, and so I suggest to your Lordships—and I hope your Lordships will agree with me—that we have dealt with the matter in a sensible, a statesmenlike and an impartial and just manner. That is the whole of Clause 1.
Now I pass to say a word or two about this unhappy Clause 2. If I may I would like to tell your Lordships what the purpose and effect of Clause 2 really is. As things are at present, there are four permanent members of the Court of Appeal, of whom three, owing to their other duties, practically never sit at all. The Lord Chief Justice of England, the President of the Probate, Divorce and Admiralty Division, the Lord Chancellor, all of them titular members of the Court of Appeal, have their time very fully occupied in other directions, and the only 391 permanent member who does sit, the only official member who does sit regularly is the Master of the Rolls. In addition to those official members, there are five Lords Justices. Normally the Court of Appeal sits in two Divisions of three Judges each. In one of them the Master of the Rolls—in whichever he is sitting—presides. In the other the senior Lord Justice of the trio of necessity presides, not by Statute, but because by custom in the judicial world the senior man always presides when there is more than one Judge sitting.
There have been made since the middle of the year alterations in the duties and composition of the Court of Appeal. In the first place there has been a considerable addition to its work, because it has been provided that in future—it is now operative, so that it means now and hereafter—all appeals from County Courts all over England and Wales, which until last July were tried by the Divisional Court of the King's Bench Division, that is to say, by two or more Judges of the King's Bench Division sitting together, shall in future go direct to the Court of Appeal.
§ VISCOUNT HAILSHAM
Because Parliament so enacted. At any rate, not in order to insult Lord Justice Slesser. I do not want to be discourteous to my noble and learned friend, but it is not really relevant. What I was saying was that in July that became the law of the land. Hereafter the Court of Appeal is to take all this extra work. There is another change that is hardly less important. Hitherto, with one or two exceptions like bankruptcy and cases of that kind, there has been an appeal as of right from every decision of the Court of Appeal to this House. That was thought undesirable, and at the same time as the work of the Court of Appeal was increased by adding all this County Court work, it was provided that in future decisions of the Court of Appeal should be final without any right to go any further unless in any given special circumstances special leave is given to come to your Lordships' House.
Your Lordships will observe, therefore, that a decision of the Court of Appeal in future will be almost always a final decision. It is therefore more important even than it has been before that a judgment given in that Court shall be a judgment 392 pronounced with the greatest possible weight and given in a way which lays down the law with the utmost clarity and with the utmost authority. That being so, these two consequences both have to be dealt with. In the first place, it may sometimes happen—I hope it will sometimes happen—that the Court of Appeal will be able, by getting help from elsewhere, to sit in three Divisions. That, of course, involves a shuffling among the three Divisions of the permanent strength of the Court. When they sit, whether in three or two Divisions, the leading judgment is normally given by the President of the Court. The case is very largely handled by the President of the Court. Anyone who has had, as I have had the honour of doing, to preside in a Court of three or of five Judges, knows how responsible and how difficult a work it is to keep your tribunal together and to keep the attention of all the Court concentrated on the one essential point and to conduct the case in the best possible way.
We thought—I still with all respect think it was not an unreasonable view—that it would be of advantage under these circumstances that it should be possible not to let the man who presides in the second or third Court be automatically the man who happens to be the senior man of the three, who might very likely be a man who had had very little to do in his practice with the class of case which he was determining; but that it should be possible to name a Vice-President who, whenever he sat in a Court other than that of the Master of the Rolls, would automatically preside in that Court. That would enable us, for example, to ensure that if the Master of the Rolls were, as he is now, a member of the Common Law Bar, he should preside in the Common Law Court of Appeal and that you should have a Chancery Lord Justice available normally to preside in the Court which took Chancery appeals. Your Lordships can imagine the different permutations and combinations which might be worked out. That was the genesis, that was the purpose, and that was the sole effect of the clause. Nobody mentioned Lord Justice Slesser's name in this discussion until my noble and learned friend the Lord Chief Justice—I am not complaining of it—brought his name forward and said that this was an anti-Lord Justice Slesser 393 clause. As a matter of fact Lord Justice Slesser is not the senior member of the Court of Appeal. Lord Justice Greer is.
§ VISCOUNT HAILSHAM
Of course, my noble and learned friend is quite correct. Nobody has said that this is an anti-Lord Justice Greer clause, but he is the man who is primarily affected if a Vice-President is appointed. For all I know—and I hope it will be so—he will be the man primarily affected for a great many years to come. Lord Justice Slesser comes second, then come—I am not sure of the order—Lord Justice Romer, Lord Justice Maugham and Lord Justice Roche, who was appointed only the other day. The clause is not directed against any one of them. One or other of them, if the post be instituted in its present form, would be appointed Vice-President. I have not the faintest idea which would be appointed. That would be a matter for consideration by the Lord Chancellor when he comes to weight up all the pros and cons. No doubt in choosing—I am dealing with the clause as it stands—he would be guided not, of course (I need net say in this House to any reasonable man) by any consideration of what the politics of this or that member of the Court might be. He would choose the man best qualified to do the particular work Which he had in his mind for the Vice-President to perform: in other words, the man best qualified to preside in the Court in which the Master of the Rolls will not preside, whether it be the Chancery Court or the King's Bench Division Court as the case may be. That would be the consideration which would guide him in making the selection and that seems to me to be the eminently reasonable and eminently proper one.
The suggestion that because, not the man who is senior but the man who comes second and therefore may be senior in I do not know how many years to come, happens to be a member—or happens to have been a member, which is more correct—of the same political Party as my noble and learned friend the Lord Chancellor himself and as the Prime Minister who appointed him and is Prime Minister to-days—the suggestion that for that reason this clause was introduced in order in some way to penalise him or prevent him, seems to me an astonishing proposition. As far 394 as I have been able to gather after listening the speech last Tuesday of my noble and learned friend the Lord Chief Justice, the reason why that suspicion formed itself in his mind was that whilst the clause was still in draft, long after it had been drafted and actually printed, the present Master of the Rolls learned from something Lord Justice Slesser said that he thought that if anything happened to Lord Justice Greer he, Lord Justice Slesser, would then of necessity preside in the second Court, and that the Master of the Rolls, in the kindness of his heart and in all friendliness and good fellowship to another member of the Court with whom he had been accustomed, as he told us, to sit on terms of perfect intimacy and cordiality, thought it wise to tell him that this clause was in prospect, and that therefore it was not an absolute certainty, as he seemed to assume. But I cannot think that into that is to be read any sinister or improper design to undermine or destroy the position of Lord Justice Slesser or of any other Lord Justice.
It is quite true, as the noble Marquess, Lord Reading, has said, that, the very fact of this discussion having taken place has made the situation extraordinarily difficult. It has of necessity, I should think, very much impaired the relationships and the confidence among one another of the various members of the Court of Appeal. It is quite true that that is a matter which will have to he considered by the Lord Chancellor before the Committee stage of the Bill, to see what steps can be taken to avoid that result, if possible. I am not pre-judging what decision he will take. I believe that the clause as it stands, and apart from this discussion which has taken place, is a sensible and most efficient way of regulating the business of the Court of Appeal; but I cannot say that after this discussion the clause in its present form will of necessity still achieve that object. It will be for the Lord Chancellor to weigh the pros and cons and to decide how far it may be advisable to risk some loss of efficiency in order to prevent the sort of disaster which the noble Marquess alluded to in his speech. But I do most strenuously and strongly protest against the suggestion being made in any quarter that this clause was designed in some way to have some political repercussion against somebody who 395 belongs to the same Party as the Prime Minister and the Lord Chancellor, and with regard to whom I do not know—I do not know whether noble Lords opposite do—whether he is a supporter of the Prime Minister or not.
§ LORD PONSONBY OF SHULBREDE
I shall be obliged to him if he will be good enough to answer the question which I put, which is, why all these necessary explanations were not made to the Lord Chief Justice in conference instead of on the floor of the House on the Motion for Second Reading?
§ VISCOUNT HAILSHAM
Although that is more immediately a question for the Lord Chancellor, who I said was dealing with those matters, I think the obvious answer is that it is because, so far as I know, the Lord Chief Justice did not discuss this with the Lord Chancellor until he made his speech on the floor of the House.
§ LORD HEWART
Forgive me, but if that is to be said I must intervene. We know that the Master of the Rolls was aware of this clause in some form about November 5.
§ LORD HEWART
I never heard a whisper of it until last Friday when, by a mere accident, my clerk found the Bill among my Parliamentary Papers. Up to that moment no suggestion of the kind had been made to me. How could I discuss something of which I was not aware?
§ VISCOUNT HAILSHAM
I am sure my noble friend does not. Therefore I do not want to pursue it beyond saying that I should have thought that if he had entertained suspicions—which I have no doubt he did sincerely entertain and which he brought before us on Tuesday—it would have been possible between Friday afternoon and Tuesday afternoon 396 to have made some sort of attempt to see the noble Viscount on the Woolsack and to discuss the matter with him.
§ LORD HEWART
Again, if that point is to be made let me answer it. I heard of this clause for the first time on Friday afternoon. On Saturday and Sunday I was busy with Court of Criminal Appeal papers. On Monday I sat in the Court of Criminal Appeal. As soon as I read of this clause I enquired when the Bill was to come on. I was told, "As soon as possible". I enquired when was that to be, and was told Tuesday afternoon. You can imagine—at least I hope you can imagine—my resentment.
§ VISCOUNT HAILSHAM
Even so, my Lords, as I say I do not want to take it up, but I think—or rather I hope—that had I been in the same position I should have endeavoured to see the Lord Chancellor either on Saturday or on Sunday, or on Monday after the Court rose, which I think is four o'clock, and up till whatever hour—
§ VISCOUNT HAILSHAM
At any rate, the noble Lord, Lord Ponsonby, asked me why the matter was not discussed. There was only one of the two parties who had any conception that there was this idea in anybody's mind. No doubt if the Lord Chancellor had thought that this suspicion was in my noble friend's mind he would have been the first to communicate with him, but I do not imagine that it occurred to to him any more than it occurred to me, or any more than it occurred to him that there was any sinister motive going to be suggested for Clauses 3 and 4, which make what we regard as a minor but useful reform in the procedure of the Probate, Divorce and Admiralty Court, and in which so far nobody has discovered any hidden hand.
§ LORD PONSONBY OF SHULBREDE
I am sorry to interrupt the Leader of the House again, but am I to understand from the discussion that has just taken place over the interpolation which I made that the Lord Chief Justice received cognisance of this measure in the same way as I did, on Friday, in his Parliamentary Papers?
§ VISCOUNT HAILSHAM
The noble Lord is certainly not going to understand that from anything that I have said because I have no knowledge, but the Lord Chief Justice told in on Tuesday that he heard of this Bill when he got it on Friday, and I accept anything that the Lord Chief Justice tells me as a matter of course.
§ LORD HEWART
The words are a little important. The noble Viscount said "heard of". That is when I saw this Bill. I had been told, as many had been told, that there was going to be a Bill. I did not object to a Bill—I wanted an increase in the number of Judges—but I do object very strongly to parts of this Bill, and this Bill I had not seen until Friday.
At any rate, I obviously cannot answer the question of the noble Lord opposite as to when the Lord Chief Justice either heard of or saw the Bill. He will tell us that, and whatever he tells us I obviously and naturally accept. I pass from that. I am sorry to take up so much time, but the debate has been put on to a plane which makes it important.
I come now to the question of the Commission. With regard to that there is, I gather—in fact. I know, for I have heard—a complaint of the Lord Chief Justice as to the date at which and the extent to which he received information. That is a matter which obviously lies within the cognisance of the Lord Chancellor and of the Lord Chief Justice and presumably of no one else except their officials, and therefore I am not saying anything about it, but I understand that it will be dealt with by my noble and learned friend on the Woolsack when the time comes. But there were one or two things with regard to the Commission in the speech made by the Lord Chief Justice with which I find myself unhappily in disagreement. First of all the Lord Chief Justice told us that when he did hear of the terms of reference (I think it was) he protested that there were no arrears, and I think he said the same thing in your Lordships' House on Tuesday—that he did not think that any Commission was necessary because there were no arrears.
§ LORD HEWART
Not when I heard of the terms of reference, but when I received 398 them. I did not hear of them until I received them by letter, dated the 23rd clay of November, and I replied immediately on the 27th day of November. I think a week-end had intervened.
§ VISCOUNR HAILSHAM
Again, I am not discussing those dates because they are not within my personal knowledge, except from hearsay, but my noble friend the Lord Chief Justice took the view, as I understood—I can find the actual passage in his speech but I do not think I am misrepresenting him—that it was wholly unnecessary to have, a Commission at all, because really there-were no arrears to enquire into. That is a, matter upon which I must say I find my self at issue with my noble friend. Let me give your Lordships some figures. My noble friend the Lord Chief justice gave certain figures and spoke of the number of causes having from time to time exceeded two thousand; I think that is what he said. Of course, I cannot check those figures; I have not the material which is at his disposal. And I am sure, once more, that whatever he tells us is accurate. But obviously in order to get any fair comparison you must take the same date in each year, because by comparing different dates in different years you may get most misleading results, and I have extracted from the judicial statistics a few figures which I think are significant.
My noble friend became Lord Chief Justice in the spring of 1922, and at the end of that year, namely, on January 1, 1923, there were 1,104 causes entered for trial. In order to prevent misunderstanding, your Lordships will appreciate that that is not the number of causes; which had been started. A cause is entered for trial when the pleadings are complete, the interlocutory proceedings are complete, and the parties are ready to have it heard, and they give ten days' notice of trial, and are supposed to be ready within ten days. Therefore, there were 1,104 causes in which the parties were ready and waiting to have their causes disposed of. Between 1922 and 1933 the figure oscillated a little, but reached its maximum, I think, in 1924, when it reached the figure of 1,267, and the lowest figure was in 1928, when it got down to 851. But this is the rather disquieting feature, that for the last five years there have always been over 1,000 causes awaiting trial at the beginning of the year. 399 The lowest figure was 1,052, and if we take the last two years to the latest available date, October 2, in 1933 the figure was 1,325, and in 1934, 1,323, so it was almost exactly the same figure.
I would like your Lordships to visualise a little what that means. Roughly, 1,300 causes would be nearly a year's work for the strength of the Judicial Bench. I think the most ever done in a year is about 1,700, and the lowest in recent years about a thousand. Therefore, you can take it, it would be some ten and possibly twelve months' work. That means, on the average, after the parties have gone through all the interlocutory proceedings and have got ready for trial, and set down the cause for hearing, they have on the average to wait nearly a year before they can get the cause heard. I protest that it is a scandalous state of affairs, and I altogether 'differ from the view that if those figures are accurate or approximately accurate, it can be said that there are no arrears. It seems to me to be a matter which urgently calls for inquiry, to ascertain how we can proceed to remedy that state of affairs, and ensure that those arrears should be got rid of and not allowed to recur.
Then my noble friend complained of the Commission. Again, I do not deal with the question of the extent to which he was consulted.
§ VISCOUNT HAILSHAM
I was saying that I am not dealing with the question of the extent to which, if at all, he was consulted, or the communications which passed, which again I cannot possibly know of at first hand. I do desire, however, to say a few words about the actual membership of the Commission, on which my noble and learned friend poured scorn. This is what he said:Now who are they? Lord Peel, Lord Hanworth, Mr. J. G. Archibald, Mr. Clement Davies, K.C., Mr. W. T. Monekt[...]n. 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!
§ VISCOUNT HAILSHAM
It sounded very like it. The noble and learned Lord continued: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 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.if that is not intended as a comment on the personnel of the Commission, my noble friend was not speaking with quite his usual lucidity of expression, but in fact, since other persons may have misinterpreted what was said in the same way as I did myself, I should like, in justice to those noble Lords, to say just a word or two as to the extreme good fortune which I think we enjoy in obtaining their services.
Take Lord Peel, the Chairman. I do not think we could have found anybody better qualified to fill that post. He has twice been a Secretary of State, he has been Chairman of the London County Council—I am sorry his successor is not here to testify to the importance and dignity of that. office—he has been a member of both Houses of Parliament, he is Chairman of the Wheat Commission and of the Burma Conference, and he has been an extremely successful Chairman of a number of Royal Commissions and Conferences, which required very great skill and tact in handling. He is also a director of one of the five great banks in this country, and is a director of one of the biggest industrial undertakings in the North West of England. I do not think it would be easy to find, throughout the length and breadth of the land, a man who was better qualified to take the Chairmanship than Lord Peel, whose services we were very glad to have been able to secure.
Then, as to Lord Hanworth, who was coupled in the exclamation which was not intended to be a sneer. We have had in the last three or four years, a series of inquiries into various branches of the law, in which it is possible to make reform. We have had a series of Committees, enquiring into the possibility of improving the management and arrangement of business in the law. We have had, as a result of those inquiries, a number of useful little measures, designed to improve matters, and a number of regulations and rules made by my 401 noble friend on the Woolsack to embody some of these suggestions. In all of them Lord Hanworth—I am sorry to have to say it in his presence—has been the leading spirit. He has been Master of the Rolls, with eleven years' experience in that capacity. He was a Law Officer of the Crown for a great many years, and he was my immediate predecessor in the Office of Attorney-General. I cannot conceive a greater waste of material than to form a Commission of Inquiry into these topics, which he has made so peculiarly his own, and not to avail ourselves of the services of the Master of the Rolls. He will perhaps permit me to betray a confidence, and to say that Lord Hanworth was extremely unwilling to accept this duty. and I think I can claim some share in the success which I and some of my friends achieved, in persuading him to accept, in spite of his reluctance, because he thought it was his public duty to accept.
I think that that is all I need say about the membership of the Commission. I think the appointment of the Commission was necessary and useful. I believe that the work it is to do is important, and I am satisfied that we have got the very best men to discharge the duties we have asked them to undertake. I have finished what I have to say. I am going to ask your Lordships to reject the Motion for the adjournment of the debate, and to pass the Second Reading of this Bill. What steps will be taken with regard to the point raised by the noble Marquess I leave to the Lord Chancellor, whose immediate concern and responsibility it is. My duty has been, so far as I can, to vindicate the honour of a great and distinguished public servant, which I regard as having been unjustly and unfairly impugned.
I profoundly regret that this debate should ever have taken place. I cannot think it will redound either to the dignity of the Bench or to the public estimation of the administration of justice. I am very sorry indeed that these matters should have had to be discussed in the way in which they have. I hope that I have satisfied your Lordships that there are no such sinister motives or improper intentions behind this Bill, and that it has the very innocent object of mild, and I hope useful, reform which it purports to enact, and which I still hope it may 402 succeed in achieving. If I have succeeded in satisfying your Lordships I am glad to have done it.
But I would like—I hope he will allow me to do it—to say one word to my noble and learned friend opposite. I hope he will not think that anything I have said in answer to him has been intentionally unfair or unkind, and if I could hope to have satisfied him that some at least of his recollections, some of his inferences, were unfounded, that sonic, of the facts were not quite what he sincerely believed them to be, he might, with that great judicial quality which he has so fully exercised during recent years—he might perhaps re-try in his own judgment and in his own mind the inferences which he drew. We have all seen on Tuesday that the force and vigour of his intellect are unabated, that he still retains that matchless eloquence and power of persuasion which many of us knew and admired in days of old. We none of us could doubt the sincerity and conviction with which he spoke. If only I could persuade him that he is wrong in thinking that there exists any such scheme, or plan, or plot, or design—I care not what words you use—such as he indicated, I cannot help hoping that, besides the full enjoyment of those great qualities which we know him to possess, he may free his mind from the suspicions which have haunted him, and which I fear must have poisoned his happiness. And if I did that, then even this very painful ordeal would have been almost worth while.
§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, before I reply with some particularity to the speech of the Lord Chief Justice, may I be permitted to make a few general observations? That speech took me entirely by surprise. It amazed me. I had no notice of what the Lord Chief Justice proposed to say. He never communicated with me, and I had not the slightest idea of the nature of the attack which he was going to make. I regret that he did not even give me five minutes of his invaluable time, when very much of this debate might possibly have been avoided. And yet—I say it in all sincerity—I am extremely glad that the Lord Chief Justice did intervene. During the last three or four years we have had numerous Bills in this House dealing with reforms of the law. 403 I am glad to say that nearly all of them have passed into law, to the benefit, as most people think, of the administration of justice. Unfortunately—he will correct me if I am wrong—we have not had the assistance of the Lord Chief Justice on any other occasion. He has never been here. If the Lord Chief Justice will allow me to say so, he is one of the most brilliant advocates of modern times, and even now at times he cannot forget the advocate. I could have wished, however, that his speech the other night had been rather more temperate in tone, and that he had been a little more careful in his facts, and had charged his memory rather more closely before he began to speak.
Let me remind your Lordships, and for the moment only, what this Bill proposes to do. First, it proposes to ask His Majesty to appoint two more Judges to the King's Bench Division. That is an object to which the Lord Chief Justice has often asked me to turn my attention, and I really thought I was helping him in bringing this matter forward. I consulted him, and in a minute or two I shall produce the documents which have passed between us. It next refers to the creation of a Vice-President of the Court of Appeal, and I certainly thought that the proposals contained in the Bill would conduce to the better administration of justice there. On that matter I consulted the Master of the Rolls, and for this reason: because he is the constant President of the Court day in and day out. The third and fourth proposals are meant to improve the administration of justice in the Probate, Divorce and Admiralty Division. On that matter I was moved at the request of the President of the Division, and also in consequence of a speech made by the noble and learned Lord, Lord Merrivale, in this House. I will deal with all these matters separately, but first of all I have an important duty.
Reading between the lines of many of the observations of the Lord Chief Justice, and considering the insinuations which he made, not only as to the authorship and draftsmanship of part of the Bill, but as to the ulterior motive of the creation of a Ministry of Justice, it is clear that the Lord Chief Justice's remarks were an attack on the Lord Chancellor's Department. Let us not mince words—it was an attack upon Sir Claud Schuster, who has been Permanent Secre-trary 404 to the Lord Chancellor since the year 1915, and has served under no fewer than seven Lord Chancellors. I had known for a long time—and the Lord Chief Justice will not deny it—long before I came to this House, when I was a Judge in the King's Bench Division and the Lord Chief Justice was my superior—that the Lord Chief Justice did not see eye to eye with Sir Claud Schuster.
§ THE LORD CHANCELLOR
You will hear what I say in a minute, and there is a good deal more to be said. In my opinion they are both eminent public servants, they are both men of great knowledge and great experience of administration, and not only with views, but with decided views, upon administration. Of necessity when you have two men like this you will find from time to time that they do not agree with one another on important subjects. Permit me to say that that does not make the life of a Lord Chancellor a bed of roses.
I have known the Lord Chief Justice for more years than I care to remember. He is one of my oldest friends, and there is nothing personal between the Lord Chief Justice and myself. I have known Sir Claud Schuster for even longer, but not so intimately until I came to the Woolsack. I have now worked with Sir Claud Schuster for over five years, and I desire to place on record the debt I owe to him on public grounds. Having regard to his great knowledge, his great experience, and his retentive memory, it would be difficult for the Lord Chancellor to get on without him. He has always given me of the best of his advice and judgment. I have not always agreed with him, but perhaps I may be forgiven for saying that eight times out of ten I do. On the other two occasions I tell him what I think of him and, let me add, I have sometimes found on the other two occasions he was right and I wrong.
Now I regret very much indeed that the Lord Chief Justice feels resentment against Sir Claud Schuster. When first I became Lord Chancellor one of the first things Sir Claud Schuster said to me was that he very greatly deprecated the attitude taken up by the Lord Chief Justice towards him, that he for his own part had no feelings of hostility to him, 405 that there was no matter on which he differed from him, that he was unable to understand the Lord Chief Justice's complaint, and he begged me, if I could, to make matters right between them. I sometimes think that the rôle which I have been most often called upon to fulfil in life is that of peacemaker. I certainly am not going to despair of success in any case, and I still hope that I shall be able to bring about a better relationship between a distinguished Lord Chief Justice and a great permanent official.
Sir Claud Schuster cannot defend himself, and therefore I propose to say a few words with regard to the observations made by the, Lord Chief Justice. First of let me make a few general remarks again. I never resent criticism, however severe and, forgive me for adding, however unfair it seems to me at the time, because I always attribute to my critics what I should like to have attributed to me, and that is that they are doing their best for the country. Another thing: what is Parliament for if you cannot criticise? We have not got a dictatorship in England, thank God, but if criticism were once stifled we should be halfway to such a disastrous condition of affairs. Lord Chancellors are not infallible, and my noble friend will forgive me for saying, no more are Lord Chief Justices. They can only try to do their best in carrying out the very differing advice given them by colleagues at the Courts and in their chambers.
I greatly deprecate, however, attacks Cm permanent officials. Their lips are sealed. They cannot defend themselves. The people answerable for their acts are their Ministerial superiors. It is contrary to all Parliamentary practice and, if the Lord Chief Justice will allow me to say so, to the whole spirit of the Constitution that attacks should be directed against them personally. Furthermore, the speech of the Lord Chief Justice contained imputations and suggestions of personal motives—always to be deprecated, and particularly so when they are made in respect of people who cannot defend themselves. As the attack has been made, I will content myself by saying three things and pass from them. Firstly, the Permanent Secretary of my Department has my confidence as he has had the confidence of six other Lord Chancellors, under whom he has 406 served. Secondly, these other Lord Chancellors, one of whom sits in this House while the other five have passed beyond the realms of our discussions and debates, have been men of exceptional vigour of mind and strength of character. They were not the men to allow themselves to be dominated by any official, however ingenious, subtle, or strong-willed. I also claim that the policy which has been pursued during my term of office is my policy, a policy for the reform of the Law, which badly wants reform, as it has been the policy which was pursued during the Chancellorship of my predecessors. There has been a continuity, for all Lord Chancellors in recent years have set themselves, so far as in them lay, to direct the affairs committed to them on an even course to a determined end.
And now let me pass with some particularity to the charges made by the Lord Chief Justice. First of all the Lord Chief Justice complains that he has been treated with discourtesy because he was not informed of the particulars relating to the Royal Commission, or of this Bill, until a late date. The date given was November 23; he says that in Column 225 of the OFFICIAL REPORT. Let me now come to the facts, on sonic of which possibly the Lord Chief Justice's memory has failed him, although they are clear in my mind, and I have documentary evidence, some of it in the handwriting of the Lord Chief Justice himself, to show that he was kept informed and consulted from the earliest possible moment and not as late as November 23. On October 24 the Cabinet agreed upon two things—firstly, to the appointment of two Judges to fill the vacancies and two additional Judges, and, secondly, to enquire into the state of the business in the King's Bench Division. Next day as soon as the Cabinet Minute arrived—and I could not act before that—I asked Sir Claud Schuster to write to the Lord Chief Justice giving him full information of the decision of the Cabinet. Sir Claud Schuster drafted a letter and brought it for my approval.
§ LORD HEWART
May I say that at half-past one this afternoon there was brought to me a copy of a letter marked "Secret" dated October 25, 1934. I do not know if that is the letter that 407 my noble friend is referring to. That is marked "Secret."
§ THE LORD CHANCELLOR
I shall read it. Sir Claud Schuster drafted a letter and brought it to me for approval. I did approve, and I propose to read it. I have sent a copy of it to-day to the Lord Chief Justice, in order that he may not be taken by the surprise that I was taken by. Here it is:
§ "25th October, 1934.
§ Dear Lord Chief Justice,—The Lord Chancellor asks me to say that he has received the authority of the Cabinet for the moving of the Resolution required by Section II of the Act of 1925 before the places vacated by Roche and Acton are filled up. The Resolutions are accordingly being put down to be moved on the 31st October, and the 1st November in the Lords and Commons respectively."
§ Not an answer from the Lord Chief Justice; but I will continue:
§ "He has also receiver? the authority of the Cabinet for the introduction of a Bill removing the necessity in future for a Resolution before the appointment of the seventeenth and eighteenth Judges. He has, however, felt that this alone would not adequately meet the needs of the present situation. He has, therefore, asked the Cabinet, and they have agreed, that the Bill which I have already mentioned should also contain a provision for the appointment of two further additional Judges—the nineteenth and twentieth—subject, however, to the condition that Resolutions will be necessary for the filling of these, the nineteenth and twentieth places as vacancies occur."
§ "The Cabinet, however, coupled these decisions with a further decision, namely, that a small Commission or Committee should be set up to examine the state of business in the King's Bench Division, and to report as soon as possible whether any arrangement can be made further to expedite litigation, and to prevent arrears from accumulating in the future. He thought it right to let you know these decisions at the earliest moment possible.
§ Yours sincerely,
§ CLAUD SCHUSTER.
§ THE LORD CHANCELLOR
Yes, the decisions were for the two extra Judges and the Committee. I instructed that that letter should be marked "Secret" because it came from a Cabinet Minister, and it was sent off to the Lord Chief 408 Justice. I was not without hope that I might have the Lord Chief Justice's criticism and approval of the proposals to be embodied in the Bill, although he had not been able for some time to give us very much help on the question of legal reforms. I had seen him frequently, from time to time, on these matters, and had not found him in his usual good health and spirits. I was, however, disappointed with the Lord Chief Justice's answer, which was as follows:
§ 26th October, 1934.
§ "Dear Sir Claud Schuster,
§ I thank you for your letter received this morning, and have read it with much interest.
§ Yours sincerely,
§ "P.S. I observe the word ' Secret ' and it shall remain so."
§ I waited in the hope that I might have got some assistance and help, such as we have not had all these long years. What did I do? Early in the following week I telephoned to the Lord Chief Justice asking him to come and see me about the matter, and he was good enough to do so. He referred to this interview in his speech the other night, and his remarks will be found at column 230 of the OFFICIAL REPORT, but here again, possibly, his memory has rather failed him. You will remember the letter about the two Judges. First of all, we discussed what names should be submitted to His Majesty for appointment to the two vacancies in the King's Bench Division. I placed before him the names of five gentlemen. I have his assent. He himself added the name of a sixth. I have his assent. It would not be proper, of course, for me to divulge the names of those gentlemen, but this at least I can say, that of the two gentlemen who were appointed, one came out of the five names suggested by me, and the other was the name suggested by the Lord Chief Justice himself. Again I have his assent.
§ I should like to take this opportunity of saying that I have never failed to consult the Lord Chief Justice upon any new appointment, and have never advised that a Judge should be appointed to the King's Bench Division before getting his personal view. After we had discussed this question of who should be put forward for the vacancies, we began to discuss the question of getting a Resolution from the House of Commons for the appointment 409 of Judges. We discussed it on that occasion, and the Lord Chief Justice said he would like to tell me the history of his objection to such a Resolution. I have his assent. He told me the story which he mentioned the other night that he himself was offered and declined the office of Lord Chancellor when Lord Cave was appointed. You will see that referred to in Column 233 of the OFFICIAL REPORT. I gather that he was under the impression that Lord Cave had promised that in future Judges should not he appointed by Resolution. I have his assent; it cannot be denied. I pointed out to him that I should entirely agree with him if it were necessary to get a Resolution for the appointment of every Judge, but this was not so. It was only a Resolution to appoint two Judges to clear off arrears; that when the arrears were cleared off it might not be necessary to have as many Judges, and that Parliament ought to keep its hand upon the matter.
§ What was the next part in the interview? The first was about the Judges, the second about the Resolution. We then turned to the question of the Commission of Inquiry into the state of business in the King's Bench Division. That is not denied.
§ THE LORD CHANCELLOR
He was vehemently opposed to any such inquiry. The Lord Chief Justice assents. He said: "We are always being enquired into." Does the Lord Chief Justice recollect that? This is the conversation which took place just after the 25th October, weeks before the 23rd November. He said: "We are always being enquired into. It does no good, and only makes people think that there are arrears, which is not true. Things are much better than they used to be," he added. "When I became Chief Justice there were 2,000 cases waiting for trial; now there are 1,000." Does the Lord Chief Justice recollect that? My reply to that was, that if the number had been reduced from 2,000 to 1,000, he would have my hearty congratulations, but that I could not agree that it was good to have 1,000 cases waiting for trial in the King's Bench Division. Take notice that the Lord Chief Justice says I never gave him any information.
§ LORD HEWART
That I never said. What I said with regard to the Royal Commission was that I was never consulted as to the terms of reference, which go far beyond anything I expected. I was never consulted as to the personnel. With regard to the Bill, although I was told there was to he a Bill I never had sight of it until last Friday.
§ THE LORD CHANCELLOR
The charge against me is that I did not tell the Lord Chief Justice what was going on. Within half an hour I told him. Within a couple of days I saw him. There is the letter. I hope I shall keep calm, but it is not my habit to be discourteous and I am not going to sit down under a charge of discourtesy. I gathered that he did not wish to have anything to do with the inquiry at all. What is the use of discussing the future with a man who says that? You hear what happened. I told him that at that moment I did not even know what the exact terms of reference were—does he remember that? It is the first thing he has remembered—or the name of a single person whom it was thought might become a member of the Commission. It took some little time to arrange these matters on both of which it was necessary for me to consult my colleagues. As soon as I knew them, I waited to get the Minute, and at the earliest possible moment Sir Claud Schuster conveyed the information to the Lord Chief Justice and received his reply, to which he referred, and which I do not think he would ever have made had he remembered the letter of which I sent him a copy this morning, or remembered our conversation.
That really is the whole of the matter. But there is one other thing. It is amazing. The Lord Chief Justice is still one of my oldest friends and nothing that happens now will prevent that friendship continuing. Since the interview I have had a most friendly letter from the Lord Chief Justice, dated November 3. I am sure he will recall what he said in that letter. It was of the most friendly character and the most friendly description that, one man could write to another. That letter is in my case. It was one of those charming and delightful letters that the Lord Chief Justice does write to his old friends and which I am always glad to receive. But really in these circum- 411 stances to accuse me of not having given information to an old friend, when he told me he would not have a thing to do with it, is a little hard. What more could I have done? I really do not know, but if the Lord Chief Justice still thinks that I could have done something more, I can only say that I very much regret that I did not do it. But what I could have done I do not know. I should in the speech that I have prepared have now referred to the question of the Resolution necessary for the appointment of Judges, but my noble friend the Leader of the House has dealt with that point and I do not propose to say anything more about it. I also had prepared something about this little scheme for the establishment of a Ministry of Justice, but the Leader of the House has dealt with it. It is moonshine. It is moonshine.
§ THE LORD CHANCELLOR
The little "scheme" which is troubling the Lord Chief Justice is moonshine. I now turn to the question of the Vice-President of the Court of Appeal. In this matter my interviews have been with Lord Han-worth, for the reason I have already stated, that he is the President of the Court of Appeal who sits there day after day and week after week.
§ THE LORD CHANCELLOR
I said the President who sits there day after day and week after week. Quibbles are not of any use in a case like this. I now turn to the question of Vice-President. The Lord Chief Justice spoke very strongly saying that, although he differed from the political views of Lord Justice Slesser, he felt bound to make a protest. Let me say that I differ a little from the Lord Chief Justice. I agree with the political opinions which Lord Justice Slesser had before he was appointed a Lord Justice—of course he has none now—and I agree also with the Church views of Lord Justice Slesser. He would be the first 412 to recognise that I knew he held these views when he was appointed Solicitor-General in the first Labour Government. I should be the last man, agreeing as I do with him in politics and Church matters, to place anyone in front of him. If anything should happen to Lord Justice Greer—which, as the Lord Chief Justice said, may heaven forbid!—I should be the first to desire to see Lord Justice Slesser preside in the Common Law Court of Appeal, and I should be the first to congratulate him on doing so. But I doubt whether he or I who are both Common Law lawyers would find ourselves very happy in presiding regularly in a Chancery Court of Appeal. That is the whole point about this clause as I will indicate to you in a moment. The Lord Chief Justice is under the impression that Clause 2 was interpolated in this Bill at the last moment. I repeat that and I look at him. He was under that impression.
§ LORD HEWART indicated assent.
§ THE LORD CHANCELLOR
Nothing could be further from the facts. It is these wrong impressions which unfortunately sometimes get hold of people. In fact Clause 2 was the first of any of the clauses of the Bill to be drafted, and it was drafted before there were any vacancies in the King's Bench Division and before Mr. Justice Roche was elevated to the Court of Appeal and before Mr. Justice Acton resigned. The Lord Chief Justice is an old friend and he will believe what I say. As a matter of fact, the discussions with regard to this clause began quite early in the Long Vacation, immediately after the regrettable death of Lord Justice Scrutton.
When he passed there was a general desire that Lord Hanworth should go to the Common Law Court of Appeal. I exchanged letters with him upon this proposal when we were both in Scotland. I saw Lord Hanworth personally upon the matter at the end of the Long Vacation and a discussion arose—quite an impersonal one—as to whether this would not be a good opportunity of carrying out the idea, which was an old one, that there should be a permanent head both of the Common Law Court of Appeal and of the Chancery Court of Appeal, and for two reasons, with both of which the Lord Chief Justice will agree. The first 413 reason was to secure continuity of practice, and the second reason was in order to get a Common Law lawyer to preside in one Court and a Chancery lawyer to preside in the other. That is another of the "little schemes", I suppose—little schemes!—moonshine! The matter was discussed from a purely impersonal point of view, and after anxious consideration I instructed the Parliamentary draftsman to draw up a clause in order that I might show it to the Master of the Rolls. This was a matter which concerned him, and all my discussions on the matter have been with him.
He, too, thought that it would be a good opportunity to promote this reform. Why? Seniority is an extremely useful principle and it saves a great deal of trouble, but the principle of mere seniority being entitled to preside did not seem appropriate to modern ideas. We want the best man, not necessarily the oldest, and at any rate power should be taken to appoint the most suitable person. It was Lord Justice Greer at this time who was next in order of seniority. It was felt also that during the previous few months the functions of the Court of Appeal had been enlarged, that appeals from County Courts to the King's Bench Division had been done away with and they had been sent direct to the. Court of Appeal, and also that the Court of Appeal had become the final Court unless leave were given to appeal to your Lordships' House.
These reforms, which have been instituted to restrict the rights of appeal, were made in response to an urgent public demand. It will frequently be found at the beginning of each term that the Court of Appeal will have to sit in three Divisions, two hearing Common Law cases and one hearing Chancery eases. It was thought that it would be good for administrative purposes if we could secure the services of a Chancery lawyer to preside in the Chancery Court of Appeal. That, my Lords, is the whole of the matter. As far as I am personally concerned I had nothing to do with any of the issues between Lord Hanworth, Lord Justice Slesser and Lord Hewart. No reflection was intended to be made upon anyone, either Lord Justice Greer or Lord Justice Slesser. Let it be distinctly understood that if the Lord Chancellor thought that the best man to preside in 414 the Chancery Court happened at the, moment to be a Common Law lawyer, I cannot imagine any Lord Chancellor who would not have appointed him. It is to me a matter for great regret that on the question of such an important reform, personal or political arguments should have arisen. As far as I am concerned nothing could be further from my mind.
I am greatly impressed by the helpful and tactful speech (if he will allow me so to describe it) which was made by the noble, Marquess, Lord Reading. I should like to express my own thanks to him. It is not the first time that Lord Reading has been helpful in difficulties and it is not the first time that the country has benefited by his wise and statesmanlike advice. I say here and now that I propose to follow that advice and to put into the clause the proviso which he suggests. Let me explain, however, why I do that. That clause as it stands is perfectly correct and conduces to the better administration of justice. It is not a wise principle that mere seniority should entitle a man to preside in Courts of Justice. Nobody can help getting old, but it is nature that as you get on in years you cannot be so quick and agile-minded as you have been.
Whenever, however, you determine to do away with this principle, there will always be the difficulty that you may be interfering with somebody entitled to preside by virtue of seniority, and I think therefore it is a good suggestion that is made by Lord Reading to add a provision to the clause to say that it shall not operate to prejudice the seniority rights of anybody now a Lord. Justice of the Court of Appeal. That is a wise provision. That saves everybody's face. You get a clause—not to-day, not tomorrow, I hope not for years, for I trust that my colleagues in the Court of Appeal will live long—but you do get a clause which will be of assistance when it comes into operation, but one reserving the rights of everyone who is now sitting in that Court. That ought to satisfy everybody, and it is a happy compromise of a difficult position.
I object to the adjournment of this debate, my Lords. The vital thing is that the two extra Judges should be appointed as soon as possible. Therefore I hope the Motion for the adjournment of the debate will be rejected. 415 With the concurrence of the Leader of the House, I hope to take the Committee stage of this Bill next Wednesday. I trust that there will be no opposition to this proposal, and also that this House will be able to pass the Bill through all its stages before Christmas. I would rather indeed give up the clause altogether than have it thought for one moment that there is any political or personal signification behind it. There is another reason why I want a speedy Committee stage. I speak as Lord Chancellor. I am responsible for the administration of justice in this country, and it is not in the interests of the administration of justice that this controversy should be allowed to proceed further. Nothing can be more disastrous to the best interests of this country than a conflict of this character, especially when it is between those whose only object is jealously to safeguard the great credit of this country the world over in the administration of justice. It is solely with that object that I wish that this Matter should be disposed of as rapidly as possible, and I thank the noble Marquess, Lord Reading, for his timely intervention and for his admirable suggestion, which will end this difficulty.
§ LORD MERRIVALE
My Lords, to everybody who has ever been concerned in the administration of justice in this country this has been a most painful occasion. Certainly nothing of the kind has happened in the more than fifty years during which I have known well what was going on, I think in the Courts, but certainly at the Bar. I rise now to appeal to my old friend the Lord Chief Justice to consider, now that it has been apparent by the expressions of the noble Viscount the Leader of the House, and since then by the noble and learned Viscount sitting on the Woolsack, that no sort of personal discourtesy was intended towards him, whether, with that generosity with which he is accustomed to act, he cannot say: "Very well, there has been a misunderstanding, but in the interests of justice and good feeling I may well be content that we should go on with the Bill. On the Committee stage of the Bill we can deal with these questions, about which I have considerable doubt—the questions of the Court of Appeal and other matters." Upon this broad question, which certainly affects 416 intimately the well-being of the Courts and the credit of the administration of justice, I make, that personal appeal to my noble and learned friend the Lord Chief Justice.
§ LORD WRIGHT
My Lords, I am very desirous not to detain you for more than one moment, but I rise to associate myself with the appeal which has been made to my noble and learned friend by Lord Merrivale. In doing so, I want to say two things. The first is that I have been pained to hear of the distress caused to my learned friend Lord Justice Slesser by this measure which has been advanced. I had the honour and pleasure of sitting with Lord Justice Slesser in the Court of Appeal last October, for four weeks. I am, though it seems to have been overlooked in this debate, a member of the Court of Appeal, ex-officio, and it was that position which enabled me to sit there. I presided, being an ex-officio member, over Lord Justice Slesser, and if he felt any resentment at that fact he certainly disguised it most admirably. I found him a most pleasant colleague, a learned Common lawyer, capable and efficient.
I do want to say two words on the measure itself, simply as a pure piece of administrative machinery, abstracted from these unfortunate elements which have confused, as I imagine, the issue in this debate. Clause 2 is merely following the precedent set in Scotland, where they have two Divisions in what corresponds to our Court of Appeal. In each Division they have a permanent, specially - appointed head, with a special name, that of Lord President in one, and of Lord Justice Clerk in the other. I believe, and I think I can quote the authority of my noble and learned friend Viscount Dunedin for saying, that this works very well. In this country it would, I think, be even more desirable, because we have the legal division of Equity and Common Law, and it is as far as possible desirable that the Court of Appeal, in dealing with either of those subjects, should be presided over by a lawyer of peculiar experience in that particular branch. As a mere administrative measure, I should desire to support the second clause, especially if modified by the proviso suggested by the noble Marquess, who first spoke this afternoon.
§ LORD HEWART
My Lords, if I have moved this afternoon, and for the moment only, from the Cross Benches to this Bench, it is not because I have abandoned any political opinions that I may have held, or embraced any political opinions to which I have hitherto been a stranger, but it is merely far the more prosaic purpose of hearing and being heard. I am deeply touched by the kind expressions which have fallen from all the eminent members of our great profession in this debate. I am deeply touched, and I perfectly well recognise that a debate of this kind does not tend to edification. It is not good for the Law Courts, it is not good for the Judges, it is not good for the Bar, it is not good for the public. Therefore I will not Enter, as I confess I had intended to do, upon many matters which have been touched upon in the course of this debate. I think further discussion of that kind would tend rather to hinder than to help.
I have no doubt the noble and learned Viscount is right when he says that my recollection is at fault about my experience in moving—I thought it was a Bill; it may have been a Resolution—in the House of Commons, but I do not think it much matters. Believe me, I had very little time in which to verify my references. I first saw the Bill on the Friday, I was busy on Saturday and Sunday, on Monday I was in Court, and on Tuesday the debate came on. I had very little time. If I had had time to turn up the Parliamentary Debates it may well be that my recollection would have been put right. With regard to one other point- the point, namely, that there was a letter sent to me under the date of October 25, 1934, to which I replied on the following day, it was a letter marked "Secret," as my reply -was also marked "secret." It is quite true that that letter, having been marked "Secret," was immediately put into the fire, and its contents not disclosed to any other human being in the smallest degree. I would point out that what that letter communicated to me was decisions. I was never asked to express a view. I was never informed what the terms of the reference to the Commission would be till the, Commission was appointed. I was never told what the personnel would be, until the personnel had been selected, and with regard to 418 this Bill, as I said last Tuesday, it is a painful fact that it was not until I came out of Court on Friday afternoon that I ever got sight of it.
But, in the events which have happened, and after the gracious expressions which have been used, I have no desire to prolong controversy. On the contrary, I have an overwhelming desire to prolong and perpetuate friendships, and therefore I will refrain from entering further upon any controversy in the matter at this stage. I hope it was never thought that I suggested that I was not aware that an inquiry was to be held, or that I was not aware that the Bill was to be proposed. We all knew that. But what I did not know were the enormously wide terms of reference to the Commission; I did not know the personnel; and, with regard to this Bill, I did not know its provisions. It is a very unfortunate coincidence that this Clause 2 should first have come before my notice at a moment when I had so very plainly in my mind the distress of my right honourable friend and colleague, Lord justice Slesser. He had come to me complaining that he had been told that he was never to preside in the Court of Appeal. It was at that time that this clause came to my notice.
Now the noble and learned Viscount on the Woolsack has said that it is his part in life to play the part of peacemaker. Blessed are the peacemakers! He has gone a long way to make peace by assenting to the suggestion—if I may say without presumption, the admirable suggestion—of the noble and learned Marquess who sits in front of me (Lord Reading). I hope that in the interval which elapses he may conceivably see his way to go a little further. But I do hope that in what I did—I agree, under the pressure of some resentment, I agree under the sting of what Lord Justice Slesser had said to me—he will believe that I have done nothing which it did not appear to me, rightly or wrongly, to be my duty to do.
One thing, at any rate to me—whether too much addicted to "moonshine" or not—is of no small comfort. It is perfectly clear that the notion of a Ministry of Justice in this country is dead and buried after the observations of the noble Viscount (Lord Hailsham). I shall not 419 give it another thought; it will never trouble me again. That being so, I am not going to oppose—and I hope it will be observed that I did not at the outset suggest that I would oppose—the Second Reading of this Bill. Well, as we are agreed upon that, which is really fundamental, I am willing for the sake of peace to put aside what is of less importance. I am not going to read the extracts from letters that I have from Judges and others, and I pass them over. Let us make peace, and let us get on with our work.
§ LORD PONSONBY OF SHULBREDE
My Lords, the very last thing I want to 420 do is to stir up the smouldering embers of controversy, once they are dying down. At one moment I was afraid of a conflagration, but I think we have ended in a very peaceful way. I think the Government have been wise in adopting the suggestion of the noble Marquess, and I beg to withdraw my Motion.
§ Motion for the adjournment of the debate, by leave, withdrawn.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ House adjourned at thirteen minutes past seven o'clock.