The Byways of Appellate Jurisdiction

[liadnan]

I'm just back from appearing before the Judicial Appeals Committee of the Privy Council.

This isn't quite as impressive as it sounds: I was there to collect a judgment, and since one never (well, almost never) argues about costs when doing so my involvement consisted of leading in the column of barristers for the respondents in some eight appeals, bowing in the right place, sitting still for ten seconds while judgement was given (the reasons for judgment aren't read out, just delivered on paper afterwards, all you get are the headlines), rising again and bowing in the right place (I think I got this bit wrong) and leaving as the next case was called. All in wig and gown of course. There are worse ways to earn a hundred quid.

The Judicial Appeals Committee of the Privy Council (to save time, the JACPC) is obscure to most people in the UK, not to mention those outside the commonwealth. It was actually a rather bright idea, created in 1833 and tinkered with at various times thereafter, that never really fulfilled its potential. One of my favourite what-ifs of recent history is "what if we'd managed to turn the British Empire, or more practically some significant part thereof, into a federalised (or at least, heavily devolved), sovereign state, with an Imperial Parliament dealing only with macro-policy issues". Such a plan was floated at various times, between the 1860s and the 1930s, often as an answer to "the Irish Question" and whatever passed for "the West Lothian Question" at the time -Churchill was rather big on the idea when he was in Asquith's government I think. The common language and shared basic legal-constitutional principles that we had, by then, beaten into most of the Empire, for good or ill, would have given it a significant advantage that the EC/EU notably lacks.

The JACPC jurisdiction evolved in the latter part of the 19th century and throughout the 20th century partly in response to this: as a final court of appeal from all over the Empire. Its massive failing was that it didn't take final appeals from the UK itself, or at least, not from the ordinary courts. Those remained in theory with the High Court of Parliament and continued to be exercised in practice by first the House of Lords and then the Appellate Committee of the House of Lords -the Law Lords- apart from a brief attempt to do away with that when the Judicature Acts were brought in in the 1870s. In theory, the point was that unlike the UK appeals these were appeals which remained directly to the Crown - and the JACPC still gives Advice to Her Majesty, not judgment. Oddly, a brief skim of Imperial Appeal by D. Swinfen (1987) reveals that during an attempt to revive the Commonwealth as a genuine political entity in 1965 the British Government offered to do away with appeals to the House of Lords and take them instead to the JACPC, to be renamed the "Commonweath Court of Appeal". One advantage the JACPC has over the House of Lords is that can include senior judges from all over the commonwealth (actually, in one or two cases, the HL does too: Lord Cooke who sat on many House of Lords Appeals until it became evident that he was.. er.. not quite mentally up to it any more, was a New Zealand Chief Justice, but this is rare.)

It didn't happen of course. Increasingly, the more developed nations of the Commonwealth abolished the right of appeal once it became clear the Commonwealth was unlikely to become a real political or economic unit (essentially because the UK became more interested in Europe), although, curiously, New Zealand continued to send some civil appeals there until the end of last year, indeed my appearance today was on an NZ tax case, one of the seven or so that made it just before the guillotine. These days it spends an awful lot of time deciding on death row appeals from the West Indies (and even that will go once the Carribean Court is set up) and also has a large rag-bag of jurisdictions, including GMC appeals (why?), devolution appeals from Scotland (and why they don't go to the Law Lords God and the drafters of the Scottish Parliament Act alone know), possibly some Church of England ecclesiastical law on appeal from the Court of Arches, and appeals from the more obscure and complicated remnants of Empire (the Pitcairn murder case has been appealed there already).

At the moment, it sits in Downing Street, just inside the gates and to the right. Talking to the usher (who wears a white bow tie and a tail coat) I gathered that No. 10 wants the space and the chances are that when the Appellate Committee of the House of Lords becomes the Supreme Court and has its own building the JACPC will go with it.

That could be several years though. Leaving entirely to one side the complex constitutional and legal arguments over the "Supreme Court" (not to be confused with the Supreme Court of Judicature of England and Wales, which already exists (High Court + Crown Court + Court of Appeal), they're having problems with the buildings. The front-runner was the Middlesex Guildhall, just off Parliament Square and currently used as a criminal court. However, this has encountered problems: currently it has a classic Wrath Of God style judicial bench. Lord Bingham wanted to do away with this and have a courtroom comparable to the current situation in House of Lords committee rooms and the JACPC now -everyone on one level, with the Court round a semi-circular table facig the Bar. The response, from the English Heritage quarter, was a loud raspberry and attention has now moved back to Somerset House. That, however, will entail convincing the Inland Revenue lawyers they don't really need those lovely offices, so I really wouldn't bother watching this space...

Comments

[nicnac.livejournal.com]

Do we get to see a photo of you in said gown and wig? :)

(the Pitcairn murder case has been appealed there already).

Is it murder? I thought several men were charged with sexually abusing minors? Or is that another case?

[liadnan]

(1) No. Looks daft.

(2) Um, yes, sorry, slip of the mind. I assume that they're taking the jurisdiction point, but that's rather going to beg the question...