The Judicial Committee of the Privy Council serves as a final court of appeal for a dozen independent countries, three Crown dependencies, and a dozen overseas territories of the United Kingdom.
There is only until 4pm BST on Friday 17 May 2024 to email your response to the JCPC’s Rule change proposals to jcpcrulesconsultation@jcpc.uk.
The JCPC is proposing in its current consultation a fundamental change by removing the right that an appellant has hitherto enjoyed to present the substantive appeal argument orally, and so engage with any issues the Court raises in an oral process.
This change is concerned not with special leave (where the decision on permission rests with the JCPC), but with appeals where the particular Court of Appeal has already granted leave itself, or appeals where the state’s Constitution, or where the relevant Order governing appeals to the Privy Council made by UK statutory instrument, permits an appeal as of right.
The Privy Council proposes that is should now be able to dismiss these appeals without convening a hearing where oral submissions are made to the panel.
This would be achieved in the proposed new Rule 23 of the JCPC Rules 2009, entitled “Review of merits of appeal”. Under this a panel of 3 (or more) Justices would be able to decide on the papers whether the case is “devoid of merit”, however that test is to be interpreted. That process could occur after having allowed 21 days for written submissions to show cause effectively, after an initial sifting review by a single Justice if he/she “considers that the appeal appears to be devoid of merit” (p46 of the consultation pdf).
It is unclear to what extent (if any) reasons shall be required for the decision that the appeal is held, on the papers, to be devoid of merit. It may be assumed that particularly clear and cogent reasons would be needed to justify preventing the appeal being heard that the local Court of Appeal had regarded as raising a point of law of general importance, or that was permitted as an appeal as of right under the legal structure that the legislature has chosen to adopt (without imposing additional threshold tests to be met before the appeal is heard).
It is clear that domestically in the English and Welsh legal system there has been introduction over the past decade of certain restriction upon the rights of an appellant or litigant to obtain an oral hearing of a claim or an application for permission to appeal. There are cases now determined on paper that prevent oral renewal of a failed application for judicial review (if certified as “wholly without merit”) or any civil appeal to the Court of Appeal (simply because the single LJ has refused permission on the papers and took the view, without argument, that there was no real prospect of success). The question to be asked is: has any benefit realised in judicial time been at the unacceptable expense of respect for judicial authority, given that parties may often feel that the paper reasons may not have grappled with a point or fact considered important, or may have made an error? For instance, when in 2016 the rules changed to prevent oral renewals of applications for PTA to the Court of Appeal (Civil Division) there was (and remains) a level of discontent on the part of litigants and advocates who did not feel the paper decisions of the single judge addressed sufficiently the arguments proposed to be presented orally. This change achieved the objective of paper determination being final (at a time when resources were not matching particularly increased demand on the EWCA Civil), but what of the cases which, in previous years, obtained permission on the oral renewal application? Not all went on to be unsuccessful of course, so clearly some increased risk of wrongly dismissing a meritorious appeal occurs by paper determination.
There are two other fundamental points to be made however about changes to the JCPC’s operation proposed:
- These are cases where the appeal does not require permission: it already possesses it, either by grant of the appeal court below itself, or by legislative right. That right has crystallised. The question is not of permission, but one of dismissing a substantive appeal on the papers (in circumstances where assessment of the merits is undertaken, and the case would not otherwise have fallen to be dismissed on a summary basis or as an abuse of process of any kind).
- The JCPC in many instances exercises a jurisdiction that is the result of historical developments and of maintained respect for the quality and authority of the Court that has endured and survived the choice that exists for a state to choose its apex appeal court. The JCPC is not the only possible court for a dozen states where it has retained through the modern age the respect and authority of those independent nations. If there is a development of discontent with paper refusals overturning rights of appeal it seems obvious that this has the potential to harm the JCPC’s standing. It may be a question to ask that whether or not an ultimate result may (or may not) be the same in that an appeal might ultimately be dismissed, there is a value litigants (and lawyers) place upon due process. The procedural fairness of the oral hearing process is rightly held dear by the common law world and has historically been seen as a great strength of the system of justice that enables a case to be argued and determined through the benefit of full deployment of all relevant argument, and for the testing of that argument in direct exchange with the judicial decision-making body in the oral process.
What is your view?
How much judicial time would likely be saved under the new process? Is the trade-off against the right to argue one’s appeal a legitimate and justifiable one in the JCPC context? What damage may it do in the longer term to the Court’s standing (and jurisdictional reach)? Are there consequences for appellants of additional costs if called upon to make a further set of submissions in a case that already had permission but now is threatened to be refused a hearing? Is the advantage to the Respondent in procedural terms justification for the change?
The full consultation paper is available here:
https://www.jcpc.uk/news/stories/2024-04-15-jcpc-rules-consultation.html
Rule 23 is set out on pages 22-23 of the pdf, is described (whilst wrongly identified as Rule 22) at pp45-46, and its role included on pp50-52 in the “Road map of proceedings under the proposed new Rules”. The Consultation does not set out an identified necessity to introduce this new Rule or address the questions raised above (or those below), but refers to the advantage to one party: “This procedure was introduced to ensure that respondents are not required to spend time and costs on responding to such appeals and on preparing for hearings at which submissions on the substantive issues raised in the notice of appeal are not in the event required”.
In addition to the Rule 23 change there are certain other matters consulted upon. A helpful analysis and argument (particularly concerning Rule 23) has been produced by Richard Clayton KC, available at https://www.claytoncomments.com/privy-council/important-changes-proposed-for-privy-council-procedure-do-you-know-that-consultation-ends-on-17-may-2024/
He argues, with force, that:
In particular, an appeal as of right is an important constitutional safeguard for Privy Council appeals. That constitutional right affords reassurance to the appellant and, more widely, gives confidence to investors in the financial and other core sectors of the domestic economy which appeals to the Privy Council.
Until now, an appeal as of right entitles a person to an oral hearing. This constitutional right of appeal can only be removed by the domestic country, itself- as when Barbados, Guyana, Belize and Dominica left the Privy Council as its apex Court to join the Caribbean Court of Justice.
Obviously, a Constitutional right of appeal may be questioned if the appeal is something like an abuse of process. But this new plan goes very much further.
He also argues that:
In reality, the new Rule 23 raises fundamental issues of principle, as indeed, did the changes effected by Practice Direction 4 which were implemented without any consultative process. Rule 23 is more than a procedural modification. Rule 23 removes an oral hearing of an appeal with a final determination the appeal based purely on considering the papers. Rule 23 overrides entrenched constitutional guarantees for appeals to the Privy Council and prevents any possible legislative scrutiny before oral hearings are eliminated.
…
Appeals as of right are the creation of domestic Constitutions and the Privy Council is normally cautious about restricting rights of appeal, especially where there are concerns that Rule 23 overrides Constitutional guarantees of rights of access to the Privy Council.
Reminder– any response to the consultation must be made by 4pm BST on Friday 17 May 2024 by email to jcpcrulesconsultation@jcpc.uk.
Philip Rule KC is Head of Public Law at No5 Chambers and practises before the Privy Council.
