COMMONWEALTH COURT OF APPEAL

HC Deb 25 March 1965 vol 709 cc865-94

9.35 p.m.

Mr. Edward Gardner (Billericay)

I should like to take this opportunity of raising in this House the subject of the possibility of setting up a supreme court for the Commonwealth. I am the first to realise that the subject of a Commonwealth court is one for the idealist and I appreciate that by raising it I must therefore risk, as anyone else would have to risk, the danger of being labelled as an idealist. It is a risk I am perfectly well content to take. Indeed, the older I get the more idealistic I think I become—at least I hope I do. I was delighted in February of last year when my right hon. Friend the Leader of the Opposition in a debate on the Commonwealth in this House spoke of the possibility of setting up a Commonwealth court. He thought it an idea which would have great value to the Commonwealth and if I may say so with respect I entirely agree with him.

Five years ago at a conference of the Prime Ministers of the Commonwealth, Senator Coovay of Ceylon suggested the possibility of setting up a Commonwealth court. He, too, thought it was a good idea and suggested that the Judicial Committee of the Privy Council should be re-formed and reconstituted as a Commonwealth court. He saw as a very practical possibility the judges of the Judicial Committee going on circuit to the Commonwealth in order to hear appeals, so enlarging and revising the powers and the jurisdiction of that court as to build upon it a Commonwealth court. In the same year, 1960, the noble Lord, Lord Denning, in another place during a debate on his hopes of treating a Commonwealth court saw no reason why the judges who would form the judiciary of a Commonwealth court should not go on circuit, as Senator Coovay had suggested. The noble Lord asked why should not the Judicial Committee go on circuit; and he reminded the other place that not many years ago the judges of England rode from one assize town to another and no doubt took no longer to reach their destinations than it would take today to fly to the remote ends of the earth.

This year in Sydney there is to be a Commonwealth Law Conference and one of the subjects that is likely to be discussed at that conference is the possibility of creating a Commonwealth court. Therefore, it seems to me appropriate to raise this question now so that right hon. and hon. Members of this House should have an opportunity of taking a careful look at the realities of the prospect of creating a Commonwealth court.

The purpose of a Commonwealth court is simple. I like to think that it is a purpose with which most, if not all, right hon. and hon. Members of the House agree, and to which they give enthusiastic support. It is simply to preserve and to develop the Commonwealth. It is true that trade is vital to the Commonwealth, and so is economic and technical aid, but the truth of the matter is that if we are going to be realistic, as I hope we are, commerce and trade by themselves are frail bonds which are exposed always to the perils of outside competition.

We have in this country and in our Commonwealth, this Commonwealth which has been created over the years, a bond far stronger, far more substantial, and far more attractive and certain. We have the bond of the rule of law. This is something which we cannot, or should not, undervalue. I think that it is unrivalled. I believe that it is this bond, this rule of law, this very source of democracy which refreshes our philosophy, which enables us to keep our democracy in its present state. It is something which we value, and which is respected throughout the Commonwealth, if not throughout the world.

I appreciate, as everyone does, that politics is the science of the possible, and though it may be said that I speak with the language of the idealist, I realise, as anyone would do on looking at the problem, the formidable difficulties of creating a Commonwealth court. I am convinced that if we are to create such a court we must create it by careful and fairly easy stages.

The first thing that we must do—and I believe that this is a demand which is growing in the Commonwealth itself, and a demand to which we must accede when its strength becomes apparent, as I believe it is becoming apparent—is to create a supreme court of the Commonwealth to which all Members of the Commonwealth who voluntarily submit to its jurisdiction will go as the final court of appeal. I emphasise the comprehensiveness of this court. It must deal with all countries, and that includes ourselves.

I should like to think that we could build such a court upon the foundation that we have in the Judicial Committee of the Privy Council but, trying to be realistic, I do not think that we can do that. The Judicial Committee sits in London. It always has. It sits here more for convenience than for any other reason. It is a court which has a relationship with colonial practice going back to the days of the Restoration. It was given statutory blessing in the 19th century by the Privy Council Acts, and, whether we like it or not, I think we have to acknowledge that to the Commonwealth, and certainly to the newly created independent countries of the Commonwealth, it tends to smack of colonial practice.

Many countries find it incompatible with their sovereignty. So one sees, as we have seen, countries like India, Pakistan, Canada, Nigeria, Ghana and Cyprus all abolishing the right of appeal to the judicial Committee of the Privy Council.

But we should not be too depressed or disheartened by that, because other countries, including Australia, New Zealand, Ceylon, Trinidad and Jamaica still value and retain the right to go to the Judicial Committee. Their faith in the benefits that they get from that right of appeal is perhaps one of the strongest and most encouraging arguments for the setting up of a Commonwealth court.

The judges who would man such a court would have to be drawn from members of the judiciary in the Commonwealth. They would have to be prepared to go on circuit. We should be frank and not mealy-mouthed about this. It might be said that we shall not get the necessary quality of judge if we choose our judiciary from the various Commonwealth countries. I wholly and vehemently disagree with that view. There are good judges and bad judges in every country.

Anyone who has been to Nigeria and argued in the Court of Appeal in Lagos a pretty substantial and complicated point of law, and has heard the way in which that court has dealt with the various points, and the decision that it has given at the end of the case, will be very impressed by the quality of the judiciary in such a country. There is no substance in the objection which is sometimes put forward that we shall not be able to get either the numbers or the quality of judges from the Commonwealth.

The idea of setting up a Commonwealth court is not new. I submit that a very good model for such a court is already in operation, in East Africa—the East African Court of Appeal. I know that at the moment not many countries submit to its jurisdiction. It is limited, in the sense that it deals with a region and is not intended to take in more than that region. But reading through the reported cases of that court we see that its jurisdiction appears to be almost unlimited. I should have thought that there one has a court which is not only an example of the need for a Supreme Court of Appeal for a certain region but which also illustrates what I am attempting to say, namely, that not only is there a need but that that need can be satisfied, for the whole of the Commonwealth, by such a court.

The jurisdiction would be one to which individual countries would have to submit voluntarily. We must face the fact that not all Commonwealth countries would be prepared, or would necessarily want, at first, to submit to that jurisdiction. What I should like to see is a start made, so that the court could extend its area and, eventually, its jurisdiction. It might be objected, and indeed, I have heard it said—as I have no doubt many other hon. Members have heard it said—that one of the difficulties in setting up a Commonwealth court is that it would have to deal with diverse countries and diverse systems of law. In answer to that, if it be put forward as a serious objection, I would say that the House of Lords, to my knowledge, has never had very much difficulty in dealing with the different case law of England and Scotland. Indeed, with a proper choice of judiciary to man the Commonwealth court, I can see no real difficulties for such a court dealing with Roman-Dutch law as well as Commonwealth law—

Sir Derek Walker-Smith (Hertfordshire, East)

As the Judicial Committee now does.

Mr. Gardner

As the Judicial Committee of the Privy Council now does, as my right hon. and learned Friend says. One does not notice any great difficulty, indeed any difficulty at all, in this aspect of a court which deals with Commonwealth affairs.

If we submitted to the jurisdiction of a Commonwealth court, we should have to do so, obviously, on an equal footing with all the others who submitted to the jurisdiction. There can be no distinction between one country and another. We have to face the fact that the appellant jurisdiction of the House of Lords itself would ultimately, if not immediately, have to be replaced by the jurisdiction of the Commonwealth court. I think that this is the logic of the situation, although some of us might think that it was a painful exchange. I have no doubt that it would have such benefits that they would wholly outweigh any arguments which might be adduced in favour of this country standing aside from a Commonwealth court, merely as an observer watching the benefits flow to the other member countries of the Commonwealth.

The real difficulty about a Commonwealth court is to decide what its jurisdiction would be. I see here a formidable difficulty. I do not think that it is an obstacle which we could not overcome. I believe that we could overcome it, but we should have to decide just what this court would do. I think that the first duty of the court would be to deal with the laws of the several countries which came to the court for decisions. Eventually, a Commonwealth court should have the ambition—large though it would be, but also necessary—of ensuring the fulfilment of some kind of charter, perhaps a British Commonwealth Bill of Human Rights. Eventually—and this may be years ahead, but it is an ambition which we can at least have and hope to fulfil, however difficult it may be to achieve—I see no reason why, if we had such a Bill of Human Rights, it should not be possible to say that those who would not submit to such a Bill of Rights should be severely censured and, if necessary, expelled.

I know that this is difficult and I know that it may sound extreme, but one day we have to wake up; one day the problem of political imprisonment without trial in the Commonwealth has to be faced. We cannot have a sore on a body politic like political imprisonment without trial and expect that body to be healthy. Something has to be done about it. Somehow we have to get a solution. Some day it must come, be it years ahead. Political prisoners must be freed in all the countries belonging to the Commonwealth. If I am accused of appearing to be idealistic when I say this, then I expose myself to the risk and say it again.

I believe that the solution for this problem would be to issue in the Commonwealth a writ of habeas corpus overriding local legislation and issuing through a supreme court of the Commonwealth. It is no use for people to talk about a world habeas corpus to overcome the wretchedness of the political prisoner. Some people do and no doubt many of us have read treatises and books arguing that we ought to rely on the United Nations to produce such a writ, or some such remedy. We cannot expect that in the present, or indeed in the immediate future.

I believe that we have a practical solution here which could be achieved in the years to come. I ask the Minister—I do not expect more; one would be unreasonable to expect more—whether he can say something which can give some encouragement about a start on a new consideration of the possibility of setting up a Commonwealth court. I believe that the rule of law is a thread which, more certainly than any other, can become unbreakable and bind together, in a way in which nothing else can, the Commonwealth in which we all have, I hope and believe, a deep and abiding interest.

Notice taken that 40 Members were not present; House counted, and, 40 Members being present—

9.59 p.m.

Sir Derek Walker-Smith (Hertfordshire, East)

I am very glad that my hon. and learned Friend the Member for Billericay(Mr. Gardner) has taken the occasion to commend to the House the proposal for a Commonwealth court of appeal. My hon. and learned Friend and I, and my hon. Friend the Member for Crosby(Mr. Graham Page), are old and consistent advocates for a Commonwealth court of appeal, whatever the Government for the time being may be. For myself, it is something which has engaged both my attention and my affection from two points of view. First, because I am, or seek to be, a friend to the Commonwealth, and secondly, because I am, or seek to be, a friend to the rule of law, and I believe that a Commonwealth court of appeal can serve the interests of both.

Three questions present themselves to us in the consideration of this important matter of a Commonwealth court of appeal. First, is some form of Commonwealth jurisdiction appropriate for appelling purposes? Secondly, if so, can the Judicial Committee of the Privy Council continue to provide it? Thirdly, if the answer to the second question is "Not"—as my hon. and learned Friend suggested—and the Judicial Committee of the Privy Council cannot supply that need in the contemporary Commonwealth, can we devise some new form of court which will meet contemporary needs? I will briefly address my remarks to those three questions.

On the first—is some form of Commonwealth court with appellate jurisdiction appropriate?—I believe that if the Commonwealth in its new form is to be a reality and a power for good in the world to the utmost of its potential, then it needs links more formal and fundamental than the links of tradition and sentiment, valuable as those undoubtedly are. And these further links can take the form of economic, cultural and social links and the like; and I have from time to time addressed myself to those various possibilities in the House.

In particular, I have spoken of the possibility of strengthened economic links, although tonight we are concerned with what I believe to be an equally valuable form of additional link: the legal link which has been suggested by my hon. and learned Friend. I believe with him that a legal link is both appropriate and helpful to the Commonwealth ideal. I further believe that form and expression should be given to our common allegiance to the English common law, which is a common factor for the great bulk of the Commonwealth. Therefore, the answer to the first question is "Yes. It is appropriate that we should have some form of Commonwealth court of appeal to suit the needs of the contemporary Commonwealth".

I come to the second question. Is it possible that that need can be filled by our existing practice in the appellate jurisdiction of the Judicial Committee of the Privy Council? The answer to that question must, I say with some regret, be "No". I say "with some regret" because I have a great respect for it, not only or mainly because I happen to be a Privy Councillor, although being one does not give one any right to sit in the Judicial Committee. My respect derives from quite a different capacity; from appearing before the Judicial Committee in my forensic capacity as a Queen's Councillor.

These are matters of fact, and I mention them only to display that anybody with experience of the Judicial Committee of the Privy Council—and any hon. Member in the House can only have experience of it in one of two ways; either as an advocate appearing before it or as a lay person who is concerned with it, and I have had some experience in the former context—is bound to have a considerable admiration and respect for the way in which the Judicial Committee does its work.

I mention that for this reason. As I am bound to say that the answer to the question is "No", I want to make it clear that that does not convey any conceivable disrespect on my part to the Judicial Committee. The fact is, however, that the forms and practices of the Judicial Committee, as my hon. and learned Friend indicated, are not really suited to the new Commonwealth which we now have in the second half of the twentieth century.

There are, to put it shortly, two main difficulties. The first is that the procedure of the Judicial Committee of the Privy Council, although it is in substance judicial, in form is imperfectly served because the judgments or decisions of the Judicial Committee do not take the form of a judgment in a court of law but of opinions for the guidance of Her Majesty, which are promulgated by Order in Council. The second is the cognate difficulty that the jurisdiction of the Judicial Committee on a Commonwealth matter has its origin in colonial practice and jurisdiction. That being so, it is obviously—again as my hon. and learned Friend properly said—not welcome in that sense to the more newly independent members of the Commonwealth.

I think that the fact that we need a new initiative and a new court is clear, among other things, from the list of those countries which have abolished the jurisdiction of the Privy Council for their own purposes. Commonwealth countries both old and new—Canada, India, Pakistan, Ghana, Cyprus, Nigeria and Tanganyika—all these have abandoned the jurisdiction of the Judicial Committee of the Privy Council. There is, of course, a list gratifyingly to be put on the other side, of those countries that have retained the jurisdiction. This list, again, comprises Commonwealth nations both old and new, which have voluntarily accepted a continuance of the Judicial Committee on arriving at independence. But the balance is rather, I fear, in favour of those which have abandoned the jurisdiction, and we must face the fact, whether or not it is the melancholy fact, that there is not in practice any prospect of enticing back to the acceptance of the jurisdiction of the Judicial Committee those Commonwealth nations which have left it.

I therefore come to my third question: are we able to devise some modern form of a Commonwealth Court of Appeal which will serve this undoubted need, and serve it in a more contemporary and generally acceptable form than the Judicial Committee of the Privy Council? I believe that the answer is, and should be, "Yes". There are difficulties, of course. There are manifest difficulties and, like so many other things in life, it is undoubtedly true that had this been done earlier no doubt it could have been done more easily, but I am sure that that is not an argument that should prevent us from seeking to achieve an initiative in it now.

I think that we could and should now have an initiative for setting up a Commonwealth Court of Appeal. Such a court would have final jurisdiction in appeals and, as my hon. and learned Friend has said, we must accept in this country that if such a court comes into being it does exercise final jurisdiction in an appellate sense for us as well. To some extent, the acid test of our sincerity in this country is if we are prepared to go this length, and I think it right that we should.

Such a court of appeal for the Commonwealth would, of course, operate on the circuit system—unlike the Judicial Committee of the Privy Council, which has never sat elsewhere than in London. Such a court would be an itinerant court, and would be able to sit in panels or divisions in various parts of the Commonwealth, simultaneously if necessary, with a panel of judges drawn from all over the Commonwealth.

I heartily endorse what my hon. and learned Friend has said as to the range of experience, expertise, and legal learning that is available in the judiciary of the Commonwealth. There is a considerable support for this, and a considerable support to be found amongst the judiciary, and amongst lawyers and politicians and ordinary people, in so far as they are interested, in all parts, or many parts, of the Commonwealth.

Last summer The Times was good enough to publish an article by me on this subject. That brought me some interesting correspondence from the Commonwealth. I should like to quote this extract from a letter I received then from the Chief Justice of one of our more recently independent Commonwealth countries, whom I know as an eminent lawyer, a fair and formidable advocate in his day, and a very pleasant and agreeable companion. He writes this: I very much hope that it"— that is, the Commonwealth court— will receive very early and favourable consideration. Unless it does, the Judicial Committee of the Privy Council will soon become no more than an interesting historical relic. Indeed, I sometimes fear that it is already so doomed. It is so much more difficult to restore than to destroy. The Commonwealth countries which have abolished the right of appeal to the Privy Council will therefore be very loth to grant appellate jurisdiction now to a Commonwealth court of appeal. Further, the "neo-colonialist" argument which has grown so fashionable in the last five years will, I am sure, be trotted out against any such proposal. Yet I am in no doubt that such a court can play a very vital rôle, particularly in the progressive and uniform development of the common law(which is basic in most, if not all, of our jurisdictions) and in the resolution of constitutional problems arising out of the written constitutions which have become the vogue nowadays. We can set up, in conjunction with our friends and partners in the Commonwealth, such a court without there being any invasion of the rights of sovereignty of the Commonwealth nations, because the Commonwealth, as the House knows, is an association of sovereign nations. Each Commonwealth nation will continue to have its own independent, unfettered, legislative capacity. In other words, the setting up of a Commonwealth court of appeal does not inhibit by one jot or one tittle the legislative freedom, for example, of this House.

But we should gain the great advantage of a common judicial interpretation of our Statute law produced by those independent sovereign Commonwealth nations and we should have the advantage also of a common interpretation of our common heritage of the common law, to which my friend the Chief Justice was referring in the extract which I have just read to the House.

I therefore believe that such a court can be at once a valuable link for Commonwealth unity and a valuable adjunct to the rule of law. I therefore venture to commend once again to the Minister of State, Commonwealth Relations Office the proposition that the Government of this country, as heart and centre of the Commonwealth, should take, and should take soon, the initiative for proposals to our Commonwealth partners for the setting up of such a court.

10.13 p.m.

Mr. Graham Page (Crosby)

I want to support my hon. and learned Friend the Member for Billericay(Mr. Gardner) and my right hon. and learned Friend the Member for Hertfordshire, East(Sir D. Walker-Smith) in the eloquent and compelling pleas they have made for a Commonwealth court of appeal.

The Minister of State, Board of Trade (Mr. Roy Mason)

I know that it is urgent and immediate and that we should treat it with respect, but with only four hon. Members opposite present and one right hon. and learned Gentleman strolling to his position on the Front Bench, the Front Bench having been completely empty for the past half an hour, it cannot be treated seriously by the Opposition as a topic warranting the urgent and immediate attention of Her Majesty's Government.

Mr. Deputy-Speaker

This does not arise on this debate.

Mr. Graham Page

I am obliged to you, Mr. Deputy-Speaker. That was a most uncalled-for intervention, especially since, until a Count was called, there were only two Members on the back benches opposite, one Minister and one Whip, although there were half a dozen on this side of the House at that time. May I continue with the debate?

Mr. Ioan L. Evans (Birmingham, Yardley)

On a point of order. Is it in order to refer to these matters?

Mr. Deputy-Speaker

I think that the hon. Member for Crosby (Mr. Graham Page) was provoked into it, but I hope that he will get on with the subject of the debate.

Mr. Graham Page

I support the plea of my right hon. and learned Friends for a Commonwealth court of appeal but, unlike them, I believe that this proposal for a Commonwealth court of appeal could be a proposal for the modernisation of the Judicial Committee of the Privy Council. As such it would be in the best traditions of constitutional evolution that we should build upon and develop and adapt our traditional and well-tried constitutional structure to our modern requirements, in this case the modern requirements of the Commonwealth.

We may not be so far apart in our approach to this subject. There is in the Judicial Committee an existing structure on which to build, and it is worth looking for a moment at the origin and development of the Judicial Committee to see how far it has approached to a Commonwealth court of appeal over the years and the experiments which are now being tried by the Judicial Committee. I should disclose an interest here in that I am privileged to be on the roll of the Privy Council appeal agents and practise in that court.

At the foundation of the colonial empire in the seventeenth century, petitions to the king were referred to his Privy Council for its advice. They were referred to a Standing Committee of the Privy Council in order that that advice should be given. We were, of course, then concerned only with North America and the West Indies, but during the 19th century this was developed by Statute in order to deal at that time with the East Indies, until in 1883 the Judicial Committee itself was created to hear appeals from the Colonies and Dominions overseas and to advise Her Majesty.

As has been said, the Judicial Committee has not until recently given judgment. It has advised Her Majesty. I say "until recently" because I will come in a moment to the one instance. This jurisdiction was extended in 1890 to the foreign jurisdiction of Her Majesty and to countries under her protection.

By the 1930s the Judicial Committee had jurisdiction of appeal from courts in every quarter of the globe, embracing in area more than a quarter of the world and it was and is called upon to administer every possible system of law. It has, or had in the 1930s before the war, a wider jurisdiction than any court known in history.

In this connection it is important to look at its constitution, that is the judges called upon to sit in the Judicial Committee. They fall into four categories. There is the Privy Councillor who has held or holds high judicial office in this country, that is the Law Lords or other Privy Councillors who have held or now hold high judicial office. Next, two other Privy Councillors may be appointed by Her Majesty. The third category is 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 court and State courts of Australia and of New Zealand, and, indeed, it is still the law that the same applies to the Union of South Africa. The fourth category is the appointment of any other Colonial or Dominion judge by Her Majesty.

In pursuance of that constitution—here, I want to show how the Judicial Committee has already developed towards a Commonwealth court of appeal in which judges sit from all over the Commonwealth—the Chief Justice of Canada used to sit quite frequently in the Judicial Committee. The Chief Justice of Australia, of New Zealand and of South Africa sat from time to time both before and after the last war. The late Mr. Da Silva, an eminent judge of Ceylon, sat regularly in the Judicial Committee for many years until his fairly recent death. The Chief Justice of New Zealand sat there for several months quite recently.

Thus, the Judicial Committee really has been a Commonwealth court, but it has always been my firm conviction that more of the independent States of the Commonwealth would have retained its appellate jurisdiction if there had been a firmer and more definite arrangement for judges from the Commonwealth to sit there, from the Colonies before they emerged to independence as well as from the independent Commonwealth countries. Furthermore, if, as has been suggested, the Judicial Committee had sat in other capitals of the Commonwealth, it is certain that more of the independent States of the Commonwealth would have retained its appellate jurisdiction.

The position today is very mixed, if I may put it in that way. Several of the Commonwealth countries still retain the old form of the Judicial Committee advising Her Majesty: Ceylon, Australia, both the Dominion court and the State courts of Australia, the West Indies, New Zealand and others such as Mauritius, the Seychelles, Fiji, British Honduras, and so forth.

Malaysia has discovered a new and satisfactory formula for itself. In the case of appeals to the Judicial Committee from Malaysia, the Judicial Committee does not advise Her Majesty but advises the Head of State of Malaya or the other countries forming Malaysia. The same arrangement was adopted for a time when Tanganyika became independent. In the case of appeals which remained uncompleted after independence, the Judicial Committee advised the President of Tanganyika and did not give its opinion in the form of advice to Her Majesty. For constitutional appeals from Uganda the same formula is adopted.

We have here a formula which is thus acceptable to many of the countries which have become independent. There is, however, one case at present in which the Judicial Committee is a straight court of appeal. I refer to Kenya. The opinion of the Judicial Committee is not given as advice to Kenya or as advice to Her Majesty. It acts as a straight court of appeal.

These are experiments by the Judicial Committee through which there could be development to a full Commonwealth court of appeal. Having acted for appellants in the Judicial Committee and having visited members of the legal profession and of the judiciary in the Commonwealth, I know that the Judicial Committee is highly respected, and highly respected even by those countries which have now discarded its appellate jurisdiction.

I know that the drift away from the Judicial Committee by these countries as they became independent was not because the Court was not respected nor because they had any reason to believe that the quality of the judges in the Committee could be the cause of complaint. Indeed, the Committee has the finest legal brains in the world.

That has been recognised even by the independent states who left the Committee's jurisdiction. The legal profession and the present judiciary in Ghana have nothing but praise for the Committee although Ghana has left its jurisdiction. The same goes for Nigeria and the East African States. The reason for these countries leaving the jurisdiction of the Committee is simply political. The Committee remains in an imperial form and as such it was unacceptable to many of the emergent nations of the Commonwealth.

Some, like Ceylon, remain. Yet others, like India and Pakistan, could not continue to accept it. It is interesting to note, however, that the number of appeals from those countries remaining has increased. The work of the Committee when India left dropped very much because it had been dealing with a great number of appeals from there. But since then the number of appeals sent from the countries which remained under the jurisdiction of the Committee has increased so that there can be no dissatisfaction with its jurisdiction in those countries.

If, on the other hand, the Committee had been recognised as a genuine Commonwealth court of appeal, all these independent nations, as they became independent, would have recognised it as a court of appeal in which they could take part and would not just have regarded it as a United Kingdom court.

The Commonwealth links are of value to the peace of the world. Links between nations in a Commonwealth such as ours could be either legislative, executive or judicial. Of course, the legislative and executive links are impracticable but the judicial link is certainly still practicable and a Commonwealth appeal court could be such a link. We in the United Kingdom have something to contribute in this respect in the setting up of such a court and the countries of the Commonwealth who might adopt it as their court of final appeal would quickly contribute as much to its development. I believe that it could be the greatest judicial success in history.

10.29 p.m.

The Minister of State, Commonwealth Relations Office(Mr. Cledwyn Hughes)

At the outset I should like to say that, as hon. Members know, it is the policy of the Government to encourage and to do all we can to promote any initiative which helps to strengthen the Commonwealth association. I need only mention in this connection the proposals, launched at the Commonwealth Prime Ministers' meeting last year, for a Commonwealth secretariat and a Commonwealth foundation. These are, as hon. Members also know, under careful consideration at present by all the Commonwealth Governments and we hope that final agreement will soon be reached on the establishment of a secretariat and the appointment of a secretary-general.

This will be a noteworthy and significant instance of the policy of Commonwealth co-operation by means of the setting up of an institution which will be at the service of all Commonwealth countries. It is in this spirit that I listened with the greatest interest to the remarks made by the hon. and learned Member for Billericay(Mr. Gardner). His speech combined the idealistic and the practical approaches and he has helped somewhat to dispel the notion which is prevalent that all lawyers are rather dull creatures. His concern in these matters is well-known, and I know that he has not hesitated to enter into public discussion of the question with other members of his profession. I am glad that he has now seized the occasion of this debate to bring forward the question of the Commonwealth court. It may be that Ministers at the Commonwealth Relations Office do not always have the opportunities we would like for stating our views on this kind of question. For these reasons, I am glad to take the chance offered me this evening by the initiative of the hon. and learned Gentleman.

As hon. Members will be aware, the question of setting up a Commonwealth court has been debated on and off for very many years. I believe it began as early as 1900, when suggestions on the subject were made by Australia. The matter was also considered by the Imperial Conference in 1930, and that Conference recommended the machinery for the setting up of a tribunal to determine any disputes between Commonwealth members. The tribunal was to consist of five members to be drawn from Commonwealth countries, and the machinery is still there for any member who wishes to use it. In fact, it has never been used.

A further contribution was made in 1960 by the Government of Ceylon. This, I think, was similar to the concept which was discussed by Lord Denning in the same year. This was a proposal for a different sort of court to replace the appellate functions of the Judicial Committee of the Privy Council. The court was to be composed of distinguished judges from all Commonwealth countries, and the plan was that it should be composed of a number of divisions which would sit either in London or in other Commonwealth capitals as the occasion arose. I am afraid, however, that this suggestion did not have a very encouraging reception from other Commonwealth countries at the time, and in view of that it has not since been pursued.

Then, again, there is the particular proposal—and I am glad to have the opportunity of referring to this—which was made by the hon. and learned Gentleman in a debate with Professor H. R. W. Wade, to which I listened with great interest at the time. Professor Wade, as we all know, is also a distinguished authority. As I understand it, the suggestion made at that time was that regional courts of appeal should be created, such as the Court of Appeal of East Africa. This might in turn gradually build up into a system with the Commonwealth court as its head. I think this is certainly an idea that is worth considering, although I am sure the hon. and learned Member will agree with me that such an idea, if it were put into practice, would in fact postpone the idea of a Commonwealth court to, as it were, the second stage in the operation. These are some of the suggestions which have been made.

Perhaps I should say a word pointing out the difficulties which lie in the path of advance in the direction of a court; not so much to convey any opposition to the idea, as to indicate the kind of obstacles in the way. The hon. and learned Gentleman himself was realistic enough to recognise that there are difficulties and that the path to the setting up of a Commonwealth court is fraught with all kinds of obstacles which would have to be overcome.

The chief difficulty, as I see it, is that no doubt a number of countries which have recently attained their independence and sole control over all of their affairs would tend to regard a court of this kind as a diminution of their sovereignty. I do not wish to embark on any discussion of the meaning of this word, or to enter into the argument which could be put forward for or against this point of view. This would involve me in very considerable complexity. All I need say is that this attitude is thoroughly understandable. One has to have regard to the fact that these new countries are sensitive on this question of their sovereignty. We all understand this.

Again, take the suggestion made by the hon. and learned Member in the discussion to which I have referred—the suggestion for regional courts. It is easy to see that there might be rivalries between neighbouring countries which would tend to prevent the setting up of regional courts, and these might prove difficult to overcome. However, these are not insuperable, but I think it important to mention them to show the size of the problem.

Sir D. Walker-Smith

Before the hon. Gentleman leaves the difficulty of sovereignty, would he not take this occasion to confirm what I said a few minutes ago, that a Commonwealth court of appeal does not involve any invasion of the legislative independence of the assemblies of the people of the sovereign nations and, therefore, there is no derogation from sovereignty in merely accepting a common interpretation of the laws of the countries by a court of appeal drawn from a representative membership of judges from those countries?

Mr. Hughes

I would not disagree with the right hon. and learned Member on that. What I am trying to say is that many Commonwealth countries may feel it would involve a diminution of sovereignty. Therefore, one has to proceed gradually in order that they may realise what is the concept which many of us have in mind.

But I want to turn now to the more constructive side. The hon. and learned Gentleman has mentioned, I think, two approaches, and they have been mentioned also by the right hon. and learned Gentleman the Member for Hertfordshire, East (Sir D. Walker-Smith) and by the hon. Gentleman the Member for Crosby(Mr. Graham Page). They both lead to the same end. The first is to take the Judicial Committee of the Privy Council and to broaden it. I join with the right hon. and hon. Members in paying tribute to this distinguished body, which has an immense reputation, well earned, for impartiality in administering justice in all parts of the world. A book has recently been written on this subject by an American lawyer, an admirer of the system. It is entitled "Colonial Justice: The Unique Achievements of the Privy Council's Committee of Judges."

Among independent countries of the Commonwealth, appeal to the Judicial Committee is still retained by Australia, New Zealand, Ceylon, Malaysia, Sierra Leone, Trinidad, Jamaica, Malawi, Malta, and The Gambia. Kenya has kept it up to now, but it may be she will shortly abandon it. There is no doubt whatever that the Judicial Committee still enjoys an enormous prestige, a prestige which is well deserved. One way, perhaps, of making it more welcome as a final court of appeal from the courts of the independent countries is to broaden its membership.

This has for some time, as has been said, been the policy. A number of judges from the High Court of Australia and the Court of Appeal of New Zealand have been Privy Councillors and are available to sit on the Judicial Committee. The Chief Justice of Nigeria was likewise made a member of the Privy Council, and there is no reason at all why this process of expansion should not continue.

Sir Douglas Glover (Ormskirk)

Would the hon. Gentleman tell the House how often those Privy Councillors from independent countries overseas have sat on the Judicial Committee?

Mr. Hughes

I must apologise to the hon. Gentleman, for I have not the figures with me. If he will be good enough to put down a Question I will try to give him the reply.

Mr. Graham Page

I did a few minutes ago in my observations give my own experience of having seen them—the Canadian Chief Justice, the Australian Chief Justice, the New Zealand Chief Justice—very recently the Chief Justice of New Zealand.

Mr. Hughes

The hon. Member is quite right, but the hon. Gentleman the Member for Ormskirk(Sir D. Glover) was asking for statistics. I am afraid I have not got those before me at the present time.

I was going on to the second approach which the hon. and learned Gentleman made, and that is the creation of a new Commonwealth court which would include distinguished judges from all parts of the Commonwealth. It could, as he said, be peripatetic and sit in divisions in various parts of the Commonwealth as required, and would, indeed, be very similar to the Ceylon proposal which I mentioned and to the process which Lord Denning had in mind when he spoke about it in 1960. The setting up of a court of this kind would not itself be easy. For example, there would be difficult questions as to how the judges would be appointed. The upkeep of the court would be expensive, particularly if members had to travel. But all these things can be considered. The point I must make is that this move for a Commonwealth court can reach fruition only if there is a substantial measure of support for it in the Commonwealth.

To ascertain this, considerable consultation would be required. What we have to find out first is whether the indications are that support would be forthcoming. It was for this reason that the previous Government decided to take advantage of the Third Commonwealth and Empire Law Conference to be held in Sydney in August. It is expected that there will be lawyers at the conference from most independent countries in the Commonwealth and some of the dependent territories as well. It is also expected that there will be leading judicial and Ministerial personalities present. Certainly the Lord Chancellor, the Lord Chief Justice and the Attorney-General are proposing to be there. I am extremely glad to know that the hon. and learned Gentleman is also proposing to attend.

This seems to me to be a most admirable occasion for a discussion of the matter. One of the principal items on the agenda for the conference is intra-Commonwealth judicial machinery. This would seem to be an appropriate occasion to have a full discussion on this important subject. We take the same view as the former Government, that this will be the best opportunity for a full discussion of the question. We shall listen carefully to the views put forward by other countries, and we shall make our own contribution.

The hon. and learned Gentleman asked if I could give him a word of encouragement. I am prepared to say now to the Committee that we support in principle the idea of a Commonwealth Court of this kind. It should be valuable as providing a final court of appeal of the highest calibre, especially for litigants from those countries whose resources are such as to make it difficult to maintain such a court of appeal themselves. This would be one of the functions. Such a court would also do much to ensure the homogeneous development of the law throughout the Commonwealth, a point to which the hon. and learned Gentleman referred. But I repeat that it is important to ascertain whether there is a general demand for it. If there is, we shall be very happy to do all we can to promote the setting up of such a Commonwealth Court.

10.43 p.m.

Mr. Quintin Hogg (St. Marylebone)

I thank the Minister for his courteous and careful answer to the important question raised by my hon. and learned Friend the Member for Billericay(Mr. Gardner) about a Commonwealth court. I am sure that my right hon. and learned and hon. and learned Friends will be glad to pay attention to all that he has said. Many of us who are interested in the future of the Commonwealth and of the common law, of which the Commonwealth is the joint heir with the United States of America, will be glad to hear of the sympathetic interest of the Government. Indeed, I could have wished that more members of the Government Front Bench were present. I could have wished that the Minister of State, Board of Trade was present—

Mr. loan L. Evans

On a point of order, Mr. Deputy-Speaker. The right hon. and learned Member for St. Marylebone (Mr. Hogg) refers to the Government Front Bench, of which five Members are present, while he is the sole occupant of the Opposition Front Bench.

Mr. Deputy-Speaker(Sir Samuel Storey)

That is not a point of order.

Mr. Hogg

Thank you, Mr. Deputy-Speaker, for sitting on that bogus point of order.

I just wanted to point out that I am sorry that the Minister of State, Board of Trade is not in the Chamber. Two members of the Cabinet are now present and I should like to inquire of them whether it is true, as we have been informed by our sources of information, that a rather serious event is about to happen. I should have liked to have seen the Leader of the House here and I should have liked to have seen the Prime Minister here and I should have liked to have seen the Paymaster-General here. The latter poked in for a moment or two, being the Oddjob of the Goldfinger apparatus, prepared to fling his steel bowler hat in any direction he thinks appropriate, provided that he does not come directly into the line of fire himself. Since only the Chancellor of the of the Exchequer is here and neither the First Secretary nor the Prime Minister, and as on the Consolidated Fund Bill it is the administration of the Government which is under consideration, I shall address my remarks to him.

We on this side of the House are told that the House of Commons is about to witness an event which has never taken place before, that is to say, a deliberate filibuster by the back benchers under the command of the Paymaster-General from behind, like the Duke of Plaza Toro—he finds it more exciting that way. [Interruption.] I am glad to see that the Paymaster-General is taking his place on the firing step. We are told, and perhaps right hon. Gentlemen will confirm or otherwise, that the first filibuster of the British Parliament is about to be staged under the command of the Government.

Mr. Deputy-Speaker

I do not think that this comes under adminstrative policy for which the Government are responsible.

Mr. Hogg

Of course I bow to your Ruling, Mr. Deputy-Speaker, but I was saying that the first filibuster was about to take place under the command of the Government and by arrangement of the Government.

Mr. Deputy-Speaker

What we are discussing is administrative policy.

Mr. Hogg

I understand this, Mr. Deputy-Speaker, and I was about to say that I was entirely concerned with the Government's administrative policy and I was about to ask whether the policy to which I have adverted is likely to be carried out this evening.

Mr. Deputy-Speaker

We are discussing only administrative policy arising out of the Supply which is now being considered.

Mr. Alfred Morris (Manchester, Wythenshawe)

On a point of order. Is it the logic of your Ruling, Mr. Deputy-Speaker, that the right hon. Gentleman is carrying out a filibuster?

Mr. Deputy-Speaker

That is not a point of order.

Mr. Hogg

Whether in order or out of order, I shall detain the House for only a very short time, if out of order because I am ruled out of order and if in order because I have finished the little I wanted to say. If what we hear is true, we shall leave the Government to carry on on their own.

Mr. Deputy-Speaker

The right hon. and learned Gentleman cannot discuss what private Members are doing. All he can discuss is the administrative policy based on the Bill.

Mr. Hogg

I am concerned only with the members of the Government and their administrative policy. We are considering among other things their salaries. We want to know whether their salaries are well paid for. Are we spending public money on their salaries to good purpose if they are engaged on authorising or organising the first filibuster in the history of Parliament?

Mr. Deputy-Speaker

We are not discussing whether there is a filibuster by private Members. All the right hon. and learned Gentleman can discuss is the Government's administrative policy based on Supply.

Mr. Hogg

I certainly do not want to discuss the speeches of private Members whose right to occupy the time of the House is very properly engaged on the Third Reading of the Consolidated Fund Bill.

What I do want to elicit from the Government is whether they, who are, after all, fully paid up servants of the public, whose salaries, so far as I know, are paid out of the Consolidated Fund, are engaged upon organising, or authorising, the first filibuster in the history of Parliament. With deference to you, Mr. Deputy-Speaker, but without any deference to the Front Bench opposite, I was going to ask whether—

Mr. Deputy-Speaker

Order.

Mr. William Hamling (Woolwich, West)

On a point of order.

Mr. Deputy-Speaker

Order. I am about to rule on a point of order raised by the right hon. and learned Member. I repeat that he can discuss only administrative policy in relation to the Supply which is being authorised under the Bill. He cannot discuss whether right hon. Members of the Government are organising private Members to make special speeches in this House.

Mr. Hamling

On a point of order. Would the right hon. and learned Gentleman be in order if, instead of making this sort of speech, he moved to reduce the Minister's salary by£10 or something like that?

Mr. Deputy-Speaker

It would not be in order on the Third Reading of this Bill.

Mr. Hogg

The only way in which I can make my protest is to leave the Chamber.

10.51 p.m.

Sir Douglas Glover (Ormskirk)

Not being a lawyer, I intervene in this debate with some trepidation. I apologise for not being present for the whole of it, but I had other engagements.

I congratulate my hon. and learned Friend the Member for Billericay (Mr. Gardner) on raising this subject. I believe that this is a matter of—[Interruption.] I hope that hon. Gentlemen will allow me to make my speech. I am speaking seriously on a serious subject. I believe that my hon. and learned Friend has done a great service not only to the House, but to the Commonwealth, in raising this matter on the Third Reading of the Consolidated Fund Bill.

The Minister of State who wound up the debate, if that is the right word, said that this matter was first raised in 1900, when it did not receive much support, that it was raised again in the 'thirties, and again it did not receive very much support. I do not think that that is surprising. When one talked about a Colonial Empire in 1900, even Australia, New Zealand and Canada were very touchy about sovereignty, but as the years went by, and their independence became more and more obvious, they realised that there was greater strength in voluntary association than they did in 1900.

In the 'thirties they had not reached that stage, but during the last 10 to 15 years, when so many other countries have gained their independence, there has been a great unease over any initiative coming from this country for co-operation because we were frightened that they would think we were trying to reimpose some element of colonial rule or colonial cooperation, and therefore the whole of this demand must come from countries outside the United Kingdom.

I thought that the demand at the last Commonwealth Prime Ministers' Conference for the establishment of a Secretariat was a very significant step forward in the belief that I have, that the growth of Commonwealth association will come from outside this country, rather than from this country giving the lead.

Having raised this subject of a Commonwealth court, my hon. and learned Friend has provided an opportunity for discussing it, and it is significant that, going back to feudal times, the formation of this country as a coherent country came from the codification of the law. It was the law that made the nation, rather than the nation that made the law. It is significant that that happened in this country, and I believe that if we are going to get real Commonwealth co-operation, it is much more likely to come, funnily enough, by the lawyers getting together and producing a Commonwealth court, and seeing, by the process of law, that there is a real value in our association, than by purely political means.

From the process of law we may develop a closer economic system, but I am sure that the law is the first step, and that now that these countries have become independent and, as each year goes by, become less and less worried about any neo-colonialism on the part of this country, and quite convinced of our sincerity in giving them their independence—and realise that what we want to do is to create a close association of free nations—the move to get a Commonwealth court can be as great a move in this matter as was the establishment of the Commonwealth Secretariat last year.

But I agree with the other speakers in this short debate that we must move very slowly in this matter. I speak not as a lawyer; in fact, the only times I have ever had any dealings with the law have been on a minor basis as a criminal—for parking my car in the wrong place, or some equally minor offence. Therefore, the law frightens me. The one thing that we must guard against in the establishment of a Commonwealth court of appeal, even on a regional basis, is delay. Even in this country the great criticism of the law is the delay that arises in the hearing of appeals. The ordinary litigant finds that his case remains in abeyance for a long time, even with our tight-knit community. If such a court were placed in this country the danger of my hon. and learned Friend's proposal is that if the scope of the court were brought to too low a level we would produce a greater degree of delay than exists at the moment.

One-and-a-half years ago I went to Mauritius and the Seychelles. I was disappointed at not being called in the debate we had on these matters not long ago, because I wanted to deal with the problem of Mauritius and the Seychelles. I am one of probably only three hon. Members who know where they are. [Interruption.] Then one of probably only five Members. As a non-lawyer I found a ghastly situation to exist in the Seychelles, and I took steps about it as soon as I came back. I was glad to hear, immediately on the calling together of this Parliament—and I am sure that it was as a result of the representations that I made on my return—that it had been arranged that a travelling appellate court should deal with appeal cases in the Seychelles. They are a small group of islands, and their population amounts only to about 41,000, but if a person there is unfortunate enough to be involved in litigation in the civil courts—the system there stems back to Napoleonic times, and the law is based on Napoleonic law—the only place to which he can take his appeal is Mauritius.

To us, sitting here and looking at the map, that appears to be a sensible arrangement, but to get from the Seychelles to Mauritius such a person has to take a week's cruise on a ship from the Seychelles to Mombasa, fly from Mombasa to Mauritius, have his appeal heard, wait for the next aircraft back to Mombasa, and then probably sit there for a fortnight until the next boat for the Seychelles. The result is that nearly all appeal cases have been heard in absentia. Very few litigants ever went to Mauritius. Documents were sent by post for production in court there, and although the litigants often felt aggrieved at the results of their appeals they were never able to attend the court because, unless the case was very serious, it was not worth the expense involved in making this circular tour.

A person who was involved in a criminal case, however, was subject to Anglo-Saxon law, and in that case his appeal was heard in Nairobi. He had to go from the Seychelles, again by boat, to Nairobi, and then, his appeal having been heard—which might take only half an hour—wait for a fortnight until the next boat went back. Again, unless it was a serious case such a person could not afford to appeal.

When I came back from the Seychelles and went to see my hon. Friend who was Parliamentary Secretary at the time, he instituted inquiries, and these were in train when the present Government came to power. I was delighted to hear that it had been arranged for a travelling appellate court to visit the Seychelles, so that the people there would be saved the enormous expense that was involved in appealing.

I think I have shown to the House the sort of delays that can arise by creating a court designed to deal with something in a place remote from where the crime or difficulty arose. I think that my hon. and learned Friend has done an immense service to the House by raising this subject. I would ask him, in his discussions in Sydney or elsewhere if he goes there, to remember that it is important if regional courts are established that some system of costs for the transportation of the defendant, appellant and so on, should be introduced, otherwise nobody would use such a court unless it was a very large case. I say that because if what my hon. and learned Friend visualises was a sort of Privy Council sitting to decide purely the boundaries between States, its members would meet on such infrequent occasions that they would not knit the Commonwealth together.

I think that what my hon. and learned Friend really has in mind is that our system of justice should become Commonwealth-wide, and that there should be a common system of appeal throughtout the Commonwealth.

On the question of the Privy Council, I asked how many of these very distinguished people from overseas in fact had sat, and my hon. Friend the Member for Crosby(Mr. Graham Page) cited the case of certain chief justices and so on. I think that it would be found that a good many of these honours go to people as honours rather than as practical persons dealing with judicial cases as part of the Privy Council. If we are going to knit together a court of this kind, I think we have to take the risk by making quite certain that it is a Commonwealth court.

Mr. Cledwyn Hughes

I think it would be a mistake to say that it is merely an honour. These judges were appointed because they were judges of standing and distinction in their own countries.

Sir D. Glover

I am very glad that the hon. Gentleman intervened, because he has misunderstood me. Of course, I accept that nobody is appointed to this distinction except at a very distinguished and high level, but it is sufficient for them to sit and act once. It must become established practice in a Commonwealth court that they do not sit once but on a roster like magistrates do, so that they know month by month that they are going to sit.

If that system really became operative we would take an enormous step forward in getting a Commonwealth basis of law. People in the legal profession in all the countries of the Commonwealth would want to get into this position, because they would feel that not only were they doing a good job in law, but also in knitting the Commonwealth together as an entity. To do that they have got to be active. We should look to see if we cannot make a lot of these distinguished people far more active in these affairs than they have been in the past.