5. This Bill, Mr. Graham-Harrison, is a combination of the Bill we had before us last year and the Probate Bill, the Bill dealing with Probate, Divorce and Admiralty, which was introduced later and was referred to the Committee, but the dissolution of Parliament took place and we never actually took it up?-(Mr. Graham-Harrison.) That is so, it is those two Bills put together. Further than that, in revising the Bill I incorporated all the decisions which the Committee on last year's Bill arrived at.

6. I understood that. There are a few clauses where you have made alterations in consequence of decisions which the Committee arrived at last year?—Yes.

Chairman.] I hope that the Committee, as a majority, at any rate, which went through the Bill last year would accept what was done then, so that we should be able to run pretty quickly through those Clauses, unless any particular question arises. In going through it myself I do not see that there are very many questions. We have most admirable notes on the Clauses before us.

ON CLAUSE 1:

Chairman.] This Clause is just the same as before.

Sir Malcolm Macnaghten.] Is it desirable to omit the words in the second line, 66 two permanent Divisions, namely "? It seems rather silly to speak of them as Divisions. It is appropriated entirely to Divisions of the High Court. The effect would be exactly the same; it would be "a Supreme Court of Judicature in England consisting of His Majesty's High Court of Justice" and so on; and there is the difficulty about the interpretation clause as to the word "Division." It is quite true it says "unless the context otherwise requires," but in my experience I have never heard anybody ever speak of the Court of Appeal as a Division of the Supreme Court.

Chairman.

7. They are the words of the old Act? —(Mr. Graham-Harrison.) They are the words in Section 4 of the Act of 1873.

Sir Malcolm Macnaghten.

8. Whatever the framers of the Act may have thought would happen they have in fact become obsolete.-I have not the slightest wish to object to the suggestion to strike the words out.

Lord Blanesburgh.] To a certain extent they are confusing.

Chairman.] What do you say, Colonel England?

Colonel England.] Omit them if they are superfluous, certainly.

12° Martii, 1924.]

[Continued

Lord Stuart of Wortley.] It seems to be a perpendicular classification across a horizontal one.

Chairman.] The amendment would be. to strike out the four words, "two, permanent Divisions, namely."

(The words are struck out.)

Sir Malcolm Macnaghten. I am not sure whether you should not strike out the last words, with such jurisdiction as is conferred on them respectively by this Act." They also are quite unnecessary) because Part 2 of Clause 18 confers the jurisdiction.

Lord Askwith.

9. You get the Divisions in Clause 2, Sub-clause (1), again. All through you allude to several Divisions without saying what the Divisions are.-(Mr. Graham Harrison.) The expression "Division" is defined by Clause 227 to mean "Division of the High Court."

Chairman.] I think it is all right. Lord Stuart of Wortley.] If you maintain the concluding words of Clause 1, what does the pronoun "them 22 mean? Chairman.] His Majesty's High Court of Justice and His Majesty's Court of Appeal.

Lord Stuart of Wortley.

10. I thought it might refer to the word" Divisions" which we have struck out.-(Mr. Graham-Harrison.) It would be better to substitute "those Courts " for the word "them."

Lord Stuart of Wortley.] It is doubtful as it stands.

Sir Malcolm Macnaghten.] Do you really need the words. Section 18 confers the jurisdiction on the High Court and Section 26 confers it on the Court of Appeal.

Chairman.] Personally I think that the words had better stay in just as they are.

Lord Blanesburgh.] Would there be any objection to substituting "those Courts" for the word "them "?

Lord; I think it would be an improvement to put "those Courts" instead of them." (Agreed to.)

Chairman.] I will put the question, that Clause 1 stands part of the Bill. (The Contents have it.) (Claused 2 is passed.)

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ON CLAUSE 3.

Sir Malcolm Macnaghten.] I suppose this is taken from the old wording, but it has a very curious effect because it says: any judge of the Court of Appeal may, on the request of the Lord Chancellor, sit and act as a judge of the High Court or perform any other official or ministerial acts for or on behalf of any judge absent though illness or any other cause, or in place of any other judge whose place becomes vacant, or as an additional judge of any Division, and the Lord Chancellor may at any time request any person who has held the office of a judge of the Court of Appeal, or of a judge of the High Court, to sit and act as a judge of the High Court." Presumably a

66

person cannot perform any other official or ministerial acts and there is a distinction apparently drawn which cannot be intended. I would suggest the words "subject to the provisions of this section any judge of the Court of Appeal may on the request of the Lord Chancellor" and then get in these other persons who have held the office of a judge of the Court of Appeal or of a judge of the High Court-" subject to the provisions of this section, any judge of the Court of Appeal or a judge of the High Court, may on the request of the Lord Chancellor" and so on.

Chairman.

12. (To Mr. Graham-Harrison.) I think the last part came in in 1920 ?-Yes.

Sir Malcolm Macnaghten.] It looks as if an existing judge of the Court of Appeal who is asked to sit has got larger powers than an ex-judge of the Court of Appeal who is asked to sit.

Lord Blanesburgh.] Is anything gained by retaining the words "perform any other official or ministerial acts for or on behalf of any judge absent through illness or any other cause if he is a judge?

Sir Malcolm Macnaghten.] I should have thought not.

[Continued.

Chairman.] I think it would be rather a strong order to knock those words out. Sir Malcolm Macnaghten.] Ought not an ex-judge of the Court of Appeal who sits to have the same power?

Chairman.] I should have thought that sub-section (1) represented exactly what was the effect of the additional clause in 1920 being added to the Statute, leaving the old one, Section 51 of the Act of 1873, as it was. Perhaps there is a little difference between the jurisdiction conferred in the two places, but that does represent the effect of the two Acts, I think.

Sir Malcolm Macnaghten.] It is odder than that because it says 66 any judge of the Court of Appeal may, on the request of the Lord Chancellor sit," but with regard to an ex-judge all that is said is that the Lord Chancellor may request him to sit. It does not say that he may sit, although I suppose that is implied.

Chairman.] Is not that a criticism on the Act of 1920?

Sir Malcolm Macnaghten

13. But when they are thrown together -after all we have to construe the section and it might be argued that this difference of language must be construed as having some different effect?-(Mr. Graham-Harrison.) Is it not possible that you might regard the words: perform any other official or ministerial acts" as superfluous, having regard to Sub-section (2) of the Clause, and strike them out on that ground?

Lord Blanesburgh.] I would suggest that there is inconvenience in retaining them unless as a matter of consolidation they ought to be retained, and that is this, if the Lord Chancellor does request somebody who has been a judge of the Court of Appeal or has been a judge of the High Court to act as an additional judge the question may arise whether when that person acting as an additional judge is asked to do something which a judge would naturally do, he may not say, "Oh, but this would be an official or ministerial act and I am not authorised to perform it,' and that would be very awkward and would certainly not be the intention of anybody. I do not know what an official or ministerial act performed by a judge as such is in relation to his ordinary judicial duties.

Chairman.] That is a criticism on the old Act. It is always a difficult question

in these consolidations how far you ought to improve the old Act.

Lord Blanesburgh.] Quite.

Chairman.] If we see anything obviously preposterous we propose an amendment, but otherwise I think it is better not to interfere with the language if we can help it.

Sir Malcolm Macnaghten.] If you bring it into one sub-section, the result will be that you must create a difference.

Chairman.] Which you think does not exist now?

Sir Malcolm Macnaghten.] Surely His Majesty's judges might say that what was in the new Act and the old Act means the same thing, but when you bring it into one section it is a different matter. Chairman.] Will you move any amend

ment?

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Sir Malcolm Macnaghten.

14. Yes, I will move after the words, any judge of the Court of Appeal" in the second line, to insert the words, "any person who has held the office of a judge of the Court of Appeal or of a judge of the High Court." (Mr. GrahamHarrison.) May I point out that this would really make some substantial alteration, because at the present time the first half of sub-section (1) is limited to cases of a judge being absent through illness or there being a vacancy. The latter words apply to what you may call asking an ex-judge to act as a supernumerary judge. The last four lines cover a wider field; they enable the Lord Chancellor to ask an ex-judge to sit as a supernumerary judge, though no one is absent and there is no vacancy.

Sir Malcolm Macnaghten.

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15. That is so in the first one, because there are the words, or as an additional judge of any Division."-At any rate, the words, "perform any other official or ministerial acts,' only apply where a judge of the Court of Appeal is sitting for a judge who is absent through illness or in the place of a judgeship which is vacant, and they do not apply where he is sitting as an additional judge.

Lord Blanesburgh.] Is there any reason why they should apply to the one case and not to the other?

Sir Malcolm Macnaghten.] It is very odd if it is intended that an ex-judge of the Court of Appeal should be in a different position from an ex-judge of the

12° Martii, 1924.]

[Continued.

High Court when the Lord Chancellor has requested both to sit as additional judges.

Lord Blanesburgh.] I suppose the reason why an ex-judge is asked to sit is because a present judge is not available.

Lord Askwith.] Would not the least change of all be to cut out the words, "or perform any other official or ministerial acts"? That would read clearly all through then.

Chairman.] I do not think so.

Sir Malcolm Macnaghten.] You still would have the curious provision that a present judge of the Court of Appeal is authorised to sit, but with regard to an ex-judge of the Court of Appeal and an ex-judge of the High Court, all the section says is, the Lord Chancellor may request him to sit.

Lord Blanesburgh.] You get it in proviso (b) “nothing in this section shall be deemed to require any person who has held office as aforesaid to sit and act as a judge of the High Court unless he consents so to do."

Mr. Foot.] The second sub-section refers also to sitting and acting, which covers the whole section.

Chairman.] What do you move, Sir Malcolm?

Sir Malcolm Macnaghten.] To insert the words or any person who has held the office of a Judge of the Court of Appeal or of a Judge of the High Court" after the words "Court of Appeal" in the second line, and then to strike out all the rest of the Section after the words "any Division" in the 16th line. Then it would run, "" Subject to the provisions of this Section, any Judge of the Court of Appeal, or any person who has held the office of a Judge of the Court of Appeal, or of a Judge of the High Court may, on the request of the Lord Chancellor, sit and act as a Judge of the High Court or perform any other official or ministerial acts for or on behalf of any Judge absent through illness or any other cause, or in the place of any other Judge whose place becomes vacant, or as an additional Judge of any Division."

Chairman.

16. Have you anything to say upon that, Mr. Graham-Harrison ?-(Mr. Graham-Harrison.) No, nothing more.

Chairman.] Do you support that?

Lord Blanesburgh.] Yes. I think it makes the Section very much clearer, and

I imagine in the result it will not have any effect different from that which was intended by the two sub-sections in the separate Acts.

Chairman.] The question is that this Amendment be agreed to.

(The Amendment is agreed to.) Chairman.] Has anybody any further remarks to make upon Clause 3?

(Clause 3, as amended, is passed.)

On CLAUSE 4.

Chairman.

17. There is a difference here?-(Mr. Graham-Harrison.) There was a sub

stantial alteration in the first sub-section agreed to last year. Effect has been given to that.

18. About the President of the Probate Division ?-Yes, with regard to the constitution of the Probate, Divorce, and Admiralty Division.

19. There is a long Note explaining what we did last time, which will be interesting to those who were not here, but it seems to me that this is quite right. "The Probate, Divorce and Admiralty Division, consisting of a president and one puisne Judge." That is the one practical alteration, is it not?—Yes.

Chairman.] This is one of those cases where, when we have made an Amendment, we make a careful report to Parliament. That will be to a great extent in the terms of the note that we have got explaining what it is that we have done and why we have done it. Has anybody any remark to make upon Clause 4 as it stands now? It seems to me to be right.

(Clause 4 is passed.)

Chairman.] There comes in there the question about the omission of the Railway and Canal Commission Section. We decided to omit it as obsolete really. We shall have to make a note about that cmission. I have a note about the Registrar of the Railway and Canal Commission on the point about the Appeals. I will bring it up after lunch and ask you about it.

Mr. Foot.] The reference to the Railway and Canal Traffic Act simply bore upon the appointment of an additional Judge.

Chairman.] If the business of the Railway and Canal Commission was so great

[Continued.

intended, that a judge of the High Court who has served as a judge for less than one year, but who may be a barrister of 20 years' standing, is not eligible for appointment to the Court of Appeal?

Chairman.] That is one of the oddities of that Section.

Lord Blanesburgh.] Does it mean that, because it is absurd if it does?

Chairman.

22. We cannot do anything, can we? I think possibly people have been appointed to the Court of Appeal who are in that anomalous position?-(Sir Claud Schuster.) It may be so.

Chairman.] Has anybody acted who has been a judge for less than one year?

Lord Blanesburgh.

23. I should conceive it possible, but I do not know of any instance. It is a perfectly absurd result if that is the meaning of the clause. I think it does not mean that. That qualification of 15 years' standing as a barrister inures to the benefit of the judge who has been a judge of one of the Divisions of the High Court for less than one year he can be appointed as a barrister of more than 15 years' standing. I do not know whether he does not cease to be a barrister by becoming a Judge of the High Court?(Sir Claud Schuster.) Lord Esher said he did not.

Lord Blanesburgh.

24. Perhaps there is nothing in it, but it occurred to me as a curious position, and it is certainly something which nobody intends or desires?-(Sir Claud Schuster.) We are all agreed that these qualifications are wrong, but we have to introduce them as they are. No one suggests that it is consistent with common sense that 10 years should be sufficient for the Master of the Rolls, and 15 years for the Judges over whom he presides, and none for the Lord Chancellor. But that we are putting right elsewhere, are we not? (Mr. Graham-Harrison.) No.

Chairman.

25. It is no use suggesting that the Amendment Bill might put this Clause into better form?-(Sir Claud Schuster.) By all means, if you would like it done.

D