LOGIC SUGGESTS IT IS NOT A QUESTION OF WHETHER – BUT WHEN

This paper is based on a talk Richard Clayton QC gave to the Commonwealth Lawyers Association at the 2021 Conference in Nassau, the Bahamas in September 2021.   It will be published on the Constitutional Law Blog on 27 September 2021.

Since the Norman Conquest the Privy Council has been the cabinet through which the monarch governed England. Its jurisdiction was based on the idea that “the King is the fountain of all justice throughout his dominions and exercises jurisdiction in his Council, which acts in an advisory capacity to the Crown”: see F Safford and G Wheeler, The Practice of the Privy Council in Judicial Matters (1901) 699-707.  In 1900 the Privy Council exercised jurisdiction over one fifth of the globe and a quarter of its population.  Now it is an appellate court for 0.1% of the world’s population – retained by 14 Commonwealth countries and 10 British Overseas Territories. 

The Privy Council’s steady decline reflects a reaction to unpopular judgments at home, although these criticisms should be seen as part of a much broader political campaign to achieve independence.   For instance, in Webb v Outrim [1907] A.C. 81 the Privy Council considered an Australian tax case which concerned whether a High Court decision would be treated as final under the new 1907 Constitution.  A political compromise in enacting the Constitution gave both the High Court and the Privy Council concurrent jurisdiction to hear an appeal.  The Privy Council held that no Australian State had the power of independent legislation – because every Australian Act require the Crown’s assent.  The judgment by Lord Halsbury has been criticised in trenchant terms – he was said to have “surpassed himself in the puerility of some of his reasons and in his fantastic ignorance of the working of a federation under the Crown”: see F R Beasley. “Appeals to the Judicial Committee: the case for abolition” [1957] Res Judicatae 78. 

In Canada the Privy Council provoked fierce condemnation in Nadan v R [1926] AC 48 when it held that the Canadian Parliament did not have power to abolish criminal appeals going to the Privy Council.  In Pratt v AG of Jamaica [1994] 2 A.C. 1 the Privy Council held that delay of more than five years between sentencing and execution was prima facie evidence that carrying out the sentence would constitute inhuman or degrading punishment. Its practical implications gave impetus to setting up the CCJ.

To read Richard Clayton’s full paper click here.

September 2021