The importation of external constitutional influences via the Judicial Committee of the Privy Council

Roger Masterman

Debates regarding the extent to which the UK’s component jurisdictions are receptive to public law influences from elsewhere have in recent years coalesced around examination of the domestic impact of EU laws and decisions of the European Court of Human Rights. The openness of the domestic legal order to constitutional ideas from elsewhere has, during this time, not been entirely neglected as a topic of academic inquiry; the extent to which common law systems share constitutional characteristics and the interplay between jurisprudential influences in human rights decision-making both provide recurring themes to the literature concerning broader extra-jurisdictional influences on the UK’s legal order(s). However, amidst broader narratives surrounding the exchange and migration of constitutional ideas, comparatively little attention has been given to the importation of international constitutional influences from a source which hides in plain sight: the almost exclusively overseas jurisdiction of the Judicial Committee of the Privy Council (JCPC). This was the subject of my recent article in the Northern Ireland Legal Quarterly.

Perhaps we should not be surprised by this; the external characteristics of the JCPC are somewhat disguised by its (largely) familiar cohort of judges and its shared accommodation with the UK Supreme Court. The importation of external influences originating in JCPC decisions determined by a panel of largely domestic judges represents a relatively surreptitious form of jurisprudential migration, the legitimacy of which is perhaps less likely to attract controversy than the importation of authorities originating in an overseas court populated by a majority of overseas judges.

But the neglect of detailed consideration of the JCPC’s influence on domestic constitutional adjudication is simultaneously puzzling. This is for the reason that the suitability of the UK’s most senior judges to adjudicate on domestic constitutional issues – concerning in particular the Human Rights Act 1998 (HRA) and devolution adjudication – has been explicitly supported by reference to their (prior and ongoing) experiences of constitutional adjudication as members of the JCPC. The potential to harness the constitutional experiences of the JCPC for domestic deployment has variously featured in suggestions for reform of the UK’s apex court, was influential on the allocation – initially to the JCPC itself – of the domestic jurisdiction to determine ‘devolution issues’ from 1999 until 2009, and continues to be judicially noted in support of the burgeoning constitutional functions of the UK Supreme Court.

In the light of the above, this research sought to test the practical consequences of this institutional linkage by examining the extent to which JCPC decisions have exercised discernible influence on constitutional decision-making in the UK’s apex court in the post-1998 period.  

At the general level, intermittent reliance on JCPC authorities in constitutional decision-making by the House of Lords/Supreme Court is reasonably commonplace. In Jackson v Attorney-General (2005), for instance, Lord Steyn considered the JCPC’s case law on the legal limitations which might operate in respect of legislatures, citing – inter alia – Attorney-General of New South Wales v Trethowan and Bribery Commissioner v Ranasinghe in order to animate his discussion of Parliament as including both ‘static and dynamic’ elements. While in R (Miller) v Secretary of State for Exiting the European Union (2017), a number of JCPC decisions were cited in support of the court’s majority judgment: these included The Zamora (in support of the proposition that ‘the exercise of [the Crown’s administrative] powers must be compatible with legislation and the common law’); and Madzimbamuto v Lardner Burke (in support of the notion that the courts will not directly enforce political/constitutional conventions).

But while ad hoc deployment of JCPC authorities by the UK apex court is relatively frequent, there is only limited evidence of recurrent or sustained reliance on JCPC authority, or lines of JCPC authority, in constitutional decision-making. These instances demonstrate a post-1998 enthusiasm for domestic use of JCPC authority, giving way to a diminishing effect over time. This pattern can be observed in two fields in particular: (i) the UK apex court’s approach to the interpretation of constitutional measures and (ii) its attitude to the parameters of the test for proportionality.

In the immediate post-1998 period, both HRA and devolution adjudication saw judicial reliance on Lord Wilberforce’s suggestion – made in Minister of Home Affairs v Fisher – that constitutional instruments are deserving of a ‘generous and purposive’ interpretation. In the HRA context, this JCPC-influenced approach to interpretation was deployed in order to justify what became known as the ‘radical’ approach to interpretation under section 3(1) and to advocate for an expansive reading of the rights protected by the Act. The JCPC authority provided an initial source of inspiration for the apex court’s approach to the HRA, but was reasonably quickly jettisoned, or qualified, as a result of the emerging judicial consensus on the rather more limited contours of legitimate section 3(1) interpretation, and the solidification of the Convention jurisprudence as the dominant (external) judicial authority on the meaning and application of the rights protected under the HRA.

Attempts to deploy the ‘generous and purposive’ approach to interpretation in the devolutionary context suffered a similar fate. While, in Robinson (2002), Lord Bingham found that the Northern Ireland Act 1998 was ‘in effect a constitution [emphasis added]’ and that its provisions ‘should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody’, subsequent cases emphasised the statutory nature of the devolutionary scheme. Despite being invited, post-Robinson, to consider the devolutionary frameworks as Constitutions, the Supreme Court has declined to do so and, instead, has recognised the distinctive status of the devolutionary arrangements, without sanctioning general departures from the legislative intent-driven techniques of interpretation to be applied in their application.              

The post-HRA introduction of proportionality analysis in human rights adjudication displays a similar pattern. In R (Daly) v Secretary of State for the Home Department (2001), the House of Lords explicitly adopted the approach to proportionality mapped by the JCPC in de Freitas. The de Freitas test was also utilised in R v A (No 2) (2001) and, in the Belmarsh decision (2004), appeared in the latter alongside a number of Canadian decisions including R v Oakes and Libman v Attorney-General of Quebec. By this point in time, therefore, the de Freitas definition no longer held the monopoly on the top court’s conception of proportionality. The influence of de Freitas has been further diluted, with Lord Sumption in Bank Mellat (2013) describing the JCPC case as containing ‘the classic formulation of the test’ for proportionality, but adding that its importance is now most clearly found in the ‘way in which it has been adapted and applied in the subsequent case law’.

These passing episodes of reliance on JCPC authorities in domestic constitutional adjudication can be seen to reflect broader trends in constitutional borrowing, specifically in relation to the often temporary – or transitional – reliance placed on extra-jurisdictional authorities in response to the adoption of a constitutional innovation. In the immediate post-1998 period JCPC authorities were relied upon as a means of articulating and stabilising the requirements of the UK’s new human rights and devolutionary regimes as a precursor to (or pathway towards) the development of a domestically engineered constitutional jurisprudence.

It has been argued that in the development of this domestic constitutional jurisprudence the apex court has taken an inward-looking turn, displaying – particularly in human rights adjudication – a hesitation in relation to the domestic adoption of norms or reasoning from external sources (even where that may be mandated by statute). But parallels should not necessarily be drawn with the heavily politicised pressures which culminated in Brexit and urge resistance to the European Court of Human Rights. Instead, the failure of JCPC authorities to take consistent root in UK constitutional adjudication should be seen as a product of the UK constitution’s non-documentary framework and a recognition of those characteristics which differentiate it from many states within the JCPC’s jurisdiction. As Lord Rodger recognised in R v A (No.2) – against a domestic backdrop in which parliamentary sovereignty looms large – the importation of ‘Privy Council authorities should be treated with some caution since they are the product of constitutional systems which differ from that of the United Kingdom in this important respect’. Consistently with this reading (and in spite of claims as to how it might be employed for domestic benefit), the influence of JCPC jurisprudence on constitutional adjudication in the apex court has been marginal. Constitutional decision-making in the apex court remains – as per the common law tradition – receptive to, though generally not driven by, extra-jurisdictional influences.