The Privy Council and the Commonwealth

Should the Privy Council be retained as an appellate court for other jurisdictions? This is a topic which draws strength of feeling on all sides of the debate, and nowhere was that better evidenced than at the 22nd Commonwealth Law Conference (CLC) held in Nassau, Bahamas in September this year. The session prompted a breakfast meeting the following morning, chaired by Richard Clayton QC, where the vigorous discussions continued. This article reflects my own views, which I shared with delegates at the CLC.

In October 2015, a series of articles appeared in the Jamaican Daily Gleaner newspaper with the headline ‘Privy Council versus Caribbean Court of Justice’ (CCJ). For many, this is a binary question. I would suggest that the working of two courts are complementary to each other.

Some of the arguments made against retaining the jurisdiction of the Judicial Committee of the Privy Council (JCPC) fall broadly under three heads: what I will refer to here as the sovereignty argument, the culture argument, and the costs argument.

Firstly, it is argued that allowing decisions to be adjudicated upon by the JCPC amounts to a compromise of sovereignty – to leave the decision about matters arising in the Caribbean to a court which is part of the former colonial hierarchy, a court in the appointment of whose members the Caribbean have no say.

Secondly, it is argued that there is a lack of understanding of Caribbean dynamics and culture and that the JCPC is heavily influenced by precedents established in the United Kingdom. An example frequently cited is the de facto abolition of the death penalty; recent JCPC rulings, it is said, have adopted an anti-death penalty stance to those appeals. This, it is argued, is abolition in the Commonwealth Caribbean territories without legislative intervention.

Thirdly, the costs of bringing an appeal to be heard in London is said to be unaffordable – except to those with deep pockets.

The converse of these arguments are, of course, made in favour of adopting the CCJ as the final appellate court – with the added factor that the CCJ is an itinerant court.

Why, then, do the Republic of Trinidad and Tobago, and Jamaica, the two largest islands, insist on retaining the appellate jurisdictions of the JCPC? It seems that some possible reasons can be linked to geographical and political independence, and the breadth, quality and experience of JCPC judges.

Certainly, the Bahamas often cite the JCPC as a unique selling point in terms of attracting foreign investment. ‘In what way?’ one might ask.

Although the JCPC is said to be removed from Caribbean culture and its dynamics, one of the major arguments in favour of retaining the JCPC is that very distance – its ‘arm’s-length’ quality. Judges must be independent of political influence if the rule of law is to be upheld. This is critical to delivering justice, and maintaining stability, and order, in any civilised society. One of the challenges in any small society is for judges to maintain their independence and promote good ethical practices. One of the ways in which the Eastern Caribbean Supreme Court, for example, has achieved some measure of success in this regard is to rotate judges from across the various territories, so that a judge who is native to British Virgin Islands (BVI) effectively sits in territories other than the BVI. Notwithstanding, there remains the challenge of which social invitations do you accept (if any), care in interactions in daily life and so forth.

Foreign investors can feel assured that should things ‘go wrong’ in a case, it is being decided by judges who do not personally know, know of, or in any way shape or form have an interest in the outcome of the litigation as they do not live in the jurisdiction. I suggest that this is seen as a unique selling point for those Caribbean territories which secure large commercial foreign investment. In short, freedom from political influence and bias.

In terms of the breadth, quality and experience of the judges of the JCPC, it is important that this argument is advanced in its proper context. I repeat, it is important that this argument is advanced in its proper context. It is not that judges sitting in the JCPC are intellectually superior to judges sitting in the CCJ. That is not the argument. Most of us have read that wonderful book Outliers by Malcolm Gladwell. Its main thesis is the 10,000 hours rule. What has this got to do with a JCPC judge and a CCJ judge? It is this. If a judge hears a breadth of cases, across multiple legal jurisdictions, embracing a staggering amount of complex law, encompassing wide-ranging subject areas, that judge, after doing this for 10,000 hours, becomes exceeding superb at their job. Factor in the sheer number of cases heard by a JCPC judge sitting also as a Supreme Court judge. Colleagues, it is a numbers game. The sheer volume of cases dealt with by a JCPC judge living in a society of 68 million odd people is what gives them the edge.

One way in which judges of both the CCJ and JCPC can understand the work of the other is by having mutual exchange of judicial sittings. In this way, a judge from the JCPC can sit in the CCJ for a short stint and vice versa. To be effective, this would have to be a two-way street. It would assist all concerned to understand the culture of the other, while fermenting mutual exchange of expertise and experience, and thereby strengthening the overall work of both courts.

In terms of costs as an argument in favour of the JCPC, we now live in a changed world. The landscape is not as it was. This has forced the rapid advent of the use of technology in a way which has been unprecedented. The JCPC now conducts quite a lot of its work remotely. Indeed, a casual browse of the JCPC’s website will allow you to watch recordings of live hearings from Mauritius for example, all taking place remotely. It has long, no longer been the case, that London barristers are more expensive that a local QC. Barristers operating in the UK run small, self-employed enterprises. This means that they do not have the overheads that, say, a lawyer operating in a firm may have. That is what makes barristers competitive, and the reason why, I suggest, barristers will remain so.

The flexibility of the JCPC can best be demonstrated by the way in which the Board has adapted to the changing cultural norms and mores of Caribbean society. I would suggest that the JCPC has also been at the forefront of adjudicating on what would otherwise be seen as highly controversial social, political and/or religious cases.

Take an example of a case in which I was instructed as counsel. A high profile public office holder was dismissed publicly on the radio by a serving government minister (The Honourable Attorney General and another v Isaac (Antigua and Barbuda) [2018] UKPC 11). This employee, in a politically charged and sensitive case, was able to go to the JCPC and successfully obtain a declaration which went a long way to ameliorating the reputational damage she had otherwise suffered. Additionally, the case provided much needed interpretation of the relevant Civil Procedure Rule in relation to declarations in the area of constitutional and administrative law.

Finally, it is not quite correct that the JCPC has drawn on cases entirely from the UK when hearing Caribbean cases. Indeed, over the years, the Board will draw on cases from across the wider Commonwealth, India, Australia, and Canada or as necessary. This takes us back to the point I made at the beginning of this article. It is the breadth of territories and cases covered by the JCPC, and the experience that their judges bring to bear, that perhaps explains why Jamaica and the Republic of Trinidad and Tobago continue to avail themselves of the appellate jurisdiction of the JCPC.