GHANA (CONSEQUENTIAL PROVISION) BILL (Hansard, 30 May 1960)

THE EARL OF HOME
My Lords, the House by now, after recent years, is familiar with the pattern of this Bill, because we have had similar Bills in the case of India and Pakistan. Ghana has lately, by a vote in the Assembly, and then by a plebiscite, decided that it is the wish of the Ghanaian people to be a Republic. When Dr. Nkrumah, the Prime Minister, came to the Prime Ministers' Conference, he requested that that Republic of Ghana should be accepted as a full member of the Commonwealth. As your Lordships know, the Prime Ministers readily and unanimously gave their consent. As your Lordships also know, when that happens the United Kingdom Parliament has to pass enabling legislation. That is required because, for instance, if it were not passed, there might be doubts whether Ghanaian citizens would remain, in United Kingdom law, British subjects and Commonwealth citizens or whether, for instance, the preferences granted at the Ottawa Conference could be legally made to cover Ghana. This legislation removes all doubts and places Ghana as a Republic in the position to enjoy exactly the same advantages she enjoys to-day.
I do not think I need elaborate any further. This Bill is in common form when a country in the Commonwealth chooses to become a Republic. There is just one point to which I should draw attention. Ghana does not wish to continue with appeals to the Judicial Committee of the Privy Council, but would 93 like outstanding appeals to be heard. This Bill provides that that can be done. I am confident that this change from the Monarchy to the Republic will not diminish the feeling in Ghana for the Queen as Head of the Commonwealth, and will not lessen the ties between Ghana and this country. I have pleasure therefore in moving this Bill, and I ask your Lordships to give it a Second Reading.

§ VISCOUNT ALEXANDER OF HILLSBOROUGH
My Lords, I should like to say, on behalf of my colleagues here, how much we welcome the bringing of this Bill to the House for its approval. It marks the end of negotiations which have been of very great importance and, indeed, has established an important event in the history of the Commonwealth. The great fight for freedom in which, in the last Great War, this country engaged, on top of the First Great War, has led to a more rapid expansion of the general idea of the British Empire becoming a great Commonwealth family of nations. This is just another one in the succession of events in that direction.
I am delighted that the Ghanaian people and their Government have decided to remain inside as a member of the Commonwealth. You may look at the present world situation as you like, but it is certain that the great struggle in the world will be in the direction of free societies of peoples who have great and common objectives for the advancement of their particular nations. On the other hand, there is a struggle to erect the kind of monolithic state in which some stated objectives may be very good but which does not rely upon the free contribution of the individuals to the achievement of those objectives, but relies, in the ultimate, upon compulsion. It is a great event at any time in our history when we add to our family of free nations another, as Ghana is being added to-day of her own volition.
I think we ought to pay this tribute—we so often have controversies in debates on controversial matters in the House—to those who have been responsible on our side for the conduct of the negotiations in this matter. Although I suppose that in the first instance the 94 transfer of a territory from a Colonial to a Commonwealth Government is a matter that lies with the Colonial Office and the Secretary of State for the Colonies, I think we should like to congratulate the noble Earl the Leader of the House, as Secretary of State for Commonwealth Relations, on his part in this and similar matters. We hope very much that the people in Ghana will feel the warmth of the welcome that this country gives to it. We should like them to know that we never forget that, in the great struggle for freedom in which we were engaged, so many of their own people fought side by side with those of our own homeland and other countries in the Commonwealth. We all wish to see them not only gain this independence within the Commonwealth, but succeed to great economic development, and we wish them a general and continuous rising of the standards of education and enjoyment of standards of life such as we have been able to obtain for ourselves. We therefore welcome this Bill with very great pleasure. We wish the people of Ghana and her Government for the whole of her future the greatest possible happiness and the greatest possible amount of unity with us and our objectives that we can jointly secure together.

§ LORD SPENS
My Lords, may I add a word of welcome to the historic fact that Ghana has decided to remain within the Commonwealth? I cannot add to what the noble Viscount has said in his words of welcome, and I want only to address a few short remarks to your Lordships on Clause 2 of the Bill.
Clause 2 embodies the arrangement that has been made, as I understand, between Her Majesty's Government and the Government of Ghana about pending appeals to the Judicial Committee of the Privy Council: as soon as Ghana becomes a Republic no new appeals will come from Ghana to that great tribunal. It is not for us, in my view, ever to complain of what a newly independent country thinks fit to do; and certainly independence entitles it to decide as it thinks right as to what should be the final Tribunal to which cases in law shall go from that particular country. But it does cause one, I venture to think, some anxiety that one more unit of the Commonwealth has 95 drifted away from the great unifying legal influence of the Judicial Committee of the Privy Council. Of course I know from my personal experience in India that although appeals no longer come to the Judicial Committee of the Privy Council the respect that India continues to have for decisions of the Privy Council remains just as great as before.
None the less, as the years pass we are finding more units of the Commonwealth drifting away from the Judicial Committee; and that does mean, it seems to me, that in the days to come we are going to have a number of Supreme Courts dealing with very much the same fundamental law, both doctrinal and positive, that they have inherited from us during the periods they have been in the colonial state. As the years pass that will mean, unless some other unifying Court can be found, that we shall see a tendency to differing decisions and differing drifts away from each other, although basically the laws which are being administered have very much in common.
If I may just speak shortly from my own experience in India, where there were twelve High Courts administering the same basic law, the position was that unless there had been a unifying Court at the top one would find in the course of 20 or 25 years differing decisions on exactly the same points. There a unifying Court, such as the Judicial Committee, or my own Federal Court, was of the greatest value in keeping the law unified within reasonable means. I do not suggest for a moment that local customary law, or indeed local land law throughout the community, requires a unifying Court; but what I do suggest is that now, in these days of great commercial enterprises, which operate all over the Commonwealth, and indeed over large parts of the world as well, it is very desirable that the commercial laws should be kept as unified as possible. It is of the greatest inconvenience to commercial firms to find that what is recognised as valid in one State is invalid in another: that although the fundamental law is the same there are conflicting decisions of Supreme Courts.
There is one other point about the desirability of a unifying Court; and I think it particularly applies to the new 96 units of the Commonwealth who are applying for investment from overseas. There is no doubt a good deal of extra confidence given to investors if in fact there is a Supreme Court to which they can finally go and which is not one which is entirely local in appointment and in administration. The three essentials, it seems to me, of a Court are, first of all, how the judges are appointed; secondly, what their tenure of office is; and thirdly, how independent they are of the Executive in their country. It was, of course, the great value of the Judicial Committee of the Privy Council throughout the whole of the colonial period that the Judicial Committee, the highest Court to which citizens of the Empire could go, was entirely independent, both in appointment and in influence from everything local.
It has, of course, been asked for some time, as the drift away from the Judicial Committee sitting in this country was continuing, whether there were any other means by which a Court could be established which would appeal to these people. For a long time a peripatetic Privy Council was advocated by Lord Tomlin and others, but in my view the time has now passed where that would serve the purpose. It is difficult to see exactly how in the Republics you could deal with it in the same way as you could in the Monarchical part of the Commonwealth. Indeed there is this difficulty: that in the new units, particularly, to accept the Judicial Committee of the Privy Council, even though it went and sat in their country, would be regarded to some extent, I believe, as a derogation of their sovereign powers, because, after all, it is a Court of the United Kingdom.
Therefore there has grown up the suggestion that it might be possible to constitute some other Commonwealth Court as a Supreme Court of appeal for different units of the Commonwealth. I think it is felt by many units of the Commonwealth that they have—as indeed they have—a number of most eminent judges whose services would be acceptable outside their own particular units. I think the judicial talent throughout the Commonwealth is very great indeed at the present time. There are courts of appeal all over the Commonwealth with most eminent judges sitting on them, and I do 97 not believe that it should be impossible to devise a system by which a Commonwealth Court of Appeal could be constituted. I realise that there are great difficulties as to how the judges should be selected. That would have to be a matter for each particular unit of the Commonwealth. It would be possible to get a panel of Commonwealth judges who would be available—of course nothing could be made compulsory on any single unit of the Commonwealth—and ready to accept appeals from units of the Commonwealth who were willing to send appeals to them.
It seems to me that the time has come when an attempt might be made to form such a Court as that to which units of the Commonwealth who were willing to do so should send certain types of cases which were really common to all Mem7 bets of the Commonwealth whose basic law had come from this country. I believe that if that could be done it would prevent, in the next 100 years, our British doctrines and legal doctrines going off in all sorts of diverse directions without any Court at all to unify them and keep them on common lines. I think it would be a great service to both the commercial and trading communities of the Commonwealth if something of that sort could be done. I believe that such an idea has been discussed, but I think that if time is allowed to pass before anything is done we shall lose one of the great common contacts and one of the most valuable links which hold the units of the Commonwealth together.

LORD HEMINGFORD
My Lords, in supporting this Bill, may I, as an old and grateful friend of the people of Ghana, join with other noble Lords who have spoken in wishing them well in the future? They have chosen, and freely chosen, a change in their Constitution. That change has been noted in this country with understanding. We are glad, indeed, that they have chosen to remain within the Commonwealth. When I had the privilege of revisiting Ghana a few months ago, one of the many happy impressions I received was of the profound respect and regard felt by the people there for Her Majesty the Queen and for the Royal Family. Another was of the esteem that had been won by that greatly respected Member 98 of your Lordships' House the present Governor-General. It is a paradox that we have often found true in our history, that the loosening of formal bonds may lead to the strengthening of the ties of friendship, and we all earnestly hope that that will continue to be true of the very happy association between the United Kingdom and Ghana.

THE EARL OF HOME
My Lords, I am grateful to the House, and I am sure the Prime Minister and people of Ghana will be too, for the welcome which has been given to this Bill. The choice for a Commonwealth country as to whether it remains a Monarchy or a Republic is, of course, one entirely for the people of that country. It is of great satisfaction, now that the people of Ghana have chosen to be a Republic, that they have of their own free will decided to remain within the Commonwealth. I was grateful to the noble Viscount the Leader of the Opposition for recalling the modest part which I have been able to play in recent years in this matter. Doctor Nkrumah himself has testified that his belief is that the Commonwealth is the best guarantee of freedom in the modern world, and, with great respect, I agree with him.
My noble friend Lord Spens has raised the question of the position of the Judicial Committee of the Privy Council in the modern Commonwealth, and he has said that the question of whether there might be a Commonwealth Court was one which was raised in particular by Senator Cooray of Ceylon in the recent discussions at the Commonwealth Prime Minister's Conference. He was not dogmatic as to the sort of court it might be, and he had very much in mind, as my noble friend had in mind, the value that a court might be to the newer members of the Commonwealth and to the smaller members of the Commonwealth who have found or might find it difficult to build up a skilled independent judiciary of their own, at least for a good many years.
There was also in mind the point of confidence which, as my noble friend has pointed out, is so important when countries wish to attract investment. This matter was remitted by the Commonmealth Prime Ministers for the particular 99 concern of the United Kingdom Government and of their own Governments, and each representative went away to study the matter. In particular, my noble and learned friend the Lord Chancellor is studying it at this moment, and my noble friend Lord Spens can rest assured that, it having been remitted for consideration by the Prime Ministers, no time will be wasted. If my noble and learned friend the Lord Chancellor has any proposals to make, certainly they will be most sympathetically considered by his colleagues at home in the United Kingdom Government; and, of course, they will then have to be remitted to the Commonwealth Prime Ministers to see what their view is. I have always hoped that something like this might be found, so I hope that the Lord Chancellor will be fortunate in his researches. My Lords, I beg to move that this Bill be read a second time.