ECISIONS FINAL. THE PRIVY COUNCIL

Nelson Evening Mail, Volume 80, 7 April 1945, Page 7

ECISIONS FINAL. THE PRIVY COUNCIL

Ultimate Court of The British Empire

SOME GLIMPSES OF ITS WORK

* visitor to England who has seen ihe scarlet and ermine robes of a Juage of Assize, and the ceremony with which his comings and goings are attended. may well expect the supreme Court of Appeal of the British Empire to display an even higher degree of splendour, writes Lord Justice Du Parcq. If, moved by the prospect of seeing such a Court in all its glory, he asks a legal friend to secure his admission to the hearing of an appeal from a Dominion or a Colony, no doubt his desire will be gratified, but his hopes of magnificence will be disappointed.

He will be admitted to a room, of no great size, in which his attention will fiist be attracted by a barrister, wearing his ordinary forensic dress, who is standing at a reading desk and addressing, in a conversational tone, a small audience of. interested listeners seated at a table (.three, perhaps, or rive, or even seven in number), who from time to time will interpose, a comment or a quest'on. Other members of the Bar are waiting their turn to stand at the desk. The gentlemen addressed wear neither robes nor insignia of any kind. Their garb is what it has become customary to describe on invitation cards as “morning dress or lounge suits.” Our visitor will probably think that they look more like members of a committee or a board than the judges of a Court with an immense jurisdiction. OLD FORMS RETAINED If he forms this opinion he will not I be wrong, for the body which hears 1 appeals from British Dominions and possessions beyond the seas is the Judicial % Committee of the Privy Council, and he will hear, if he listens, occasional references by the counsel to "Your Lordships’ Board.’* When tne only possessions of the King beyond the seas were the Channel Islands, it was a matter of course, according to the prevailing conceptions of kingly rights and duties, that his subjects thers should have a right of appeal to the Crown, and even an autocratic king would naturally prefer to have the aid of councillors in the decision of troublesome points of law. The constitution of our day makes the Privy Council, through the Judicial Committee, in substance the final Court of Appeal for the Empire, save in so far as the self-governing Dominions have chosen, with the assent of Parliament, to limit or to abandon the right of appeal for their citizens. The old forms are retained. In due course the board will publicly announce its decision, and the reasons which have led to it. In form, however, the decision will be, not a judgment, but an opinion and a recommendation to His Majesty. Their Lordships will “humbly advise H.s Majesty” that the appeal should be allowed —or dismissed, as the case may be. Until the King in Council has approved the opinion, ir does not operate as a judgment, but constitutional usage has long made that approval a formality, which will never be withheld. VOICE OF THE MAJORITY But what if the members of the board are not agreed? Must His Maj* esty decide between the conflicting view's, with or without the assistance of other advisers? The answer is simple. The King must not be given the task of coming to a decision between discordant voices. Only one opinion must be presented to him as that of the board. It follows that the voice of the majority prevails, and the dissenting minority (if the guess may be hazarded that there is sometimes sqch a minority) must be for ever silent. Here, as in so many other British institutions, one finds a procedure of almost immemorial antiquity, marked deeply with the vestigial traces of its origin, and yet working with businesslike efficiency. A witty Englishman once said that he was a conservative in everything except politics. It is true, I think, of the inhabitants of the United Kingdom, and it may perhaps be true of those of the lands which make up the British Commonwealth. that, however strong their reforming instincts may be, their prejudices are all against abandoning traditional forms. If it is proved to their satisfaction that an ancient rite or usage, or a form which some historical reality underlies, is an impediment to efficiency or just administration, they will be ready to make away with it. In the absence of such proof, they will not only tolerate it but take pleasure in retaining it. SMALL BREAK WITH TRADITION My learned colleague Lord Justice MacKinnon has recently reminded us of one change which made a small break with tradition. Until about 1913 the table at which their Lordships sat was oblon: and they were seated at its long sides, on the right and left of the barrister who was addressing them. There was no chair at the head of the table, apparently because no one save the King might presume to sit there, and it was well known that His Majesty would not desire to be present. At the corner to the right of the head of the table there was a chair which was almc-t invariably unoccupied. It was reserved for the Lord President of the Council, who is not normally a lawyer: indeed there seems to be no living witness who can speak to its having been occupied, except on one occasion by Lord Wolverhampton. I well remember that it was unoccupied when, as a student, I first saw the Judicial Committee at work in 1905. Later it was found that the shape and arrangement of the table were inconvenient, and the members of the b .; rd now face the advocate, sitting in a row at a straight, or semi-circular, table. If the Lord President were to attend, he would presumably take his place in the midst of them. IMPERIAL CIRCUIT SUGGESTED It can hardly be expected that no such minor changes shall be made since, as recent events have shown us, the board may sit where they please and are not tied to any room or building. Indeed, since they are not an English court, there is no reason why they should not hold their sittings in any part of HU Majesty’s dominions, provided that their advice is duly tendered and approved. It has recently been suggested in the House of Commons that, in these days of speedy travel and shrinking world, the Judicial Committee might go on an imperial circuit, and

so bring justice within easy reach of far-distant communities.

To some this may seem to resemble the Droposal that the mountain should go to Mahomet, but there is nothing in theory to make it impossible. Some members of the Judicial Committee might welcome the suggestion as one which would mean a shorter journey tor them than is entailed by a visit to London For, as at present constituted the Judicial Committee has among its members, not cnly the learned Lords who sit judicially as the House of I ords, but other Privy Councillors of judicial experience, not all of whom are normally resident in England. Among those who habitually hear appeals there is always one Indian member, and it is possible that some may live to see sittings of the Judicial Committee xn one or more of the Dominions. or in India The diversity of appeals which come before the board is almost dazzling. Their Lordships may pass from the consideration of a great constitutional issue between a Dominion and one of its constituent provinces, to problems concerned with Hindu or Mohammedan laws and customs, or depending upon the ancient law of the Duchy of Normandy which still prevails in the Channel Islands, or upon the Roman-Dutch law of South Africa or Ceylon. Sometimes the subject-matter of the case is more exotic, as was that of a recent appeal from Swaziland by three tribesmen who had been sentenced to death for murder f It was alleged that they had killed an unoffending man because they required portions of a recently-killed body in order to make a kind of "medicine” which was guaranteed to increase* the harvest. Then (according to the prosecution) they further showed their confidence in magic by applying to a medicine man for advice as to steps necessary to their own purification. The procedure which the mediciqie man was said to have prescribed involved the killing of "a black heifer in calf” in order that some necessary ingredients might be supplied. CONVICTIONS QUASHED The Court of Swaziland had been instructed as to native customs by administrative officers and a native assessor. So far, so good since the local law permitted and approved such consultation. But the advice had been given in private, and the board advised His Majesty that this was wrong. The principle that trial must be public had been infringed. and the convictions were duly quashed Tt may be surmised that there are those in Swaziland who have learned to doubt whether the magic of any medicine man is to be compared with the power of the Judicial Committee of the Privy Council. Since the final appeal from his possessions beyond the seas is to the King, it may be asked by the inquiring visitor why appeals from England and Wales, and from Scotland, are not also disposed of by His Majesty with the advice of his councillors. He will have to go to the historians for an answer. He will find that Parliament was, in the middle ages, primarily a court of law—‘‘the High Court of Parliament”— so that it has come about that the final Court of Appeal for the United Kingdom is the House of Lords. HAND OF REFORM IS VISIBLE Here again efficiency has come to terms with tradition* Appeals from the Courts of Appeal of England and Wales, Scotland and Northern Ireland are still heard before the House of Lords, sitting in its own chamber. The Lord Chancellor presides, in wig and gown, seated upon the woolsack. The peers who attend sit on the* benches, no more ceremoniously attired than if they were taking part in an ordinary debate. When they pronounce their opinions, they deliver, not judgments, but “speeches,” and a difference of opinion is by no means unusual. Finally a motion is put, and by a majority of voices the appeal is either allowed or dismissed. The Lord Chancellor announces the result with the traditional formula: “The Contents have it.” So far tradition rules. In substance, the appeal is to a select body of distinguished judges, either “life peers” specially appointed for this judicial task as “Lords of Appeal in ordinary,” or members of the hereditary peerage who hold or have held “high judicial office.” In all this, the hand of the reformer is visible, but it is still theoretically possible for any Lord of Parliament to insist bn attending the sitting. Constitutional usage, however, forbids any unqualified nobleman from taking part in the hearing of appeals, and for more than a century none has sought to do so. It is unlikely that the attempt will be renewed.

It is possible to work very efficiently in old-fashioned clothes, especially if one has an intelligent tailor, capable of unobtrusive adaption.