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The Judicial Committee

An introduction to the Judicial Committee of the Privy Council

Dr. Charlotte Smith

 

Introduction: the Historical Role of the Privy Council in Colonial Government, Administration and Adjudication

The Privy Council is one of the oldest surviving emanations of the royal prerogative.  As a direct descendant of the Curia Regis it embodies a model of government under which the Monarch is at the heart of the central executive and is advised by a small clique of knowledgeable ministers and advisors; a model echoed in a modified form in the apparatus of cabinet government which rests at the heart of the modern British Constitution.  

 

Having played a decisive role in the development of increasingly sophisticated constitutional structures in Great Britain, it is unsurprising that prior to 1801 the Privy Council played a pivotal role in the administration and government of British colonies.  It offered a strong and reasonably simple model of government, which afforded the Crown a key role in directing and overseeing the development of colonial government, administration and trade.  This was not only seen as advantageous to the government at Whitehall, but also as fitting to the circumstances of nascent colonies, many of which did not yet possess developed constitutional and democratic frameworks.

 

In the course of the nineteenth century, and as both the colonies themselves and the government in London constructed more sophisticated executive structures, the Privy Council lost many of its Imperial executive functions.  Many colonies founded constitutions which conferred upon them a considerable degree of autonomy and self-government.  At the same time, as the Empire expanded, its political and economic significance to the British government was reflected in the eventual creation of the Colonial Office. 

 

Though stripped of many of its executive functions, the Privy Council retained jurisdiction, which it had exercised since at least the end of the seventeenth century, over appeals from the colonies and certain other locations over which extra-territorial jurisdiction had been granted.  This signalled not only the concern of Westminster and Whitehall with the notion of legal certainty within the Imperial legal system, but also the care of the Monarch for her subject’s legal rights.  The role of the Privy Council in respect of colonial appeals was understood to be a manifestation of the prerogative of justice, a corollary of which was the constitutional right of all British subjects to approach the throne and seek redress.  

 

The Formation, Composition of the Judicial Committee of the Privy Council

The Judicial Committee, as distinct from the Privy Council, was created under the Judicial Committee Act 1833.  This Act was passed under the aegis, and at the insistence of, Lord Chancellor Henry Brougham, and the resulting arrangements have been described as an “enduring monument” to his “law reforming zeal.”  The 1833 Act aimed to ameliorate many of the deficiencies which Brougham had identified in the Privy Council as the court of final colonial appeal, and which he thought totally unfitted it as the appellate court of a burgeoning empire.  These included a dearth of legally qualified judges, and especially of judges with knowledge of the varied legal systems and laws at issue, the ability of, and indeed reliance upon, non-lawyers to make up the quorum of the court, their ability to overrule the judgment of their legally trained brethren, and a chronic shortage of sitting days, which led in turn both to long delays in obtaining a ruling and a suspicion that complicated cases were, when eventually heard, being dealt with in unseemly haste.  

 

Seeking to remedy these evils, the 1833 Act established a distinct Judicial Committee of the Privy Council with jurisdiction over colonial, ecclesiastical and sundry other appeals.  Under s1 of the Act the membership of this committee included the Lord Chancellor and former Lords Chancellor, together with other members of the Privy Council who held or had held high judicial office.  It provided for some measure of expertise in colonial laws and legal systems through the appointment of Privy Councillors who had held certain high judicial offices in the colonies.  It also, however, retained the lay element, which Brougham had sought to exclude, since it included in the membership of the Judicial Committee the Lord President and former Lords President of the Council, and also empowered the sovereign to appoint to it two other Privy Councillors under her Sign Manual.

 

While the 1833 Act fell short of achieving Lord Brougham’s wish to exclude the laymen from hearing appeals, it also failed to achieve the appointment of salaried judges, which he had seen as being essential to the creation of a capable, adequately staffed, and efficient court.  Nor did the Act address the extremely limited number of days on which the court could sit to dispose of business.  Proposals for the appointment of salaried judges, to augment the manpower provided by judges who were heavily employed in their own courts, were introduced in 1841 and 1844, and administrative reforms were proposed again in 1856.  All initiative failed until, in 1871, the death of Lord Kingsdown, who had been an extremely active and efficient member of the Judicial Committee, and the accumulation of a glut of Indian business, sparked a crisis.  The Judicial Committee Act 1871 both extended the number of sitting days and provided for the appointment of four full-time judges who were judges of Superior Courts or the Chief Justices of the High Courts in Bengal, Madras or Bombay.

 

In the years immediately after the Act of 1871, the most significant Act affecting the composition of the Judicial Committee was the Appellate Jurisdiction Act 1876.  By s14 of that Act the salaried judges of the court were to be abolished as their offices fell vacant through death, retirement or resignation.  Their place was to be taken by the Lords of Appeal in Ordinary who staffed the reformed Judicial Committee of the House of Lords under that Act.  Later, Acts passed in 1881, 1895 and 1913 reinforced the manpower of the Judicial Committee, first by extending membership to all Lords Justice of the English Court of Appeal who were also Privy Councilors, and then to an extended range of Privy Councilors who had held high judicial office in Her Majesty’s dominions of Canada, Australia and South Africa and could provide expert knowledge of the law of those countries.    

 

The Proceedings of the Judicial Committee of the Privy Council and its Judgments

More detail can be found regarding the procedures and jurisdiction of the Judicial Committee in the suggested further reading outlined at the end of this introduction.  Here it is sufficient to note that under the Appellate Jurisdiction Act 1833 s7 the Judicial Committee was empowered to take oral or written depositions from witnesses, and under s8 it had the power to re-examine witnesses.  In practice it rarely chose to exercise these powers, and would only do so in exceptional circumstances where the evidence had not been available in previous proceedings.

 

Perhaps the most interesting feature of Judicial Committee practice today continues to be the form in which it delivers its judgments.  This reflects the mixed nature of the Privy Council as a body with executive, judicial and legislative functions.  Thus, the role of the Judicial Committee being to advise the Queen in cases where her colonial subjects approach the throne for justice, its judgments take the form of advice to the Monarch.  Though it must be clear that the Judicial Committee in issuing such judgments or advice is acting purely in a judicial, and not an executive capacity (see Judicial Committee Act 1833 s3), its decisions take the form of Orders in Council, which are a form of delegated legislation issued under the prerogative. 

 

In the nineteenth century the Judicial Committee was further marked out as unique by virtue of the application of the principle of Unity in Judgment, which prima facie precluded the publication of dissenting judgments.  Another interesting feature of the Judicial Committee’s rules was that, though it would only exceptionally depart from its own previous decisions, it was not bound by them  (see Cushing v Dupuy (1880) 5 App Cas 409).

 

Postscript: Links to the Wider Law Reform Context

While it must be understood that the Judicial Committee of the Privy Council is not an English court, and that its decisions form merely persuasive precedent in English law (see London Joint Stock Bank v Macmillan and Arthur [1918] AC 777), it would be foolish to treat it as immune to the changes, ideas, and influences at large in the English legal system.

 

The second half of the nineteenth century witnessed sustained attempts to reform archaic appellate structures.  Though the Judicature Commission of 1867 was not empowered to consider either the Judicial Committee of the Privy Council or that of the House of Lords, several influential reform initiatives were proposed at that time.  In 1871, for example, Lord Chancellor Hatherley introduced a Bill which would have amalgamated the Judicial Committees of the Privy Council and House of Lords, and a select committee made similar proposals in the following year.  Lord Chancellor Selborne, acting in pursuit of his aims to abolish the double appeal and unify appellate jurisdiction, sought to abolish the English appellate jurisdiction of the House of Lords and envisaged the transfer, in due course, of the Judicial Committee of the Privy Council’s work to the new Imperial Court of Appeal.  In 1873, ss21 and 22 of his Judicature Act 1873 provided for the transfer of colonial appeals to the new Imperial Court of Appeal by Order in Council.  Had these sections come into effect then colonial appeals would have been heard for the first time by an appeal court which formed part of the English legal system.  In 1876, however, Selborne’s attempts to unify appellate jurisdiction in a single court of appeal were abandoned.  The Appellate Jurisdiction Act 1876, s14, reaffirmed the jurisdiction of the Judicial Committee of the Privy Council over colonial appeals.

 

A final point of note is the extent to which changes to, and debates about other aspects of the Judicial Committee’s business affected its conduct and business.  For example, loss of some aspects of its jurisdiction, such as that over admiralty appeals in 1876, inevitably influenced arguments about appropriate staffing levels and composition.  Equally, the single most influential debate about the character of the Judicial Committee occurred in respect of the Unity in Judgment controversy, which was provoked by comments made by Chief Baron Kelly after the decision in the ecclesiastical appeal of Ridsdale v Clifton ((1877) 2 P.D. 276).

 

Suggested Further Reading

On the Judicial Committee of the Privy Council and Colonial Appeals

  • David Swinfen, Imperial appeal: the Debate on the Appeal to the Privy Council, 1833-1986 (Manchester, 1987)
  • P. A. Howell, The Judicial Committee of the Privy Council, 1833-1876 (Cambridge, 1979)
  • D.B. Swinfen, ‘Henry Brougham and the Judicial Committee of the Privy Council’ (1974) 90(3) Law Quarterly Review 396-411
  • Sir G.C. Rankin, ‘The Judicial Committee of the Privy Council’ (1939-1947) 7 Cambridge Law Journal 2-22
  • William Macpherson, The Practice of the Judicial Committee of Her Majesty’s Most Honourable Privy Council (London, 1873)

 

On Nineteenth Century Law Reforms affecting Appellate Jurisdiction

  • Patrick Polden, ‘The Judicial Roles of the House of Lords and Privy Council 1820-1914’ in William Cornish, Stuart Anderson, Raymond Cocks, Michael Lobban, Patrick Polden, Keith Smith, The Oxford History of the Laws of England (vol. XI)(Oxford, 2010) pp528-568)
  • David Steele, ‘The Judicial House of Lords: Abolition and Restoration 1873–6’ in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds.), The Judicial House of Lords 1876–2009 (Oxford, 2009) 1 –29
  • R. Stevens, ‘The Final Appeal: Reform of the House of Lords and Privy Council 1867–1876’ (1964) 80 Law Quarterly Review 343–369

 

On Unity in Judgment

  • C. Smith, ‘Ridsdale v Clifton: Representations of the Judicial Committee of the Privy Council in Ecclesiastical Appeals’ (2008) 19(3) King’s Law Journal 551–74