The future of the Privy Council as the final court of appeal for most Caricom member states has been placed into doubt after comments by Britain’s top judge.
Lord Nicholas Phillips, has said that the Law Lords on the Privy Council, were spending a ‘disproportionate’ amount of time on cases from former colonies, mostly in the Caribbean.
He will become the first President of the Supreme Court of the United Kingdom when it comes into being next month.
Lord Phillips, formerly UK Chief Justice, has questioned whether some Privy Council cases really needed to be heard by a panel of five of Britain’s most senior judges.
In an interview in the UK’s Financial Times newspaper, he stated that that “in an ideal world” Commonwealth countries – including those in the Caribbean – would stop using the Privy Council and set up their own final courts of appeal instead.
He did say that he was looking to take some of the pressure off the Supreme Court by drafting in Court of Appeal judges to help out.
The Caribbean does have its own final appellate court – the Caribbean Court of Justice – but as of now it only adjudicates cases from Guyana and Barbados.
Other countries have not signed on for a variety of reasons ranging from concerns over independence of the court, the cost of holding referendums to effect the required constitutional change, to political expediency.
According to the Financial Times, while there have been efforts to launch a senior Caribbean court to take on the kind of cases that reach the Privy Council, some countries – perhaps understandably it says – don’t seem in a great hurry to end their access to a source of pro bono (free) judicial expertise in London.
Recently a former Caribbean prime minister, in defending the relationship with the Privy Council, said one of the reasons for keeping it was that it was free to the region.
He also cited other factors including independence of the judiciary.
Lord Phillips said he personally would like to see the Privy Council’s caseload from the Caribbean and other Commonwealth countries reduced.
A Caribbean perspective
The concerns expressed by the senior British jurist are seen by practicing lawyer and former St Kitts/ Nevis governor general Sir Probyn Innis as a message to Caribbean and other Commonwealth countries to “get your house in order and do what you have to do”.
But while he agrees that there is a clear message for the Caribbean from Lord Phillips’ comments, Sir Probyn however concedes that it will take more than “what has been said so politely, so diplomatically, to waken Caribbean leaders from their slumber”.
With just two Caricom member states having the regional CCJ as their final appellate court, Sir Probyn feels that is due to factors other than the legal competence of the court’s panel of judges.
“I don’t feel that that most people who prefer to go to the Privy Council would fault Caribbean courts, especially the Court of Appeal, for erudition…”, he said, when asked to compare the capabilities of the CCJ and the Privy Council.
“It seems to be something deeper, not necessarily affecting the court or its individual members”, the former governor general surmised.
“It has to do with (the question),” he stated, “do the Caribbean people feel that they have enough confidence in their own institutions?”
“One has to acknowledge”, he added, “that the Caribbean court (CCJ) has been established, but almost from the beginning it has become the victim of partisan politics.”
The price of justice
On the issue of the criticism raised in the FT article about the ‘pro bono’ service to the region provided by the Privy Council, Sir Probyn feels that a demand for payment would “shake them (Caribbean governments) out of that denial that seems to affect us in the Caribbean.
“This development should have been foreseen”, he stated.
The Financial Times describes the Privy Council, created in 1833 – the same year that slavery was abolished – “was a creature of Britain’s 19th century colonial pomp”.
The paper says that in the UK, many independent observers say it’s both an ideological stain and a financial drain on the newly-created Supreme Court.
One commentator said it was a “minor public scandal” that judges in the country’s top court spent almost half their time on business “of no interest to anyone in the UK”.