24 JULY 1886, Page 7

THE PRIVY COUNCIL AND THE COLONIES.

T:NTHUSIASTS for Imperial Federation, when they tell

' us that the only bonds which unite the Colonies and the Mother-country are bonds of sentiment, are somewhat too apt to overlook the Judicial Committee of the Privy Council. They forget that this, the latest- offshoot from that fountain of justice which remains in the Royal Prerogative, is not only a significant and impressive symbol of Imperial unity, but a prac- tical and actual bond, unobserved and uncommented on, only because it binds without friction and links without strain. In a Court, where three hundred million subjects of the Queen may be suitors, the Lords of the Council review decisions from every quarter of the globe. To the Orders that embody their reports, lands and cities as diverse as Victoria and Hong Kong, as Delhi and Quebec, submit without a sense of subjection and without a complaint. The codes and the customs they administer are as numerous and as dissimilar as the races that demand their justice. The customs of an Asian village community, or the doctrines of the Koran, may be within their purview in one suit; in the next, they may be considering judicially the Roman Law which South Africa inherited from the Dutch. The customary law of ancient France, though discarded in the land that gave it birth, must still be applied by them to Canada and the Mau- ritius ; while from the Colonies of the Southern Hemisphere may come cases that call for a knowledge of demurrers, and of those intricate forms of special pleading, that have ceased to be living law in England. No Court in the world, not even the Supreme Court of the United States of America, has a juris- diction so vast and so many-sided. The great tribunal of the New World may claim to be more English, since in it the prin- ciples of the Common Law are always paramount ; but as a Court of Law, measured by the extent of its review, the Judicial Committee of the Privy Council has no rival in the world. Like the Supreme Court, it has functions other than those of Courts such as sit at Westminster. They must merely administer the laws that come before them. The Judicial Committee can, as each particular case arises, go behind the law, and decide not only on the facts and the merits, but whether or not the law itself is valid. In a recent case, " Powell v. the Apollo Candle Company," 10 App., Cas. 282, a trading Company in Sydney considered that a Customs duty had been levied in a way which the Act of the Imperial Parliament constituting the Colonial Assembly did not allow. The action by the Custom- House officers to obtain the money, heard on appeal at White- hall, raised the supremely important political, not legal, point, —Was a certain duly enacted law of the Parliament of New South Wales a valid law ? In the particular case, the Court decided that it was ; but they had complete power, if they had been of that opinion, to say it was not. There are students of our law and Constitution who, eager for a closer union with the Colonies, deem that it is by a strengthening of this already important link that the Federation movement might best gain its only practicable ends. The Privy Council is that part of the Constitution which is already closely in touch with our fellow- subjects beyond sea. Why not, then, increase the union at this point of junetion ? The Privy Council, again, is that part of the Constitution which is most easily capable of development, —the part where changes can be made without revolution. Why not, then, take advantage of this power of development ? The advantages that might accrue from the existence of such powers-were wisely taken into account by Lord Brougham, or by the draftsman of the Act 3 and 4 William IV., cap. 41, by which the Judicial Committee of the Privy Council was estab- lished. He was determined that the Committee should not petrify into a mere judicial tribunal, and so inserted the far- seeing provision that " it should belawful for his Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as his Majesty should think fit." The capabilities of expansion thus preserved for the Judicial Committee have, in regard to the Colonies, been utilised in a most striking manner within the last few months by an Order in Council of April 3rd. The correspondence which led to the Order has recently been published in a Blue-book by the Colonial Office, and well deserves the attention of all students of our Constitution.

The circumstances connected with this correspondence are the following. The. Colony of Queensland has a Parliament, established in the year 1859, consisting of two Houses,—the Legislative Council, formed of thirty-four Members, nominated for life by the Crown; and the Legislative Assembly, comprising fifty-five Members, elected by manhood suffrage. In 1884, and- again in 1885, "a Bill to provide for the payment of the ex- penses incurred by Members of the Legislative Assembly in attending Parliament" was sent up by the Lower House to the Legislative Council, and was there rejected. The Legislative Assembly very naturally were determined not to accept this defeat as final, and, though unable to challenge the decision as it stood, they found means to raise the question in a manner more advantageous to their claims than the presentment of a single Bill. Accordingly, they inserted in the Estimates of 1885, under the heading of " The Legislative Assembly's Establishment," an item of £7,000 for "expenses of Members," to be paid under the same conditions as those proposed in the Bill already twice rejected by the Legislative Council. When the annual Appropriation Bill came up for the con- currence of the Legislative Council, that body struck out the Establishment items which had been transferred from the defeated Bills. The next step was for the Legislative Assembly to disagree with the amendments thus made. This they did, giving notice of their action in a message which not only shows great controversial ability on so vexed a point of Constitutional .law, but which is couched in language of quiet dignity, and displays a temper worthy of the occasion. They declare that " it has been generally admitted that in British Colonies in • which there are two branches of the Legislature, the legislative functions of the Upper House cor- respond with those of the House of Lords, while the Lower House exercises the rights and powers of the House of Commons." They go on to say that the analogy is recognised in their Standing Orders, and in the form of preamble used in Money Bills. They then assert the general principle that no non-representative body can interfere with taxation; and after quoting the words of the resolution of the House of Commons of July 3rd, 1678, as to all aids and supplies being in their " sole gift," they end with a dignified and weighty representa- tion of the injury which will be done to public business by a rejection of the supplies for the year. The Upper House reply in a style not below the occasion. They declare that they neither "-arrogate to themselves the position of being a reflex of the House of Lords, nor recognise the Legislative Assembly as holding the same relative position to the House of Commons." They further deny that the fact quoted by the Lower House, that on a somewhat similar occasion the law officers of the Crown (Sir John Coleridge and Sir George Jessel) had advised that the New Zealand Legislative Council could not amend a Money Bill, is binding on them, because the Constitutions are materially different. They next refuse to admit the weight of the statement that no nominated Council has ever amended a Money Bill, because they say no similar case has ever arisen ; and they end by declaring that " the annexing of any chase to a Bill of Supply the matter of which is foreign to, and different from, the matter of the said Bill of Supply, is un- parliamentary, and tends to the destruction of Constitutional government, and the item which includes the payment of Members' expenses is of the nature of a ' tack.' " While the Legislative Council thus insist on their amend- ments, they suggest a way out of the difficulty by the appointment of a Joint Select Committee of both Houses, to consider " the condition of public business in consequence of no supplies having been granted to her Majesty for the service of the current financial year." The Committee was appointed, and reported that a case should be prepared, and a joint ad- dress presented to the Queen asking that the case might be referred to the opinion of the Privy Council. Steps were immediately taken by the Governor, Sir Anthony Musgrave, to carry out this decision. An elaborate statement, including all the necessary documents, was prepared and forwarded to the Secretary of State for the Colonies. In his letter explaining the occasion of the reference, the Governor of Queensland brings before the Secretary of State the great importance of getting a decision from the Privy Council. He seems to have forgotten the clause in 3 and 4 William IV., cap. 41, authorising general references to the Judicial Com- mittee, and appears to fancy that that body is only a Court of Law, for he says that " even if there does exist some difficulty in bringing these questions before them as a Court except by proceedings in the nature of an appeal," he yet "cherishes the hope that there may be found some mode of eliciting their judgment as the legal advisers of her Majesty in Council on points of great importance in Colonial and Constitutional law." Yet, as a matter of fact, the attain- ment of this hope, which Sir Anthony Musgrave deems almost too good to be possible, was not only quite justifiable, but formally and strictly legal. The Judicial Committee can, without any extra-Constitutional innovation, be used as a Board of reference in matters of high political importance throughout the Empire. It would be novel, doubtless, to use it so, but it would be no revolution. Most fortunately, the Colonial Office was wise enough to see this. They referred the matter to the Judicial Committee, and a valuable function latent in the body politic was forthwith called into activity. The Committee to which, in the present case, the dispute was referred was representative, apd not unworthy of the occasion. It consisted of the Lord President (Lord Spencer), the Lord Chancellor (Lord Herschell), the Duke of Rich- mond, Lords Aberdare, Blackburn, and Hobhouse, and Sir Richard Couch. Their decision was in favour of the Legislative Assembly. It could hardly have been otherwise, for it is evident that not only was the weight of legal and constitutional policy entirely on their side, but that even on narrower and more technical grounds they were entitled to the victory. The Committee was asked to settle two ques- tions,—(1), "Whether the Constitution Act of 1867 confers on the Legislative Council powers co-ordinate with those of the Legislative Assembly in the amendment of all Bills, including Money Bills ;" (2), " whether the claims of the Legislative Assembly, as set forth in their message of November 12th, are well founded." The answers were explicit. The Committee decided that the first question should be answered in the negative, the second in the affirmative. In fact, they were asked, " Are the Upper and Lower Hoases to consider themselves, as regards their functions, Lords and Commons ?" and the reply was, " Yes,"—a reply which in substance accurately corresponds with the phrase of a recent and most able text-writer on the Constitution, who lays it down (Dicey's " Law of the Constitution," p. 103) that the Colonial Legislatures are, " within their own sphere, copies of the Imperial Parliament." The importance of the decision in itself, as bearing on the Colonies, is immense. It leaves the Lower Houses supreme in the sense that the House of Com- mons is supreme. It enables them, also, to boast that they have won this supremacy as the Lower House at Westminster won it, after a struggle, and not by the explicit words of a Constituent Act. They can feel that the power of the purse was not delegated to them, but claimed and conquered by them. And this will be felt not only in Queensland, but in every other Colony. The victory has, further, been accompanied with the most far-reaching consequences. All Colonial dead- locks may now have a peaceful and satisfactory issue in Eng- land. To quote again from Sir Anthony Musgrave's letter,— "Almost all collisions and complications of any importance, in the administration of this group of Colonies at least, have a-isen from conflicting views of the rights and privileges of the two Legislative Houses." Much mischief, not only in Queens- land, but in other Colonies, may be avoided, he goes on to say, if an umpire is provided " in a body whose decision will be respected as entirely free from local or official bias," and if " a precedent for reference of doubtful or disputed points " is estab- lished. Englishmen just now are thinking a great deal about the Colonies. If they care to reflect on this new and silent development of their Constitution, they will not only notice that no great and healthy administrative or judicial body ever stops growing, but they will be able to consider whether it is not pos-

sible that the Senatorial body which every one wants to get for the purpose of drawing tl e Colonies closer to the Mother-

country, but nobody knows w' ere to find without uprooting or revolutionising " the capital institutions of the country," may not, after all, exist among the Lords of the Council.