HL Deb 05 July 1900 vol 85 cc577-91

[THIRD READING]

Order of the Day for the Third Reading read.

Moved, "That the Bill be now read a third time."—(The Earl of Selborne.)

LORD STANMORE

My Lords, before this Bill is read a third time and passes finally from the cognisance of this House, I should like to, ask for an explanation from Her Majesty's Government of some of the terms employed in the fifty-first section in regard to the subjects with which the Commonwealth Parliament is empowered to deal. Those subjects are very numerous, and for the most part require very little explanation, | but there are one or two points about which I think it is only right that your Lordships should receive some information as to the meaning attached to the words, on the one hand by Her Majesty's Government, and on the other hand by the Governments of the Australian Colonies. I wish, first of all, to call attention to the words "external affairs." How are those words to be interpreted? They may be: interpreted in a vastly extended sense or in a very restricted one. I wish to know what interpretation Her Majesty's Government place on them and what interpretation the Governments of the Australian Colonies put upon them. Do these words mean that the Legislature of the Commonwealth may, if they like, appoint consuls and diplomatic agents in different parts of the world? It would be satisfactory to know to what extent the external affairs of the colonies are to be placed under the control of the Legislature and Government of the Commonwealth, because it may be held by some to be a power which I do not think your Lordships intend to confer. This is not altogether a speculative question, because I remember very well many years ago, when I was more conversant with the opinions of Australian statesmen than I can now boast of being, there were many very distinguished Australian public men who held that it was the right of the colonies that they should conduct their own external affairs, and who were eager to attain that object, and I do not believe that that wish has altogether died out. the next item is also one with regard to which I think some explanation would at least be acceptable—I do not say it is absolutely necessary. Under that clause the Commonwealth Parliament are also enabled to legislate with regard to "The relations of the Commonwealth with the islands of the Pacific." These are very large words. There are many classes of islands—islands which either belong to or are more or less under the influence of Great Britain, islands which are independent, islands which are the property of foreign Powers, and one group of islands which form a separate British colony. Is it intended that the Commonwealth is to have power to legislate with regard to all these islands? I presume not. No one would suggest that the Common wealth Parliament should have power to legislate with regard to the relations existing between the Australian colonies and those islands of the Pacific which are the property of foreign nations. It is desirable that we should not be committed to vague words which may mean many things, and in connection with which questions may be raised to the great inconvenience of administration. The Commonwealth Parliament is also empowered to legislate as to "Fisheries in Australian waters beyond territorial limits." I confess I do not understand how they can have jurisdiction beyond the territorial limits, because the waters beyond those limits form part of the high seas. I cannot sit down without expressing that fervent hope, which I am sure everyone who has had any connection with the Australian colonies must feel from the bottom of his heart, that this great measure may be one attended with all the success and lead to all the benefits which its authors have anticipated.

*THE EARL OF SELBORNE

My Lords, the noble Lord who has just addressed you must remember, if he kindly will, what the scheme of Sub-section 51 is. It is a scheme to confer upon the Commonwealth Parliament a concurrent right of legislation with the Legislatures of the Australian States, and I am advised that "external affairs" in this connection mean neither more nor less than the right of dealing with that which has hitherto been dealt with by the Australian Colonies, which in future will become the Australian States. It is certainly not intended by the authors of this Bill that these words should be stretched so as to invest Australia with the paraphernalia of consuls and ambassadors separate from the British Empire. As regards the question of the relations of the Commonwealth with the Islands of the Pacific, those words are imported directly from the Federal Council of Australia Act, 1885. It is a simple transfer of the jurisdiction conferred in that Act upon the Federal Council to the Commonwealth Parliament. Section 15 of that Act began as follows— Saving Her Majesty's prerogative, and subject to the provisions herein contained, with respect to the operation of this Act, the Council shall have legislative authority in respect of the several matters following. The first matter was the relations of Australasia with the Islands of the Pacific. That is a mere transfer from one Act to the other, and the spirit in which it has been introduced and is intended to be worked by the authors of this Bill is the same as that which animated the authors of the Federal Council Act. I do not think it would be possible to lay down a strict rule beforehand as to the exact scope of this provision, but I do not think there is any more reason to suppose that this sub-section will be abused than there was danger that the Federal Council would abuse the powers conferred upon them. Before I sit down I should like to refer very briefly to one or two points that arose in the Debate on the Second Reading in connection with Clause 74. The noble Lord who followed me in the debate (Earl Carrington) will pardon me for saying that he seemed completely unaware of the doubts and difficulties which had arisen over the original wording of Clause 74. He seemed to be absolutely at sea as to the questions which were really discussed by the delegates and Her Majesty's Government, and I do not think he at all apprehended that in the attitude he was taking up he was putting himself in a position of opposition to the prevailing Australian public opinion. There were several objections to the clause apart from the points specially emphasised by Mr. Chamberlain in another place. One objection was that the interpretation of the clause was, at any rate, doubtful. If your Lordships refer to page 17 of Blue-book 158, which contains copies of the Memoranda furnished to Her Majesty's Government by the Australian delegates, you will see that it is asserted that the clause as brought to this country did not in any way impinge on the right of appeal to the Privy Council, except in a limited number of constitutional cases; but that was merely a question of opinion. It was open to argument that the right of appeal from the State Courts was abrogated altogether, and it was also open to argument that it was only abrogated in cases in which the Constitution might be supposed to be affected. It is not for me, being a layman, to give any opinion as to which of these views was the wisest or most sound. I only mention them to show that there was a real doubt as to the meaning of the clause as brought to this country, and, whatever may be thought of the ultimate shape the clause has assumed, your Lordships must admit that the right of appeal is reserved in all cases, and that the only question is whether it was wise or unwise to leave it to the High Court of Australia to decide whether in a certain class of cases an appeal should lie. I was asked very pointedly why the provision which appeared in the original clause, "unless the public interests of some part of Her Majesty's dominions other than the Commonwealth or State are involved," was omitted from the clause as it stands at present. The reason is that it did not seem to Her Majesty's Government, in consultation with the delegates, that the words were any longer necessary, because any such case can now be taken direct to the Privy Council from the Supreme Court of a State, or, it it goes to the High Court of the Australian Commonwealth, it can be taken to the Privy Council by leave of the High Court, and Her Majesty's Government have absolute confidence in the discretion of the High Court. Great stress was laid upon the point that it might be held in the future that the High Court was a co-ordinate court with the Privy Council so far as the interpretation of the Constitution in a particular class of cases was concerned, and some doubt was felt as to the accuracy of my statement that there were precedents in the judicature of this country for allowing an inferior court to be the deciding authority as to whether there should be an appeal to a higher court. I find in the Judicature Act of 1873 that— All appeals from Putty or Quarter Sessions, from a County Court, or from any other inferior Court, which might before the passing of this Act have been brought to any Court or Judge whose jurisdiction is by this Act transferred to the High Court, may be heard and determined by Divisional Courts of the High Court, consisting respectively of such of the Judges thereof as may from time to time be assigned for that purpose, pursuant to the rules of Court, or (subject to rules of Court) as may be so assigned according to arrangements made for the purpose by the Judges of the High Court. The determination of such appeals respectively by such Divisional Courts shall be final unless special leave to appeal from the same to the Court of Appeal shall be given by the Divisional Court by which any such appeal from an inferior Court shall have been heard. That was a direct case in which the leave to appeal to the Court of Appeal was to toe given by the lower or inferior Court. That enactment remained in force for, I believe, something like twenty years, when an Amendment was introduced by which the leave to appeal to the Court of Appeal may be given by the Court of Appeal as well as by the inferior Court. There is another precedent in questions of bankruptcy—and in this matter there has been no change in the law—in which an appeal lies to the House of Lords on the leave of the Court of Appeal. It is not the House of Lords which gives the leave to appeal, but the Court of Appeal. In neither of these cases has the inferior Court been held to be coordinate with the Court above it. The Lord Chief Justice, in arguing this question, laid great stress on the words "final and conclusive." I have carefully looked up what the noble and learned Lord said, as reported in The Times, and I think I am not misrepresenting him when I say that his argument was to the effect that there could be no doubt that the Privy Council would, in all matters including the interpretation of this Act, be held to be the final authority, except in that limited class of cases defined in Clause 74, in which leave to appeal to the Privy Council is left to the discretion of the High Court. In that class of cases, and in that class of cases alone, the noble and learned Lord said he had a fear that it might be held that the High Court of Australia was a co-ordinate court with the Privy Council. The Lord Chief Justice, if he will pardon me for saying so, was speaking without having the exact words of the clause in his hand, because the words "final and conclusive" do not appear in that particular clause, but in the previous clause, in relation not to those special points on which the High Court is to give leave to appeal, but to the much larger class of cases in which the Lord Chief Justice himself admitted that there could be no doubt that the authority of the Privy Council would be supreme. Therefore, whether his contention was right or wrong, he cannot rest it on the insertion of the words "final and conclusive," because they do not appear at all in the clause to which he was referring. I have been rather rash, as a layman, in mentioning these points, but I could not pass over in silence arguments which I venture to think were faulty. I cannot see how it can possibly be contended that there can be any superior judicial autho- rity in Her Majesty's Dominions than Her Majesty herself, the fount of all justice; and I am advised—and as a humble student of history I have always understood—that the decision of the Privy Council is the most direct form of expression of the judicial authority of the Crown, and that there is no precedent in the history of the judges of our race for setting up the authority of any Court deriving its judicial functions from Her Majesty over that direct expression of Her Majesty's own opinion which is to he found in the decisions of the Privy Council. This is the final stage of this great measure in your Lordships' House. What the future has in store for Australia few of us will venture to measure; but perhaps we can exercise our imagination, and try to judge what the future of Australia will be by endeavouring to conjecture how different would have been the development of the thirteen potty American States if they had not become the great United States of America; and I am sure your Lordships will join with me, re-echoing that watchword of Australia, "Advance, Australia," in the hope that Australia united will, with Canada, and, I hope, in the not far distant future, with South Africa, be a partner with the United Kingdom in the great work that lies before it.

THE EARL OF KIMBERLEY

My Lords, it would have been more satisfactory if the noble and learned Lords who usually sit behind me had been present when the noble Earl thought fit to make this statement in answer to what was said by them on the Second Reading of the Bill, but unfortunately they are not here. I can assure the noble Earl that there is a very strong feeling on this side of the House, and I believe among many people, that the Bill as it is now framed is not only not an improvement on the point of the appeal to the Privy Council, but is distinctly less satisfactory, than the Bill as it originally stood. In the original Bill Clause 74 declared that no appeal should be permitted to the Privy Council in any matter involving the interpretation of the Constitution, unless the public interests of some part of Her Majesty's dominions, other than the Commonwealth of Australia, were involved. It appeared to many of us, and certainly to me, that the provision which was introduced in the original Bill by the Australians was animated by a desire to guard to the utmost possible extent against any interference by the Australian Commonwealth in matters of public interest outside Australia itself. To the ordinary man that appears to be a far better safeguard than what is now in the Bill. You have said that no appeal in certain cases should be allowed unless that appeal is permitted by the High Court itself. I have, of course, like all your Lordships, perfect confidence in the integrity and knowledge of the learned judges who will constitute the High Court of Australia, but anyone, I think, who knows what human beings are cannot but see that any tribunal which is appointed for the ordinary administration of justice stands in quite a different position when they themselves are to be the judges as to whether or not there should be an appeal in matters affecting their own court. I cannot conceive any task more difficult or invidious to fulfil. I can easily imagine that in certain cases there may arise a feeling of dissatisfaction with the decision of the Court, and that people may say the appeal ought to have been allowed. That seems to me a point of great importance. I am obliged to say that I have neither seen nor heard any answer to the arguments of my noble friends the Lord Chief Justice and Lord Davey; and many of us who have paid what attention we-could to this Bill are still lost in astonishment that there should ever have been raised this controversy with the Australian colonies. In my belief it would have been far better, safer, and wiser to have accepted the Bill as it stood. I would not have blamed Her Majesty's Government for taking care that the right of appeal was fully preserved. That was a matter of so high importance that it was a very fair subject for consideration; but, if they had considered it from the point of view that they should have done, they would have found there was no necessity for raising the controversy. Although the controversy is now, happily, ended—and we all know that the result is acceptable to the Australian colonies—yet there was a moment when there was very serious apprehension lest there might be difficulties raised in Australia which might possibly wreck the whole scheme. I again repeat that I do not understand for what possible reasons this controversy was raised. The only explanation we can invent may possibly be ill-founded—it is that the first intention of those who objected to the Bill as it stood was to preserve the right of appeal altogether intact. It was found that that raised a very serious and very great difficulty as regards the colonies themselves. Then we saw with astonishment the Colonial Secretary appealing to newspapers in the colonies against the opinion of the Colonial Governments and the whole Australian people—one of the most imprudent and objectionable things I have ever known done by a responsible Minister of the Crown in a matter of this importance.

THE EARL OF SELBORNE

The noble Earl has forgotten that the Governments thanked the right hon. Gentleman for what he had done.

THE EARL OF KIMBERLEY

Then they were thankful for small mercies. It was a matter of great relief to them that he had come back to something they could accept. When it was found that the original course intended was impossible, it became necessary to find some way out which might save the credit of the Minister who had charge of the matter. I admit and admire the ingenuity with which it was done. The first attempt, which was communicated to the House of Commons, and was stated to be entirely satisfactory, broke down altogether, and then, at last, very ingeniously, and, I think, with wisdom, what is called a compromise was hit upon. I say it was ingenious. It was ingenious to find out such a contrivance, and it was wise, because it turned out to be something the Australian colonies could accept. But the conduct of the matter was not such as to excite any very great admiration. I am very glad the Bill has arrived at this the last stage, and I assure your Lordships I would not have referred to the controversy at all if the noble Earl the Under Secretary for the Colonies had not seen fit to comment upon it.

THE LORD CHANCELLOR (The Earl of HALSBURY)

My Lords, I do not share with the noble Earl the opinion that Clause 74 as it originally stood was better than it has since been made. I may, perhaps, venture to suggest to the noble Earl that if he had had to construe as a judge the words "public interest in some other part of Her Majesty's dominions," he would have found considerable difficulty. I myself took great exception to the phrase, and, again, with reference to what he calls an invidious course—that of calling upon a court to say whether there should be an appeal from it or not—I would ask the noble Earl whether he has not heard of such a provision before. There is hardly a court in the country in which exactly that provision does not exist. It exists in courts of quarter sessions, in courts of summary jurisdiction, in courts of first instance, and in courts of appeal. Those courts have from time to time exercised the very discretion contemplated here. It may be true that on some occasions people have said, "Oh, that Court was wrong; it ought to have allowed an appeal"; but on the whole the discretion is supposed to be exercised wisely and impartially. The question of the true construction of the Act, which was raised on the Second Reading by the Lord Chief Justice and Lord Davey, is one upon which any intelligent laymen is as well able to form an opinion as a lawyer. The point, apparently, is that there are some matters reserved for the Court in Australia, and reserved in the sense that its decision is final. So far as that particular case is concerned, of course the fact of the reservation by the statute prevents the particular case ever being brought up again anywhere else. That is perfectly true. But the important question which was suggested was that if the Court in Australia gave a different decision from some decision in this country—not in a particular case, because, of course, that could not arise, but in some equivalent case—it might be said that there was no authority in the Supreme Court of this country to overrule, in the sense of saying that was not the law. I think in making this statement the noble Lords have not sufficiently considered this point. The Supreme Court must ultimately declare the law, and that law must be final in all courts.

*LORD MORRIS

I was unable on the Second Reading, owing to illness, to take part in the discussion on this Bill, but I should not like it to pass without making a few observations upon it. I regret extremely that Clause 74 was ever introduced into the Bill, and, having been introduced, that it was not deleted. I heard the speech of the Colonial Secretary in the House of Commons, and I was convinced in my own mind of the absolute danger of meddling at all with the appeal to the Queen. The noble Earl opposite has asked why this clause was not struck out. He ought to have a very good opportunity of supplying the answer, which is an obvious one. It is, that immediately the Colonial Secretary suggested that Clause 74 should be deleted—which in my humble opinion would have been the best course for the Australians themselves, and which was manifestly in accordance with the opinion of the greater part of, if not the entire, judiciary and Bar of Australia, and of all the persons who understood the subject—the Leader in the House of Commons of the party which the noble Earl opposite represents in this House attempted to make party capital out of the suggestion by saying that the Colonial Secretary had flouted the Australians. That the course which the Colonial Secretary took was the proper course in the opinion of experts that right hon. Gentleman endeavoured to prove by referring to general sources of information, such as newspapers, etc., which I have often heard quoted as sources of information open to everybody, although it has been suggested this evening by the noble Earl that it was unworthy and unbecoming to refer to them. The proposal to get rid of Clause 74, and to leave the right to appeal to Her Majesty in Council to every subject of Her Majesty who thought he was injured in person or property, was called flouting the Australians, and it was quite obvious to me that, if the clause had been struck out, "Who flouted the Australians?" would have been raised as a party cry. A change was forced upon the Colonial Secretary by the position taken by the Leader of the Opposition in the House of Commons, and which the rank and file of his party appeared quite ready to follow up. I regret extremely that the clause was not left out, and the right of appeal in Australia allowed to stand on the same footing as the right of appeal in Canada. It has been said that it is a novel thing for an inferior court to have the power of giving leave to appeal to a superior court. In the case of landed property in Ireland it is not considered so extraordinary that there should be no appeal from the Land Commission Court without their own leave. I join heartily in the chorus of admiration which has found expression among all parties in regard to this Bill.

*LORD ALVERSTONE

My Lords, I would crave your Lordships' indulgence for a few moments while I express my opinion on the point raised by the noble Earl the Leader of the Opposition. I am one of those who would have been most anxious to preserve the original right of appeal; not so much in the interests of the United Kingdom as in the interests of the colonies of Australia themselves. I have had personal experience of the great value the right of appeal was to Canada, and I know that grave political questions, which excited great public attention, were disposed of by the Judicial Committee of the Privy Council in a way which was satisfactory to all. But that is not the issue now raised. The noble Earl has given the great weight of his opinion, which I very much regret, to the view that the form in which the Bill was brought to this country by the Australian delegates was better than the form in which it now stands. I happen myself to have taken part in all the preliminary discussions in regard to the Bill, and I would ask your Lordships to permit me to present one or two arguments which, I think, should satisfy independent minds that the view presented by the noble Earl is not right. The noble and learned Lord on the Woolsack has already referred to the difficulty of construing the clause as it originally came to this country, but that was not the way in which the difficulty was presented to those of us who had to do with the negotiations. It was practically admitted by those who were at that time arguing for the possibility of retaining the clause that an appeal might be debarred in the case of most important interests, such as those of great shipping companies. It was conceded by those with whom we discussed the matter that such important interests would not fall within the words, "the public interest of some part of Her Majesty's dominions." Very grave doubt also was felt whether or not the appeal from the Colonial Courts, as well as from the High Court of the Commonwealth, was interfered with. The Colonial Secretary and those associated with him accordingly endeavoured to induce the delegates to agree to Clause 74 being cut out altogether. I am aware that we were not able to attain the full object we had in view, but the noble Earl has expressed the opinion that the clause as it now stands is less advantageous. The analogy of Canada has been quoted, but there is a marked difference. In Canada the rights of legislation between the Dominion and the provinces were carefully defined by sections in the North American Act, but under this Bill there will be to a certain extent co-equal powers between the States and the Commonwealth. Therefore there was a substantial ground for asking—if a question does arise between the Commonwealth and the State as to the powers of the respective Legislatures—is not that a matter which you could safely leave to the High Court to deal with? Accordingly the words were agreed to that— No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question howsoever arising as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the Constitutional powers of any two or move States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. That was a concession made to the feeling of Australia, and if I take that by itself I do not think the noble Earl would be able to say that it is not far preferable to leave the right of appeal standing generally, and to limit the express and particular point which was to be left to the High Court. One leaves the right of appeal standing, with an exception which is actually expressed in the Bill; the other would have made it necessary, in order to allow an appeal to be brought, to satisfy that extraordinary provision, "the public interest of some part of Her Majesty's Dominions." An advantage having, I would humbly submit, been gained by preserving the right of appeal and by limiting the particular questions which might be dealt with by the High Court of the Commonwealth, we have to consider whether there is anything in a subsequent part of the clause which in any way deprives the subjects of the Queen of the advantage, which I trust I have demonstrated, the Bill in its altered form gives them. The next paragraph in the clause provides that— The High Court may so certify, if satisfied, that for any special reason the certificate should be granted and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. In the interest of Australia I should have been glad to see the colonies and the Commonwealth, or persons interested in questions that may arise between them, free to appeal to the Privy Council—and I hope that view may still find weight with the Australian Commonwealth—for in times of great political excitement this is especially valuable that leave to appeal to the Privy Council may be given; and I do not doubt that when great political questions arise every member of the High Court will feel it his duty to accept the guidance of this impartial tribunal, which can be relied upon to decide the questions free from any bias or political agitation. It is said that you impair the dignity of the Privy Council and run some risk of its decisions not being followed, because leave is given in this particular case to appeal. I share with the noble and learned Lord the Lord Chancellor a feeling of astonishment that such views should have been placed before your Lordships as were put forward by the Lord Chief Justice and Lord Davey. I regret I was not here on the Second Heading of the Bill, and I am sorry that the noble and learned Lords are not in their places to-day. Appeals have been given by inferior Courts to higher Courts in the circumstances mentioned by the Lord Chancellor and others, and I have never yet heard it suggested that the Court which had given the leave afterwards felt itself justified in declining to obey the rule of law laid down by the Court to which it had given leave to appeal. Lord Davey, I understand, suggested that there would be two sorts of Courts of Appeal in which the Jurisdiction would appear to be co-ordinate. I venture respectfully to suggest that the experience of the world is contrary to that view, and I do not hesitate to say that every lawyer, at any rate, who follows the traditions of our profession, sitting in the High Court of the Commonwealth would feel it his bounden duty to follow the decision of the Privy Council. I think the noble Earl will agree that, if I have pointed out, as I trust I have, that far wider rights of appeal are reserved, and are kept alive under the existing form of the Bill than would have existed under the Bill as introduced, and if I have pointed out that the door is open in times of political agitation for the High Court to send questions to be decided by an impartial tribunal, almost every argument he has used in support of the view that the Bill as now presented to the House is inferior to the Bill as it was brought to this country is cut away. I apologise for having troubled your Lordships at such length. But, believing as I do that in the interests of the colonies, quite as much as in the interests of Great Britain, it is desirable that the right of appeal should not be interfered with, I am satisfied that the clause as it now stands is a vast improvement upon the form in which it was brought over by the delegates from the colonies. It is because I hold that opinion strongly that I have ventured to raise my voice, for the first time in your Lordships' House, in opposition to the view of the noble Earl.

On Question, agreed to. Bill read 3a accordingly, and passed.