On Monday 7th September 2026, Jamaica filed a petition with King Charles asking him to refer three specific questions on transatlantic slavery to the Judicial Committee of the Privy Council (‘JCPC’) under s.4 of the Judicial Committee Act 1833 (‘JCA’). The questions focus on whether enslavement in Jamaica was ever lawful and whether there is an obligation on the UK to provide some form of reparation.
The move has raised a number of interesting constitutional questions. What exactly is the JCPC, and what is the monarch’s connection to it? How does the s.4 mechanism work, and what role does the monarch play in relation to it? Ultimately, what is the likelihood that King Charles will make the referral and, in the words of Jamaica’s Culture Minister, ‘allow our case to have a fair hearing in the British courts’?
The Judicial Committee of the Privy Council
Following the Norman Conquest, the Privy Council was the body through which the monarch governed England. It had jurisdiction to resolve legal disputes based on the premise that ‘the King is the fountain of all justice throughout his dominions and exercises jurisdiction in his Council, which acts in an advisory capacity to the Crown’ (Lord Neuberger of Abbotsbury, ‘The Judicial Committee of the Privy Council in the 21st century’ (2014) Cambridge Journal of International and Comparative Law 30, 35).
The JCPC, which is the court of final appeal for the Crown Dependencies and the UK’s Overseas Territories, originated specifically out of a procedure whereby a party aggrieved by a decision of the Courts of Jersey and Guernsey might petition the King to exercise in his favour the Sovereign’s royal prerogative. It thus granted to the islands’ subjects the right to petition the Sovereign ‘as the fountain of justice for protection against an unjust administration of the law’ (Ibid). This right soon ‘ripened into a privilege belonging to every subject of the King’ (Richard Haldane, ‘The Work for the Empire of the Judicial Committee of the Privy Council’ (1921) Cambridge Law Journal 143, 145). For example, with the founding of colonies in the 17th century, petitions began to be received from the West Indies asking for the King’s grace as a relief from the decisions of local courts, particularly as Caribbean islands were ‘mainly governed by the sword’ rather than law (Ibid, 147). In 1681, an Order in Council appointed members of the Privy Council to form a Standing Committee known as the Plantation Committee, designed to deal with petitions from the plantations specifically (Lord Neuberger, ibid).
The JCPC gained formal, statutory underpinning with the passing of the JCA, which established it as a professional, appellate court with jurisdiction over imperial, admiralty, and ecclesiastical matters. The Committee has nevertheless remained monarchical in nature. Rather than making orders like an ordinary court, it sends advisory reports to the Sovereign proposing what the orders should be, typically ending with the words ‘The Board will humbly advise His Majesty…’. However, although in theory the JCPC’s reports contain advice rather than formal orders, in practice the monarch is bound by convention to accept this advice by passing an Order in Council under s.21 of the JCA. This process sees the monarch hold a formal Privy Council meeting in which the proposed order is read out, ‘the Sovereign bows, and an Order in Council is recorded, embodying the conclusions of the report which have been made to His Majesty from the Judicial Committee’ (Haldane, ibid). Emphasising the symbolic nature of the monarch’s modern-day relationship to the JCPC, Viscount Haldane in Hull v McKenna [1926] I.R. 402 asserted that ‘[T]he Sovereign… always acts upon the report which we make’, while Viscount Sankey in British Coal Corporation v R [1935] AC 500 reaffirmed that ‘according to constitutional convention it (is) unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee, who are thus in truth an appellate court of law’.
Yet, despite the monarch’s role in relation to the JCPC’s decisions now being a symbolic one, it still carries substantive consequences. Hardman notes that during Elizabeth II’s reign, ‘sober little gatherings’ of the Privy Council could:
‘effectively, send a man to his death… if it rejects the appeal of a murderer on death row in the Caribbean, then a condemned man is on his way to the gallows once the Queen has uttered a single word: ‘Approved.’ And it is her constitutional duty to do so’ (Robert Hardman, Our Queen (2011, Cornerstone Publishing), 157).
The former President of the Supreme Court has also stated that ‘the role of the monarch is of real importance’ still to the JCPC. As he observes,
‘the fact that the JCPC advises, and that it is the monarch who formally makes the decision, is of constitutional and symbolic significance, not least because it emphasises that the ultimate decision is that of the head of the territory concerned’ (Lord Neuberger, ibid).
As the proceeding section now shows, this continued constitutional and symbolic significance has once again been demonstrated following Jamaica’s decision to file a petition with King Charles at Buckingham Palace personally asking him to refer three important – and hitherto unanswered – questions on the issue of slavery to the JCPC.
The S.4 Mechanism
Jamaica did so under s.4 JCA. One of the statute’s most important and, as previously analysed on this blog, ‘curious’ provisions, s 4 states as follows:
‘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.’
Jamaica – in which the JCA is law by virtue of s.4 of the Jamaica (Constitution) Order in Council 1962 – has asked King Charles to refer to the JCPC the following three questions:
- whether the forced transport of Africans to Jamaica was lawful;
- whether it constituted a crime against humanity; and
- whether Britain is under an obligation to provide restitution for slavery and its enduring consequences.
Olivia Grange, Jamaica’s Culture Minister who hand-delivered the petition to Buckingham Palace, insists that
‘we are not asking King Charles to answer these questions himself. Rather, the people of Jamaica are asking him, as our head of state, to allow our case to have a fair hearing in the British courts.’
Nevertheless, she simultaneously asserts that ‘Charles has the constitutional power…to allow this question (about the legality of slavery and reparations) to now be legally examined’ by referring the questions to the JCPC.
King Charles may have little choice when it comes to accepting the advice tendered to him by the JCPC, but does he have any choice when it comes to making referrals to it? A literal interpretation of s.4 – particularly the phrase ‘as His Majesty shall think fit’ – seemingly grants the monarch a discretionary power to make referrals. However, the extent of that discretion is, in practice, limited. The constitutional precedent that exists indicates that the monarch only refers matters on ministerial advice. For example, as we will shortly see, the Queen once acted on ministerial advice in not referring a matter regarding ownership of the Australian seabed to the JCPC in 1974.
This raises a further question: on which minister’s advice does the monarch act? After all, petitions for referrals are brought by overseas Commonwealth countries but in the present case, for example, the King is the King of Jamaica (separately and simultaneously to being the King of Great Britain and Northern Ireland), and it is in that capacity that Jamaica addresses him.
A similar issue arose in the aforementioned Australian seabed case. In 1972 a dispute arose between the Australian federal government and the States of Queensland and Tasmania regarding ownership of the seabed adjacent to those States. The States petitioned Queen Elizabeth II to refer the matter to the JCPC for an advisory opinion, claiming that they were petitioning her in her capacity as Queen of Queensland and Tasmania. The Queen initially sought advice on who was competent to advise her from UK ministers, Law Officers of the Crown (including the Attorney-General and the Lord Chancellor) and academics. They argued that the Queen was not the Queen of Queensland or Tasmania, and accordingly British Ministers were responsible for advising the Queen on Australian State matters. However, and crucially, they acknowledged that the federal Australian Prime Minister could also advise the Queen on the subject of petitions as ownership of the seabed was disputed, with the federal Commonwealth Government also claiming ownership of it, which gave it an ‘interest’ in the matter. Ultimately, the British Foreign Secretary Alec Douglas-Home and the Australian Prime Minister Gough Whitlam both advised the Queen not to refer the petitions to the JCPC (Anne Twomey, The Chameleon Crown: the Queen and her Australian Governors (2006, Federation Press).
Does this mean that Jamaican ministers have the right to advise His Majesty on this Jamaican matter, in which they clearly have an ‘interest’? There hitherto appears to have been an assumption that it will be British ministers that will advise the King regarding the Jamaican petition. Britta Redwood, for instance, has concluded that:
‘The King will almost certainly not refer these questions to the Judicial Committee of the Privy Council as Jamaica has requested him to do. By settled convention, the King exercises his discretionary power to refer questions to the Committee on the advice of his ministers. This means, in substance, that the U.K. government will help decide whether a U.K. appellate body may examine the U.K.’s liability for the harms of slavery. The U.K. government’s position is not difficult to predict.’
Arguably, however, the matter is not as settled than that. As Twomey notes, ‘The Whitlam Government argued that (in matters concerning “Australia”) it was the “Queen of Australia” who must decide on the petition, and the “Queen of Australia” could only be advised by “Australian” ministers’ (Twomey, ibid, 116).
The following passage is taken from a letter which the British Government wrote to Whitlam in reply. Though lengthy, it is worth quoting in full as they opined that:
‘the power created by section 4 of the Judicial Committee Act 1833 is a power vested in Her Majesty in the right of the United Kingdom and not in Her Majesty in some other capacity. It follows that it is for the United Kingdom Ministers to advise the Crown as to the exercise of the power and it is they who have always done so. In the particular circumstances of the current petitions, however, the UK Government acknowledges that Australian Commonwealth Ministers should also have right, if they think fit, to tender advice to the Crown because, in the view of the Commonwealth Government and the United Kingdom Government, those petitions involve questions that are in substantive quest of the limits inter se of the constitutional powers of the Commonwealth of Australia’ (emphasis added).
As Twomey notes, one of the problems with this statement is that it did not ‘make clear all the “particular circumstances” in which the Australian Commonwealth Government would be accepted as having a right to advise the (monarch)’ (Ibid, 124). Nevertheless, she concludes that ‘the Commonwealth Government also had a concurrent right to advise Her Majesty on the issue, because of its interest in the subject matter of the petition’ (emphasis added) (Ibid, 116). This suggests that the UK Government has, at least on one previous occasion, acknowledged that a Commonwealth Government could stand as a separate advisor to the monarch regarding a matter in which it has an interest.
An additional question that arises here is what would happen if the King is advised by both the British and Jamaican prime ministers, but the advice of those two ministers differs. Following Jamaica’s presentation of its petition, Downing Street reiterated the long-standing UK position that it does not pay reparations, and the British Government would be likely to take its own interests into account in any s.4 referral decision. Indeed, Cabinet Office documents show that this is what the British Government did in the Australian seabed case when it took political matters into account, such as its interest in maintaining good diplomatic relations and avoiding being drawn into controversy (Ibid, 117).
In contrast to the UK Government position, the Jamaican petition has the backing of the country’s prime minister Andrew Holness. The principle of “equality” as set out in the Balfour Declaration means that there would be no rule as to which advice prevails in the case of conflict. This potentially places the monarch in an invidious position. For example, in the Australian seabed case, the British Prime Minister Edward Heath was one of several British ministers who ‘could not see why the British Government could not refer the petition to the Privy Council, even if the Commonwealth disagreed’ (Twomey, 118). The Foreign Office and legal officers, however, expressly took into account as a relevant factor ‘the embarrassment to the Queen resulting from the receipt of conflicting advice’ (Cabinet Minute DOP (73) 77, 17 December 1973). The British Government knew that the Australian Government would advise the Queen not to refer the petition, as Canberra did not believe in the ownership claims of Queensland and Tasmania. This ultimately shaped the British Government’s decision to advise the Queen not to refer the petitions, as ‘it did not want to be enticed down the “slippery slope” of setting the advice of British Ministers against Australian Ministers’, which would have forced the monarch ‘to draw conclusions as to which were superior to the other’ (Twomey, 125). Thus ‘the British Government decided to advise the Queen to act in the same manner advised by the Commonwealth Government, so that she did not have to make a choice’ which, by all accounts, was one she was loathed to make: as Australia’s High Commissioner in London later recorded during a visit to Buckingham Palace, the Queen raised her ‘Australian predicament’ with him and the difficulty that would arise if she were placed in a position of conflict (Letter by Sir John Bunting to Mr J. Menadue, Secretary, Dept of Prime Minister and Cabinet, 17 March 1975: NAA A 432 1973/3262 Prt 7). Commentators have claimed that ‘King Charles has no personal discretion in deciding whether to make a referral’ and ‘constitutionally, the decision is not actually his’. However, the Balfour Declaration coupled with previous precedent suggest that a monarch who receives conflicting advice from advising British and Commonwealth ministers may have little choice but to exercise personal discretion and make a decision himself.
Does Jamaica have an exclusive right to advise the King? Twomey notes that some academics and lawyers argued that a constitutional convention had crystallised following the Australian seabed case that the Monarch would act in relation to an Australian Commonwealth matter on the advice of the relevant Commonwealth Ministers (Ibid, 126). However, the reason for this may have been that, when communicating the decision that the petition would not be referred, the Australian Attorney-General sent telegrams to the State Governors advising that the Queen acted solely on the advice of her Commonwealth ministers. Omitting any reference to the Queen also acting on the advice of her British ministers, the final letter from the Governor-General stated that
Her Majesty the Queen of Australia has received and accepted the advice of her Australian ministers –
– That the Petitions raise matters of concern only to Australia…
– That the matter is one therefore on which Her Majesty should be advised as Queen of Australia by Her Majesty’s Australian Ministers’ (Ibid, 120).
The Australian Government had even initially inserted a line into the Queen’s speech opening the Commonwealth Parliament in February 1974 stating that she had been ‘pleased to accept the advice of [her] Australian ministers’ regarding the seabed petitions (Ibid, 123). Only when presented with the draft speech on the Queen’s journey to Australia did her Private Secretary observe that ‘the sake of truth’ required the insertion of reference to British ministers also advising Her Majesty (Ibid). Adding to the confusion, Justice Murphy in the 1975 case of Commonwealth v Queenslandconcluded that the Governor-General’s letter ‘makes clear that the Queen accepted and acted on the advice of her Australian Ministers in her role as Queen of Australia regarding this petition’, adding that it ‘would not be consistent with the constitutional integrity of Australia as an independent sovereign nation for United Kingdom ministers to tender advice to the Queen on Australian internal affairs’ (Ibid, 125).
A final thought. Even if the King were advised (either by British ministers, Jamaican ministers, or both) to refer Jamaica’s tripartite questions to the JCPC, the s.4 procedure is used so infrequently that questions about its practical operation abound. For example, in Chief Justice of the Cayman Islands v The Governor and The Judicial and Legal Services Commission [2012] UKPC 39 the JCPC was faced with jurisdictional questions concerning the role of the Sovereign in s.4 referrals when it was asked whether the Committee could decline to rule on issues raised in a petition referred to it by the monarch. It decided that it would be open to the JCPC to advise the monarch that it was inappropriate to provide substantive answers to issues referred to it if an issue could properly be determined in the courts of first instance in that jurisdiction.
Conclusion
As the foregoing analysis shows, s.4 JCA is riddled with uncertainty. While the monarch acts on ministerial advice and does not have total discretion to refer matters ‘as he sees fit’, it is not always clear whether it is for the British Government, a Commonwealth Government, or both to advise him. It is also unclear whether there is any personal discretion for the monarch to make a referral where he receives conflicting advice from British and Commonwealth ministers. Even if a referral is made, it is not guaranteed that the JCPC will agree to rule on it. If Jamaica had to spend months liaising with Buckingham Palace and the Privy Council just to confirm the correct initial procedure for filing a petition under s.4, it seems that the outcome of it will be even more of a step into the unknown.
I am grateful to the editors of the UKCLA Blog for their helpful comments on an earlier draft of this post. Any errors or omissions are my own.
(Suggested citation: F. Jackson, ‘Jamaica’s petition to King Charles on slavery reparations under s.4 Judicial Committee Act 1833: A constitutional analysis’, U.K. Const. L. Blog (23rd September 2026) (available at https://ukconstitutionallaw.org/))
Editor’s note: link to the ‘Balfour declaration’ has been corrected after publication.
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