two Judges sitting as a Court of Appeal there must sometimes be disagreement, and where that disagreement occurs, the litigant will feel that he has got no further than the Court of first instance carried him, and in a matter of importance there will be no resource but to appeal to the House of Lords. That is a prospect which I do not think litigants would welcome. The unanimous opinion of two Judges would not carry the weight of a Court of three Judges. For these reasons I hope the remedy which is now proposed will be regarded as of a temporary character. It is the case that litigants have had the opportunity of having their cases tried before two Judges, but I do not think they have availed themselves of this power to any extent. must have been apparent to those who listened to them. It was asserted by Lord James of Hereford that in the legal profession there was strong objection to the creation of new Judges. I can quite understand that among noble and learned Lords who have attained the position they now occupy there may be a natural and perfectly legitimate objection to what may be called a cheapening of the position of Judges of Appeal; but I venture to doubt if the profession generally share that objection. I should like, with all deference, to ask the noble and learned Lord on the Woolsack how far the opinion of the profession has been taken in regard to the matter. I believe that the profession as a whole object very strongly to the principle of this Bill, and 1 associate myself with the hope which has been expressed that the stages of the Bill will not be hurried through, in order that professional opinion may be ascertained and given the weight it is entitled to. I do trust that noble Lords EARL RUSSELL: Litigants before will consider the question on those broad the Court of Appeal are advised by principles which were so clearly indicated eminent counsel, who would agree to a by the last speaker. There could not hearing by two Judges if that could be have been a stronger argument in favour at all satisfactory. It is suggested that of the creation of new Judges than that the obvious difficulty of this proposal which the Lord Chief Justice gave us, may be modified by a classification of and it is because I am convinced upon cases. I am afraid classification will common-sense grounds that that is the not meet the difficulty, for it is just right solution of the existing difficulty the smaller cases where suitors desire that I shall, with all due respect to noble and learned Lords, record my vote against the Second Reading of this Bill. EARL RUSSELL: My Lords, much has been said of a very interesting character about the subject of this Bill from the point of view of the Bench. I desire, with your Lordships' permission, to say a word on the matter from the point of view of the litigant. I venture to think that litigants who have to go to the Court of Appeal will regard the provisions of this Bill with something like dismay. It is not a very expensive process to obtain a judgment of the Court of Appeal on a matter which has been heard in a Court of first instance, and when that judgment is the unanimous decision of three Judges the case is not usually carried further, except where there is plenty of money, and the Court of Appeal is only intended to be a stepping-stone to the House of Lords. An appeal to this House is a serious and expensive matter which litigants would wish to avoid. With Lord Ampthill. LORD ALVERSTONE: Twice. decisions which will obviate appeal to this House. It is impossible for me, in face of the views which have been expressed, to oppose the Second Reading, but I do venture before I sit down to associate myself with the observation of the Lord Chief Justice that the obvious and only remedy is not to try and work the Court with absolutely no margin of It is clear that judicial strength. Judges, who, of necessity, must be adVanced in years, cannot be expected to be able to sit day by day in perfect health. There must occasionally be a gap which his to be filled, and the proper remedy Is the appointment of additional Judges. The amount involved is a very small one, and I hope the matter will receive the attention of His Majesty's Government LORD COLERIDGE: My Lords, the noble and learned Lord who spoke first this evening stated that there was great objection to a two-Judge Court. The noble and learned Lord forgets that a large part of the work of the Court of Appeal is already done, and satisfactorily because we are dealing, not with the done, by two Judges. ordinary case of two Judges unaccustomed to sit together being asked LORD ASHBOURNE: Only interlocu- to do so, but with the case of two Judges tory appeals. LORD COLERIDGE: I agree. The Court of Appeal deals with two sets of appeals-appeals from Judges sitting in Chambers and from Judges after trial by jury or without jury. It seems to me that a Court of Appeal consisting of two Judges would be quite authoritative in regard to the reversing of the decision of a single Judge, but in regard to appeals from Divisional Courts, which are Courts of great weight, and in which three Judges have been accustomed to sit, I can quite conceive that an Appeal Court of two Judges would be unsatisfactory. Therefore, if in practice the Lord Chancellor were to limit the operation of the Bill to those appeals which are not from the Divisional Courts, that would go a long way towards remedying the defects which now exist. It is only from a desire that the decision of the Divisional Courts should not be upset by an inferior number of Judges that I have risen to make this suggestion. *LORD COLLINS: My Lords, I hope it will not be deemed impertinence on my part if, having been only one hour in this House, I venture to address you; but it does so happen that I have spent the last ten years of my life in the Court of Appeal, and can therefore claim to know something of its working. The proposal before your Lordships has reference to the Court of Appeal only, and I would venture to claim for that Court drawn from a body each of whom is Bill is the possibility of a difference. Difference of opinion between members two Judges sitting alone. of the Court of Appeal, whether sitting with three Judges or with two, are so rare as scarcely to be worth considering. I sat for some seven years in the Court of Appeal with Lord Justice Stirling, and I believe that I differed from him only once. I believe I was wrong, but it was in an attempt to follow the decision of your Lordships' House. With Lord Justice Romer I sat for a year or that it does stand, for reasons peculiar to two longer, and I cannot recall more than itself, upon a totally different footing two or three differences of opinion from ordinary Courts brought together during the whole of by the casual introduction of Judges who Therefore, I submit that the question whole of that period. do not permanently sit together. The of difference, which is the most formidCourt of Appeal derives its strength from able ground of objection to this Bill, the fact that the same Judges continually sit together. They change Courts, but may be treated as non-existent. they have all become accustomed Another strong argument in favour of to sit with each other. They meet every this Bill is that, as the Judges are day in the common room, and after a accustomed to sit together, each finds out time became so completely in accord with in ten minutes or a quarter of an hour each other that they constitute the whether there is any likelihood of a strongest Court possible; for it is not difference of opinion arising. If there is, the weight of the individuals that makes they can adjourn the case to the followthe strength of the Court-it is the fact ing day, meanwhile asking another Judge that they are able to act together and in to come in. That has happened in my complete sympathy. I premise that case on the only two occasions where I remember a difference showing itself in the Court of Appeal between two Judges sitting alone. We were able to call upon another Judge to come in, without any extra expense to the suitors and without any real trouble or annoyance in the matter. In these circumstances I think it would be an enormous boon that the Court of Appeal should be able to deal automatically with the growth of work, for the number of cases that come up for decision are just up to the level of the Court's capacity when its members are in full enjoyment of health during the whole of the legal year. When a member of the Court is away ill the whole of the business is thrown out of gear, and whenever arrears begin to run up they tend to multiply, for people then enter cases simply with a view of postponing the evil day. If power is entrusted to the Court of Appeal to sit in three divisions it would not be like the case of the Artillery referred to by my noble friend Lord Ampthill, but the real addition of another Court for the time being. I certainly should not suggest that a tribunal of three is not better than a tribunal of two, but I think the matter might be entrusted to the discretion of the Master of the Rolls coupled with the consent of the Lord Chancellor. Personally, I would leave anything to the discretion of the present Master of the Rolls. I have sat with him for many years and there is no man in England on whose discretion I could more rely. This is the only risk: Would this power, if given, be used fairly and with proper discretion? If you can trust the persons to whom you give it in this case the Lord Chancellor and the Master of the Rolls-then the mischief is annulled. The cases in which three Judges of the Court below sit together are few. The vast majority of appeals are from a single Judge. Those conversant with the lists can always pick out cases that are of more than ordinary difficulty, and the other cases could properly be heard by two Judges, with the power, where probability of difference showed itself, which would be once in a thousand times, of inviting the aid of another Judge on the spot. It would be an immense boon to get rid of the incubus of the large body of arrears, and if these were once disposed of Lord Collins. I think that the Court of Appeal sitting in three Courts for probably a fortnight in the whole year would enable the accumulation to be nipped in the bud and kept down. I therefore most heartily support the proposal which the Lord Chancellor has embodied in this Bill. THE LORD CHANCELLOR (Lord LOREBURN): My Lords, I am sure it has been a very great advantage that this debate has been adjourned, for we have had a very interesting discussion on a subject of real importance. I will state again, in the shortest manner possible, what I conceive to be the main grounds for this measure. First of all, the Court of Appeal under normal conditions is liable to be crippled by accident from day to day through the illness of one of its six permanent members. This deficiency cannot be supplied by help from any of the extra Judges. The Lord Chancellor has quite enough to do, the Lord Chief Justice has his own Courts to attend to, and so has the President of the Probate Division. The result is that the whole system is dislocated if one Judge becomes suddenly ill; and I have known of cases where Judges of the Court of were not in a fit state in order to prevent Appeal have come to work when they the machinery of the Court from being interrupted. In the second place, and partly by reason of that circumstance, there has grown up a body of arrears which is a burden and a standing incubus on the Court of Appeal. The House has heard what the late Master of the Rolls-whose appearance among us I welcome with pleasure, and I am quite certain that your Lordships will realise what an immense strength he will be to the House before long-has said on the subject. It must be a perpetual strain on the Court of Appeal to find that it has a body of arrears numbering 300 cases each time it begins a term. It is impossible for men to go on working under pressure when they feel that they have these arrears ahead of them; and the state of things at present is that even if you have the Judges in full health they can but keep up to the current business and do little or nothing to remove the arrears. The result is that the arrears are always with them, and they are not tending to decrease. Within the last twelve months I have myself, with the Lord Chief Justice and the President of the Probate Division, sat for a month in order to get rid of the burden of arrears hanging round the neck of the Court; but I cannot undertake to continue that work, neither can the Lord Chief Justice, and the President of the Probate Division cannot be expected to do more. Both of these evils are temporary in their character. The proposal of this Bill is essentially a temporary measure, necessitated from time to time by emergencies; and I stated this to be the case when I introduced the Bill. What are the remedies proposed It is suggested that there should be an increase in the number of Judges in the Court of Appeal. But this step is not necessary for an occasional emergency. It is not necessary for the present purpose to do more than provide for occasional emergency or exceptional circumstances. The objection as to differences of opinion arising between two Judges is one which is always held up as a bugbear to terrify people. The first answer to that is that these differences very rarely happen, and if they do, the difficulty can be remedied after half-an-hour's discussion by invoking the assistance of a third Judge. The second answer is that it is not proposed that two Judges should sit as a regular thing, but only in appropriate cases, as, for example, where a minor question or a short point is involved which may safely be disposed of by two Judges, instead of by three. Further, it must be remembered that you have to deal, in the first place, with the Lord Chancellor and also with the Master of the Rolls, who will really be the governing person in these matters. Personally, I am inclined to leave the matter at large, but if in Committee any noble Lord proposes to prescribe in the Bill how a great officer of State should discharge his duty I shall give such an Amendment my best consideration, without the smallest jealousy or apprehension. I am asked by Lord Ampthill how this Bill is regarded by the legal profession. I am sorry to say I have received from my brethren at the Bir a resolution of the Bar Committee, very kindly expressed towards myself, but disapproving of the proposal in the Bill; but they give no reasons, they suggest no alternative and they do not dispute the necessity. I have also received from the Incorporated Law Society a resolution to the effect that they sympathise with me, but that they do not like the proposal. They, too, do not dispute the necessity or prescribe any other remedy. For my part, I am a law reformer and my predecessor, Lord reformer-and I am most anxious to see Halsbury, was a very considerable law the Courts of this country made efficient business instruments, so that they should be able to say to suitors, if you come tomorrow, we will hear you the day after. *THE MARQUESS OF LANSDOWNE : My Lords, I do not anticipate that any of my noble friends sitting near me will desire to oppose the Second Reading of this Bill. The noble and learned Lord on the Woolsack has said enough to convince the House that the congestion. of business in the Court of Appeal is at this moment intolerable, and that some measure is absolutely necessary in order to relieve that congestion. But I should be wanting in sincerity if I told the noble and learned Lord that his speech had entirely dispelled the doubts with which some of us look upon these proposals. If my doubts are diminished, they are diminished not by what is contained in the Bill, but by the very straightforward explanation of it which the noble and learned Lord has given us. What I am afraid of is that the public perhaps I may say the ill-informed public will regard this measure with a good deal of suspicion. After all, we have to consider three sets of people, the Bench, the members of the legal profession, and, last but not least, the public who represent the suitors. We have heard speeches from noble and learned Judges, and from Peers who represent the legal profession, but I think my noble friend Lord Ampthill is the only member who has ventured to say a word on behalf of the public, whose interests are very much concerned. A NOBLE LORD: Lord Russell. *THE MARQUESS OF LANSDOWNE : But Lord Russell may be said to represent the legal profession. EARL RUSSELL: Yes, but I tried to it is, nevertheless, one of vast importance. say a word on behalf of the public. *THE MARQUESS OF LANSDOWNE: I am afraid I must say that I share the views which Lord Ampthill has expressed. I believe that what the public desire is a strong Court of Appeal, and that, to the mind of the public, a Court consisting of three Judges will always appear stronger than a Court composed of only two. In Scotland, I believe, they have no fewer than four Judges in the Appeal Court. I am, however, not a little comforted by the distinct assurance which was given to us by the noble and learned Lord on the Woolsack that he regarded this Bill as a measure designed to meet an ephemeral and temporary condition of things. He told us that it should be applied with the greatest caution, and only in cases where the circumstances were appropriate and where an arrangement of the kind was clearly demanded by the circumstances. That is an assurance which I think should weigh with your Lordships' House. Whether it would be possible further to reassure the public by adding words to the Bill at a future stage I will not take upon myself to say. My own feeling is that, if we are to rely upon anything, we should rely rather upon the high character and reputation of the great judicial officers who will interpret this Bill than upon any words we might attempt to graft into the clauses of the Bill. With these few observations I for one consent to the Second Reading. On Question, Bill read 2, and committed to a Committee of the Whole House. THE PUBLIC HEALTH ACTS. THE EARL OF ONSLOW: My Lords, I rise to call attention to the Public Health Acts, 1875-1890, and to the large number of Acts passed in recent sessions, and of Bills pending in the present session, to amend or extend those Acts or otherwise to confer sanitary powers on certain local authorities; and to ask His Majesty's Government whether they do not consider that the time has arrived for the extension of the Public Health Acts. This subject is perhaps not of such great importance as that which your Lordships have just been discussing, but In the year 1875 there was a consolidating Public Health Act passed which comprised a very large number of clauses, all designed to give powers to local authorities which chose to adopt the Act. Short of the adoption of the clauses of that Act it was necessary to obtain clauses in special Acts affecting special localities. Since 1875 there have been a number of Public Health Acts passed dealing with water, interment, sewers, the confirmation of by-laws, infectious diseases, and buildings and streets; and in the year 1890 another consolidating Act was passed to which certain clauses were added, and which is the last word that has been spoken on this subject. Since 1890 there have been no clauses dealing with police and sanitary matters with the exception of those which deal with isolation hospitals and infectious diseases. The result has been that a number of matters have come under the notice of local authorities, who have desired to avail themselves of further powers than those given to them by the general law. As a consequence, every year fresh clauses are introduced in private Bills which might, I think, very well be embodied in a general Public Health Act applicable to such parts of the country as chose to adopt it. In the years 1903-1906, there has been in no fewer than forty six Bills a clause dealing with deficiency of new buildings, in thirty-six Bills a clause dealing with trees overhanging streets, in forty Bills a clause prohibiting persons suffering from infectious disease carrying on any business, and in forty Bills a clause regulating the manufacture and sale of ice-creams. What does that mean? It means a very large expenditure on the part of the public authorities concerned, who have to go to the expense of promoting private Bills in order to get these powers. I shall perhaps startle your Lordships when I show you the Bill I have in my hand which is now before your Lordships' House. It contains 290 clauses. What the expense of this Bill is I should be afraid to say; but I will say this, that, if a Public Health Act were to be passed now, at least one-third, if not one-half, of the clauses in this Bill would be rendered unnecessary. I have taken pains to look into the cost of these Bills, and I find |