The Dominion. MONDAY, AUGUST 7, 1911. PARLIAMENT AND THE JUDICIARY.

Dominion, Volume 4, Issue 1199, 7 August 1911, Page 4

The Dominion. MONDAY, AUGUST 7, 1911. PARLIAMENT AND THE JUDICIARY.

A question that recent events made of practical interest to New Zealanclers'and that may possibly be the subject of discussion in the House of Representatives before the session ends is discussed in the London Nation by Mr. Swift M'Neill, than whom there is nobody more competent to write upon Parliamentary la\v._ This question is, whether tho Judiciary is to be immune from criticism in Parliament unless on a substantive motion specially framed for that purpose. There is another question—or rather was, for it is no longer a question, having been finally settled by the Australian High Court's reaffirmation of the governing English decisions—namely, whether a judge should be criticised at all. Mr'. M'Neill'sc article was prompted by the hue and cry raised against Mr. Winston Churchill at the end of May for his general criticism of the Judiciary, to which he imputed unconscious bias. The idea seems to'obtain that there is some !'supreme principle of Parliamentary [government rendering a motion necessary to criticism of tho Bench. Such an idea, it need hardly be said, is quite erroneous. It is nevertheless true that there is a rule on the point; there arc several Speakers' rulings in this country which arc quite definite. That, however, does not entirely settle tho m'atter, as Mr. Swifj M'Neill shows by appeals to precedent. He claims that the tendency of the Courts and any bias shown by them, are not matters where discussion is to be confined to specific motions. His first precedent is a celebrated speech delivered in the House of Commons by Mr. (afterwards Lord) Brougham on February 7, 1828. Speaking of tendencies in the Courts-traceable to political appointments to the Judiciary, he said:

Does not this arrangement instil into the minds both of expectant judges and men already on the Bench a feeling of party fatal to strict justice in political cases? I speak impartially but unhesitatingly on this point, for it is perfectly notorious that nowadays whenever a question comes before the Bench, whether it be upon a prosecution for libel or npon any other matter connected with polities, the counsel at their meeting take it for granted that they can tell pretty accurately the bearing of the judges and predict exactly enough which way the CDnsultation of the judges will terminate, though they may not always discover the particular path which will lead to that termination. . . . There is no doubt that the present judges will always discharge their functions with all the impartiality that any man can expect from them, but X speak without reference to individual habits or prejudices—l speak of impressions which it is natural to expect must exist when circumstances all conspire to crcato them.

The late Mr. Isaac Butt, Q.C., whom Mr. M'Neill reminds us has been described as the very greatest authority of his time on the law ancl practice of Parliament, took occasion, on June 25, 1874, on a motion •v'nich was not a specific motion censuring a judge, to speak very plainly upon what he and a great many other people considered the bias of the Irish judges. He emphasised the necessity. of "keeping judges strictly aloof from all places or occupations through which they might be brought under the influence of tho passions, prejudices, or intrigues which more or less prevailed in political circles" —a sound doctrine that it would be affectation to say has not been notably departed from by the present New Zealand Ministry. Mil. Butt naturally laid stress upon the damaging effect of such events as tend to lessen the public's confidence in the administration of justice. Still more strongly destructive of the doctrine that criticism of ,the Judiciary in Parliament must bq/preceded by a specific motion of censure was th'c freedom allowed to Mr. Parnell in 1882 to criticise the Judiciary on a motion for tho introduction of a Prevention of Crimes Bill. "Mr. Parneli. not only spoke, without lot or hindrance, of the tendencies of the Courts, but even mentioned a fact in the career of a learned judge then on the Bench which was not construed into an 'attack' on him, and as such only to be mentioned in debate on a specific motion.'' The actual reference was to Chief Justice May, whom, using his name, Mr. Parneli, criticised with extreme severity. Perhaps the late Mr. Gladstone' would lie regarded as a, higher authority, in a matter of this kind, than any of those already named. In 18S7 o-i one occasion the Irish members were urging that public attacks on their conduct in the House should be dealt witli as matters of privilege, fur they distrusted the C'onrLs that were open to them. The Unionists denounced tho 'Nationalist!], ancl moved ]\i.n, Gladjsioxe to defend them, He said

that Lord Randolph Churchill was "extraordinarily rash" in giving "a general acquittal of all the judges of all the Courts of England," and proceeded : "Has Hie nnble Lord over hoard of Lord Ellenborough? Dnos ho know Ihc opinion pronounced upon lain by his brother judge and biographer, l.ord Campbell? Lord Campbell stated that in the ease of Lord Dundonald the conduct of Lord Kllcnborough was severely censured not only by the vulgar but by men of education on both sides. . . . Kntirely difl'ering from the noble Lord, I believe that all judges now 011 jlie Bench might be trusted perfectly. But there is one judge now upon the iionch who came down from the Bench to take a part in regard to the Irish question more violent than has been taken almost bv nny layman' I can remember [Mr. Justiec Fitzjames Stephen|. .And if one of these gentlemen [the Irish Nationalist members] sitting below the r-nngv.-ay says it is excusable in him to feel some niistuist in such a case, though I should not feel such mistrust myself, yet I must say that I understand such mistrust." Should the question be raised in Parliament during,this session, the public will not look with any favour upon any attempt to check that criticism of recent developments of judicial practice which most people are, agreed is quite necessary. Nowhere, we believe, was there any approval expressed—excepting, of course, by Ministers—of the practice of paying a judge huge fees for extra-judicial work. Even in those quarters in-which there is notoriously a willingness to go to very great lengths to defend the Ministry there was reflected the general miblic sentiment in this matter. This demonstration, however, failed signally to impress the Ministry with the importance of keeping the Judiciary awav from politics and political administration. It offended shortly afterwards in arranging for a judge to act practically as a Departmental official. Clearlv, the case is one for an instruction from Parliament.