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The Privy Council has handed down an important judgment on the interpretation of section 4 of the Judicial Committee Act 1833.

The Appellant presented a petition to Her Majesty requesting the referral of two issues to the Judicial Committee of the Privy Council pursuant to section 4 of the Judicial Committee Act 1833.  Those issues concerned (i) the extension of the appointment of a Justice of the Grand Court for the Cayman Islands (‘the Grand Court’); and (ii) the publication of a Complaints Procedure in relation to the Cayman Islands Judiciary.  Both issues involved the interpretation of the Cayman Islands Constitution Order 2009.  The First Respondent applied to the Judicial Committee to advise Her Majesty that it would not be appropriate to give substantive advice on the merits of the two issues, primarily on the basis that these issues should be resolved, at any rate initially, by way of judicial review in the Grand Court. 

The Judicial Committee advised Her Majesty that the Appellant’s petition should be dismissed.  In doing so, the Judicial Committee decided that it was open in principle for it to advise Her Majesty that it was inappropriate to provide substantive answers to the two issues referred by the petition, if it considered that that was the right course to take.  Clear words in section 4 of the 1833 Act, or a clear previous decision of the Judicial Committee on the point, would be required before the Judicial Committee would be precluded from tendering to Her Majesty advice which it considered to be correct as a matter of law, namely that the Committee can refuse to advise substantively if it is not in a position to do so or it deems it inappropriate to do so.  As to the specific issues referred, the Judicial Committee decided that it would be inappropriate for it to substantively consider the two issues raised because those issues could be raised by way of ordinary judicial review proceedings in the Grand Court. Where such proceedings were a possibility, it would be wrong as a matter of principle, and in the absence of special factors, for the Judicial Committee to act as a court of first and last resort.  The 1833 Act was intended to be limited to providing a mechanism to bring issues to the Judicial Committee which cannot be determined through the ordinary judicial process and this process was only to be bypassed where special circumstances so justified it.  There were no such special factors in this case.

By way of future guidance, the Judicial Committee advises that if issues are specifically referred to it by Her Majesty, the role of the Judicial Committee is to tender advice which it considers to be correct as a matter of law or which, on the facts before it, is appropriate.

Lord Pannick QC, Sir Jeffrey Jowell QC and Naina Patel acted for the First Respondent.

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