Alex Peplow: A Curious Jurisdiction – Section 4 of the Judicial Committee Act 1833

Alex PeplowAs a bit of light relief from the Brexit furore, I will be considering the jurisdiction conferred on the Judicial Committee of the Privy Council, and how it came to be used to resolve a dispute between two rival claimants to a Scottish title – In the Matter of the Baronetcy of Pringle of Stichill [2016] UKPC 16.

The dispute

The issue was whether evidence of apparent historical illegitimacy should displace a presumed baronet from his title in favour of a rival claimant. The baronetcy in question is Scottish, but the case concerns matters of English and UK-wide law as well as Scottish law.

The Baronetcy of Pringle of Stichill was granted in 1683 to the 1st Baronet and the “male heirs of his body”, i.e. the direct male descendants of the 1st Baronet.

The effective Respondent to the petition was the presumed incumbent 11th Baronet, Simon Pringle (“Simon”), the son of the 10th Baronet, Sir Steuart Pringle (“Sir Steuart”). The Petitioner was Norman Murray Pringle (“Murray”), Simon’s cousin.

It was common ground that the 8th Baronet was the legitimate descendent of the 1st Baronet. However, Murray contended that Sir Steuart’s father (the 9th Baronet) was the illegitimate son of a father other than the 8th Baronet, and that the Baronetcy should therefore have passed to Murray’s father, who was the younger son of the 8th Baronet. Therefore, Murray alleged that his own father was the real heir to the baronetcy, and that Murray himself was now (since his father’s death) entitled to be enrolled as Baronet.

The evidential basis of this claim was a DNA sample taken voluntarily from Sir Steuart for the purposes of a genealogy project (the primary aim of which was not to bring a rival claim to the Baronetcy but to determine the chief of the clan Pringle).

The DNA evidence itself was not disputed – that is to say, Simon did not dispute that the evidence strongly indicated that his grandfather had been shown to be illegitimate. However, Simon resisted the claim on the basis that the DNA evidence should not be admitted on grounds of public policy.

The Board considered various legal issues, including the Scottish law of prescription, the equitable defence of acquiescence, breach of confidentiality, and the Data Protection Act 1998. Those issues are not the focus of this article, but rather the procedural mechanism by which the dispute came to be heard by the Privy Council.

The Privy Council

The Privy Council is an ancient committee of advisors to the Crown. In modern times, it is largely composed of senior politicians, senior judges, and Church of England bishops.

The Judicial Committee of the Privy Council is a creature of statute, created by the Judicial Committee Act 1833. Its membership comprises those who are both members of the Privy Council generally and also hold, or have held, “high judicial office” (essentially judges of the senior courts in the UK jurisdictions).

The Judicial Committee’s main function is to sit as a court of final appeal for a number of Commonwealth countries. It also has some limited appellate jurisdiction in the UK from a few specialist courts. In practice, it sits as a court (known as a “Board”) whose membership is almost entirely derived from the justices of the Supreme Court, and hears cases in largely the same way. An additional complication is that decisions of the Privy Council are not seen as setting binding precedents which lower courts must follow, although the Supreme Court is due to rule on whether this should continue to be the case. The Privy Council’s jurisdiction in this case comes from s. 4 of the 1833 Act.

The s. 4 reference

  1. 4 of the Judicial Committee Act 1833 provides that:

It shall be lawful for his Majesty to refer to the said judicial committee for hearing or consideration any such other matters whatsoever as his Majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.

The s. 4 reference is a little-used jurisdiction – only three referrals have been heard since October 2009.

The Royal Warrant of Edward VII of 1910 provides that the Roll of the Baronetage is to be prepared in consultation with the respective Kings of Arms for each jurisdiction (in Scotland, the Lord Lyon). Any person who does not appear on the Roll but considers that they are entitled to so appear may petition the monarch through the Secretary of State. If the Secretary of State ever has difficulty advising the monarch as to the validity of any claim of entitlement to be enrolled, they may refer the matter to the Attorney-General for England, to the Lord Advocate for Scotland or to the Attorney-General for Ireland, for their opinion. On consideration of that opinion, the Secretary of State may direct that the matter be referred to the Judicial Committee of the Privy Council.

There is therefore a general power for the monarch to refer any matter to the Privy Council, and a specific provision for disputes about baronetcies to be referred. Although the reference in this case was made by the monarch, in practice it was initiated by the Secretary of State in order to help resolve the difficulty in advising the monarch who should be enrolled as the Baronet.

The Warrant does not provide for a lower court to consider the matter at first instance, and so the Privy Council must consider the matter without the benefit of a judgment from a lower court. It is itself determining the question at first instance, rather than exercising an appellate jurisdiction.

Her Majesty referred two questions to the Board for advice under s. 4: (1) who is now entitled to be entered on the Official Roll of the Baronetage as the Baronet of Pringle of Stichill and (2) whether the evidence resulting from the obtaining of a DNA sample from Sir Steuart Robert Pringle in late 2009 or early 2010 should be admitted in order to determine the first question. Thus, the Judicial Committee was handed an entire dispute to adjudicate, rather than specific questions of law to determine on appeal.

In Chief Justice of the Cayman Islands v The Governor and The Judicial and Legal Services Commission [2012] UKPC 39, Lord Neuberger (giving the opinion of a three-strong Board) addressed the issue of whether it was permissible (and, if so, appropriate) for the Board to decline to rule on a reference under s. 4 of the 1833 Act. It was held that the Board decline to rule on the substantive questions put before it, and that it is likely to be appropriate to do so if a lower court could rule on the matter instead.

In this case, given that the Royal Warrant expressly identifies a reference to the Judicial Committee as the final advisory body to which the monarch must turn in cases of difficulty (i.e. disputes), it does not appear that another forum is available, and so there are unlikely to be grounds for the Privy Council declining to rule on the matter.

The case for reform

There are a number of reasons why such disputes about baronetcies (and indeed other private disputes) are ill-suited to being heard at first instance by the Privy Council, and it will be argued that the Royal Warrant ought to be reformed to provide for a different dispute resolution procedure.

The main (related) issues are of resource allocation, and of suitability.

Firstly, resource allocation. The constitution of the Judicial Committee of the Privy Council when hearing a case is, in practice, almost exclusively composed of justices of the Supreme Court of the United Kingdom. Thus, every day when a justice dealing with a case as a member of the Judicial Committee, they are unavailable for Supreme Court business. Their time is highly precious and their intervention highly sought after. As a result, cases are only eligible to be heard by the Supreme Court (after being tried at first instance and usually appealed at least once) if they raise a point of law of general public importance.

In this way, the Supreme Court avoids the need to divert itself on trivial matters, or matters of narrow interest only. It also ensures that only arguable points are raised before them, which have already been identified and considered by a lower court. The Privy Council ought to have similar stringent filters.

In this case, the Royal Warrant does not permit use of the normal judicial hierarchy, and the Privy Council is forced to deal with the matter at first instance, rather than it being tried by a lower court first. Thus, the resources of the most senior court in the UK are diverted unnecessarily.

The Official Roll of the Baronetage lists some 1,256 extant baronetcies (including around 210 which are vacant/dormant). Not every dispute over a baronet’s entitlement to be listed on the Roll will need to be decided by the Privy Council. However, the availability of DNA evidence and this ruling on its admissibility means that the door could be opened for a large number of challenges, particularly for older titles where the risk of a break in the line is increased. Where the King of Arms and/or Secretary of State has difficulty determining who should succeed in particular disputes, then further references to the Privy Council may become inevitable.

It is not clear why a seven-justice panel was selected to hear the case, given that s. 5A of the 1833 Act provides that only three members need be present for the Committee to be quorate. If the issues of law in the case were considered important enough to warrant scrutiny by more justices, then this highlights the issue of resource-diversion even more.

The manifestation of this problem was sharply illustrated by the fact that two hearings ended up being necessary. At the start of the first hearing, Lord Hodge and Lord Reed (the two Scottish justices) reported that they had done some research, reached some provisional conclusions, and identified further legal issues on which the Board required submissions, for which the parties were not fully prepared. Further, it became apparent, on the second day of the hearing, that the doctrine of laches needed to be addressed. This meant that the case had to be adjourned after a day and a half, and re-convened two months later for a further day’s hearing. Clearly this was not anyone’s fault – it resulted from the fact that the Board and the parties were having to grapple with the issues at first instance, without the benefit of a full trial and reasoned judgment from a court below. Indeed, Counsel had attempted to mitigate the problem in advance by exchanging their written cases and replies, but this still did not avert the need for a further hearing.

It is bad enough when the High Court or County Court has a case which overruns, because this increases costs and has implications for other court users. The knock-on effects of the same happening in the Supreme Court/Privy Council are obvious.

This leads on to the appropriateness of the Privy Council acting as a court of first instance pursuant to a s. 4 reference.

The DNA evidence in this case was not disputed, and so the case turned on legal arguments of admissibility. However, it is unclear what would have happened if the DNA evidence had been disputed, as expert evidence sometimes is in trials. Would the Privy Council have received competing expert reports? Would the experts have been cross-examined before them?

It seems that the answer may be “no”, in the light of Lord Neuberger’s comments in the Chief Justice of the Cayman Islands case at [29]:

Lord Falconer was disposed to accept that, if the Judicial Committee simply could not deal with the issue raised by a petition (e.g. because it required facts to be found, where there is a dispute as to certain crucial facts), then the Judicial Committee could refuse to do so. That concession was, in the Board’s view, quite correct

This raises a difficulty: if there is a dispute as to key facts, on which a question of entitlement to be enrolled as a baronet turns, who is to find those facts? The Board held that the Lord Lyon’s assessment of a claim to the baronetcy and reporting to the Secretary of State is an administrative function, not a judicial function, and so the Kings of Arms are not best placed to resolve disputed factual questions. Further, the doctrine of the separation of powers does not easily sit with the Secretary of State resolving factual disputes, or indeed holding the keys to a judicial form of dispute resolution.

If factual disputes are not resolved, should the Privy Council attempt to resolve them, or should it refuse to hear the case at all? Could it even do so given the absence of an alternative court to adjudicate on the matter? The uncertainty of how these questions would be dealt with is far from satisfactory.

As to the legal issues that were ruled upon, the admissibility of DNA evidence in claims to displace the apparent incumbent holders of hereditaments or heirs to property is an important issue of law. It may even be a point of law of general public importance. But this does not mean that it is helpful for it immediately to be elevated to the top of the judicial ladder without the benefit of consideration by a lower court.

Additionally, questions of the admissibility of evidence are closely related to questions of practice and procedure. These are traditionally seen as the preserve of the Court of Appeal (in England and Wales at least), which is more closely linked to the first-instance courts which conduct trials and deal with rules of evidence on a daily basis.

There has been Parliamentary discussion of the proper role of a s. 4 reference. In 1967, Richard Crossman MP (then Lord President of the Council) said in Parliament:

The practice is to advise Her Majesty to refer to the Judicial Committee under [section 4] only cases of constitutional importance in which an advisory opinion is required by the Government or this House on a point which cannot be effectively decided in the ordinary courts.

In 1971, the Lord Chancellor, intervening in a debate in the House of Lords, discussed the history and purpose of a s. 4 reference and said that “The reference under Section 4 is a convenient method of ascertaining the law when no other jurisdiction is available”. It is submitted that this must be correct – it is undesirable to usurp the normal judicial hierarchy unless absolutely necessary, for the reasons set out above. While the s. 4 reference may be useful as a “last resort” jurisdiction if there really is no other forum available, this is unlikely to arise very often in practice (at least in England and Wales) due to the inherent jurisdiction of the High Court.

It would therefore be sensible for the Royal Warrant to be amended to provide for a dispute resolution mechanism which properly follows the judicial hierarchy. In England and Wales, the obvious answer is to provide that seeking a declaration in the High Court should be the first judicial port of call (with an equivalent provision for Scotland). Appeals could then lie to the Court of Appeal and/or Supreme Court in the normal way on points of law. This would prevent the most senior judges being unnecessarily diverted and allow the factual and legal questions to be explored properly and fully through the normal trial and appeal process.

Mr Alex Peplow, Trainee Solicitor at Fisher Meredith LLP

(Suggested citation: A. Peplow, ‘A Curious Jurisdiction – section 4 of the Judicial Committee Act 1833’, U.K. Const. L. Blog (14th Jul 2016) (available at