Editorial | Thanks, Lord Reed, but …

This newspaper appreciates Lord Reed’s declared efforts to have the British government change the law to allow judges from countries, like Jamaica, that retain the Judicial Committee of the Privy Council (JCPC) as their apex court, the opportunity to sit on its benches.

However, Lord Reed’s move, even if successful, will not alter the philosophical grounds of why Jamaica should withdraw from the JCPC and accede to the appellate (civil and criminal) jurisdiction of the Caribbean Court of Justice (CCJ) as the island’s final court. Like all other members of the Caribbean Community’s (CARICOM) single market and single economy arrangement, Jamaica already subscribes to the CCJ’s original jurisdiction as the ultimate arbiter of the treaty that underpins CARICOM.

Indeed, that Lord Reed is obliged to take this step two decades after a Jamaican judge, Sir Edward Zacca, last sat on a Privy Council Board, reinforces the logic for Jamaica – and all signatories to the CCJ treaty – extricating itself from the JCPC. For it was only a year after the last of Justice Zacca’s two stints, 11 years apart, on a Privy Council panel that British law limited, if not totally removed, the prospect of judges who do not sit on UK courts adjudicating JCPC cases.

Lord Reed is the president of the Supreme Court, Britain’s apex court. That position also makes him the chief judge of the JCPC, a holdover from Britain’s imperial past, which 11 Commonwealth countries, including seven in the Caribbean, retain as their court of last resort.

Like many people in this region, The Gleaner considers the Privy Council an anachronism on whose doorstep Jamaica continues to loiter. It offers ordinary folk too little access to the top tier of their justice system and represents too great a distance – physical, social and psychological – between its judges and the societies for which they dispense justice.

ONGOING DEBATE

It is in the context of this ongoing debate over the relevance of the Privy Council to Jamaica and the Caribbean, that Lord Reed addressed the issue of connectedness in a lecture to students at the law faculty at The University of the West Indies, Mona.

He said: “When I sit on the Privy Council, I am conscious that we are a group of judges from the UK who do not generally have significant experience of living and working in the jurisdictions we serve. As a result, depending on the nature of the case, we may need to be informed about those attitudes and conditions. In the past, senior judges from a number of other jurisdictions sat on the Privy Council when those countries had it as their highest court of appeal.”

But his examples of those were sparse and, for the most part, old: Indian judges sat on the court continuously from 1912 until 1949, two years after India’s independence and the establishment its own final court, and Justice Zacca’s stints in 1993 and 2004.

We agree with Lord Reed that “having the benefit of the opinion of a judge with direct experience of local conditions” would enhance decision-making by the Privy Council.

“I have therefore asked the UK government to consider a proposal to invite senior judges from outside the UK to sit with us again on the Privy Council,” he said. “This is not currently possible in relation to most of the Privy Council jurisdictions under the legislation which governs appointments. The exceptions include judges of the Eastern Caribbean Supreme Court, the High Court of Trinidad and Tobago and the Supreme Court of Jamaica, who can sit on the Privy Council if they are first appointed as Privy counsellors.”

With respect to the law governing which judges can adjudicate JCPC cases, Britain’s Constitutional Reform Act 2005 – which established the Supreme Court – and concomitant amendments to the Judicial Committee Act of 1833 limits Boards to members of the Privy Council “who holds or have held high judicial office”.

THE HIGH JUDICIAL OFFICE

High judicial office is defined in the 2005 law as judges of the Supreme Court, the Court of Appeal of England and Wales, the Court of Sessions, the Court of Appeal of Northern Ireland, and Lords of Appeal in Ordinary. Not a judge of a court of Jamaica.

A former Lord Chancellor can also sit in the court if he or she has, independently of that office, held high judicial office.

It seems unmindful, or perhaps deliberate, of British lawmakers not to have explicitly embraced the option of judges from countries that retained the JCPC as their final court to sit on its Boards. Or was it in keeping with the concern of Lord Phillips, the Supreme Court’s first president, that cases from the Commonwealth utilised too much of the time of his judges?

Lord Reed, who wishes to retain the JCPC, is seeking, it seems, a short-term, backdoor arrangement for the JCPC members whose constitutional arrangements permit their citizens to be appointed to the Privy Council and, therefore, advisers to the king.

In essence, appeals from Jamaica to the JCPC are prayers to the sovereign for justice, which are handled by a subset, or a committee, of the king’s advisers who happen to be versed in the law.

As this newspaper has argued before, that is a fundamentally flawed philosophical premise upon which – as Lord Hoffman, a former JCPC judge, said with respect to Trinidad and Tobago two decades ago – “a confident democracy with its own culture and national values” should rest its final court. And certainly not a country whose leader has informed the sovereign that “we are moving on” and are intending to do so “in short order”.

Jamaica should say, “Thanks, Lord Reed” for his interest and effort. But really, we should move on.