For a long continuous line of case law, the panel deciding a case (or rendering advice to Her Majesty as to how to dispose of the case, technically) in the Judicial Committee of the Privy Council has referred to itself as 'the Board'. Yet, this word does not appear anywhere in the 1833 Act, or, so far as I know, in subsequent legislation. What is the source for this term for the deciding judges of the JCPC?
-
Does the Privy Council have a published set of procedural rules?– ohwillekeOct 20, 2021 at 15:44
-
1@ohwilleke, yes: jcpc.uk/procedures/rules-of-the-committee.html but "Board" only appears once - at Rule 29. It also appears a few times in the accompanying Practice Directions, but nowhere is the word defined.– RickOct 20, 2021 at 22:11
-
1The UK government has a long history of using Board (e.g. Empire Marketing Board, Army Medical Board, Board of Excise, Board of Customs, Board of Customs and Excise, Board of Trade, Milk Marketing Board) so it could just be traditional– RickOct 20, 2021 at 22:12
Add a comment
|
3 Answers
The justices of the JCPC are mostly the same people as for the UK Supreme Court (formerly the Judicial Committee of the House of Lords) but legislation directs certain appeals to the JCPC rather than the UKSC where there are constitutional sensitivities which mean that the court needs to be seen as separate from the UK - most obviously appeals from courts outside the UK.
There are a number of ways in which the JCPC tries to be different so as to bring home to people that it is not a UK court pure and simple but something else with a close connection to Her Majesty the Queen. These include:
The fact that JCPC is part of the Privy Council.
The fact that the JCPC does not technically make "judgments" but rather reports its opinion to the Queen - legal effect the same but it has a different constitutional "feel" for a territory over which the Queen rules but which is not part of the UK.
keeping the UKPC out of the Parliamentary buildings. The UKPC and UKSC now now share a newly refurbishing building on the other side of the green from Parliament but before the UKSC was created hearings of the Judicial Committee of the House of Lords were held in a committee room in Parliament but UKPC hearings were never held there - they were held in Downing Street outside the UK Parliamentary buildings.
I suspect - and this is just a guess on my part - that referring to the JCPC panel of justices as the "board" rather than as the panel is just another one of the things done to give it a different feel fromr UKSC.
The term ‘Board’ in relation to the JCPC is historical. In the 17th and 18th century, departments — as we term them now — were known as Boards.
I quote from the House of Commons Library Research Briefing published in summer 2022, entitled ‘The Privy Council: history, functions and membership’:
As the functions of government expanded, Boards (of the UK Privy Council) to which a President (a minister) was responsible were created. Thus, the Board of Trade was revived in 1786, a Local Government Board established in 1871 and a Board of Agriculture in 1889. These Boards gradually evolved into modern government departments. For example, Board of Education for England and Wales (the Scotch Education Department was also a committee of the Privy Council) became the Ministry of Education in 1944.
Therefore, the panel of the Judicial Committee of the Privy Council (JCPC) on any given appeal sits as a board of the WIDER Privy Council.
The JCPC panels are also referred to as ‘the Board’ in the JCPC Rules of the Committee and Practice Directions.
The term 'board' for a committee of the Privy Council is because 'board' means the table where the councillors would meet. By extension, it refers to the group of officials assembled at that table. In former centuries, petitions would be presented to Council at the table, at set times - and this included items of business we would now classify as judicial. In the Restoration, the Privy Council regained a limited formal judicial role (i.e., very carefully not replicating the Star Chamber), and its new rules clearly used the term 'board'. Even before then, from the "Orders to be observed in Assemblys of Council" (February 20, 1627), reprinted in "A Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council" (MacQueen, 1842):
VI. At every council, before the Lords rise from the board, the Lord President [...] is to signify to the Lords what business of the day do remain [...]
VII. When any order is agreed upon, the clerk of the council attending shall take notice thereof, in writing, and punctually read, openly, how he hath conceived the sense of the board, that if any thing be mistaken, it may then be reformed. [...]
We see here both "rise from the board" (it is a table) and "the sense of the board" (it is the people). Other common phrases like "read at the board" also have that furniture sense: compare the use of "called to the bar", where "the bar" was originally a place and is now also a status.
Likewise, from October 31, 1689, an order which is still part of procedure today:
It is this day ordered by his Majesty in council, that from henceforward there be not admitted above two council to be heard on a side in any cause at this board, and but one allowed on each side for reading such evidences and proofs as there shall be occasion to make use of.
Because the Council met in several possible sets of chambers, in Whitehall or other palaces, there is no one table that is the board.
The term 'panel' refers in this context to the set of personnel who are ordinarily available to be on a 'board'. There is also a 'supplementary panel', which is composed of extra people who are capable of doing judicial stuff if asked, but are not the permanent members.
