Editorial | Now Lord Hodge

It’s strange that the leaders of Britain’s Supreme Court – whose justices also sit as the Judicial Committee of the Privy Council (JCPC) – have plonked themselves into what is essentially a political debate over whether Jamaica should leave the JCPC as its final court – a matter involving questions of identity and sovereignty.

While Lords Reed and Hodge have affected a patina of neutrality on the matter, the effect of their interventions, it is widely felt, is a subliminal case for Jamaica to stay.

In October, Lord Reed of Allermuir, the current president of the Supreme Court, responding to an editorial by The Gleaner, insisted that the justices of the Privy Council regarded it “an honour to serve the people of Jamaica as your highest court” and would continue to do so “until Jamaica decides otherwise”.

Fair enough!

Lord Reed went on to suggest that Jamaicans had ease of access to the Privy Council, even though the King’s subjects who petition His Majesty for justice may not be able to attend the court because it’s too far away, too expensive to get there, or he is stymied by the refusal of His Majesty’s government to grant him the necessary visa to enter the seat of the realm. But, the petitioners’ lawyers can join the hearings remotely. No need to be physically within the precincts of the court.

Or, they can hire UK-based barristers to represent them at the hearings. Which Lord Reed didn’t say.

However, Lord Reed’s most egregious act, via semantical sleight of hand, was to dismiss out of hand this newspaper’s articulation of the idea of Jamaica loitering on colonial premises (the JCPC) where we, and others, were long ago told we had overstayed our welcome and had become burdens.

‘FURTHER FROM THE TRUTH’

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.”

What Lord Reed didn’t mention were the 2009 comments of Lord Phillips of Worth Matravers, the first president of the Supreme Court, who, on the eve of its launch, lamented the amount of time (40 per cent) its judges committed to Privy Council cases. In an “ideal world”, he told the Financial Times newspaper, countries that still sent cases to England would establish their own courts. Alternatively, judges from lower courts could be co-opted to hear Privy Council cases.

Lord Reed’s surprising intervention wasn’t the end of the matter.

Astonishingly, his deputy, Lord Hodge, gave an interview to this newspaper in which, for the second time by a sitting member of the Supreme Court, Lord Phillips was thrown under the bus.

“I don’t think there has been a change in attitude,” he said of the declaration of warmth with which Lord Reed embraced the Commonwealth. “The views expressed by Lord Phillips in 2009 were his own, and, so far as I am aware, did not reflect the views of the other justices then,” Lord Hodge said. “They also don’t reflect our views now.”

CAPACITY TO SPEAK ABOUT PAST

He may be right that the current judges don’t see the Commonwealth as trespassers. What we are not sanguine of is either Lord Reed’s or Lord Hodge’s capacity to speak with authority about the past. Neither was a member of the court when Lord Phillips spoke. Lord Reed joined in 2012, three years after Lord Phillips’ remarks. Lord Hodge joined a year later, in October 2013.

Neither has said if he canvassed Lord Phillips (who stepped down from the court in 2012 and would now be 85) on the question, or whether they polled any of the other judges who were on the court at the time of its inception, including Lord Reed’s predecessor, Lady Hale, as president.

There are a few other pertinent comments to be made on Lord Reed’s remarks, including his observation that “some of the most important cases for the development of the common law around the world are decided by the Privy Council on appeal”.

A handful of Commonwealth countries, mostly with small populations, that still send cases to the Privy Council had more matters dealt with in 2022/23 than cases heard by the Supreme Court from the UK, a country of 67.33 million. A JCPC with fewer members means fewer cases with which to influence the common law around the world. Notably, between August 2022 and July 23, the Caribbean Court of Justice, serving four countries (Guyana, Belize, Barbados and Dominica), with a combined population of 1.5 million, disposed of 28 cases, approximately two cases per 100,000 citizens. The UK’s Supreme Court’s ratio was fewer than one case per 100,000 citizens.

That statistic, of course, wouldn’t have in any way influenced Lord Reed’s posture. But it would be unsurprising if Lord Phillips expected a rise in the number of Supreme Court cases at the time of the court’s launch, compared to the 74 judgments delivered by law lords in 2008.