CLAUSE 106.—(Provisions as to Appeals to the King in Council.) (Hansard, 19 August 1909)

§ Lord ROBERT CECIL

I do not wish to resist the Clause in any way, but I should like to ask a question of the Under-Secretary as to the first paragraph: "There shall be no appeal from the Supreme Court of South Africa or from any division thereof to the King in Council, but nothing herein contained shall be construed to impair any right which the King in Council may be pleased to exercise to grant special leave to appeal from the Appellate Division to the King in Council." It proceeds: "Parliament may make laws limiting the matters in respect of which such 1644 special leave may be asked …" If I understand it aright, the effect of that is to give to the Union Parliament the right to say, as to any particular matter, no leave shall be asked to appeal from the Courts in South Africa. That appears to be a regrettable provision—not because I have the slightest fear that our fellow-countrymen in South Africa will not work this Act perfectly fairly as far as the native question is concerned, but for this reason. One of the great recommendations of the Bill is that these unions of portions of the Empire, I hope, lead up, it may be in the distant future, to a more complete union of the Empire. I think we all look forward to some such ultimate result as that. Anything which interferes with the idea of the unity of the Empire is to be regretted. Certainly one of the links of Empire is the power of appeal to the Privy Council, the central court of the Empire, which has been of inestimable advantage to all parts of the Empire, and not least to this country. Therefore I regret anything which weakens the idea of a Central Imperial Court, especially in view of the steps which have been, taken in recent years to make it a real Imperial Court, with representatives from other parts of the Empire sitting upon it. I would ask whether my interpretation of the clause is correct; if so, whether there is any possibility of that provision being modified so as to leave the right of the Privy Council in regard to granting special leave to appeal absolutely unfettered? I do not suggest that any Amendment should be put in by this House. I recognise all that has been said about the difficulty of amending this Bill—not because I think we are not perfectly entitled to amend any Bill, but because an Amendment in such a Bill as this should only be made where we fear that some great miscarriage of justice or interference with Imperial interests might otherwise take place. I do not think there is such a case for an Amendment of this clause any more than I think there has been in regard to any previous clause; but I should like an answer on the point I have raised.

§ Sir W. ROBSON

There is no clause in the Bill which bears more clearly the marks of negotiation and compromise than Clause 106. It begins by saying that there shall be no appeal from the Supreme Court of South Africa to the King in Council—that is, the Privy Council. That is a very sweeping statement. Then follows an important qualification, showing another view, which demanded some concession, namely, that 1645 nothing in the clause shall be construed to impair any right which the King in Council may be pleased to exercise to grant special leave to appeal. Now comes in what I may call another side of the contention; the clause states, "Parliament may make laws limiting the matters in respect of which such special leave may be asked." Then, that having been inserted, another ciew says that if any such laws are passed they shall be reserved for the signification of His Majesty's pleasure. It is a clause which it is perhaps more inexpedient for us to alter than any other clause, because of the obvious negotiation and bargaining there has been. It cannot be said that there is anything inconsistent in the different parts. The Privy Council is felt, both here and in the Colonies, to be not merely a symbol, but a great instrument of Imperial unity; and the view prevails, and is certainly extending in the Colonies, that it is very desirable that there should be some Supreme Court of Law to unify, as far as possible, the prevailing different systems of local law. The appeals to the Privy Council from South Africa have been fewer than from Canada or Australia, because there the Roman law prevails, and a very special and expert knowledge is desired on the part of those who adjudicate on the appeals; so that it is not unnatural that there should be in South Africa a stronger party who are averse from appeals to the Privy Council, not because they do not appreciate the function of the Privy Council as a great instrument of Imperial unity, but because they are afraid that the appeal might be indiscriminately used by those who can afford it against those who have obtained judgment in South Africa.