Judicial Politics at the Privy Council: Empirical Evidence
Abstract: British judges in general, and British high court judges in particular, are perceived to be independent and isolated from political pressure and interference. Furthermore, the rate of unanimous decisions tends to be particularly high in English courts of last resort. This has led many scholars to consider that, contrarily to what holds for many other courts around the world (such as the US Supreme Court), the attitudinal model does not find support when British higher court judges are considered. In this paper we discuss one British court of last resort that has been less studied in the literature: the Judicial Committee of the Privy Council. This court is the highest judicial authority for a few cases in the United Kingdom and for many Commonwealth jurisdictions. Traditionally, this court deals with Commonwealth appeals as well as a limited number of domestic cases. Following the three Devolution Statutes in 1998 (from Scotland, Northern Ireland and Wales), the Judicial Committee of the Privy Council also decided appeals concerning devolution issues (that is,cases concerning the extent to which the devolved governments or legislatures went beyond their powers). We study empirically the decisions of the Judicial Committee of the Privy Council and investigate the extent to which Commonwealth and devolution appeals induce different judicial behavior. We construct a dataset of 341 decisions ruled upon during the period from 1998 until 2011. Our results indicate a higher polarization of judicial behavior in the context of devolution (as measured by separate opinions) but no other consistent evidence of significant differences across types of cases (devolution, Commonwealth and domestic). We discuss these results in the context of the comparative judicial politics literature and the role of courts in the common law world.
