IMPERIAL COURT OF APPEAL

Dominion, Volume 7, Issue 1949, 5 January 1914, Page 5

IMPERIAL COURT OF APPEAL

the proposed privy cowl CHANGES.

MR. D. MACMASTER'S VIEWS,

After his return to England recent.]? from jus round-the-wonl tour with tho Ampiro Parliamentary Association, Mr. Donald Maomaster, K.C., M.l'., rave tho result of his consideration of i'hrso proposals to a representative of tljg "iWnmg Poit." Mr. MscmasW. v, ! ;, 0 was formerfy 'President of the Montreal Bar and a member- of the Canadian Mouse of Commons, stated that ho had over twenty-live vr-ars' experience in connection with Privy Council appeals, and _ therefore claimed to bring'to an inquiry into this subject a not inr-nii-siderable knowledge both from the Imperial _ and Dominions points of view, he pointed out, in the first place, that as a matter of fact the Government were, not carrying out the intention oi the Imponal Conference of 1031. with regard to the rceonsfitution of the 1 nv.v Council. That intention was pypressed fcy the then Lord Chancellor lliord Loveburn) in these words: 'There should be one final Court" of Appeal for tho whole Hritisli Kmpiro in two divisions, the first divirion' for tlio United Kingdom, consist-inc'of t!m same, persons as arc now entitled to sit; in the House of Lords,'ami tho second division for tlio Oversea Dominions, consisting: of those now entitled to sit on the Judicial Committee, with such further additions as mnv bo noo'dod." there was no sneeostion, lie said, in that statement, which was endorsed by tho whole Conference as expressing their collective moaning, of making unv change in the judicial functions of theHouse of Lords. It was clear that what the Conference decided wivs that the eb.im.-e should he in tlio dirotti-m of establishing an Imperial Court, our. division to deal with matters that now come before the House of Lords, and composed of men who now administered justice in the House of Lords, and tho second division to he for the hear. ">S of appeals from the Dominions overseas, which should he stronnlhoncd lor that purpose. Their decision was tnat if we appointed an Imperial Court tho work, as far as the Mouse of/Lords was concerned, should be carried on on existing lines, and that, we should not abolish the judicial body of the House ol Lords, which had done most imnortant service, and the. decisions of which were admitted by Lord Loroburn himself jti tho Conference in the. clearest possible terms to have been satisfactory. Oversea Appeals. Mr, Macrtmstor continued: "There is; another interesting fact in eonnoctroii with this discussion' at- the Imperial Conference which is worth recalling. Lord. Chancellor Loretwrn said: 'My idea is that we should add to- our highest Court ol Appeal, both for the United Kingdom and for tho dominions and colonies, by selecting two .English Judges of the finest quality we :;au find. 1 Laler on in tlio discussion Lord Haldaiio adroit-lv twisted this senteueo so as to make is capable of a totally different meaning. 'Wo have agreed,' ho said, 'to strengthon it (the Court of Appeal) ami propose to_ add to it, as the Lord Chancellor, said, two highly-picked lawyers.' Now the Lord Chancellor had proposed to restrict tho area of selection to 'two English Judges of the finest quality,' but Lord HahhfieV variation of tlio pledge enlarged the area of selection so as to include not only English but Irish and Scottish and Dominions Judges." Coming to tho _ quest ion of the constitution of the Privy Council as a Court of Appeal for tho dominions and r-olen-jos, Mr. Maemaster reiterated ids views in favour of the pormniidivt iv.prosent.ition of the prineipisl self-gnvoiiiiug Dominions—say, Canada, Aiislralin, New /■'calami, and South Africa—on the Judicial Committee -of tho Privy Council. These Dominion .Judges should he appointed for a period of years, and should possess the same judicial status and receive the same salaries as tho other members of the Judicial Committee. Tho present system provided for tlio fugitive appearance of Dominions Judges on the Privy Council, without salary for tl.eir services and generally under circmnstairjcs. that involved invidious distinctions between them and the English Judges on the committee, lie entirely agreed with Sir Samuel Griffith. Chief Justice of tho Commonwealth, that "a. summons ought to e-ome to a. Dominions Judge because they wanted him," and not because he,"happened to be in London, perhaps oil a'holidny or in search of health," as Sir Siinuel put it. Ho also sympathised....with, the Australian. Cliief Justice's ikrlaration that _ "ho should.not. be disposal to sit again <m tlio Judicial Committee unless he was specially summoned from Australia because his presence was desired," hut Mr. Maeiiiaster would go further by stipulating that the appointments should h« for a" term of yours and with the same status and emoluments ns the' othe/ members of tho tribunal possessed. "A Porambutetwy Court of "Appsal." With regard to Lord K-.ikTane's later proposals for .splitting the Imperial Appellate Court into "divisions" to'sit m different parts of the Kmpiro to, hear appeals, he agreed with a legal'authority's opinion, recently quoted in the "Morning Post," that wis '"kind of pcrambuktofy Appellate Court' for tho Empire" would be impracticable in working and unacceptable to the. Dominions in whose supposed interests this •schemewas put forward.. Mr. .Mac-master raid: — " - "I wish to treat villi' all respect any proposals made by Mich an eminent au T thority as Lord Haldane, but speaking with 'a long experience of tho Privy Council iintl from an intimate knowledge of Canadian opinion on these matters, I am compelled lo describe this part of tho. scheme as impracticable. In the first place, tlio people in the Dominions Oversea have tlio highest respect now for the decisions of'the Imperial Judicial tribunal at. Westminster. The very fact that iiie'l-nbuiwl sits here, and that it acts as the Appellate Court for the whole Empire Overcons gives it a status in the estimation of thoso Dominions and dependencies i which would not be and could 1 acquired by a mere .subdivision of that Court sitting at Ottawa or Melbourne. In the. second place, it is more Hum probable that a- sectional Court-, sitting in one of the oversea capitals, would 1>« the subject of local criticism of a. kind from which the Imperial tribunal sitting at Westminster is happily exemptpti by universal consent. In the Uiird place, each one. of these subdivisions ivoiild be suspected of being—and. in fact, might he—of weaker calibre or judicial reputation than tho main tribunal sitting at Westminster. It. as obvious that circumstances might ariso in which it would ho inconvenient, or even impossible, for some of the most eminent members of the Judicial Committee to make these journeys overseas to the Dominions to hear appeals, and the idea might- get abroad in the Dominions that not the best possible Judges were sent abroad on these Divisional Courts, but i.hoso Judges who found tho long jouruoys least uwntivment to themselves. Suppose ,;«->'■' ban a Privy Council appeal to be heard and determined in Australia or New Ken. land. Is it conceivable that Lord Wntsoii, Lord Macnaglitei-h or L-ov-t Halsbury would go? Rightly or wromilv, (lie feeling Would get nb-rond 'that the tribunal at Westminster was stronger than any olio of its sub-divisions perambulating through tho Dominwu-s Overseas." and to tlio extent tot which that opinion, however unjust, wa* enterfir!-.»> ed, tho influence and prestige of the Apellate, Court as a whojo would ba .jjraudicod.' l