HC Deb 29 June 1956 vol 555 cc949-58

Motion made, and Question proposed, That this House do now adjourn.—[Mr. R. Thompson.]

3.39 p.m.

Mr. Graham Page (Crosby)

I desire to draw attention to the composition of the boards for the appeals which come to the Judicial Committee of the Privy Council. I count myself particularly fortunate in having the privilege to raise this matter, because I consider it to be of considerable importance in the development of the Commonwealth, and because this is a particularly propitious time to raise the subject, when the Conference of Commonwealth Prime Ministers is being held. It is also a matter connected with that which the House has been discussing earlier today, namely, the birth of another Commonwealth nation—the Caribbean Federation.

The Judicial Committee of the Privy Council is still a very important pillar of the Constitution. I would desire not only to maintain but to strengthen that pillar and to adapt it to modern circumstances. I should like to make it clear right away that in the points I wish to make I do not wish to make any criticism whatever of the noble Lords and judges who sit as members of the boards of the Judicial Committee. If I may humbly and respectfully say so, we have in these boards the finest legal brains and judicial wisdom not only in the Commonwealth, but in the world. I speak with some experience of having listened for many hours in the Privy Council because—and here I must declare an interest—I am one who is privileged to be entered on the Roll of Privy Council Appeal Agents and who practises as a solicitor in that court.

My complaint is in no way against the magnificent judicial quality of the Committee. It is solely directed to the fact that the hearing of appeals is by members of the judicial Committee entirely drawn from those who hold, or have held, high judicial office in the United Kingdom. I believe that that fact, however brilliant those judges may be, creates a feeling in the Commonwealth and in the Colonies that they are rather remote old gentlemen sitting in Whitehall, and not that the Judicial Committee is the supreme court of appeal of the Commonwealth, as I should hope they would feel. I believe that there is a feeling in the Colonies and the Commonwealth that this is an imperial court imposed on them by the United Kingdom.

Historically, there is great foundation for that view, and that is all the more reason why we should take care to ensure that this judicial body is subject to a similar evolution in form as that which is taking place in the economic, political and social structure of the Commonwealth.

The Judicial Committee as a judicial body is unique. It exercises the jurisdiction of the Sovereign in Council, which arose partly out of the Common Law and partly out of the Royal Prerogative. In theory, the Council—and before 1833 the whole Council—acts in an advisory capacity to Her Majesty as the fountain head of justice throughout Her Dominions and Colonies. In 1883 the Judicial Committee was created to perform that function and to hear appeals from the Dominions and Colonies and to advise the Sovereign thereon. Indeed, their judgment is still given as advice to Her Majesty.

Since its creation in 1833, the composition and jurisdiction of the Judicial Committee has been changed from time to time. Its jurisdiction in appeals is from the Colonies, the Protectorates, from the Dominion and State Courts of Australia, from New Zealand, Ceylon and the Central African Federation. The members of the Judicial Committee are, first, all Privy Councillors who have held or hold high judicial office in this country; secondly, two other Privy Councillors whom the Sovereign may appoint; and, thirdly, all Privy Councillors who are, or have been, Chief Justices or judges of the superior courts of the Dominion or provinces of Canada, of the Dominion or states of Australia, or New Zealand or of the Union of South Africa.

All those whom I have mentioned are automatically members of the Judicial Committee. So far as the Dominion judges are concerned, all that is necessary is that they should be appointed Privy Councillors. There are quite a large number so qualified and so appointed. But I cannot recollect any occasion on which any Dominion or colonial judge who is a Privy Councillor has sat to hear an appeal, that is to say, has been nominated a member of the board to hear appeals, with the exception of the Right Hon. Mr. de Silva, an ex-judge of Ceylon, who is a frequent and most respected member of the boards hearing appeals.

In addition to those I have mentioned as members of the Judicial Committee, the Act of 1895 included as members any chief justice or judge of any other superior court of Her Majesty's Dominions trained in that behalf by Her Majesty in Council. As far as I am aware, no such Order in Council has ever been made, and I wish to press that point on my right hon. and learned Friend a little later. One would imagine from that membership that there would be plenty of scope for making this a truly Commonwealth court, and indeed the Administration of Justice Act, 1928, abolished any limitation on numbers of the Judicial Committee. But, in practice, every board, the three or five judges who sit to hear any one appeal, is composed of United Kingdom judges, with the one solitary exception I have mentioned of the Right Hon. Mr. de Silva.

Why, when the Registrar of the Privy Council asks the Lord Chancellor's Department to nominate the board for any particular appeal, is a Commonwealth or colonial judge never nominated? Is there some difficulty about paying for their services? For example, am I correct in assuming that the one exception which I have mentioned receives no payment for his valuable and tireless work on these boards?

When boards are so constituted, it is little wonder that India, South Africa, Canada and Pakistan have broken away from this appellate jurisdiction of the Privy Council. However brilliant our judges may be, one can understand the injury to political prestige which such nations would feel they suffer in continuing to submit to an entirely United Kingdom court.

The breakaway has, I am sure, been purely political. I think it is a trend which is regretted by the judiciary, by the legal professions and by the litigants, especially the merchant litigants, in the Commonwealth countries. It is a trend which need not continue if the Colonies now gaining their independence were made to feel that the Judicial Committee is really their court and contains their highest judges as members of it. Today we have been discussing the creating of a new Commonwealth nation, in the proposed constitution of which the appellate jurisdiction of the Privy Council is to be retained. But for how long will it be retained if the boards continue to contain not the judges of the Commonwealth but only the judges of the United Kingdom? I believe that, if we do that, the trend to abandon this judicial link will continue.

One particularly outstanding exception to that trend has indirectly received the approval of the House today. It is that proposed for the Caribbean itself. There has always been a difficulty, in forming a new constitution, about the possible political influence upon the judges. We have always, in forming constitutions, endeavoured to make the judges independent both of political appointment and of political tenure of office.

In the new constitution for the Caribbean a solution has been found for that, novel, interesting and rather gratifying. It is that a judge should be removed from office only by the Governor-General on receipt of a report from the Judicial Committee of the Privy Council recommending that the judge should be removed from office. That seems to show a great confidence in the Judicial Committee of the Privy Council among those in the West Indies who are forming this new Commonwealth nation.

There is one other outstanding exception to the general trend of breakaway from the Judicial Committee. That is in the constitutional proposals recently put forward by the Gold Coast Government. The Gold Coast, very determined in reaching its independence, has yet said in these constitutional proposals that it will retain the appellate jurisdiction of the Judicial Committee of the Privy Council. There again, there is gratifying confidence in the great wisdom and learned judgment of the Judicial Committee. Do let us respond to these declarations of confidence.

There are judges in West Africa and in the West Indies who would uphold the greatest traditions of legal wisdom and experience if they were appointed to and utilised by the Judicial Committee. Therefore, I would ask my right hon. and learned Friend the Attorney-General whether he could ensure three things. First, that Dominion and colonial judges who are at present members of the Judicial Committee should be included on the boards hearing appeals. Secondly, that more such Dominion and colonial judges should be appointed Privy Councillors, so that they could automatically become members of the Judicial Committee. Thirdly, that by Order in Council other Colonies should be designated under the Act of 1895 as Colonies from which judges can be appointed to membership of the Judicial Committee. In that connection, I would particularly mention West Africa, both the Gold Coast and Nigeria, the Caribbean and Malaya. These areas are on the way to independence and I believe that they would wish to retain this link in judicial matters if we made it politically possible for them to do so. But it is not politically possible while the boards of the Judicial Committee remain as at present constituted.

I am asking for a definite change in Government policy—a change from a passive policy to a positive policy. Up to the present, the policy has been passive and, to paraphrase W. S. Gilbert, we have said to the Colonies, "Here is a court and a good court too. It is at your service if you want to continue to use it." I should like to see that take-it-or-leave-it attitude replaced by a positive policy of making the Judicial Committee a truly Commonwealth court on which United Kingdom, Commonwealth and colonial judges sit together.

I would remind my right hon. and learned Friend that that is exactly what the party to which he and I belong have again and again said it would do, in its manifestos. This moment, when the Conference of Commonwealth Prime Ministers is meeting, is an admirable moment for my right hon. and learned Friend to make a positive pronouncement of the establishment of the Judicial Committee of the Privy Council as a truly Commonwealth appeal court.

3.56 p.m.

Mr. Hector Hughes (Aberdeen, North)

I do not want to take time from the Attorney-General or any other Minister who is to reply to the admirable speech of the hon. Member for Crosby (Mr. Page). I am sure the House will take the view that the hon. Member has done great public service in drawing attention to certain curious anomalies in the relevant law.

It is an odd thing that while the Empire, on the one hand, and the British Commonwealth of Nations, on the other hand, have developed in such a beneficial way, not only along juridical lines but also along political lines, for the peace of the world, the Judicial Committee of the Privy Council has not kept pace with the changes which have occurred. I think it is right and appropriate that an hon. Member should draw attention to the fact that the development of the Judicial Committee of the Privy Council has not kept pace, and it is appropriate that this matter should be raised at the present time, when the Prime Ministers of various realms in the Commonwealth of Nations are in this country.

Not only this country but other civilised nations, have from time to time, through their jurists, expressed admiration of our system of law, its principles, its procedures and its practice. In particular they have drawn attention to the work of the Judicial Committee of the Privy Council. For that work the Judicial Committee has from time to time been the subject of expressions of appreciation by some of the greatest jurists in the world—and rightly so, because the Judicial Committee of the Privy Council is one of the greatest judicial courts in the world.

The hon. Member for Crosby drew attention to the fact, and indeed his argument gained point from the fact, that quite a number of newer members of the Commonwealth of Nations do not use the Judicial Committee of the Privy Council. They have withdrawn from its jurisdiction. It is certainly a pity that they do not use it, because the Committee, as the hon. Member suggested, could be enriched by jurists from all the other elements in the Commonwealth. The hon. Member indicated that the reason why they did not use the Committee was political. That is a pity, too, because it tends to impair the validity, the authority and the grandeur of that great court. The hon. Member said the reasons were political rather than juridical. If the objections to the court were juridical, they might be much more valid than the political objections which have impaired its scope within the Commonwealth.

The Queen is, of course, the fountain of all justice through the Commonwealth, and the Privy Council acts in an advisory capacity to the Crown. Throughout the ages it has done this with rare distinction and authority. Constitutional developments during the last few generations have altered the history of the Commonwealth. Those great alterations, while they have enhanced the strength, scope, size and population of the Commonwealth as a world power, and have increased the number of what are now called realms rather than Dominions, have not enhanced the prestige and the authority of the Privy Council. That is a pity.

We witness today the good anomaly of Republics within a Commonwealth presided over by a Sovereign. The elasticity of the Commonwealth is one of its great features.

Mr. Deputy-Speaker (Sir Rhys Hopkin Morris)

Order, order.

It being Four o'clock, the Motion for the Adjournment of the House lapsed, without Question put.

Motion made, and Question proposed, That this House do now adjourn.—[Mr. R. Thompson.]

Mr. Hughes

I am greatly relieved to find that your "Order, order", Mr. Deputy-Speaker, was not directed to any disorder of mine, and that I am not out of order in anything I am saying.

While these alterations in the history of the Commonwealth have taken place, they have not, unfortunately, taken place pari passu in the procedure and practice of the Privy Council. The argument of the hon. Member for Crosby (Mr. Page) seems to me to be quite sound. It would be a great advantage to the Judicial Committee if some means could be found whereby more juridical figures, whether distinguished members of the Bar or distinguished judges in the various realms of the Commonwealth, could be invited to take their place upon the Judicial Committee of the Privy Council.

I hope that it will not be out of order if I add that it would, in my view, be a great advantage to the Judicial Committee of the Privy Council if it it were to travel from one realm to another. I do not know whether the hon. Member for Crosby did refer to that. We want to enrich the Judicial Committee, not only in its personnel, but by extending its appeal to the peoples of the realms which compose the Commonwealth. In my submission, that could be done, or, at least, assisted, if the Judicial Committee were to have amongst its membership distinguished jurists of the type I have mentioned, drawn from the various realms of the Commonwealth; and, secondly, were distinguished Board to sit, not only in London, at at present, but to sit from time to time, on appropriate occasions, in the capitals of the realms constituting the Commonwealth of Nations.

I did not intend to speak in this debate, but I was so attracted by the service which the hon. Member for Crosby was rendering to juridical thought in the Commonwealth that I felt that I should like to add the few observations which I have made.

4.2 p.m.

The Attorney-General (Sir Reginald Manningham-Buller)

I must extend my sympathy to the hon. and learned Gentleman the Member for Aberdeen, North (Mr. Hector Hughes), for surely it must be the first time on which he has had a speech interrupted from the Chair by a call for "Order" when, in fact, he was not out of order; I can well understand the shock he suffered in finding that it was not on that account that his speech was interrupted.

We have had agreement on both sides of the House that this is a most propitious and appropriate time to raise this subject. Of course, I entirely agree, since we have with us at present so many Prime Ministers of the other members of the Commonwealth.

My hon. Friend the Member for Crosby (Mr. Page) and the hon. and learned Gentleman the Member for Aberdeen, North have both paid high tribute to the Judicial Committee of the Privy Council. My hon. Friend said, and said with absolute accuracy, that it contained the finest legal brains of our land, and I think the hon. and learned Member for Aberdeen, North made observations to a similar effect.

It is true to say that it is a tribunal which enjoys, and deservedly enjoys, a world-wide reputation as a tribunal of the very highest standing. I am sure that my hon. Friend and the hon. and learned Gentleman opposite would agree that that reputation and high standing in turn depend, and have depended, on the eminence and ability of those who have sat and are sitting on the Judicial Committee. I am sure that hon. Members would agree that one of the signal features of that Committee is the eminence and ability of those who have sat upon it. I do not suggest that it would happen if my hon. Friend's suggestion was adopted in its entirety, but I throw out the thought that it would be a sad thing if the Judicial Committee of the Privy Council did not continue to be recruited from the best legal brains of this country and of the Commonwealth.

My hon. Friend said one thing which was not entirely accurate. He said that those who heard appeals were drawn entirely from those who have held, and hold, high judicial office in the United Kingdom. He qualified that later when he referred to Mr. de Silva, a distinguished former judge from Ceylon, but, as I shall indicate, what my hon. Friend said was not entirely accurate, even with that qualification.

It is true that the majority of serving members on the Committee are from the United Kingdom but, as my hon. Friend said, Mr. de Silva, a distinguished former judge from Ceylon, whose presence we value so much, is a regular member of the Judicial Committee. His appointment was by virtue of an Order in Council under the Act of 1895, to which my hon. Friend referred; so that that Act is still in use. We also get the benefit of periodic visits from distinguished judges from the Commonwealth. It was my hon. Friend's omission to refer to this which made what he said not entirely accurate.

I will give one example. Mr. Rinfret, Chief Justice of Canada, sat in some cases towards the end of 1954. I agree with my hon. Friend that we gain immeasurable benefit by the assistance of such visitors and I can also say that their presence is always welcome here. My hon. Friend must, however, realise that there are practical difficulties in securing the attendance at meetings of the Judicial Committee of the Privy Council of these distinguished gentlemen, who have their own duties to perform.

These gentlemen have their own work to do in their own countries, and very important work it is too. Secondly, it must be borne in mind that the Judicial Committee is itself very much of a working body. It sits on most days of the week throughout each legal term, and it has, as my hon. Friend will confirm, quite a long list of important cases to determine.

In those circumstances, it is difficult to change the composition of the court continually. It is difficult to arrange for the continuity of the work to fit in with a continually changing court. As I have already said, however, overseas members of the Judicial Committee are always welcome, and if it were possible for a chief justice of a member State of the Commonwealth to come and sit for a month or two months at a time, his presence would be very welcome indeed.

I have pointed out one or two difficulties which lie in the way of acceding to the suggestions put forward by my hon. Friend. We welcome the fact that he has raised this question, and we are in full agreement with him on the importance of the Judicial Committee as a most valuable link in the Commonwealth. I can assure him that we shall carefully consider the valuable suggestions which he has put forward, even if it is not possible now to announce, for the reasons I have given, immediate acceptance of all his ideas.

Question put and agreed to.

Adjourned accordingly at ten minutes past Four o'clock.