JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. (Hansard, 27 May 1895)

THE EARL OF ROSEBERY
My Lords—I rise, in pursuance of notice, to call attention to the constitution of the Judicial Committee of the Privy Council. But it will not be necessary for me to detain your Lordships at any length on the subject, nor do I think it will be found that the Bill is in any respect of a controversial character. By the Act under which the Judicial Committee came into existence, two Judgeships were reserved for those who had held judicial offices either in India or the Colonies. To those two Judgeships a salary of £400 a year apiece was reserved, and by the last Act bearing on the subject, which was passed, I think, in the 50th and 51st Victoria, it was made competent for one of the Judges to draw both salaries. But except for that provision the constitution of the Judicial Committee of the Privy Council laid down in the early years of William IV. has hitherto been held to be sufficient for external needs of the Empire in the way of judicial tribunals. I do not introduce this Bill with any idea of disparaging the work of the Judicial Committee. It would be unbecoming and presumptuous for me to praise that work, but there is no doubt that the Judicial Committee has in the highest degree earned the confidence of the Colonies, and that is proved by the increasing figures of the number of appeals which are laid before that body. But, my Lords, it seems perfectly clear that it would largely extend the satisfaction felt by the Colonies with that tribunal, and would largely increase their interest in its proceedings, if they were allowed a larger admixture of Judges versed in Colonial law and conversant with Colonial customs and practices than could at present be the case. At the present moment there is in the Judicial Committee no Judge having Colonial experience. There is one Judge with Indian experience, and in that quality he draws both the not excessive salaries assigned by the Act of William IV. That is how the matter stands—one Indian Judge and no Colonial Judge. But how do the figures stand in regard to appeals? I hold in my hand the figures relative to the number of Indian appeals from 1876 to the present time. It is not necessary, 332 I think, to go through all those years to prove the gradual increase of Colonial as compared to Indian appeals. I will take the year 1879 as the point of departure. In that year there were 48 Indian and 19 Colonial appeals. In 1889 there were 39 Indian and 26 Colonial appeals. In 1894 the positions were altogether reversed. The Indian appeals, while maintaining their figures, had sunk into relative insignificance as compared with Colonial appeals, for in that year there were 25 Indian and 35 Colonial appeals. Under these circumstances, I think it is not unreasonable that the Government, and also the Governments of the larger Colonies, should feel a wish that there was a larger introduction of the Colonial element into the tribunal which acts as the Supreme Court of Appeal for all the external Empire. That feeling has already been made manifest in the Federal Conference of Australasia which met at Hobart last year, and at which the following resolution was passed unanimously:— That an humble address be presented to Her Majesty the Queen, praying that Her Majesty may be pleased, in view of the special features often presented by Australasian appeals, to appoint a member of the Judicial Committee of Her Majesty's Most Honourable Privy Council who has experience of Australasian affairs. That is the only official utterance that has been made, so far as I know, on the subject. But I do happen to know from at least one of the other greater self-governing colonies that it would be a very welcome feature of the legislation of this country if we were able to enlarge the sphere of this tribunal by introducing into it a greater number of colonial Judges. I would further point out this, that there are a great number of circumstances peculiar to the colonies. The conference at Hobart gave as an example the squatters' industry, which, in their opinion, an English Judge, with purely English experience, is scarcely able to give sufficient effect to. And there is this further to be said, that in two, at least, of our greatest colonies systems of law are administered which are distinct, and almost alien, I might say, from the system of law administered in this country or in India. The Cape is mainly administered, as I understand, under the old Civil Law, and in 333 Canada the old French law largely prevails as it existed in France before the first Revolution; and, I think, if only on these grounds—putting apart the number of colonial appeals, and putting apart the desire that we must all of us feel to make this Imperial tribunal more truly Imperial in its constitution—we must feel that, as a matter of expediency, and almost as a matter of necessity, it is advisable to take some action in this matter. My Lords, that is all the preface that I intend to make, and, indeed, the Bill is much shorter than the preface. The Bill consists of one operative clause, which is mainly to this effect: that if any persons who have held judicial office in the Supreme Courts of the Dominion of Canada or the Australasian Colonies, as set forth in the Schedule, should be sworn, within certain limited numbers, to the Privy Council, they shall be members of the Judicial Committee of the Privy Council. At present, I should explain, if a colonial Judge were, by any accident, sworn on the Privy Council, he could not become a member of the Judicial Committee except under the limitations imposed by the Act of William IV.—two members with two very small salaries. Our proposal, then, is that, without making any financial provision for the maintenance of these judicial members, we should give facilities to the great self-governing colonies, if it be practical from their point of view, to have members of their Supreme Courts admitted as members of this judicial tribunal. I have no doubt that two, if not three, of the great groups of colonies will, at a very early moment, take advantage of this provision, and I venture to hope that on our side there will be no word of cavil with respect to the general principle of the Bill. I do not disguise from myself or from your Lordships that in promoting this Bill I have not merely at heart the efficiency of a Court for which we all have respect, but I do hope that in adopting the Measure you will be ading one more link to the golden chain of empire, and that link not the least efficient.

*LORD BELMORE,
as one who, though some time ago, was intimately connected with one of the Australian Colonies, gladly welcomed the Bill, which was one he had long felt would be extremely gratifying 334 to the Colonists, and would greatly conduce to the public advantage.

§ LORD HALSBURY
only desired to say something in order to get rid of the notion that he did not cordially agree with what the Prime Minister had said. He was not disposed to utter any word of cavil, and any words on questions of detail would be more appropriately used on another occasion. All he would say at present was that he thought it would be a great advantage to the Judicial Committee of the Privy Council that it should ensure the increased confidence of the Colonies. It might, perhaps, partake of detail, but Roman-Dutch law was administered in the Cape, and, if he gathered rightly, the Cape was not one of the Colonies included.

THE EARL of ROSEBERY
said, that that was a stupid omission. He did not mention the Cape; it was merely an omission.

§ *LORD KNUTSFORD
expressed his entire concurrence in what had been said as regarded the principle of the Bill; and really, as there was no finance question raised, he agreed practically with the details. He might, however, point out that, as no salary was to be paid to the Chief Justice or other Colonial Judge who was to act on the Judicial Committee, it rather resolved itself into some person being appointed to the Privy Council who had been a Judge in the Colonies, but had retired and was living here, or else someone who was able, consistently with his judicial work in the Colony, to come over here while the Judicial Committee was sitting. He imagined there would be some difficulty in getting an acting Judge either in Australia, or the Cape, or Canada to attend cases in the Privy Council. If that was so, it resolved itself into the appointment of a chance Judge who had retired and was living in this country, and, as far as he knew, there was no such case at present.

§ THE LORD CHANCELLOR
did not think that, as regarded Canada, there would be so much difficulty as the noble Lord had suggested. As a matter of fact, Canadian cases were very largely heard here and argued by Canadian counsel.

§ *LORD KNUTSFORD
remarked that Canadian counsel received payment, whereas this Judge was not to receive anything.

§ THE LORD CHANCELLOR
did not think it was impossible that the Chief Justice of Canada would be willing to discharge his public functions to some extent in this country. The Cape was more distant, but he thought it was possible that at times the Chief Justice of the Cape might attend in this country, and take part in the work of the Privy Council. The Bill, however, only proposed to take the first step, and that was to provide that these judicial persons, if made Privy Councillors, should thereby become members of the Judicial Committee. Any subsequent arrangement must be left to communication with the Colonies and to the consideration of what was the best course to be pursued.