Consider This | The Privy Council, part 1
“The decisions of the Judicial Committee of the Privy Council bind us, however nonsensical they may be.” — Justice Seymour Panton, former president of the Jamaican Court of Appeal
We often hear about the Privy Council, albeit in passing conversation.
For many persons, this institution represents the highest and final court of appeal for cases that are heard in The Bahamas, as well as for other Commonwealth countries and territories that have also retained it for that purpose.
The Bahamas has kept this traditional vestige of colonialism for several reasons, some of which we will attempt to explain in part two of this series.
However, Bahamians have come to recognize that the Privy Council has an almost sacrosanct status here, so we have tenaciously clung to this institution as the last bastion for the dispensation of justice.
Therefore, this week, we would like to consider this — what is the origin of the Privy Council, and is it still relevant in the modern Bahamas, or should it be replaced by a more locally or regionally indigenous institution?
The Privy Council
When we speak of the Privy Council, we are normally referring to the body that hears appeals from courts in the jurisdictions that still recognize that body as the court of last appeal. But the fact is that the Privy Council is much more than that.
The Privy Council, officially Her Majesty’s Most Honourable Privy Council, also known as the Privy Council of the United Kingdom, was traditionally a body of advisers to the sovereign of the United Kingdom. Today, the Privy Council’s membership is mainly comprised of senior politicians who are current or former members of either the House of Commons or the House of Lords.
The Privy Council’s precursor, the Witenaġemot, operated in Anglo-Saxon England from the 7th until the 11th Century. The Witenagemot, whose membership was made up of the most important noblemen in England, both ecclesiastic and secular, served as advisers to the king. As time progressed, the early version of the Privy Council morphed into advisers to the sovereign primarily on legislation, administration and justice.
In medieval England, different bodies evolved, assuming distinctly different functions. The courts of law assumed the responsibility of dispensing justice, while Parliament became the supreme legislature of the kingdom.
The Privy Council, however, retained the power to hear legal disputes, either in the first instance or on appeal. Furthermore, laws were enacted by the sovereign on the advice of the Privy Council, rather than on the advice of Parliament. Accordingly, powerful sovereigns often used the Privy Council to circumvent the courts and Parliament.
For example, during Henry VIII’s reign, the sovereign, on the advice of the Privy Council, enacted laws by mere proclamation. The legislative pre-eminence of Parliament was not restored until after the death of Henry VIII.
By the end of the English Civil War in 1651, the monarchy, House of Lords and Privy Council were abolished.
The remaining parliamentary chamber, the House of Commons, instituted a Council of State to execute laws and to direct administrative policy.
The House of Commons elected the 41 members of the Council of State, and the body was headed by Oliver Cromwell, the de facto military dictator of the nation.
In 1653, Cromwell became lord protector, and the council was reduced to between 13 and 21 members, all elected by the House of Commons. In 1657, the Commons granted Cromwell even greater powers, some of which were reminiscent of those enjoyed by monarchs. The council became known as the Protector’s Privy Council, and its members were appointed by the lord protector, subject to Parliament’s approval.
In 1659, shortly before the restoration of the monarchy, the Protector’s Privy Council was abolished. Upon his return to the throne, Charles II restored the Royal Privy Council. Under George I, more power transferred to this council, which began to meet in the absence of the sovereign, often communicating its decisions to him after the fact.
Thus, the British Privy Council ceased to be a body of important confidential advisers to the sovereign. That role transferred to a committee of the council, now known as the Cabinet.
Today in the United Kingdom, the sovereign appoints Privy Councillors, although the sovereign technically makes such appointments on the advice of Her Majesty’s government. Most appointees are senior politicians, including ministers and occasionally senior figures of the opposition.
There is no statutory limit to the Privy Council membership. As of June 2015, the number had risen to over 650.
However, Privy Council members have no automatic right to attend Privy Council meetings, although some are regularly summoned to meetings, normally at the invitation and discretion of the British prime minister.
Although the Privy Council is primarily a British institution, senior politicians of former colonies that have attained political independence from Britain, whose countries remain within the British Commonwealth, have also been appointed to the Privy Council.
For example, in The Bahamas, three of our four prime ministers were elevated to the Privy Council after becoming prime minister: Pindling, Ingraham and Christie. Upon being named to the Privy Council, they are entitled to use the title “Right Honourable” before their given names.
Judicial Committee of the Privy Council
When The Bahamian and other Commonwealth countries refer to the Privy Council, it does not normally refer to the institution that we discussed above, but rather to the Judicial Committee of the Privy Council. The Judicial Committee is a distinctly different institution.
The Judicial Committee of the Privy Council is the highest court of appeal for certain British territories and Commonwealth countries.
This institution was established on August 13, 1833 to hear appeals formerly heard by the Privy Council that had acted as the court of last resort for the entire British Empire, except for the United Kingdom, but including independent Commonwealth nations, Crown dependencies and British Overseas Territories.
The Judicial Committee is comprised of senior judges who are privy councillors, predominantly justices of the Supreme Court of the United Kingdom and senior judges from the Commonwealth. The Judicial Committee is now commonly referred to as the Privy Council, thus our frequently abridged nomenclature of that institution.
It is noteworthy that, unlike overseas jurisdictions, judgments of the Judicial Committee of the Privy Council are not generally as binding on courts within the United Kingdom as they are within other Commonwealth countries from which appeals are heard. That is because the highest court of appeal in the United Kingdom in most cases is the Supreme Court of the United Kingdom, not the Judicial Committee of the Privy Council.
Where a binding precedent of the Supreme Court of the United Kingdom, or the House of Lords, or of the Court of Appeal conflicts with that of a decision of the Judicial Committee of the Privy Council on English law, English courts are normally required to follow the domestic decision over that of the Judicial Committee.
However, given the overlap between the membership of the Judicial Committee and of the Supreme Court, the decisions of the former are extremely persuasive and usually followed.
The Judicial Committee of the Privy Council is the jurisdiction of final appeal for 31 jurisdictions, including many independent Caribbean nations, including Antigua and Barbuda, The Bahamas, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and Trinidad and Tobago.
In the final part of this series, we will examine whether the Privy Council is still relevant in the modern Bahamas, or if it should be replaced by a more locally or regionally indigenous institution as a court of last appeal in order to make its decisions more suitable for and congruent with our way of life, our institutions and our values.
• Philip C. Galanis is the managing partner of HLB Galanis and Co., Chartered Accountants, Forensic & Litigation Support Services. He served 15 years in Parliament. Please send your comments to firstname.lastname@example.org.