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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.^[1] It is also the highest court of appeal (or court of last resort) for several independent Commonwealth countries, the UK overseas territories, and the British Crown dependencies.^[2] It is simply referred to as the Privy Council, as appeals are in fact made to the Queen as Her Majesty in Council, who then refers the case to the Judicial Committee for "advice". The panel of judges hearing a particular case (typically five members) is known as "the Board".

On 1 October 2009, the Judicial Committee moved from the Privy Council Chamber in Downing Street to the new UK Supreme Court building in the former Middlesex Guildhall, where court 3 will be used for Privy Council sittings.

In Commonwealth republics, appeals are made directly to the Judicial Committee instead. In the case of Brunei, the appeal is made to the local Sultan, who is advised by the Judicial Committee. Formerly the Judicial Committee gave a single piece of advice, but since the 1960s dissenting opinions have been allowed. In July 2007, the Judicial Committee held that it had power to depart from precedent if it concluded that one of its own previous decisions was incorrect.^[3]

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.

Domestic jurisdiction

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 Court of Admiralty of the Cinque Ports.
• Appeals from Prize Courts.
• 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 of only “persuasive authority” in other courts in the United Kingdom; so while courts take them into account they are not as a matter of law binding.

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 were eligible to be members of the Judicial Committee.

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

Overseas jurisdiction

The Committee holds jurisdiction in appeals from the following 30 jurisdictions (including 14 independent nations):

Appeal is "to Her Majesty in Council" from nine independent nations and 16 other jurisdictions:

• The Commonwealth realms of Antigua and Barbuda, Bahamas, Belize, 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 (though not New Zealand itself).
• The Crown dependencies of Jersey and Guernsey and appeals from the Staff of Government Division on the Isle of Man.
• The British overseas territories of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, St. Helena and dependencies, Turks and Caicos Islands and Pitcairn Islands.
• The United Kingdom's Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus.

Appeal is directly to the Committee from four countries:

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

Appeal is to the Head of State:

• Brunei (Queen Elizabeth II of the United Kingdom and Sultan Hassanal Bolkiah have agreed that the Judicial Committee hears the case and reports to the Sultan).

Members

Overview

The Judicial Committee includes the following:

• Justices of the UK Supreme Court (formerly 'Lords of Appeal in Ordinary')
• Other Lords of Appeal
• Privy Councillors who are or were judges of the Court of Appeal of England, the Inner House of the Court of Session in Scotland or the Court of Appeal in Northern Ireland
• Privy Councillors who are judges of certain superior courts in Commonwealth nations

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

Registrars of the Judicial Committee

• Mary Macdonald 2005-
• John Watherston 1998–2005
• DHO Owen 1983–1998
• Eric Mills 1966–1983
• Leslie Upton, CBE 1963–1966
• Aylmer Paterson 1954–1963
• Colin Smith, MVO OBE c.38
• George Faber 1887–1896

Decline of Commonwealth Appeals

Initially, all Commonwealth realms and their territories maintained a right of appeal to the Privy Council. Many of those that became republics or independent indigenous monarchies preserved the Privy Council's jurisdiction by entering into treaties with the British Crown. However, over time many members began to see the Privy Council as being out of tune with local values, and an obstacle to full judicial sovereignty.

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 Canadian Criminal Code 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] A.C. 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-a-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.

Irish Free State

The 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 Dail Eireann. A case titled Moore v Attorney-General of the Irish Free State (1935) A.C. 484 (P.C.) was appealed to the Privy Council in 1935 challenging the Dáil's decision as a breach of the Anglo-Irish Treaty of 1922. The then Attorney-General of England, 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. The Judicial Committee of the Privy Council itself ruled that the Irish Free State Government had that right!

India

India retained the right of appeal from the Federal Court of India to the Privy Council after the proclamation of the Dominion of India until the Abolition of Privy Council Jurisdiction Act 1949 came into affect after the establishment of the Supreme Court of India in January 1950.

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.

Australia

Australia effectively abolished the right of appeal from the Commonwealth Courts by the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975, and from the State courts by the Australia Act 1986. 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,^[4] and this possibility was finally closed by s. 11 of the Australia Act 1986.

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.

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.

Ceylon

Ceylon 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] A.C. 900 that it remained the highest court of appeal in Ceylon notwithstanding the country's independence as a Dominion in 1948.

Grenada

Grenadian appeals to the Privy Council was 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.

Malaysia

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

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.

Hong Kong

Hong Kong's court system was changed after the 1997 handover to People's Republic of China. The Court of Final Appeal of Hong Kong 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 July 1, 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.

It should be noted that, however, decisions of the Privy Council before July 1, 1997 on non-Hong Kong appeals, as are decisions of British courts after July 1, 1997, are not strictly binding on Hong Kong courts at all, for all that decisions of such are persuasive and will always be treated with great respect, depending on all relevant circumstancs (see A Solicitor v. The Law Society of Hong Kong [2008] FACV24/2007).

On a related note, the power of interpretation of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, the constitutional instrument of the Region, is, under Article 158 of the Law, vested in the Standing Committee of the National People's Congress of the People's Republic of China, which, unlike the Judicial Committee of the Privy Council, is a political body rather than a court of last resort.

New Zealand

Proposals to abolish appeals to the Privy Council in New Zealand date back to the early 1980s.^[5] 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.^[6]

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^[7][8] 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. 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.^[9]

Caribbean governments have been coming under increased pressure from their electorates^[10] 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)^[11] judgement concerning the death penalty in the Caribbean region.^[12][13][14]

The current President of the Supreme Court of the United Kingdom, Lord Nicholas Phillips 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.” ^[15]

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

References

External links

• Privy Council Office site, including JCPC
• The Judicial Committee of the Privy Council and the Canadian Constitution
• Text of the Scotland Act 1998