Judicial Committee of the Privy Council

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The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom, established by the Judicial Committee Act 1833.^[1] It replaced the Court of Delegates. 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". 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 House of Lords. In Scotland the highest court in criminal cases is the High Court of Justiciary, in civil cases the House of Lords, and the Judicial Committee of the Privy Council for matters arising from Scottish devolution.

Contents 1 Domestic jurisdiction 2 Overseas jurisdiction 3 Members 3.1 Overview 3.2 Registrars of the Judicial Committee 4 Decline of Commonwealth Appeals 4.1 Canada 4.2 Australia 4.3 Sri Lanka (Ceylon) 4.4 Malaysia 4.5 Singapore 4.6 Hong Kong 4.7 New Zealand 4.8 Caribbean Community 5 See also 6 References 7 External links

[edit] Domestic jurisdiction

The Privy Council has jurisdiction in the following domestic matters:

• Cases involving "devolution issues" arising under the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998, i.e. disputes regarding the validity of legislation (Acts of the Scottish Parliament, of the Northern Ireland Assembly, or Measures adopted by the National Assembly for Wales) or exective functions of the Scottish Government, the Welsh Assembly Government or the Northern Ireland Executive. The cases may reach the Committee as follows:
  • The Attorney-General or other Law Officers may refer a bill from the devolved body to the Committee.
  • The litigants may appeal a case from certain superior courts.
  • Appellate courts, including the House of Lords, may refer a case to the Committee.
  • Any court, if a Law Officer so desires, may refer a case to the Committee.
  • Law Officers may refer any issue not related to a bill or case to the Committee.
• 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.

The Constitutional Reform Act 2005 will transfer the devolution powers to the new Supreme Court of the United Kingdom when it comes into force.

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

Within the United Kingdom legal systems, judgments of Judicial Committee made in devolution cases are binding on all other courts, including the Appellate Committee of the House of Lords.^[4] This is significant because most devolution cases involve the interpretation of Convention rights, which under the Human Rights Act 1998, apply throughout the United Kingdom. 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, Her Majesty in 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 archbishop and bishops were eligible to be members of the Judicial Committee.

[edit] Overseas jurisdiction

The Committee holds jurisdiction in appeals from the following 27 jurisdictions (including 14 independent nations):

Appeal is "to Her Majesty in Council" from nine independent nations and 13 other jurisdictions:

• The Crown dependencies of Jersey and Guernsey and appeals from the Staff of Government Division on the Isle of Man
• 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 New Zealand itself established a Supreme Court of New Zealand in January 2004, replacing the Privy Council for appeals originating within New Zealand).
• The British overseas territories of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, St. Helena and dependencies, Turks and Caicos Islands, 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 Sultan:

• Brunei (The Queen and the Sultan have agreed that the Judicial Committee hears the case and reports to the Sultan).

[edit] Members

[edit] Overview

The Judicial Committee includes the following:

• Lords of Appeal in Ordinary (who also serve in the House of Lords, known as 'Law Lords')
• 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 Lords of Appeal in Ordinary, who are paid to work full time on the judicial functions of the House of Lords 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.

[edit] 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

[edit] 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.

[edit] 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.

[edit] 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,^[5] so the possibility is purely theoretical.

[edit] Sri Lanka (Ceylon)

Ceylon abolished appeals to the Privy Council in 1971, following Privy Council decisions that sought to enforce the constitutional protections of the rights of the Tamil minority contained in the 1948 Soulbury Constitution. The following year, Ceylon became a republic in under the name 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.

[edit] Malaysia

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

[edit] 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.

[edit] 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. However, the interpretation of the Constitution, Basic Law of Hong Kong, is within the jurisdiction of the Standing Committee of the National People's Congress of the People's Republic of China.

[edit] New Zealand

New Zealand law was changed in October 2003 amid considerable controversy (as the government decided not to call a referendum on the issue) 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.

[edit] 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. Some debate between member countries and also the Judicial Committee of the Privy Council^[6][7] 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 Caribbean Court of Justice, 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 may 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.^[8]

[edit] 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

[edit] References

[edit] 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

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