Select Committee on Privileges Second Report


Hansard's Report of Proceedings in the House of Lords, vol 210 col 1990 (30 April 1872)


    Extract from the speech of the Lord Cairns on the resumption of the adjourned debate on the Lord Chancellor motion to resolve, That it is expedient that one Imperial Supreme Court of Appeal be established which shall sit continuously for the hearing of all matters now heard by way of Appeal before this House or before the Judicial Committee of the Privy Council, and that the Appellate Jurisdiction of this House be transferred to such Supreme Court of Appeal.

  . . . The objections which were made to the manner in which the appellate jurisdiction of this House was exercised many years ago; but it would be a mistake to suppose that he is in favour of transferring that jurisdiction from this House. Many of your Lordships are aware that a domestic affliction prevents Lord St Leonards being present at this debate; but I had a letter from him this morning in which he expresses himself strongly against such transfer, and says it ought not to be made. As regards the Scotch appeals, the Committee of 1856 examined the Lord Justice General of Scotland, the Lord Justice Clerk, the noble and learned Lord behind me (Lord Colonsay), Mr Kerr, and Mr Anderson, all of whom were members of the Scotch Bar. And those gentlemen, who were more competent than most other persons to express an opinion on the matter were unanimously of opinion that the jurisdiction of this House in Scotch appeals was extremely popular in Scotland, and that great dissatisfaction would be felt in Scotland at a transfer of that jurisdiction to any other tribunal. A most remarkable document was sent to the Committee signed at a very large meeting of the Writers to the Signet. I attach more importance to that document because, if there be any class of professional gentlemen who, more than another, have no personal interest in the maintenance of the appellate jurisdiction of this House, it is that of the Writers to the Signet. Appeals coming to the House from Scotland do not come through them, but through Scotch agents in London, who are a different body. Well, what does the document state?—

    "That this society fully recognises the great benefits which have resulted to the Law of Scotland from the exercise of the appellate jurisdiction of the House of Lords, and would deprecate any alteration by which its judicial functions would be vested in any other body."

  That is strong testimony; and but only this morning I received a letter from Mr Anderson, one of the gentlemen I have alluded to as having been examined before the Committee, in which he says—

    "My experience since I gave my evidence before the Appellate Jurisdiction Committee in 1856 has only tended to confirm the opinion I then entertained as to the desirability of the House retaining its appellate jurisdiction, and I believe that a great majority of the lieges of Scotland concur in that opinion. Any measures to remove that jurisdiction to a separate Court, whether sitting in Westminster Hall or in the Parliament House, would in Scotland be extremely unpalatable. Further than this, I do not presume to say a word on the merits of the Bill now before Parliament."

  My Lords, before I leave the question of Scotland, let me remind your Lordships of a view of this subject which I think was expressed by Lord Aberdeen. By our Treaty of Union with Scotland we expressly contracted that under no circumstances were appeals from the Scotch Courts to be sent to any of the Courts in Westminster Hall. I admit that my noble and learned Friend intends that this new Court shall be a Supreme Court; but it may be composed of three Barristers of 10 years' standing, and I do not very well know how a Court composed of Barristers of 10 years' standing will come to be regarded as an Imperial Court, nor how my noble and learned Friend will be able to persuade the people of Scotland that if his Bill passes, the appeals from their Courts will not be taken to a Court in Westminster Hall. They may think that you will be doing in substance, if not in form, the thing you undertook not to do. Now, as to Ireland, my Lords, the subject of the appellate jurisdiction was one that caused very great contests in Ireland in the last century. In 1783, after much controversy and debate, Ireland succeeded in having the House of Lords which then existed in Dublin the tribunal of final appeal for Irish cases; and for that reason, on the Union of Ireland with this country, there was an agreement that Irish appeals should be heard by this House only; but what will the Irish people say if they hear that appeals from their Courts may be brought before three English Barristers of 10 years' standing? Is this a moment—when Home Rule is exciting so much agitation in Ireland—is this a moment for you to open a door which you may hereafter be very glad to shut, and to give those who are agitating for Home Rule an opportunity of saying to their countrymen—

    "Do not carry your appeals to London, to have them heard by three Barristers of 10 years' standing."

  Remember, my Lords, when you talk of the "Imperial Parliament," those words have a substantial meaning—they are not words of mere formal description; and I take it that one of the greatest advantages . . .

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