The Privy Council and the Difficulty of Distance

Abstract

In 1828, in the course of delivering his famous speech on law reform to the House of Lords, Henry Brougham identified “the difficulty… arising of necessity from our distance” as the great challenge faced by the Privy Council. This article explores the strategies subsequently used by the Privy Council in its attempts to overcome that difficulty. Some of these strategies involved the court appearing to move closer to the jurisdiction from which the appeal had come. These included being seen to apply foreign standards in its decisions, positioning its analyses against the grain of traditional English doctrines and making use of the expertise of former colonial judges. Other strategies implicitly asserted that distance was irrelevant by appealing to universal principles, to policy and to general common sense. Occasionally the Privy Council felt that the difficulty of distance loomed so large that it was inappropriate to decide the case. By using these different strategies skilfully and opportunistically, the Privy Council managed to maintain both its legal credibility and its moral authority, in spite of the formidable difficulties of distance with which it continued to be faced.