Editorial | Lord Reed’s facts and context

It is Lord Reed’s right, if he so pleases, to inject himself into the debate over the future of the Privy Council as Jamaica’s final court, and to impugn the arguments of former brothers of the Bench.

But in throwing old colleagues under the bus, the Baron of Allermuir is not entitled to his own facts, or to manufacture or massage the contexts within which they exist. That is not a good process by which to arrive at truth – and certainly not justice.

In a letter to this newspaper last week, Lord Reed insisted on the efficacy of the Privy Council as Jamaica’s apex court; suggested that its access by litigants was easy and inexpensive; and seemingly stopped just short of declaring that the judges of the Privy Council looked forward to cases from Jamaica with enthusiasm and relish.

He said: “I must challenge the suggestion in your editorial that we consider that cases from outside the UK take up too much of our time. This could not be further from the truth. The volume of cases, and the place of their origin, are never a consideration when we decide which cases raise an arguable point of law and should be heard by the court. In the year 2022-23, we heard 62 cases in the JCPC across the year, compared to 50 UK Supreme Court cases. Eight of those JCPC cases were from Jamaica. Some of the most important cases for the development of the common law around the world are decided by the Privy Council on appeal and reflect the excellent work done by the judiciary in the countries themselves. We will continue to hear all appropriate cases that people wish to bring to us.”

Indeed, the minority who wish the Privy Council to remain the island’s final court will be happy for Lord Reed’s assurance that the Privy Council “is here to serve Jamaicans and the residents of the other nations who choose to use it”.

PAST COMMENTS

What Lord Reid did not mention – perhaps because he was ignorant of them – were past comments about the burden on the judges of Britain’s Supreme Court because of the number of cases they have to hear from outside the UK when they sit as the Judicial Committee of the Privy Council. Most notably of these were the 2009 remarks by one of his predecessors, Lord Phillips, the court’s first president.

As the Law Lords were transitioning to the new Supreme Court, Lord Phillips, as was reported by the Financial Times newspaper, lamented the “disproportionate” amount of time he and his colleagues spent on Privy Council cases, and questioned whether some of these matters might not be heard by lower-tier UK Court of Appeal judges.

In an “ideal world”, Lord Phillips said, Commonwealth countries would stop sending cases to the UK and establish their own final courts.

This is how the Financial Times summed the creation of the Supreme Court, the place of the Privy Council within it, and the frustrations expressed by Lord Phillips: “The concerns highlight how the Supreme Court’s creation is a quintessentially British constitutional fudge, separating the judiciary from Parliament for the first time, but leaving intact a sister chamber widely seen as a post-imperial anachronism”. And so says The Gleaner.

But Lord Phillips was not the only Law Lord (although the basis of their publicly declared sentiments differed) who was in favour of the former colonies retreating from the Privy Council to their own courts. For Lord Hoffman it was not workload, but something deeper: the delivery of justice that was contextually and empathetically closer to the people who received it.

FAVOUR FOR REGIONAL COURT

In October 2003, as the Caribbean Community (CARICOM) prepared to launch the Caribbean Court of Justice (CCJ), Lord Hoffman implied his favour for the regional court and ending cases to the Privy Council.

He said in a speech to the Trinidad and Tobago Law Society: “It is an extraordinary fact that for nearly nine years I have been a member of the final court of appeal for the independent Republic of Trinidad and Tobago, a confident democracy with its own culture and national values, and this is the first time that I have set foot upon the islands.”

This remoteness, often celebrated by some as a virtue, also has consequences, Lord Hoffman pointed out.

“We have been necessarily cautious in doing anything which might be seen as inappropriate in local conditions, and although this caution might have occasionally saved us from doing the wrong thing, I am sure it has also sometimes inhibited us from doing the right thing,” he said.

There are many reasons why this newspaper supports Jamaica disentangling itself from the Privy Council and acceding to the civil and criminal jurisdictions of the CCJ. Among them is the need to end Jamaica’s loitering on the doorsteps of, as the Financial Times put it, “a post-imperial anachronism”.

And notwithstanding Lord Reed’s attempted contortions to demonstrate accessibility to his court, two facts are unimpeachable. By his own account, a mere eight cases from Jamaica were heard by the Privy Council in 2022-23. By this newspaper’s estimates, in the decade up to 2022, the annual average judgments on cases from Jamaica was 3.7. Caribbean countries that acceded to the CCJ have far more cases heard at their apex court than those that have retained the Privy Council.

But the far more profound case for the CCJ is Lord Hoffman’s argument that people are better served when courts interpreting their fundamental rights are closer to them. For these are not abstract issues.