Privy Council ‘colonialism’ – a response

Dr Leonardo Raznovich (Counsel, October 2025) contends that the Judicial Committee of the Privy Council (JCPC) holds ‘effective imperial power’. He asserts that ‘the UK imposed’ on former colonies ‘a constitutional “savings clause”, which shielded colonial laws from judicial scrutiny’; accuses the JCPC of ‘flagrant breaches of the rule of law’; and contends that ‘some British judges… pivot, as necessary, to please the Caribbean establishment’, which he calls the JCPC’s ‘Caribbean master’. He asserts that Lord Reed acted in an ‘unbefitting manner’ when (it is claimed) ‘he publicly beseeched Jamaicans to retain the JCPC as their apex court.’ And he writes of ‘colonial laws that are used today to criminalise same-sex intimacy’. These claims call for a response.

The JCPC, comprising primarily Justices of the Supreme Court, is in practice the highest court for all overseas British jurisdictions. When former British territories became independent, they were offered the option of retaining the JCPC as their highest court. Today, seven formerly British Caribbean states use the JCPC, while five do not, choosing instead the Caribbean Court of Justice (CCJ), established in 2001 as (inter alia) an alternative to the JCPC. These choices have been made freely by democracies. Indeed, Grenada and Antigua & Barbuda retain the JCPC because their peoples rejected the CCJ in referendums. The charge that the JCPC exercises ‘effective imperial power’ is misplaced. The JCPC is the highest court in certain Caribbean states solely because the laws of those states make it so.

Equally misplaced is the suggestion that the JCPC itself favours the retention of its jurisdiction over Caribbean states. On the contrary, its judges have repeatedly made clear that, as Lord Reed put it in the letter to the Jamaica Gleaner to which Dr Raznovich refers, ‘[t]he decision on whether to retain the JCPC is entirely one for the [relevant] Government and people.’ The claim that in that letter Lord Reed ‘publicly beseeched Jamaicans to retain the JCPC as their apex court’ is simply wrong: he merely corrected some misapprehensions about the JCPC’s working practices.

Nor were the Constitutions ‘imposed’. Well before independence, Caribbean peoples had demanded, and obtained, a significant degree of self-government in internal affairs. Antigua, for example, had its first general election under universal suffrage in 1951, some 30 years before independence as Antigua & Barbuda. The Constitutions were agreed between elected representatives at constitutional conferences. Britain hosted many of these and provided technical assistance, but the decisions were not Britain’s.

The Constitutions are supreme law. They have chapters guaranteeing fundamental rights. Some provide that the fundamental rights chapter does not apply to laws already in existence when the Constitution was enacted: this is the ‘savings clause’. Savings clauses have been controversial, but they are unambiguous. Section 26 of the Constitution of Barbados provides, for example: ‘Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision [guaranteeing fundamental rights] to the extent that the law in question… was enacted or made before 30th November 1966 …’.

One such law made death the mandatory penalty for murder. By 2004, courts had come to regard a mandatory death sentence (leaving the defendant to rely on the clemency of the government) as inhuman and degrading punishment. But, as Lord Hoffmann explained in Boyce v The Queen [2005] 1 AC 400 at para 2, ‘the language and purpose of section 26 are so clear that… [the JCPC is] bound as a court of law to give effect to it.’ So the mandatory death penalty could not be done away with by the courts. It is not, as Dr Raznovich states, that it was ‘unassailable and above the constitutions’, but rather that the Constitutions themselves made it unassailable because it was an existing law. The same was true in a Trinidad & Tobago case called Matthew [2005] 1 AC 433 and in another from Jamaica called Watson [2005] 1 AC 472, which were argued alongside Boyce before a nine-judge panel.

Dr Raznovich claims that the JCPC decided Boyce ‘ignoring stare decisis’, in that it reversed its own decision a year earlier, in Roodal v The State [2005] 1 AC 328, to the effect that the death penalty must be regarded as discretionary. This is incorrect. The JCPC was well aware of stare decisis, but Roodal itself had been a controversial decision, being contrary to earlier authority (de Freitas v Benny [1976] AC 239), and the point of hearing the three cases together was to obtain a definitive ruling from an enlarged panel.

As Dr Raznovich notes, Barbados later dropped the JCPC in favour of the CCJ, which in Nervais v The Queen [2018] CCJ 19 (AJ), (2018) 92 WIR 178 decided not to follow Boyce. The CCJ’s reasoning was in the writers’ respectful opinion distinctly teleological (the savings clause, thundered Sir Dennis Byron P, was ‘unacceptable’), but the CCJ was entitled to its view, and the people of Barbados had been entitled to make its rulings determinative. So much for imperialism.

This development in Barbados prompted the appellant in Chandler [2022] UKPC 19, [2023] AC 285, another Trinidad & Tobago case, to ask the JCPC to revisit Matthew (the Trinidadian case in the Boyce trilogy). Dr Raznovich claims that ‘the JCPC upheld Boyce’s immunity of colonial laws out of newfound respect for stare decisis, about which it did not care when it decided Boyce.’ However, the savings clause in Trinidad & Tobago is not a ‘colonial’ law – it was deliberately re-introduced a decade after independence; and the decision in Chandler was not based on stare decisis alone but also on the fact that the JCPC, after argument before another nine-judge panel, was (rightly) ‘not persuaded… that Matthew was wrongly decided.’

The suggestion that the JCPC wishes ‘to please its Caribbean master’ is extraordinary to anyone familiar with its jurisprudence. Judges less likely to seek to please a master are hard to imagine. To take just a couple of recent examples, consider Attorney-General v Rolle [2023] UKPC 13, where the JCPC, rejecting the government’s argument that this was a matter requiring amendment of the text, interpreted the Constitution of The Bahamas broadly so that the children of unmarried Bahamian men, as well as those of unmarried Bahamian women, were entitled to citizenship. Or Maharaj v Trinidad and Tobago [2023] UKPC 17, [2023] 1 WLR 2870, where the JCPC refused to read an electoral law as extending the terms of sitting councillors, as the government wished it to.

A further respect in which we cannot agree with Dr Raznovich is his reference to ‘colonial-era laws that criminalise same-sex intimacy’. It is true that laws to such effect in the UK were extended to the colonies in colonial times. (The irony is that they began to be dismantled in England, by the Sexual Offences Act 1967, during the last years of colonialism, but this process was not extended to the remaining colonies because they were by then largely self-governing.) But to regard the present-day laws of former British territories as ‘colonial’ is often mistaken. Take St Lucia, in respect of which Dr Raznovich claims that ‘[o]n 29 July 2025, the High Court of St Lucia declared unconstitutional British colonial-era laws that criminalise same-sex intimacy.’ The truth is that, as the court explained in detail (Theodule v AG of St Lucia at paras 44-56), the colonial-era laws were repealed years ago. The laws the court struck down (applying the Constitution supposedly ‘imposed’ by Britain) were entirely homegrown, having been enacted by the legislature of St Lucia in 2005 after around 40 years of self-government and 26 years of independence. (They were also more hostile to same-sex relations than those that had gone before, for example by criminalising female homosexuality for the first time.)

The activities of the JCPC, and the JCPC’s continuing role, are of course legitimate subjects of debate. But that debate ought to be based on facts, and not on misplaced assertions of ‘colonialism’.