ACCESS PICKLE

Noted constitutional lawyer Michael Hylton, KC, is disputing several claims made by the Privy Council’s Lord Robert Reed on keeping Jamaica’s appellate court within its purview, arguing that cost to access remains the single major barrier.

Describing Lord Reed’s comment on the matter as “unusual”, Hylton said that the president of the United Kingdom’s highest court failed to address several prohibitive factors to accessibility for Jamaicans.

Hylton, in a Gleaner interview on Thursday, said that Jamaicans requiring a visa to travel to the court is a significant issue.

He said pointing out that Jamaicans may access their cases digitally is not a fix for the problem.

He added that Jamaica’s participation in the creation of an “excellent” regional court, the Caribbean Court of Justice (CCJ), which it pays to maintain but fails to use, is another issue, especially when its judges are appointed without political involvement.

“We don’t even know how their (Privy Council) judges are selected,” said Hylton.

He said that while Lord Reed has indicated that Jamaicans save when their attorneys appear via digital platforms, omitting the cost for them to travel, it is a minor consideration when the services of UK solicitors are mandatory.

“The significant cost is the need to retain solicitors in the UK. So, quite apart from the counsel, who will argue the case, litigants have to retain solicitors to instruct them. This has to be UK solicitors at a significant cost,” the attorney asserted, adding that Jamaica is a sovereign State and has been for more than 60 years.

“For all those reasons, I remain of the view that I support Jamaica acceding to the appellate jurisdiction of the Caribbean Court of Justice,” he said.

Still, he said, the issues raised by Lord Reed are not things he can address.

‘A privilege to serve’

In a letter to the editor published in The Gleaner on Thursday, Lord Reed sought to clear the air on arguments raised recently that Jamaica continues to loiter at the Privy Council in the face of its opposition.

Lord Reed said that he, and the other judges within the court, regard it as an “honour to serve the people of Jamaica” as its highest court.

He said that this is a major responsibility that is taken “very seriously”, but that decision on whether to retain the Privy Council is entirely one for the Jamaican government and people.

“We will continue to consider it a privilege to serve as the final court of appeal, unless and until Jamaica decides otherwise,” he said.

However, that position runs counter to that of former president Lord Nicholas Phillips, who signalled that Commonwealth countries needed to establish their apex court.

He is reported to have said that the Privy Council is providing its service free of cost to the Commonwealth and that its judges were spending significant time clearing cases from those countries, diverting “precious” judicial time away from their legal reforms and modernisation.

“I must challenge the suggestion ... 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,” Lord Reed argued.

He said, in the 2022-23 year, the Privy Council heard 62 cases, compared to 50 UK Supreme Court cases.

Eight of those Privy Council cases were from Jamaica.

He said 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,” he said.

“I wish to reassure your readers that the Privy Council is here to serve Jamaicans and the residents of the other nations who choose to use it. I consider it a privilege to do so,” he added.

Lord Reed argued that the court “is not as remote or inaccessible” as imagined, pointing to online hearings that are streamed live.

In a striking broadside against the Privy Council in October, law experts from across the region questioned Jamaica’s continued clinging to the London-based appellate court, asserting that the CARICOM country continues to “loiter on the premises of the colonial masters”.

They argued that, between 2016 and 2021, the Privy Council delivered 20 judgments on appeals from Jamaica.

By contrast, during the same period, the CCJ delivered 43 judgments on appeals from Barbados, 28 on matters from Belize, and 52 from cases originating in Guyana.

Between 2005 and 2023, the CCJ delivered 308 judgments.

kimone.francis@gleanerjm.com