HC Deb 12 June 1874 vol 219 cc1560-2

said, he had a Motion on the Paper to the following effect, although he could not, in accordance with the Forms of the House, propose it:— That an humble Address he presented to Her Majesty, praying Her Majesty that in cases in which the constitutionality of Acts of Colonial Legislatures, transmitted for her approval, is in question, that the matter shall be referred to the Judicial Committee of the Privy Council, who shall he authorized to hear arguments on both sides, and to report thereon for her Majesty's consideration. He considered it was an important question, and would call on the House to consider how dangerous and difficult must be the relations of colonies which, after their legislation had been carried through—legislation often referring to questions exciting keen party and political feeling—must submit it to authorities, such as the Law Officers of the Crown, before whom they had no representation, and to whom they could present no argument. Differences might arise from that state of things which might lead to serious collisions between the Colonial and Imperial Governments. For instance, in 1873, an Act had been passed by the Legislature of the Dominion, which was declared by the Colonial Office, in a telegram, to be illegal. The remedy which he proposed was that instead of referring the question of the legality or illegality of an Act which had been transmitted to the Colonial Office for Her Majesty's approval to the Law Officers of the Crown, it should be referred to the Judicial Committee of the Privy Council, and that the Government of the colony should have the opportunity of arguing the question before that Committee. There had been instances in which this course had been adopted, as in Judge Barry's case and the case of the Bishop of Natal. He would further add that Lord Cardwell, an eminent authority on questions of the kind, had given his sanction to the suggestion which he (Mr. Jenkins) now brought before the House. It was to be recommended, he thought, on the ground that it would tend to increase the independent attitude of the colonies and dependencies of the country, and to prevent collisions between great senatorial bodies; and there could, moreover, be no knowing how soon the course he advocated might possess practical value.


said, that he regretted the hon. and learned Gentlemen had brought the subject forward, it being inconvenient on account of the hon. and learned Gentleman's position as Agent General for the Dominion, as it might be inferred there from that he represented the Dominion that evening. The hon. and learned Member had spoken of the working of the present system in reference to that matter as having created some difficulty in the working of the Confederation Act of North America, but there was no record at the Colonial Office of any complaint or remonstrance on that subject having been made to the late or the present Government. If any such feeling of dissatisfaction as the hon. and learned Gentleman adverted to had really existed, surely some representation to that effect would have been sent home from time to time by the Representative of Her Majesty in the colony. [Mr. JENKINS said, he had called attention to facts, but had not spoken of feeling.] The hon. and learned Gentleman had described the present method of determining the constitutionality of Colonial Acts as unsatisfactory, and surely it could hardly be characterized as unsatisfactory, unless dissatisfaction was felt by somebody. Those, however, who were interested in this case did not appear to be dissatisfied. The hon. and learned Gentleman had forborne to indicate by what means these Acts should be called in question. He must be aware that a reference to the Judicial Committee of the Privy Council involved considerable expense and delay. Would the hon. and learned Gentleman propose that all Colonial Acts should be referred to the decision of the Judicial Committee whenever exception was taken to them by any person, however remotely interested? He thought the hon. and learned Gentleman hardly intended to make a proposition of that kind. Responsibility finally rested upon the Secretary of State, to whomsoever he might appeal for advice before he came to a decision. The Secretary of State might refer to his own Colleagues, or to the Privy Council, or, as was the more usual course, to the Law Officers of the Crown. The colonies would in future have no reason to complain, and hitherto no complaint had been made as to matters to which objections were entertained by the Colonial Office. The Colonial Office would always endeavour to obtain the general assent of the colonies and of the House to the course they pursued in cases of this kind.