The Judicial Committee of the Privy Council: Common Law and its Local Variations in the Commonwealth

Chapter 5
The Judicial Committee of the Privy Council: Common Law and its Local Variations in the Commonwealth

Pamela Martino


England ‘has been the only rival to civilian systems based on Roman law in creating a legal Empire, in providing a model’.1 In fact, it could be argued that common law is not only national law, but it belongs to the Anglo-Saxon ‘community’: ‘Nearly one third of all the people alive today live in regions where the law has been […] marked by the Common Law. […] Great Britain was once the greatest colonial power in the world’.2 As a consequence of imperial expansion and later membership of the Commonwealth, common law was no longer conceived of as an immutable set of rules, but as a form of legal reasoning the common basic principles of which were enhanced by the case law of the Privy Council.3 This has led to a sense of cultural belonging that transcends national borders by encouraging the dialogue between courts of common law, the use of judicial precedents from outside the courts of England and Wales, mostly from the Commonwealth area, and only later from other Western countries, especially European.4

However, although a number of different legal systems have come under the influence of the common law, these differ in socio-cultural terms. Within the common law world the initial circulation of the model emanating from England and Wales has evolved through a process of bilateral interaction,5 in which the jurisprudence of the Privy Council has been at the same time instrumental and an expression, influencing cases in countries such as New Zealand, Canada, Australia, India and Hong Kong.6 The diffusion of the substantially uniform common law in reciprocal directions among the legal systems with Anglo-Saxon origins is shown by the frequent references made by the courts in England and Wales to the decisions of the courts of the Commonwealth as ‘authorities’. This lack of distinction between national and Commonwealth jurisprudence suggests a trend towards uniformity which may arise from the reluctance of British courts to conceive of, for example, New Zealand law as foreign law: indeed, in R v Horseferry Road Magistrates’ Court ex p Bennett,7 Lord Bridge stated that ‘Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek give effect to stem from common roots’.8

The jurisprudence of the Privy Council appears to have confirmed the uniform application of the common law in the Commonwealth: in Cheali v Equiticorp Finance Group Ltd. and another,9 where Lord Browne-Wilkinson stated that ‘[i]t is manifestly desirable that the law on this subject should be the same in all common law jurisdictions’, and, again, in Vasquez v R, where the Privy Council held ‘This conclusion will bring Belize into line with other Commonwealth countries of the Caribbean […]’.10 For a long time the English common law has been the only source of inspiration and the absolute interpretation parameter of foreign law in the Commonwealth.11 It is only in the last few decades, that the Privy Council has become familiar with the ‘localisation’ of the common law, arising from the interpretation of the law provided by local judges ‘in so far as they reflect the advantage which those judges enjoy of familiarity with prevailing local conditions, this with the proviso that the courts have used that advantage’.12

The Evolution of the Privy Council Case Law

The origins of the Privy Council date back to the Norman conquest of England in 1066 which led to the establishment of a feudal monarchy founded on strongly centralised judicial organisation. The Curia Regis, which was the forerunner of the Privy Council, performed a combination of administrative and judicial functions and was not conceived of as a mere court, but had rather a general vocation of judicial administration, that is to say, an activity which combined the judicial function with active administration. The Curia gradually specialised in settling disputes, and acted as the final court of appeal for all the imperial territories. In the twelfth century the Curia Regis divided into two separate entities: the Court of Common Pleas and the King’s Bench, which inherited much of the Curia Regis’ original jurisdiction.13

Established by the Judicial Committee Act 1833 as a Committee of the Privy Council with advisory powers in respect of the Crown, which could issue an order in council to give effect to the recommendations of the Committee, the Judicial Committee of the Privy Council was one of the highest courts of the United Kingdom as well as a court of final jurisdiction for appeals against the judgements of the Commonwealth, the British Overseas Territories and States that were independent from the British Crown.14 On the basis of the Judicial Committee Act 1844, the Judicial Committee of the Privy Council was described as the supreme court of appeal in charge of settling disputes in all countries, as colonies or possessions, which were subject to the authority of the United Kingdom. Prior to the Colonial Laws Validity Act 1865, the legislative provision which governed leave to appeal to the Crown as a source of justice, meant that the selection of decisions which courts referred to the Judicial Committee of the Privy Council could be controlled. By contrast, once the Colonial Laws Validity Act 1865 came into force it became impossible for colonial legislatures to control the right of appeal. The Judicial Committee of the Privy Council was, therefore, the representation, at jurisdictional level, of British imperialism and operated as a channel to facilitate the uniform application of the common law in all the possessions of the Crown.15 Moreover, at the head of the common law judicial system, powers were divided between the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords: the former had appellate jurisdiction for judgements from all the colonies and possessions of the Crown, the internal ‘territorial’ jurisdiction and the special jurisdictions (admiralty, ecclesiastical causes and issues raised in certain professional associations); while the latter was the supreme judicial institution of the United Kingdom, from which flowed gradually over time civil and criminal cases from England, Wales, Scotland (only civil cases) and Northern Ireland, distinguishing itself in cases concerning the protection of fundamental freedoms and, in recent years, disputes between national and European law.16

Since the late nineteenth century the Judicial Committee of the Privy Council has been charged with the task of resolving disputes related to territorial claims both in Britain17 and in other British possessions and colonies. The spirit of its activity within the Commonwealth was essentially that expressed by Walter Bagehot in The English Constitution of 1867, when he described it as ‘a great conspicuous tribunal’ that ‘ought to rule all other courts, ought to have no competitor, ought to bring our law into unity’.18

In the nineteenth century the right to appeal to the Privy Council was essentially conceived of as ‘the strongest bond of union between this country and the colonies’.19 In 1875, the Privy Council pointed out with regard to its status as court of final jurisdiction, that:

this power has been exercised for centuries over all the dependencies of the Empire by the Sovereign of the mother country sitting in Council. By this institution, common to all parts of the Empire beyond the seas, all matters whatever requiring a judicial solution may be brought to the cognizance of one court in which all have a voice. To abolish this controlling power and abandon each colony and dependency to a separate Court of Appeal of its own, would obviously destroy one of the most important ties connecting all parts of the Empire in common obedience to the courts of law, and to renounce the last and most essential mode of exercising the authority of the Crown over its possessions abroad.20

And in 1879, ruling on an appeal from New South Wales, the Judicial Committee of the Privy Council stated that ‘it is of the utmost importance that in all parts of the Empire where English law prevails, the interpretation of that law by the courts should be as nearly as possible the same’.21

The jurisdiction of the Judicial Committee of the Privy Council, seen for a long time as a unifying element between the former British colonies which, after independence became members of the Commonwealth, is not limited in time to the interpretation/application of the laws and local Constitutions. Nor is it limited to the application of those common law principles and institutions which became part of the local legal systems, in countries which were formerly part of the British Empire, directed at guaranteeing individual rights and the principle of due process in civil and criminal litigation against the excessive power of the executive or State legislation.22 Rather, the jurisprudence of the Privy Council was extended to create a uniform system of common law throughout those countries coming within British influence.23

The dissolution of the British Empire, was, not unnaturally, followed by claims for greater autonomy by the Dominions which became members of the Commonwealth. As a result, a radical change in the position of the Privy Council occurred with regard to the binding authority of precedents emanating from English common law. The approach of the Privy Council to the rule of precedent was obsequious in respect of the spirit of the English Constitution but also aimed at the substantial preservation of local customs and laws to the extent that it could be said that: ‘when an appellate Court in a colony which is regulated by English law differs from an appellate Court in England, it is not right to assume that the Colonial Court is wrong’.24 Likewise the interpretation of a colonial law, even if modelled on English law, had to free itself from the English ratio legis.25 The Privy Council did, however, point out that ‘[i]t is otherwise if the authority in England is that of the House of Lords. That is the supreme tribunal to settle English law, and that being settled, the Colonial Court, which is bound by English law, is bound to follow it’.26

The English common law was, therefore, the common heritage of all English people, including the settlers in new colonies, who, although not bound to follow the decisions of the English courts of common law, considered it appropriate to do so except when local conditions precluded the application of English precedent. The diffusion of the common law through the empire meant that local variants of English common law gradually evolved and in turn became an integral part of the common law. In the former colonies therefore the common law tradition gave rise to new applications and new forms.

In 1931, following the Imperial Conferences held between 1926 and 1930 on the relationships between the territories of the Empire, the Statute of Westminster was passed.27 This Statute abolished the Colonial Laws Validity Act 1865,28 granting full legislative autonomy to the Dominions,29 thereby paving the way for the abolition of appeals to the Privy Council and the ‘legal decentralization of the British Empire’.30 During the second half of the twentieth century, when traditional political ties were dissolved because of the Second World War, the retention of a right of appeal to a court located overseas, composed of British judges who had little familiarity with local values, came to be seen as incompatible with notions of an independent nation’s sovereign status. In many cases this was followed by the abolition of the appeal to the Privy Council as a court of last resort.31 Further, following the ruling of the Privy Council in Australian Consolidated Press Ltd. v Uren it was made clear that ‘the need for uniformity is not compelling’, confirming the independence of local courts from having to always follow the common law as stated by the House of Lords and the Privy Council.32 Even before this, in Parker v The Queen, the Australian High Court had departed from the reasoning of House of Lords in the earlier case of Smith,33 holding in Parker that Smith was a decision that was ‘misconceived and wrong’. Judge Dixon said on that occasion:

Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment […] which I could never bring myself to accept […] I think Smith’s case should not be used as authority in Australia at all.34

Again, in Skelton v Collins Judge Windeyer highlighted the different British and Australian conditions suggesting that the Australian High Court should release itself from the House of Lords who made ‘only reference to English decisions […] and seemingly only to meet economic and social conditions prevailing in England’.35

The same approach was followed by New Zealand.36 In Hart v O’Connor, while dismissing the appeal, the Privy Council, referring to the earlier case of Archer v Cutler, emphasised that:

If Archer v Cutler is properly to be regarded as a decision based on considerations peculiar to New Zealand, it is highly improbable that their Lordships would think it right to impose their own interpretation of the law, thereby contradicting the unanimous conclusions of the High Court and the Court of Appeal of New Zealand on a matter of local significance. If however the principle of Archer v Cutler, if it be correct, must be regarded as having general application throughout all jurisdictions based on the common law, because it does not depend on local considerations, their Lordships could not properly treat the unanimous view of the courts of New Zealand as being necessarily decisive. In their Lordships’ opinion the latter is the correct view of the decision.37

The arguments of the Privy Council, which supported the possibility that the common law could differ in countries such as Australia and New Zealand, should have been even more relevant when applying common law in Hong Kong. If this process of differentiation of law in the various areas of the Commonwealth was a response to needs arising from specific economic and social contexts then clearly there were greater similarities between British and Australian society than between the English and the Hong Kong societies. Despite this, in the de Lasala case the Privy Council, noting a trend to align with the common law as it is interpreted in England regardless of more or less marked specificities, made it clear that:

Different considerations […] apply to decisions of the House of Lords on the interpretation of recent legislation that is common to Hong Kong and England. Here there is no question of divergent development of the law […] Since the House of Lords as such is not a constituent part of the judicial system of Hong Kong it may be that in juristic theory it would be more correct to say that the authority of its decisions on any question of law, even the interpretation of recent common legislation, can be persuasive only; but looked at realistically its decisions on such a question will have the same practical effect as if they were strictly binding, and courts in Hong Kong would be well advised to treat them as being so.38

The apparent inconsistency in the orientation of the Privy Council regarding uniformity in the application of the law in the Commonwealth is not due solely to historical reasons. Failure to achieve uniformity is partly attributable to the heterogeneous system of rules for the reception of common law at the local level and to the territorial structure of the complex map of the State appeals. The Privy Council’s intent to maintain its traditional role as a promoter of cohesion in the Commonwealth is also not conducive to achieving uniformity, in so far as cohesion may require acknowledgement of differences and diversity. This is further complicated where there are ‘mixed’ areas of jurisdiction, where common law and civil law collide, as in the legal system of Hong Kong for example.39 Instead,

[t]he Commonwealth, widely thought to be an anachronism, survives intact, without any significant role for the Privy Council. The Privy Council has, however, played its part in creating the friendly atmosphere which keeps the Commonwealth together as a free association of sovereign States. The Privy Council’s willingness and ability to respond to the changing political and constitutional background of the British Empire and Commonwealth have allowed the common law to continue to engender respect in the many jurisdictions where it has been adopted. As a result, in the Asia-Pacific region, the common law is seen not as a relic of alien imposition, but as the foundation of a variety of largely similar legal systems which serve their various jurisdictions well. Though they may no longer share a final court of appeal, the common law jurisdictions of the Asia-Pacific region, and indeed the whole Commonwealth, still have a great deal to learn from one another’s experiences in the law.40

In conclusion, the receptivity of the Privy Council to social and political changes, while constituting an admission of the heterogeneity of national experiences within the Commonwealth, has given flexibility in time and space to the common law legal tradition, safeguarding its survival in related but alternative forms in the territories in which it was traditionally established.

The Paradox of the Common Law between Uniformity and Local Variants

The harmonising role of the Committee has been encouraged by the rule of precedent, according to which a principle or rule established in a previous legal case is either binding on, or persuasive for, a lower court. The judgements of the Privy Council have the force of binding precedent in any legal system that recognises the Privy Council as a court of final jurisdiction, and are binding not only on the courts of the country in which the judgement was issued, but on the courts of all the countries of the Commonwealth under its jurisdiction.41 Even where a country has abolished appeal to the Privy Council as a court of final jurisdiction, precedents flowing from the Privy Council remain binding in respect of any cases pending at the time of abolition. A Judicial Committee of the Privy Council appeal decision concerning an overseas territory court judgement was also persuasive in respect of the domestic courts of England and Wales as stated in London Joint Stock Bank v Macmillan & Arthur.42 Privy Council precedents were also regarded as binding in practice on the domestic courts of first instance in those matters for which legislation passed in Westminster was extended to the English colonies, creating a shared legal framework.43 As explained by Judge Lindley

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