The Judicial Committee of the Privy Council
With roots dating back to Norman times, the Judicial Committee of the Privy Council developed as the highest court of appeal for civil and criminal cases from across the British Empire.
Today, it still performs this function for many Commonwealth countries, as well as for British overseas territories, the crown dependencies and military sovereign base areas.
Since 2009, the Judicial Committee has shared a building and administrative functions with the Supreme Court of the United Kingdom.
History of the Judicial Committee
The jurisdiction of the Judicial Committee of the Privy Council dates back to the time of the Norman Conquest in 1066 when the King, as supreme authority in his kingdom, would receive petitions from his subjects and dispense justice through the Curia Regis (the King’s Council).
Over the following centuries, Parliament emerged out of the King’s Council and, by the 15th century, it had assumed the role of ‘court of final instance’, hearing appeals from other courts. However, the King’s Council (later the Privy Council) retained its appellate jurisdiction for the overseas dominions, acting through its Judicial Committee.
The Committee’s business grew with the rise of the British Empire and, by the 1920s, it was said that a quarter of the world could bring their final appeal to the Judicial Committee.
The extent of the Committee’s jurisdiction reduced substantially in the course of the last century, when the British Empire became the Commonwealth of Nations.
Many Commonwealth countries have since developed their own ‘Supreme Court’ to serve as a final court of appeal, and a number of the Caribbean countries have vested this jurisdiction in the Caribbean Court of Justice, situated in Port of Spain, Trinidad.
The jurisdiction of the Judicial Committee
Today there are around thirty jurisdictions which provide for appeal to the Judicial Committee. These include many Commonwealth countries, as well as British overseas territories, the crown dependencies and military sovereign base areas. (Please see the map in centrefold.)
Where the Judicial Committee may hear an appeal, it is regarded as the final court of appeal and it generally has the power to reverse the decision of the lower court in the territory from which the case was referred.
The Judicial Committee also retains some domestic jurisdictions, hearing appeals against decisions of the Disciplinary Committee of the Royal College of Veterinary Surgeons. Very occasionally it may hear cases from other sources, including appeals against Church of England parish reorganisation schemes or decisions of the Court of Admiralty of the Cinque Ports.
Finally, under section 4 of the Judicial Committee Act 1833, Her Majesty also has the power to refer any matter to the Judicial Committee for “consideration and report”.
The Committee’s Constitution and Composition
The present constitution of the Judicial Committee of the Privy Council is based on the Judicial Committee Act 1833. Under the Appellate Jurisdiction Act 1876, the then Law Lords (now Justices of the Supreme Court) became the permanent judges of the court.
All Privy Counsellors who hold or have held high judicial office in the United Kingdom, or have been judges of superior courts of certain Commonwealth countries, are also eligible to be called to serve on the Committee if they are under 75 years of age.
Until October 2009, the then Law Lords would leave Parliament to hear appeals in a special courtroom alongside the Privy Council offices in Downing Street. Today, it shares a building and administrative functions with The Supreme Court of the United Kingdom in Parliament Square.
Five judges normally sit to hear appeals, but sometimes three for certain matters. Most of the judgments of the Committee technically take the form of advice to the Monarch (which then become ‘Orders in Council’).
Legal systems and Jurisprudence
Over the decades, the Judicial Committee has been asked to determine legal questions arising in different kinds of law from many countries, including Roman Dutch law from South Africa, British Guyana and Salome; pre-revolutionary French law from Quebec; medieval Norman law from the Channel Islands and Muslim, Buddhist and Hindu law from India.
Judges hearing the appeals have to do so within the context of the legal framework of the jurisdiction in question, but often have to apply wider common law principles to resolve the dispute. Some of these cases have thus developed general legal principles that have since been widely applied by other courts across the world. Historically significant cases heard by the Judicial Committee include one in 1928 in which five Canadian women challenged the wording of a piece of law about election to the Canadian senate; “Does the word ‘Persons’ in Section 24 of the British North America Act, 1867, include female persons?”. The Judicial Committee ruled that it did include women.
Another was the 1961 ‘Wagon Mound’ appeal, a significant test case limiting the amount of compensatory damages. This followed proceedings concerning a fire in Sydney Harbour that destroyed a wharf and several ships after oil had leaked from another ship, the Wagon Mound, and was accidentally set alight by dock workers using torches. The owners of the dock sought damages from the ship owners, but the Judicial Committee held that a party should only be liable to compensation where the damage/loss was “reasonably foreseeable”. Although pollution of the dock was a foreseeable consequence of the oil leak, the fire was held not to be.