Judicial Committee of the Privy Council

Privy Council
Established	1833
Jurisdiction	Certain members of the Commonwealth of Nations
Location	Middlesex Guildhall, London
Authorized by	HM Government via the Judicial Committee Act 1833
Website	www.jcpc.gov.uk
Her Majesty in Council
Currently	Elizabeth II
Since	6 February 1952

The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council (s. 3),^[1] it is the highest court of appeal (or court of last resort) for several independent Commonwealth countries, as well as for the United Kingdom's overseas territories, and the British Crown Dependencies.^[2] It is often referred to as the Privy Council, as in most cases appeals are made to "Her Majesty in Council" (i.e. the British monarch as formally advised by her Privy Counsellors), who then refers the case to the Judicial Committee for "advice"; the "report" of the Judicial Committee is always accepted by the Queen in Council as judgment. The panel of judges (typically five in number) hearing a particular case is known as "the Board".

In Commonwealth republics retaining the JCPC as their final court of appeal, appeals are made directly to the Judicial Committee itself. In the case of Brunei, appeals are made to the Sultan of Brunei, who then refers the case to the Judicial Committee for advice.

Formerly the Judicial Committee gave a unanimous report, but since the 1960s dissenting opinions have been allowed. In July 2007, the Judicial Committee held that it had the power to depart from precedent if it concluded that one of its own previous decisions was incorrect.^[3]

Court 3 in Middlesex Guildhall, the normal location for Privy Council hearings

The Judicial Committee's permanent home is in London, in the United Kingdom. On 1 October 2009, it moved from the Privy Council Chamber, in Downing Street, to the former Middlesex Guildhall building, which had been refurbished in 2007 to provide a home for both the JCPC and the newly-created Supreme Court of the United Kingdom. In this renovated building, Court 3 is used for Privy Council sittings.

On 18 December 2006, the Judicial Committee made history when for the first time in over 170 years it ventured outside of London, holding a five-day sitting in The Bahamas. Lords Bingham, Brown, Carswell, and Scott, and Baroness travelled to The Bahamas for the special sitting at the invitation of Dame Joan Sawyer, the then President of the Court of Appeal of The Bahamas;^[4] the Committee returned to The Bahamas in December 2007 for a second sitting. On the latter occasion, Lords Hope, Rodger, Walker, and Manee, and Sir Christopher Rose, heard several cases. At the end of the sitting, Lord Hope indicated that there may be future sittings of the Committee in The Bahamas,^[5] and the Committee has indeed sat in The Bahamas again, in 2009.

The judicial system of the United Kingdom is unusual in having no single highest national court; the Judicial Committee is the highest court of appeal in some cases, while in most others the highest court of appeal is the UK Supreme Court. (In Scotland the highest court in criminal cases is the High Court of Justiciary; the UK Supreme Court is the highest court in civil cases and matters arising from Scottish devolution, the latter previously having been dealt with by the Judicial Committee.) Judgments of the Judicial Committee are not generally binding on courts within the United Kingdom, having only persuasive authority, but are binding on all courts within any other Commonwealth country from which an appeal is heard.

Domestic jurisdiction

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The Judicial Committee of the Privy Council has jurisdiction in the following domestic matters:

• Appeals against schemes of the Church Commissioners (who control the estate of the Church of England).
• Appeals from the ecclesiastical courts (the Arches Court of Canterbury and the Chancery Court of York) in non-doctrinal faculty cases.
• Appeals from the High Court of Chivalry.^[6]
• Appeals from the Court of Admiralty of the Cinque Ports.
• Appeals from Prize Courts.
• Appeals from the Disciplinary Committee of the Royal College of Veterinary Surgeons.^[7]
• Disputes under the House of Commons Disqualification Act 1975.

Additionally, the Government may (through the Queen) refer any issue to the committee for "consideration and report".

Judgments of the Judicial Committee in overseas cases are only of "persuasive authority" in other courts in the United Kingdom; so while those courts take them into account, they are not binding as a matter of law.

The Judicial Committee of the Privy Council is the Court of Final Appeal for the Church of England. It hears appeals from the Arches Court of Canterbury and the Chancery Court of York, except on matters of doctrine, ritual or ceremony, which go to the Court for Ecclesiastical Causes Reserved. By the Church Discipline Act 1840 and the Appellate Jurisdiction Act 1876 all archbishops and bishops of the Church of England became eligible to be members of the Judicial Committee.

Prior to the coming into force of the Constitutional Reform Act 2005, the Privy Council was the court of last resort for devolution issues. On 1 October 2009 this jurisdiction was transferred to the new Supreme Court of the United Kingdom.

Overseas jurisdiction

The Judicial Committee holds jurisdiction in appeals from the following 31 jurisdictions (including 13 independent nations):

Appeal is to "Her Majesty in Council" from eight independent nations, and 18 other jurisdictions:

• The Commonwealth realms of Antigua and Barbuda, The Bahamas, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Tuvalu.
• The New Zealand associated states of Cook Islands and Niue.
• The Crown Dependencies of Jersey, Guernsey, including Guernsey's own dependencies of Alderney and Sark, and appeals from the Staff of Government Division on the Isle of Man.
• The British overseas territories of Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands, the Pitcairn Islands, the British Antarctic Territory, and South Georgia and the South Sandwich Islands.
• The United Kingdom's Sovereign Base Areas of Akrotiri and Dhekelia, in Cyprus.

Appeal is directly to the Judicial Committee from four independent nations:

• The Commonwealth republics of Dominica, Mauritius, and Trinidad and Tobago, and also, if the case involves constitutional rights, Kiribati.

Appeal to the Head of State:

• Brunei, an independent member nation of the Commonwealth of Nations, has an agreement with the United Kingdom that the Judicial Committee hears cases appealed to the Sultan, and reports back to him.^[8]

Composition

Members

The following are members of the Judicial Committee:

• Justices of the Supreme Court of the United Kingdom (before the establishment of that court in 2009, the "Lords of Appeal in Ordinary")
• Other Lords of Appeal (senior judges) from within the United Kingdom
• Privy Counsellors who are (or have been) judges of the Court of Appeal of England and Wales, the Inner House of the Court of Session in Scotland, or of the Court of Appeal in Northern Ireland
• Judges of certain superior courts in Commonwealth nations, who are appointed Privy Counsellors for the purpose of sitting in the JCPC

The bulk of the Committee's work is done by the Supreme Court Justices, who are paid to work full time in both the Supreme Court and the Privy Council. Overseas judges may not sit when certain UK domestic matters are being heard, but will often sit when appeals from their own countries are being heard.

Registrars

• Louise Di Mambro 2010–
• Mary Macdonald 2005–2010
• John Watherston 1998–2005
• D H O Owen 1983–1998
• Eric Mills 1966–1983
• Leslie Upton, CBE 1963–1966
• Aylmer Paterson 1954–1963
• Colin Smith, MVO OBE ????–????
• George Faber 1887–1896

Decline in Commonwealth appeals

Initially, all Commonwealth realms and their territories maintained a right of appeal to the Privy Council. Many of those Commonwealth countries that became republics, or which had indigenous monarchies, preserved the Judicial Committee's jurisdiction by agreement with the United Kingdom. However, retention of a right of appeal to a court located overseas, made up mostly of British judges who may be out of tune with local values, has often come to be seen as incompatible with notions of an independent nation's sovereign status, and so a number of Commonwealth members have ended the right of appeal from their jurisdiction.

Australia

Australia effectively abolished the right of appeal from the Commonwealth Courts by statute,^[9][10] and from the State courts by the Australia Act 1986 (Cth). The Australian constitution still has a provision allowing the High Court of Australia to permit appeals to the Privy Council on inter se questions; however, the High Court has stated that it will not give such permission and that the jurisdiction to do so "has long since been spent" and is obsolete.^[11]

Canada

Canada created its Supreme Court in 1875 and abolished appeals to the Privy Council in criminal cases. However, in Nadan v The King [1926] AC 482 (PC) the Privy Council nevertheless granted an appellant leave to appeal a criminal conviction and ruled that the provision of the Canadian Criminal Code barring appeals to the Privy Council was ultra vires the Canadian Parliament because it purported to legislate extraterritorially and purported to repeal imperial legislation. This together with the King–Byng Affair was a major irritant for Canada and provoked the discussion at the 1926 Imperial Conference which led to the Balfour Declaration. With that Declaration and its statutory confirmation in the Statute of Westminster 1931 (Imp) the impediment to abolishing appeals to the Privy Council, whether or not it had been legitimate, was comprehensively removed. Criminal appeals to the Privy Council were ended in 1933. Moves to extend the abolition to civil matters were shelved during the growing international crisis of the 1930s but re-tabled after World War II and civil appeals ended in 1949. Cases begun before 1949 were still allowed to appeal after 1949 and the final case to make it to the Council was not until 1959 with the case of Ponoka-Calmar Oils v Wakefield [1960] AC 18.

The JCPC played a controversial role in the evolution of Canadian federalism in that whereas the Fathers of Confederation, negotiating the union of the British North American colonies against the backdrop of the American Civil War, wished to ensure a strong central government vis-à-vis relatively weak provinces, appeals to the JCPC in constitutional matters progressively shifted the balance in favour of the provinces. While a few commentators have suggested that Canadian First Nations retain the right to appeal to the Privy Council because their treaties predate their relationship to Canada, the JCPC has not entertained any such appeal since 1867 and the dominant view is that no such appeal right exists.

Caribbean Community

The nations of the Caribbean Community voted in 2001 to abolish the right of appeal to the Privy Council in favour of a Caribbean Court of Justice (CCJ). Some debate between member countries and also the Judicial Committee of the Privy Council^[12][13] had repeatedly delayed the court's date of inauguration. As of 2005, Barbados replaced the process of appeals to Her Majesty in Council with the CCJ, which had then come into operation. The Republic of Guyana also enacted local legislation allowing the CCJ to have jurisdiction over their sovereign final court of appeals system. Belize acceded to the Appellate Jurisdiction of the CCJ on 1 June 2010. As it stands, a few other CARICOM states appear to be ready for the abolition of appeals to the Judicial Committee of the Privy Council in the immediate future. The government of Jamaica in particular had come close and attempted to abolish appeals to the Judicial Committee without the support of the opposition in Parliament; however, it was ruled by the Judicial Committee of the Privy Council that the procedure used in Jamaica to bypass the opposition was incorrect and unconstitutional.^[14]

Caribbean governments have been coming under increased pressure from their electorates^[15] to devise ways to override previous rulings by the JCPC such as the Earl Pratt and Ivan Morgan v The Attorney General for Jamaica (1993)^[16] judgement concerning the death penalty in the Caribbean region.^[17][18][19]

The current President of the Supreme Court of the United Kingdom, Lord Phillips of Worth Matravers, has voiced displeasure of Caribbean and other Commonwealth countries continuing to rely on the British JCPC. During an interview Lord Phillips was quoted by the Financial Times as saying: "'in an ideal world' Commonwealth countries — including those in the Caribbean — would stop using the Privy Council and set up their own final courts of appeal instead."^[20]

Grenada

Grenadian appeals to the Privy Council were temporarily abolished from 1979 until 1991, as a result of the Grenadian Revolution, which brought Prime Minister Maurice Bishop to power. People's Law 84 was enacted to this effect. The People's Laws of Grenada were gradually ruled invalid as unconstitutional.

Guyana

Guyana retained the right of appeal to the Privy Council until the government of Prime Minister Forbes Burnham passed the Judicial Committee of the Privy Council (Termination of Appeals) Act 1970.

Sri Lanka (Ceylon)

Sri Lanka abolished appeals to the Privy Council in 1972, following the Dominion of Ceylon becoming the Republic of Sri Lanka. Previously, the Privy Council had ruled in Ibralebbe v The Queen [1964] AC 900 that it remained the highest court of appeal in Ceylon notwithstanding the country's independence as a Dominion in 1948.^{[citation needed]}

Hong Kong

Hong Kong's court system was changed after the 1997 handover to the People's Republic of China. The Court of Final Appeal now serves as the highest judicial authority, although, as confirmed by the Court of Appeal in Thapa Indra Bahadur v The Secretary for Security [2000] 2 HKLRD 113, decisions of the Privy Council before 1 July 1997 on appeals from Hong Kong "continue to be binding since the resumption of sovereignty on all courts of Hong Kong, save for the Court of Final Appeal", i.e. these decisions remain part of the common law of the Hong Kong SAR unless and until overturned by the Court of Final Appeal.

It should be noted that, on the other hand, decisions of the Privy Council before 1 July 1997 on non-Hong Kong appeals, as well as decisions of British courts after this date, are not strictly binding on Hong Kong courts at all, for all that such decisions are persuasive and will be treated with great respect, depending on all relevant circumstances. As was aptly summarised in the case of A Solicitor v The Law Society of Hong Kong (2008) 11 HKCFAR 117 by Lord Millet, sitting as a non-permanent judge on the Court of Final Appeal,

“

Decisions of the Privy Council on Hong Kong appeals before the 1 July 1997 remain binding on the courts of Hong Kong. This accords with the principle of continuity of the legal system enshrined in Article 8 of the Basic Law. Decisions of the Privy Council on non-Hong Kong appeals are of persuasive authority only. Such decisions were not binding on the courts in Hong Kong under the doctrine of precedent before 1 July 1997 and are not binding today. Decisions of the House of Lords before 1 July 1997 stand in a similar position. It is of the greatest importance that the courts of Hong Kong should derive assistance from overseas jurisprudence, particularly from the final appellate courts of other common law jurisdictions. This is recognised by Article 84 of the Basic Law. (China Field Limited v Appeal Tribunal (Buildings) [2009] 5 HKLRD 662 at para 79)

”

Quite different from other common law jurisdictions, the power of final interpretation of the Basic Law, the constitutional instrument of the Region, is vested, pursuant to Article 158 of the Law, not in the Court of Final Appeal but in the Standing Committee of the NPC, which, unlike the Judicial Committee of the Privy Council, is a political body rather than a court of last resort.

India

India retained the right of appeal from the Federal Court of India to the Privy Council after the establishment of the Dominion of India. Following the replacement of the Federal Court with the Supreme Court of India in January 1950, the Abolition of Privy Council Jurisdiction Act 1949 came into effect, ending the right of appeal to the Privy Council.

Irish Free State

The right of appeal to the Privy Council was provided for in the Constitution of the Irish Free State until its abolition in 1933 by an Act of the Oireachtas.^[21]

In Moore v Attorney-General of the Irish Free State [1935] AC 484 (PC) the right of the Oireachtas to abolish appeals to the Privy Council was challenged as a violation of the 1921 Anglo-Irish Treaty.^[22] The then Attorney General for England and Wales (Sir Thomas Inskip) is reported to have warned the then Attorney-General of the Irish Free State (Conor Maguire) that Ireland had no right to abolish appeals to the Privy Council.^[22] The Judicial Committee of the Privy Council itself ruled that the Irish Free State Government had that right under the Statute of Westminster 1931 (Imp.).^[22]

Malaysia

Malaysia abolished appeals to the Privy Council in criminal and constitutional matters in 1978, and in civil matters in 1985.

New Zealand

Proposals to abolish appeals to the Privy Council in New Zealand date back to the early 1980s.^[23] It was not until October 2003 that New Zealand law was changed to abolish appeals to the Privy Council in respect of all cases heard by the Court of Appeal of New Zealand after the end of 2003, in favour of a Supreme Court of New Zealand. In 2008, National leader John Key ruled out any abolition of the Supreme Court and return to the Privy Council.^[24]

Pakistan

The Dominion of Pakistan retained the right of appeal to the Privy Council from the Federal Court of Pakistan until the Privy Council (Termination of Jurisdiction) Act 1950 was passed. The Federal Court of Pakistan remained the highest court until 1956, when the Supreme Court of Pakistan was established.

Rhodesia

Despite the Rhodesian Constitution of 1965 coming into effect as a result of the Unilateral Declaration of Independence, appeals continued to be accepted by the Privy Council as late as 1969.

Singapore

Singapore abolished Privy Council appeals in all cases save those involving the death penalty, or in civil cases where the parties had agreed to such a right of appeal, in 1989. The abolition followed a decision of the Privy Council the previous year that criticised the "grievous injustice" suffered by the opposition politician J. B. Jeyaretnam at the hands of the Government of Singapore. The remaining rights of appeal were abolished in 1994.

South Africa

South Africa abolished the right of appeal to the Privy Council from the Appellate Division of the then Supreme Court of South Africa in 1950.

See also

• Constitutional Reform Act 2005
• List of Cingalese Privy Council cases
• List of Irish Privy Council cases
• List of Judicial Committee of the Privy Council cases

Notes

1. ^ Judicial Committee Act 1833 (c. 41)
2. ^ P.A. Howell, The Judicial Committee of the Privy Council, 1833–1876: Its Origins, Structure, and Development, Cambridge, UK: Cambridge University Press, 1979
3. ^ Gibson v. United States of America (The Bahamas) [2007] UKPC 52 (23 July 2007)
4. ^ Never before in the history of England By Clifford Bishop, (The Bahamas Investor Magazine), 27 June 2007
5. ^ Privy Council Sitting In Bahamas For Second Time By Tosheena Robinson-Blair, (The Bahama Journal), 18 December 2007
6. ^ Privy Council Appeals Act 1832 (2 & 3 Will. 4, c. 92)
7. ^ "Role of the JCPC". Judicial Committee of the Privy Council. http://www.jcpc.gov.uk/about/role-of-the-jcpc.htm. Retrieved 24 March 2010. 
8. ^ "Exchange of Notes concerning the Reference of Appeals from the Supreme Court of Brunei Darussalam to the Judicial Committee of Her Majesty's Privy Council" (in English). Bandar Seri Begawan: Foreign and Commonwealth Office. 19 January 1995. http://www.official-documents.gov.uk/document/cm28/2841/2841.pdf. Retrieved 16 June 2011. 
9. ^ "Privy Council (Limitation of Appeals) Act 1968 (Cth)". http://www.austlii.edu.au/au/legis/cth/consol_act/pcoaa1968370/. 
10. ^ "Privy Council (Appeals from the High Court) Act 1975 (Cth)". http://www.austlii.edu.au/au/legis/cth/consol_act/pcfthca1975417/. 
11. ^ "Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461, 465". http://www.austlii.edu.au/au/cases/cth/HCA/1985/27.html. 
12. ^ "Bombshell ruling — Privy Council says passage of CCJ unconstitutional". Jamaica Gleaner. http://www.jamaica-gleaner.com/gleaner/20050204/lead/lead1.html. Retrieved 2007-06-16. 
13. ^ "Privy Council Decision should not halt Caribbean Court". Caribbean Net News. http://www.caribbeannetnews.com/2005/02/08/sanders.shtml. Retrieved 2007-06-16. 
14. ^ "CCJ blow". Jamaica Observer Newspaper. Archived from the original on 2007-06-07. http://web.archive.org/web/20070607000002/http://www.jamaicaobserver.com/news/html/20050203T220000-0500_74458_OBS_CCJ_BLOW.asp. Retrieved 2007-06-16. 
15. ^ Rohter, Larry (7 July 1997). "Death-Row Rule Sours Caribbean on Britain". New York Times. http://www.nytimes.com/1997/07/07/world/death-row-rule-sours-caribbean-on-britain.html?scp=7&sq=British%20High%20Commissioner%20Barbados&st=cse. Retrieved 2009-06-24. 
16. ^ JCPC Judgement: Earl Pratt and Ivan Morgan v. The Attorney General for Jamaica, Appeal No. 10 of 1993
17. ^ Spurning Europe, Caribbean pushes death penalty By MIKE MELIA (Associated Press) – 11 November 2008
18. ^ Letter: Colonial power over death penalty By THERESE MILLS (BBC) — Wednesday, 19 January 2005, 19:15 GMT
19. ^ T & T pushing death penalty Nation Newspaper — 17 January 2008
20. ^ Privy Council's Caribbean complaint By Staff Writer, (BBCCaribbean.com) Tuesday, 22 September 2009 — Published 18:08 GMT
21. ^ Constitution (Amendment No. 22) Act, 1933 Irish Statute Book
22. ^ ^{a b c} "Moore -v- Attorney General of the Irish Free State". Important Judgments. Dublin: Courts Service. http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/34740D4947655F668025765E0036AE51/$FILE/Moore%20v%20AG_1935.rtf. Retrieved 2 November 2010. 
23. ^ Chris Eichbaum, Richard Shaw (2005). Public Policy In New Zealand — Institutions, Processes and Outcomes. Pearson. ISBN 1877258938. 
24. ^ Jane Clifton (1 November 2008). Leaders Loosen Up. The Listener. 

External links

• Official website
• Privy Council Office site, including JCPC
• The Judicial Committee of the Privy Council and the Canadian Constitution