Privy Council and CCJ can exist side by side, says UK court

The Judicial Committee of the Privy Council (JCPC) is distancing itself from Lord Nicholas Phillips’ broadside against Commonwealth countries and their dependence on the London-based court, who suggested 14 years ago that they had overstayed their welcome.

The JCPC told The Sunday Gleaner last week that the 2009 remarks by the inaugural president of the UK Supreme Court, who bemoaned the amount of time being spent by law lords adjudicating matters from former colonies, including Jamaica, were personal.

In November, Lord Robert Reed – the current president of the UK Supreme Court and the JCPC – wrote to The Gleaner, wading into the ongoing debate on Jamaica’s future with the Privy Council. He indicated that even as Jamaica embarks on its constitutional reform process and will ultimately decide on the path forward, the judges at the JCPC considered it “an honour to serve the people of Jamaica”. He then offered a rebuttal to some arguments against the retention of the Privy Council as the country’s final court.

But critics have noted the apparent shift in attitude, and found Lord Reed’s response to access and cost concerns wanting.

The Privy Council’s deputy president, Lord Patrick Hodge, spoke with The Sunday Gleaner last week in the absence of Lord Reed, who is said to be recuperating from a minor medical procedure.

“I don’t think there has been a change in attitude. The views expressed by Lord Phillips in 2009 were his own and, so far as I am aware, did not reflect the views of the other justices then,” Lord Hodge said. “They also don’t reflect our views now. As Lord Reed wrote in your newspaper, we all consider it a privilege to serve the nations and territories of the JCPC and we will always happily give as much time as needed in doing so … .”

In 2009, Lord Phillips said nearly 40 per cent of the law lords’ time was being spent dealing with cases from overseas territories and former colonies. Last month, Lord Reed said the suggestion “that we consider that cases from outside the UK take up too much of our time ... could not be further from the truth”.

He added: “The volume of cases and the place of origin are never a consideration when we decide which case raises an arguable point of law and be heard by the court ... .”

He credited the body for deciding the outcomes of important cases for development around the world, adding, “We will continue to hear all appropriate cases that people wish to bring to us ... .”

Lord Hodge told The Sunday Gleaner that unlike Lord Phillips, Lord Reed is expressing the official view of the Privy Council.

“Lord Reed speaks for us all when he says that the decision on which court to have as your apex court is a decision for the Government and people of each of the Privy Council’s jurisdictions alone. We are honoured to serve as that court unless and until you should decide otherwise … ,” he stressed.

Lord Hodge does not believe the president’s comments – and, by extension, the Privy Council – were undermining the credibility of the Caribbean Court of Justice (CCJ), the regional alternative being mooted which is already the final court for Barbados, Belize, Dominica, Guyana, and St Lucia.

“Both courts can exist side by side, serving their member nations and territories accordingly. The decision on which court a territory should join is one for that territory to make,” he stated.

REFERENDUM

Justice Minister Delroy Chuck has sided with Reed.

“The JCPC has always taken the view that Jamaica can continue to use it as its final court and disengage whenever it sees fit and appropriate. As Lord Reed, the present head of the court, intimates, it is a privilege, and not a burden, to serve the people of Jamaica,” Chuck told The Sunday Gleaner.

While the Parliament can remove the JCPC by a simple majority, it cannot install a final court by the same means. Whether Jamaica moves to the CCJ or “some other final court arrangement” is a matter for the people of Jamaica and must be decided by a referendum, Chuck noted. However, there is no timeline for such a referendum.

Former Prime Minister Bruce Golding shocked Jamaicans and drew the ire of the Opposition and some regional leaders during his tenure when he suggested that Jamaica should consider its own final court.

“We have to dispense with the Privy Council. ... We must take out a final court which is an external entity, over which we do not have final control as a State,” he said during the debate on the Charter of Rights in December 2010.

“We wish to consider this in great detail and in earnest. We believe that we have the judicial experience to do it. We believe that we have the maturity to do it. We wish to consider establishing our final court of appeal in Jamaica. We would respectfully wish that this is something for which consideration ought to be given,” Golding said, adding that the adoption of a final court should be “put to Jamaicans in a referendum”.

Nothing more has been heard of this since.

STICKING ISSUES

Michael Hylton, KC, finds the JCPC’s position on the 2009 comments curious, but has accepted Lord Hodge’s response.

“First of all, Lord Reed – or in his absence, Deputy President Lord Hodge – speaks for the court. I, therefore, accept that they have indicated the Privy Council’s position on this issue, and that the statements made by previous law lords may have represented their personal views,” he told The Sunday Gleaner.

“However, this does not address the many other issues and does not change my position on the direction Jamaica should go.”

Some of those issues include prohibitive costs associated with the process of having appeals heard before the JCPC.

Hylton said that while local lawyers can argue cases before the JCPC, British solicitors have to file documents and interface with the court while barristers argue cases.

Lord Hodge noted that the JCPC offers hybrid hearings to enable local counsel to be heard from within their jurisdictions. Filings, he said, are being done by email, to reduce the administrative burden for litigants.

The deputy president said the JCPC is also designing a new online portal for filings to make it “easier and more accessible”.

But there is also the reality that Jamaicans require visas to enter the UK.

The Privy Council told The Sunday Gleaner that it is not prepared to intervene for a waiver of visas for individuals needing access to the court.

While it acknowledged that “access to justice is a fundamental principle and lawyers must be able to appear before the JCPC on behalf of their clients”, it said this was a matter of government policy.

“Visas are a matter for the UK government and we understand that there are appropriate channels if, exceptionally, any issues arise,” Lord Hodge told The Sunday Gleaner. “We have made clear to the UK government the importance of giving visas to attorneys representing their clients at hearings in London, but it would be constitutionally improper for the court otherwise to intervene in government policy or decision-making on visas.”

ODD TAKE, SAYS NICHOLSON

Former Justice Minister A.J. Nicholson expressed scepticism about the JCPC’s position on Lord Phillips’ comments.

“It is odd – isn’t it? – that after all these years, Lord Phillips’ widely publicised declaration and warning, which have been referred to time after time, it’s now being claimed to have been his view and his alone and was not shared by his colleague judges. So where did his assertion that far too much – some 40 per cent – of the judicial time of his senior judges was being spent on Privy Council matters from the foreign territories come from?” Nicholson reacted when contacted by The Sunday Gleaner.

He challenged the JCPC to say whether the proposed remedies put in place to ease the burdens outlined by Lord Phillips still existed. The then president had proposed that to ease the burden on the most senior judges, lower court judges would be drafted on to the panels to hear the appeals.

“Have Lord Reed and his colleagues done away with what, for them, would obviously have been an unnecessary policy that was employed to satisfy Lord Phillips’ frolic?” Nicholson asked.

OPPOSITION UNMOVED

Opposition Leader Mark Golding said the willingness of the JCPC to continue hearing appeals from Jamaica is of no moment to its position.

“ [This] is irrelevant to the issue at hand. Our main reasons for desiring to leave the Privy Council and to adopt the CCJ as our final court of appeal have nothing to do with the willingness of the King’s Privy Council to continue to occupy the apex of the judicial branch of the Jamaican State. We fundamentally disagree with it continuing to do so, as it is incompatible with our sovereignty and independence as a nation,” Golding told The Sunday Gleaner.

Golding cited the desire for full decolonisation, easier access and lower costs to Jamaicans, the quality and first-hand cultural experiences of judges at the CCJ, and the independence of the CCJ as reasons enough for Jamaica to break ties with the JCPC.

erica.virtue@gleanerjm.com