Reading Lord Reed: The Privy Council debate
Lord Reed’s letter to the editor of the Gleaner, published on November 23, 2023, has prompted divergent responses.
Some responses pertain directly to the text of the Reed letter while others range more broadly across the well-trodden fields of debate concerning whether Jamaica should abolish appeals to the Judicial Committee of the Privy Council (the Privy Council).
Writing as president of the Privy Council, Lord Reed noted that the court was honoured to continue receiving appeals from Jamaica [but] what he did not say was whether this position has been consistently held by the Privy Council. His silence on this point has energised the Gleaner, which quoted a lament from Lord Phillips, a predecessor of Reed, to the effect that UK Supreme Court judges were spending inordinate periods of time addressing appeals from the Caribbean. At the time of the lament, delivered in 2009, it seemed undeniable that Phillips, and possibly other members of the Privy Council, were keen to see us take leave of the colonial/post-colonial premises.
But, in fairness, Phillips was then, Reed is now. To what extent should Reed’s attitude to Caribbean appeals today be determined or guided by the Phillips curve ball delivered some 14 years ago? Some of Reed’s critics on this point seem to imply that Reed is somehow bound by Phillips’s earlier remarks. These critics overstate the case: Judges of the Privy Council, speaking extra-judicially or otherwise, are entitled to change their minds; and in any event, Lord Phillips cannot be deemed to have been offering a binding pronouncement on British policy when he offered his remarks.
It may well be that some members of the Privy Council have wanted to end Caribbean appeals while others have been of a different disposition (eg Lord Hoffmann). This would be quite normal. Viewed against this background, we now know that the current president of the court is firmly in favour of retention. If Lord Reed had been delivering a considered judgement of his court he would probably have sought to distinguish his views from Lord Phillips, but this was not necessary for a short letter to a newspaper.
Changing One’s Mind
Incidentally, we should not be too anxious to excoriate the Privy Council on the question of appeals, even if the institution as a whole were to change its perspectives. Arising perhaps from its overlong duration in Jamaica, the debate on appeals to the Privy Council has prompted considerable variability of opinion.
A careful review could suggest, for instance, that one or two newspapers have changed their views; similarly, at least one lawyers’ association, a few business organisations, and perhaps a judge or two, have reviewed their positions with the passage of time and with changing circumstances. The PNP has been as constant as the North Star against the Privy Council (with one public dissident), while the JLP’s views, though somewhat diffuse, seem to coalesce on one point, namely no CCJ without a referendum; they stand firm on that.
Another aspect of Lord Reed’s letter concerns the accessibility of the Privy Council to Jamaican litigants. In short, the president noted that access to the court via online methods — available for some time now — should help to open the way for more affordable appeals. This has been challenged indirectly by some lawyers on the basis that substantial fees payable to English solicitors, in place for both face-to-face and online cases, means that access to the Privy Council still remains limited. This is true, but I am not certain that it fully responds to Reed.
Reed, after all, may simply have been reminding Jamaican litigants that there is a cheaper route to the Privy Council than one involving visa applications, airfares to London, substantial hotel payments, and various other opportunity costs. Online access to the Privy Council has been available to the Caribbean since 2017 when it was first relied upon in Fishermen and the Friends of the Sea v The Environmental Management Authority ( UKPC 24), a case from Trinidad and Tobago, with Lord Reed presiding. Clearly, this has opened up access in some measure.
But we should consider certain ramifications of Lord Reed’s position. If I am found guilty of Crime X in the lower courts of Jamaica and I appeal, which would I prefer? A face-to-face date before their Lordships or online access to them? The former recommends itself to me. And so too, if I am facing liability for a private wrong, or if I wish to challenge a wayward governmental rule through a constitutional appeal, I shall want my day in court — not my day online. So, Lord Reed is offering relatively inexpensive electronic access or, on the other hand, relatively expensive face-to-face justice. To this I should add the option of the Caribbean Court of Justice. Which would I prefer? Online Privy Council or face-to-face CCJ? That is the key question.
As different litigants may have divergent preferences we should not assume, without more, that Lord Reed’s offering is necessarily a game changer. Online appeals are not the same as face-to-face approaches, not least because of factors such as body language, eye contact, freeness in questioning, and the comfort with technological methods. If online teaching is a guide, access via Zoom is, at best, second best. The CCJ face-to-face should be preferred over all electronic alternatives, other things being equal.
So, I am inclined to disagree with persons who are presenting Lord Reed’s intervention as a full refutation of the view that the Privy Council is generally inaccessible — the true beauty of the Blue Mountain Peak is inaccessible to me even if Zoom cameras can take me there. But, to be sure, the Privy Council president is well within his rights to remind us that online possibilities are available today.
In conclusion, it should be noted that Lord Reed has concerned himself primarily with access points. He does not address arguments based on notions of national self-reliance, independence, regional judicial achievement, and intellectual accomplishments — arguments sometimes proffered by advocates of the CCJ as the final Caribbean appellate court. Nor does the Privy Council president present views on the weaknesses of our judicial system or on the likelihood that local litigants will receive pure justice from the CCJ: these points — for and against retention of Privy Council appeals — have kept some Caribbean conservatives and liberals awake at night. But, as a people, it is past time for us to take final responsibility for our court decisions.
Ambassador Stephen Vasciannie is a professor of international law at The UWI. He was a member of the Government of Jamaica’s legal team in the CCJ case before the Privy Council.