Reflections on the Privy Council

BY STEPHEN VASCIANNIE

Sunday, November 01, 2015

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THE Judicial Committee of the Privy Council, Jamaica's final court of appeal, has had a long and distinguished history. The origins of this court may be traced back to the times of Norman England, when it was assumed that the king was the fount of all justice. The Privy Council thus served as an advisory body to the king in dispensing justice and in other matters.

Extensive Reach

The modern Judicial Committee of the Privy Council, however, took form through reforms brought about by Lord Brougham in the Judicial Committee Act of 1833. That Act, modified with the passage of time, remains as an important source for the work of the Privy Council today.

In its earlier days, the Privy Council was mandated to hear appeals to the British monarch from the "colonies and plantations". As colonialism developed, the court exercised jurisdiction across the British Empire, and served, in the view of British judges and others, as "a bond of union" for the imperial project, seeking to ensure that English common law rules and principles were available throughout the Empire.

The Privy Council's reputation has been one of fairness to litigants, and its judicial reach during the 19th century heyday of colonialism was substantial; the court, quite literally, heard cases from the four corners of the world.

The Judges

Throughout much of its post-1833 history, the Privy Council was served by the judges who were members of the Appellate Committee of the House of Lords. In effect, the judges of England's highest court were also the judges for final appeals from the colonies.

In a nod, though, to social and cultural considerations, the Privy Council usually had one or sometimes two judges from India help decide cases from the subcontinent. In some cases, too, judges from Australia and from some other colonies would join the English judges.

In the current debate in Jamaica concerning the possible abolition of Privy Council appeals, it is sometimes suggested that Privy Council participation is routinely open to senior members of the Caribbean judiciary. This is an exaggeration. In instances, Caribbean judges are invited to join the Privy Council in particular cases, but this is quite rare indeed.

Overburdened?

Today, in the main, judges of the United Kingdom Supreme Court serve as the members of the Privy Council. In a Financial Times interview given In 2009, one month before assuming his position as president of that court, Lord Phillips of Worth Matravers publicly complained that the judges of Britain's highest court were spending a "disproportionate" amount of time dealing with Privy Council cases from the Commonwealth.

Lord Phillips noted that "in an ideal world" countries using the Privy Council would set up their own final courts. At the time of his interview on the issue, Lord Phillips also said that he was giving thought to bringing in some Court of Appeal judges (presumably English) to hear Privy Council cases, as a means of easing pressure on the Supreme Court.

Lord Phillips's comments created quite a stir in the Caribbean in 2009, and it is noticeable that British Court of Appeal judges have not been enlisted to decide Privy Council matters for the Caribbean. But, the comments were more than a mild hint concerning Lord Phillips's attitude to the continuation of appeals to the Privy Council from former colonies.

Binding Authority

Historically, and for the present, when the Privy Council makes a decision in a given case, this decision is binding on the parties, and sets out the law for the jurisdiction concerned. Generally, it will also set out the law for other countries subject to the court's jurisdiction.

Also, the doctrine of stare decisis applies, so that the Privy Council will follow its earlier decisions, and lower courts within the judicial hierarchy are required to follow decisions of the Privy Council. This approach is not without tension.

As to the binding character of earlier decisions, the Privy Council has sometimes been prepared to depart from its precedents. This viewpoint was confirmed in a 4-3 decision of the Privy Council in 2007 in Lemuel Gibson v The Government of the USA, a Bahamian case concerning drug-trafficking charges. In this case, the Privy Council was in unison as to its power to overturn previous decisions, but there was disagreement as to whether this specific case required the court to overturn itself.

As to the need to respect the hierarchy of courts with the Privy Council at the top of the structure, Justice Seymour Panton (until very recently President of the Jamaican Court of Appeal) has spoken in his typically forthright style. In a submission to the Jamaican Constitutional Commission on August 31, 1992, Judge Panton argued:

"After 30 years of so-called independence, Jamaican judges have to be facing the infra dig situation where we cannot afford to think without seriously considering what our English counterparts sitting in England would wish us to do. The decisions of the Judicial Committee of the Privy Council bind us -- however nonsensical they may be."

Reference to Justice Panton's strong statement, from 25 years ago should help to remind us of one of the main planks in the argument against continuing appeals to the Privy Council at this time.

Sources of Law

The current system seems to assume, as a matter of course, that English judges are the source of judicial wisdom, and that Caribbean people should be prepared to accept English judgments because there is something inherently superior about English perspectives. In keeping with Justice Panton, we should emancipate ourselves from this colonial line of thinking.

But if, as is suggested here, we should free ourselves from the binding effect of Privy Council judgments, what approach should we put in its place? If Jamaica terminates appeals to the Privy Council, there will be value in relying on past decisions of this court, where it demonstrates its usual erudition, rationality as well as an understanding of Jamaican social and cultural circumstances. And, in the interest of certainty and good order, it would be exceedingly unwise -- and a waste of time -- to proceed towards a root and branch reconsideration of the common law.

The approach should therefore be for future judges deciding Jamaican matters to remain mindful of Privy Council decisions as persuasive, but not necessarily binding, authorities. In some non-Caribbean jurisdictions that have terminated Privy Council appeals as part of the decolonisation process, including Australia, India, and more recently, New Zealand, this has been the basic approach.

The result is that Privy Council decisions tend to be treated like decisions of the House of Lords, and decisions of other strong courts from other parts of the world. Our future judges and lawyers should look closely not only at English precedents, but also at Canadian, South African, Australian, Indian, American, and other common law courts for persuasive arguments and analogical reasoning.

This approach seems to have recommended itself to the Caribbean Court of Justice (as in the case of The Attorney General of Barbados v Joseph and Boyce). It is also an approach that was of considerable appeal to Lord Bingham, one of the leading legal minds of the British judiciary in recent years; and it has attracted the positive attention of some, but not all, judges of the United States Supreme Court.

Itinerant Court

Historically, the Privy Council has not been an itinerant court. For many years, the Privy Council heard cases from Downing Street, London. With the establishment of the UK Supreme Court, its base is now at the Middlesex Guildhall, in London's Parliament Square. In discussions about reform of the Privy Council over the years, there have been proposals that it should assume an itinerant character.

When this proposal was raised in the 1960s, for instance, the suggestion was that the Privy Council should become a Commonwealth Court willing to travel to different jurisdictions. But, the proposal lost steam for reasons that may have included the reluctance of judges of a certain age to undertake annual, extensive travel for significant periods of time.

There seems, however, to be at least a slight change in the perspective of the Privy Council in respect of travelling to hear cases. On three occasions to date -- in 2006, 2007 and 2009 -- the Privy Council has travelled to The Bahamas to hear cases. The Privy Council has also reportedly been to Mauritius twice.

It is not at all clear that this development will continue. For a start, when their Lordships have travelled, this has been subject to at least a touch of criticism that they have proceeded, at taxpayers' expense, to tourist resorts to undertake their work. This is probably not fair criticism, but it is advanced all the same.

Tourism

When the Privy Council visited Mauritius in 2010, the headline in the conservative Telegraph newspaper read as follows: "Britain's top judges -- and their wives -- move court to Mauritius for a week. Britain's most senior judges have travelled with their wives to exotic islands in The Bahamas and Mauritius five times in the past five years to oversee court hearings."

The emphasis in the Telegraph's story, published June 26, 2010, was not so much on the work of the court, but on the touristic pleasures available in situ. The story included, for example, a photograph of the white sand beach at the judges' hotel in Mauritius over the caption: "The Oberoi at Turtle Bay, a resort which boasts on its website 'a romantic four-poster bed' in every room."

It may have been a "Privy Council Shocker" (to borrow a phrase from the Jamaica Observer) for their Lordships to see that their efforts to enhance accessibility were reduced, by implication, to base motives.

Costs

Quite apart from the optics of the situation, it is unlikely that the Privy Council will become an itinerant court because of the costs involved in a substantial outreach programme. Most of the independent states still within the Privy Council's jurisdiction are more than 4,000 miles away from Parliament Square, London.

If the Privy Council
takes up the bill
for travel, accommodation, administration and security for each trip, there will be complaints that Britain has taken up costs unnecessarily; and here we recall Lord Phillips's view that already too much time is being given over to Commonwealth (mainly Caribbean) Privy Council cases.

On the other hand, if, say, Jamaica assumes the financial responsibilities for their Lordships, it would be hard-pressed to justify the expenditure, especially if the cases to be tried on any particular visit concern disputes between private litigants. Moreover, if the Government in power is averse to Privy Council appeals, one would expect that it would finance the coming of the former imperial court with a heavy heart, at best.

From the point of view of the litigants as well, the willingness of the Privy Council to sit in Jamaica, for instance, may be of limited practical value. This is so because Privy Council sittings physically in this jurisdiction are not likely to be on a regular schedule. The litigant, therefore, will not know in advance whether his or her case is to be heard here. Without such knowledge, the litigant may opt not to appeal to the Privy Council; for, in the normal run of events, the appeal to London will be too expensive.

If the Privy Council's inclination to hear cases in Jamaica is to enhance significantly Jamaican access to the court, there will need to be the assurance of regular hearings in this jurisdiction.

Points

The Caribbean Court of Justice scores points over the Privy Council in regard to accessibility. First, Port of Spain is obviously closer to Kingston (and the rest of the Caribbean) than London happens to be.

Second, the Agreement establishing the Caribbean Court of Justice expressly contemplates, in Article III (3), the possibility that court may conduct hearings in one jurisdiction or another "as circumstances warrant." Given that the Government of Jamaica has identified accessibility as a major attribute of the CCJ, it will, in all probability, argue that circumstances will frequently warrant hearings in this jurisdiction.

Third, given that Jamaica tends to have a heavy case load at the Court of Appeal level -- heavier than most other Caribbean countries -- it is open to argument that, as an administrative matter, the Caribbean Court should schedule regular sittings in this country, in the event that Jamaica accedes to the appellate jurisdiction of the court.

The inaccessible character of the Privy Council for us, arising essentially from the court's distance from Jamaica, has meant that, on average, we tend to have little more than 10 cases going up for consideration at the third tier. This gives rise to the political concern that some litigants are deprived of full access to justice. But, in addition, it means that only a limited range of legal issues come to be decided for Jamaica by our final court.

One Voice

When the Privy Council considers matters from Jamaica, the court sits as a Jamaican Court, and renders its decisions in the form of "advice" to the Queen. Starting on the assumption that the advisor should speak with one voice, the Privy Council, for much of its history, did not present dissenting opinions of judges; rather, there was a single decision which did not capture judicial differences or nuances.

This was changed in 1966 by the Judicial Committee (Dissenting Opinions) Order. The result has been positive for the development of the law, for lawyers and others may now identify more readily the areas of the law which may be ripe for evolution. It has also allowed readers of Privy Council judgments to understand that their Lordships have fundamentally different perspectives on matters of high importance.

By way of example, Lord Hoffman's dissent in Neville Lewis v The Attorney General of Jamaica in 1999 demonstrates differences concerning death penalty law, and concerning the relationship between International Law and Jamaican law, that provide important lessons for lawyers. Hoffman, it seems, proceeded in Neville Lewis from a literal reading of the law, while the majority was prepared to rely substantially on somewhat general changes in administrative law to strike down the death penalty orders in the case.

The Caribbean Court of Justice, in its appellate jurisdiction, has publicly presented differences of opinion among the judges.

Constitutional Items

It is occasionally suggested that the legal bond between the monarchy and the Privy Council implies that if we remain as a monarchy we cannot abolish Privy Council appeals. On this reasoning, an appeal to the Privy Council is really an appeal from a subject to the monarch, so the two go hand in hand. The Privy Council's own jurisprudence goes against this thinking. And as for example, the experience of Trinidad and Tobago reminds us, Republican status does not automatically deprive a country of access to the Privy Council.

Finally, Jamaica's relationship with the Privy Council is expressly set out in Section 110 of our Constitution. This section is not one of the entrenched or deeply entrenched provisions, so that, on the face of things, Jamaica could abolish Privy Council appeals by a majority vote of both Houses of Parliament.

This reading of the constitutional situation does not seem to be at odds with the approach taken by the Privy Council in the CCJ Case decided over a decade ago. Although the Privy Council was prepared to find that the establishment of the Caribbean Court of Justice above the local Court of Appeal would amount to an alteration of the status of the Court of Appeal, the Privy Council did not rule out the removal of the Privy Council by majority vote.

Politically, however, the Government of Jamaica should not seek to terminate appeals by simple majority vote. Jamaica has had appeals to the Privy Council for more than 200 years, and Jamaicans have grown accustomed to a three-tier appellate structure. We should continue all efforts to reach consensus on the steps forward, even though at times, consensus seems to be in the realm of the impossible.

Stephen Vasciannie is Professor of International Law at the University of the West Indies, Mona. He is a former Jamaica Ambassador to the USA and the Organization of American States, and has also served as a Deputy Solicitor General of Jamaica.

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