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In an interview in the Financial Times two weeks ago, Lord Phillips complained about the disproportionate time that Supreme Court Justices spent on hearing cases in the Judicial Committee of the Privy Council. This echoed comments made by the then senior Law Lord, Lord Browne-Wilkinson more than 10 years ago. Lord Phillips’ interview is discussed in an earlier post. He set off a debate in the Caribbean about the role of the JCPC which we have reported on here and here.
Although under the heading biographies, JCPC Website only covers the 11 Supreme Court Justices, the available pool of judges is, in fact, much larger. The precise number is not listed and is not easy to determine.
The starting point is Section 1 of the Judicial Committee Act 1833 (as substituted by Schedule 16 of the Constitutional Reform Act 2005) provides that there should be a committee of the Privy Council styled “The Judicial Committee of the Privy Council”. There are two categories of members: members of the Privy Council who hold, or have held, “high judicial office” and those made members by statute. Members must be under 75.
In relation to the former category, “high judicial office” means office as a judge of the Supreme Court, the Court of Appeal, the High Court, the Court of Session and the Court of Appeal or High Court in Northern Ireland (section 60 of the Constitutional Reform Act 2005). In relation to the latter, the effect of the Judicial Committee Amendment Act 1895 (and various statutory instruments made under it) is that any member of the Privy Council who is the Chief Justice or Judge of the superior courts of New Zealand, Trinidad and Tobago, Barbados, the Bahamas, the Eastern Caribbean Supreme Court or Jamaica is also a member of the Judicial Committee.
It is then necessary to work out how many people on the long list of Privy Councils actually fit into these two categories. Research by Mr Benjamin Pell (to whom we are indebted) reveals that, in addition to the 11 current Supreme Court Justices, there appear to be 82 Privy Councillors who hold or have held “High Judicial Office” and are under 75. There appear to be a further 3 Privy Councillors who are judges of courts in the Caribbean. This gives a total “judicial panel” of 95 from which to select the JCPC which can sit in panels of 3 but usually sits as a panel of 5.
As a footnote, there appear are an additional 46 Privy Councillors who would be eligible to sit if they had not reached the age of 75. This galaxy of unfortunately unavailable talent includes retired Law Lords such as Lords Bingham, Hoffmann, Nicholls and Steyn.
Unfortunately for Lord Phillips and his organisation of sittings, many of the eligible judges already have full time jobs elsewhere – mostly in the English Court of Appeal, the Scottish Court of Session and the Northern Ireland Court of Appeal. In addition, many of the eligible judges are in Scotland or Northern Ireland. In effect, the pool then becomes Supreme Court Justices plus retired Court of Appeal judges and Law Lords under the age of 75. This list is down to something like 24 possibles.
Incidentally, the list of members of the Privy Council makes interesting reading. The longest serving member is the Duke of Edinburgh, appointed in 1951, followed by Lord Carrington (1959). Anthony Benn (as he is described) was appointed in 1964. Baroness Thatcher is a relative newcomer (appointed 1970). The President of the Council (formerly eligible to sit on the JCPC) is Lord Mandelson.