Privy Council Research Articles

Legal Debates on ‘Ex Officio’ Procedure in Late 16th Century England: Robert Bill’s Position

The article examines the origins of the modern right to remain silent and not testify against oneself, which was established in legal discussions among English jurists in the sixteenth century and in the practice of English courts in the seventeenth century. The aim of the article is to analyze the conflict between common and civil law jurists in the late sixteenth century regarding the procedure of ex officio oath-taking, that is, taking an oath due to the prosecutor’s official position. The legal context of the 1580s-1590s, when there was a dispute over the activities of the High Commission, is reviewed. The legal texts under consideration demonstrate a struggle between inquisitorial practices and attempts to make the judicial process (including the church) “properly organized.” Special attention is paid to the position of Robert Bill, a clerk of the Privy Council. The author delves into the arguments Bill presents against ex officio oaths. The analysis of the legal debate allows for a broader understanding of several conflicts: the relationship between church and common law in England after the Reformation and the balance of power between authorities and subjects’ rights.

Bestowing charity: war widows and the Privy Council during the Williamite Revolution in Scotland (1688–91)

ABSTRACT Despite an ongoing war and rumours of treason and brutality, the Scottish Privy Council adopted a widespread charitable effort to repatriate and aid destitute women and children during the Williamite Revolution (1688–91). The contributions of soldiers and sailors to the Scottish armies during the Revolution meant their dependents often had to file for assistance. Wartime demands increased the scope by which women could interact with the central authorities and challenged their conceptions of the power and legitimacy of government. Focusing on the petitionary records contained within the Scottish Treasury register and the Scottish Privy Council records, this article shows women’s interactions with the political process and the process for petitioning for charitable relief. The petitioning process was rigorous, complex, and tied to the administration’s authority. Women’s success in this arena illustrates their understanding and knowledge in maneuvering within the political process.

Principle and Policy in Malicious Prosecution

Judicial consideration by the Judicial Committee of the Privy Council, and the United Kingdom Supreme Court, of the tort of malicious prosecution – historically confined to criminal prosecution and limited civil proceedings – demonstrates considerable confusion in Common Law systems over the roles of principle and policy in judicial reasoning. As judgements extending malicious prosecution to maliciously motivated civil claims demonstrate, the principles and policies underpinning malicious prosecution and abuse of process, and the relationship between these torts – regarded by judges and jurists as anomalous – remain unclear. Other common law jurisdictions are yet to positively affirm the revised malicious prosecution tort’s applicability to civil proceedings, and the few plaintiffs to plead the expanded tort to date have been unsuccessful. While the harms arising from maliciously brought civil proceedings understandably excite sympathy, this article contends that expanding malicious prosecution to civil claims via common law reform is a problematic solution resting on unsound jurisprudential foundations, which faces potentially insurmountable evidentiary barriers and necessitates further litigation. We suggest that a better alternative is to encourage greater use of the court’s existing inherent jurisdiction to award compensatory costs and propose introduction of punitive statutory costs powers, available in extreme cases, to deter litigants from initiating civil claims prompted by malice.

Conjuring Up a King

Conjuring Up a King

The Privy Council Reinstates Principle Over Pragmatism: Inherent Powers and When to Use Them in Relation to Holding a Closed Material Procedure

The Privy Council Reinstates Principle Over Pragmatism: Inherent Powers and When to Use Them in Relation to Holding a Closed Material Procedure

Purse Seiner non grata: Privy Council Wades into Pacific fisheries

William Framhein & another v Attorney General [of the Cook Islands] was heard by the Judicial Committee of the Privy Council on 17 November 2021, with the judgment released on 28 February 2022. The case concerned a judicial review of three decisions made by the Cook Islands Government in relation to the establishment of its purse seine fishery in 2013, which is subject to international management arrangements made by the Western and Central Pacific Fisheries Commission. The three decisions at issue were the making of the Skipjack Tuna Purse Seine Fishery Plan 2013, the promulgation of the Marine Resources (Purse Seine Fishery) Regulations 2013, and the adoption and signature of the Sustainable Fisheries Partnership Agreement and Implementation Protocol with the European Union. The case was brought by a private citizen and traditional leader, Mr William Framheim, together with a local environmental NGO, Te Ipukarea Society. The Applicants brought the case to the High Court of the Cook Islands in 2017 and, following the Court’s dismissal of their claim, appealed to the Court of Appeal in 2018. Both parties appealed elements of the Court of Appeal’s decision to the Privy Council, which is the Cook Islands’ highest appeal court. Ultimately, the government prevailed on its cross-appeal to the Privy Council, and the Applicants’ appeal was dismissed. The case centers on the interaction between customary international law, the international fisheries legal regime, and domestic law (including indigenous customary law). The findings are significant not just for the Cook Islands, but for all Commonwealth countries engaged in fishing that rely on the Privy Council as a final court of appeal.

The FAN TAN file: Quebec separatism and security service resistance to politicization 1971–72

ABSTRACT This article examines an interval during 1970–1971 during which the Canadian Federal government established a clandestine body codenamed FAN TAN within the Prime Minister’s Office to conduct surveillance of, and ‘political action’ against, the Quebec separatist movement. This organization, led by Principal Secretary to the Prime Minister Marc Lalonde, sought to persuade the Security Service of the Royal Canadian Mounted Police to provide intelligence in support of what was a party political entity based in the Prime Minister’s Office and not in the actual national security machinery of the Privy Council Office. We examine how John Starnes, Director General of the Security Service, went to considerable lengths to resist this effort to politicize his agency, and to warn the government of the potential scandal should FAN TAN become publicly known. We conclude that the FAN TAN affair leaves a number of serious questions to be answered such as: who actually originated the scheme, its legality as well as propriety, what intelligence was used or continued to be collected after the RCMP sought to end its involvement, and why the matter was ignored by the subsequent McDonald Commission that prompted the dissolution of the Security Service. 1

Consensus and Ideology in Courts: An Application to the Judicial Committee of the Privy Council

Abstract This article supports the view that, while judges suppress dissent when dissenting is too costly, the cost of dissenting depends on the political dimension of the issue broached. It contends that judges who disagree may nevertheless try to safeguard integrity and legitimacy in political disputes by presenting a public impression of unity. We muster evidence from the United Kingdom, specifically, votes from the Judicial Committee of the Privy Council (JCPC) between 1998 and 2011. We demonstrate through statistical analysis that judges are likelier to suppress dissent in devolution cases, which are characterized to be more political in character, than in Commonwealth appeals, which are more mundane in nature. We find that, while consensus on domestic issues reflects the absence of disagreement across judicial ideologies, judges have stronger conflicting positions on issues concerning devolution, but tend to suppress their propensity to dissent. This finding confirms that the JCPC wants to appear cohesive to give an image of greater authority on decisions of predominantly political content.

'Embarrasing and Even Ridiculous'

This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.

Wyatt: Satirist in Secret

IN 1541, THOMAS WYATT (c.1503-42) – once a diplomat and now a political prisoner – composed a highly strategic declaration of innocence which has often caught the attention of his biographers and editors: I, as God iudge me, lyke as I was contynually imagininge and cumpassinge what waye I myght do beste service, so restede I not day nor nyght to hunte owte for knowledge of those thynges. I trotted contynually vp and downe that hell throughe heate and stinke from councelloure to embassator, from on frende to an other, but the thynges then were ether so secretly handlede or yett not in couertore that I with all myne acquayntance, and myche les theye my colloquies for anie pollice or industrie that I sawe them vuse, could not gett anye knowledge.1 This document had been requested by Henry VIII’s Privy Council. The council also wanted information about Wyatt’s possible contact with traitors and conspirators while he was on a diplomatic mission in Nice and Villefranche in May 1538: the initial cause for concern. Unfortunately, Wyatt’s secret work in the ‘hell’ of foreign courts had become suspicious, as had the work of other diplomats (who were arrested along with Wyatt and locked in the Tower). As part of his defence, Wyatt clearly wanted someone to believe that ignorance constituted innocence. Everything was ‘so secretly handlede’, he claims, that he ‘could not gett anye knowledge’.2 Alternatively, Wyatt might have been hoping that some official declaration of ignorance might be enough to extinguish the need for further enquiry (such statements do not necessarily require a full commitment on the part of the statement-maker, or the statement-maker might be entirely conscious of his own false logic – hoping that it might not be noticed by others). However, anyone who claims that he ‘could not gett anye knowledge’ while abroad on state business is guaranteed to attract the very scrutiny he officially wants to discourage. Whether that is a false step or a careful piece of suggestion in this case is not entirely clear. It remains uncertain, too, what actually went on in the ‘heate and stinke’ of that ‘hell’.

The False King Olaf and His Necklace of Letters

The False King Olaf and His Necklace of Letters

Promiscuously partisan public servants? Publicly defending and promoting the government’s reputation to the detriment of bureaucratic impartiality and truthfulness

PurposeFor many, the claim that a new approach to bureaucracy—new political governance (NPG)—is underway reads as if it was written by Stephen King: Frightening fiction. While the thought of promiscuously partisan senior public servants publicly defending and promoting the government’s reputation to the demise of impartiality is disturbing, the evidentiary record has led most to dismiss the idea as empirically false. This article questions, and empirically investigates, whether dismissing the idea of promiscuous partisanship has been premature.Design/methodology/approachA case study of the loyalty displayed by Canada’s most senior public servant during a highly publicized parliamentary committee is analysed with a novel theoretical and empirical approach in three steps. First, the Clerk of the Privy Council (Clerk)’s committee testimony is analysed against analytical constructs of impartial and promiscuous partisan loyalty that focuses on the testimony’s direction and substance. Second, the objectivity and truthfulness of the testimony is analysed by comparing what was publicly claimed to have occurred against evidence submitted to the committee that provids an independent record of events. Third, the perception the Clerk’s testimony had on some committee members, political journalists and members of the public is analysed through print media and committee Hansard.FindingsWhile the Clerk’s testimony displays an awareness of upholding impartiality, it also comprises promiscuous partisanship. Throughout his testimony, the Clerk redirects from the line of questioning to defend and promote the sitting government’s reputation. Moreover, to defend and promote the government’s reputation the Clerk’s testimony moved away from objectivity and engaged in truth-obfuscating tactics. Finally, the nature of the Clerk’s testimony was perceived by some committee members and the public—including former senior public servants—as having abandoned impartiality to have become a public “cheerleader” of the government.Research limitations/implicationsEmploying an in-depth case study limits the extent to which the findings concerning the presence of promiscuously partisan loyalty can be generalized beyond the present case to the larger cadre of senior public servants.Originality/valueEmpirically, while most research has dismissed claims of promiscuous partisanship as empirically unfounded, this article provides what is possibly the strongest empirical case to date of a public incident of promiscuous partisanship at the apex of the bureaucracy. As such, scholars can no longer dismiss NPG as an interesting idea without much empirical leverage. Theoretically, this article adds further caution to Aucoin’s original narrative of NPG by suggesting that promiscuous partisanship might not only involve senior public servants defending and promoting the government, but that doing so may push them to engage in truth-obfuscating tactics, and therein, weaken the public’s confidence in political institutions. The novel theoretical and empirical approach to studying senior public servants’ parliamentary testimony can be used by scholars in other settings to expand the empirical study of bureaucratic loyalty.

Goodbye and good riddance to the doctrines of “fraud on a power” and “the entire substratum”—now if only we could figure out the “proper purpose” rule

Abstract The equitable doctrine of “fraud on a power” (now sometimes called either the “improper purpose” or the “proper purpose” rule) was created almost 300 years ago with one judge’s off-the-cuff remark. Since then the doctrine has grown by leaps and bounds, to the point where entire books are written about it. Yet it is questionable whether the doctrine has any real meaning or jurisprudential basis. The same is true of the so-called substratum rule. Joel Nitikman, K.C., discusses both doctrines in the context of the Privy Council’s recent decision in Grand View Private Trust v. Wang, on appeal from the Bermuda Court of Appeal. He concludes that both concepts should be discarded, with the focus being instead on a simple question: what is the scope of the power as written?

The proper purpose rule after Grand View v Wong

The Privy Council’s judgment in Grand View Private Trust Company & Anor v Wong & Ors,1 handed down on 8 December 2022, opens with the following simple statement of principle:It is a fundamental principle of equity that a fiduciary power may be exercised only for a purpose for which the power has been conferred. It is a fundamental principle of equity that a fiduciary power may be exercised only for a purpose for which the power has been conferred. The principle is easier to state than apply in practice, as the history of this case demonstrates. This fundamental principle derives from equity’s concern to ensure that, though technically intra vires and therefore permissible at law, powers are not abused (reflecting equity’s preoccupation with substance rather than form). Its origins trace back2 to a time when trusts held land for successive clearly defined interests, where powers were narrowly drawn to serve such interests and where it was possible for courts to discern the settlor’s expectations and purpose or purposes (and in doing this equity was willing to admit parol evidence3). The principle acquired the moniker “fraud on a power” though fraud is not a necessary ingredient; indeed the power holder may be acting in good faith in what they consider the best interests of the objects of the power. In Eclairs Group Ltd v JKX Oil & Gas plc4 Lord Sumption at [15] explained the reason for this terminology: “For a number of purposes, the early Court of Chancery attached the consequences of fraud to acts which were honest and unexceptionable at common law but unconscionable according to equitable principles.”

The most privy of all privy councilors in the Russian Empire: To the biography of Vyacheslav Avksentievich Manassein (1841-1901)

The article, on the basis of archival documents introduced into scientific circulation, considers personality of prominent Russian physician Vyacheslav Avksentievich Manassein (1841-1901), who held the position of professor of the therapeutic Chairs of the Medical Surgical Academy in 1875-1892. The Manassein's public activity had special character, reaching All-Russian scale owing to the weekly "The Physician" published by him in 1880-1901. The article considers various aspects related to the scientific school of S. P. Botkin. For the first time, it is reported about the facts shedding light on complicated relationship of S. P. Botkin with his student V. A. Manassein.

원제국 군제의 변화와 몽골적 전통의 지속

This study examined the changes caused by the expansion of the Mongol Empire to the military system, and in particular, focused on the changes of the military system after Kublai became the Great Khan. The trends and characteristics of the empire’s rule over China were reviewed in relation the military system. The Mongol Empire dominated Eurasia based on its military power, which was driven not only by the strength of individual soldiers but also the teamwork of Mingɣan-a unit of 1,000 households created based on the decimal system in the days of Genghis Khan. The empire expanded across Eurasia through military conquests led by the imperial elite force known as Keshig, Mongolian military, and Tanmachi comprised of foreign ethnic people. In the war against Jurchen during the reign of Ögedei, the Mongolian military recruited a significant number of Chinese, and categorized them as military households. From then on, the troops were divided into civil households and military households, and separately managed.
 When the Mongolian Empire’s rule over China was converted to direct control under Qa’an, the military system was reorganized to establish a superior status for Mongol in China. In the early days of the Yuan, Kublai efficiently managed Mongol, Semu and Han troops, and formed a privy council to allow more rapid response to military crises, He gave his sons and grandsons royal titles and seals, and implemented policies to deploy them along border areas. This was an effective approach that reinforced the military’s inland monitoring while allowing prompt response to possible uprisings outside military powers. The Mongol Empire stationed troops in important areas after conquering China and Central Asia, and Kublai followed this tradition by stationing troops in North China and the newly conquered the Southern China. He stationed the Mongolian military in major areas alongside the Yellow river and Shandong province in the Northern China., and the Han Army and newly submitted the southern Song army, which lies alongside Yantze River and the Huai River. As such, the small number of Mongol rulers held dominant military positions in China. A review of the aforementioned policies shows that Mongol Empire adapted the military system to the new environment in China, and at the same time, largely retained the Mongol military tradition.

Proper purposes in trustee decision-making: Grand View Private Trust Co Ltd v Wen-Young Wong [2022] UKPC 47

Abstract In Grand View Private Trust Co Ltd v Wen-Young Wong [2022] UKPC 47, the Privy Council considered the proper approach to reviewing a Bermudan discretionary trustee’s exercise of a power to add and exclude objects where it was alleged that the power was exercised for an improper purpose. The Privy Council analysed the relevance to this inquiry of the trust’s overarching purpose, and considered the recently-prominent question of the existence of a so-called ‘substratum rule’. The decision is an important contribution to the ongoing conversation in the law of trusts and other fiduciaries regarding the review of powers for improper purposes.

A proper headache: trust drafting and the proper purpose rule after Grand View v Wong

Abstract The decision of the Board of the Privy Council in Grand View v Wong has given much greater prominence to the proper purpose rule in the context of the exercise by trustees of their powers. This article argues that, while the apparent desire of the Board to control abuse of trust arrangements is understandable, the judgment risks undermining trustee decision-making and encouraging litigation and unnecessary court applications.

The Lundy murders: the role and reliability of forensic neuropathology practice

Mark Lundy was convicted of killing his wife and daughter in 2002 and again in 2015 after a retrial ordered by the Privy Council. His conviction continues to divide public opinion in New Zealand. A key piece of evidence was the presence of small smears on a shirt which prosecution experts identified as central nervous system tissue relying on immunohistochemistry. The successful challenge to his original conviction was part motivated by arguments challenging the reliability of the latter in forensic practice. This has again come under scrutiny following a 2016 report by the US President’s Council of Advisors on Science and Technology. The PCAST concluded that there were two important deficiencies in ensuring scientific validity of so-called ‘feature-comparison methods’. These are procedures by which an examiner seeks to determine whether an evidentiary sample is or is not associated with a source sample based on similar features. Proponents of Lundy’s innocence argue that the application of immunohistochemistry must be regarded as a subjective feature-comparison method. There was a need for (1) clarity about the scientific standards for the validity and reliability of forensic methods and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable. The report emphasised 2 key elements that are required to meet the scientific criteria of foundation validity: (1) a reproducible and consistent procedure and (2) empirical measurements from multiple independent studies of a method’s false positive rate and sensitivity. It is this author’s position that the manner in which the immunohistochemistry was applied in the Lundy case to identify central nervous system tissue was sufficiently robust in terms of rigor and reproducibility and that to insist otherwise would be tantamount to believing in biological alchemy.

Legal transplantation of minors’ contracts in India and Malaysia: ‘Weak’ Watson and a ‘misfitted’ transplant

ABSTRACT While contracts by minors are generally voidable in most common law jurisdictions, the apex court in India and in Malaysia has each held that such contracts are void ab initio, following a century-old Privy Council decision in Mohori Bibee (1903) 30 ILR Cal 539. This article explores minors’ contracts through the lens of legal transplant—viewing transplanted laws on a continuum, from a ‘Strong Watson’ perspective where English common law was adopted by the Indian courts, to a ‘Weak Watson’ position following the Privy Council’s interpretation of the law in the Indian Contract Act 1872. The authors conclude that the current Weak Watson transplant of laws on minors’ contracts is a ‘misfitted’ transplant which is neither consistent with the original intent of the transplanted law nor fit for purpose in a modern context. Given minors’ inability to enter into contracts or seek remedies, urgent legislative reform or judicial reinterpretation is required in India and Malaysia.