APPENDIX 4(18)
Hansard's Report of Proceedings in the
House of Lords, vol 210 col 1990 (30 April 1872)
APPELLATE JURISDICTION—SUPREME COURT
OF APPEAL—OBSERVATIONS
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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