The Judicial Committee of the Privy Council in the 21st Century

Abstract

A prominent constitutional lawyer recently wrote that `nobody starting afresh would design a court that looks like the Judicial Committee of the Privy Council.'1 Well, I'm not at all sure that I agree, and, even if I do, I'm not at all sure that it's an adverse criticism. The JCPC has developed on an ad hoc basis, reacting in a practical and principled way to changing needs and standards. An institution which matures in this way may well appear somewhat strange, but it has the enormous virtue of accommodating change without the need for revolution. In that, the JCPC is of a piece with the common law and the British constitution. The common law has been evolved over the centuries by the judges, and is based, as Oliver Wendell Holmes said, on experience not logic,2 as compared to a civilian law system, which is based on a grand set of principles. The whole polity of the United Kingdom came about by evolution, through its unwritten constitution: a contradiction in terms, some might say, or, as Sam Goldwyn said of an oral contract, not worth the paper it's written on. Nobody could have invented it from scratch, with its hereditary unelected head of state, its curious mixture of a hereditary and appointed House of Lords, its mixture of devolved powers, and its blend of statutory and common law. And yet it has stood the test of time: unlike almost any other major country in the world, the UK has had no revolutionary change for over 325 years, save perhaps the secession of Ireland in 1923.