CLA News / The British Privy Council and Human Rights: Double Standards, Cynicism or Colonial Homophobia? By Dr Leonardo Raznovich
On 25 March 2025, Trinidad and Tobago’s Court of Appeal recriminalised same-sex intimacy by overturning a 2018 ruling that had declared British colonial laws of 1925, banning consensual same-sex, unconstitutional. The courts in Jamaica in 2023 and in St Vincent and Grenadines in 2024 held that similar British colonial legislation criminalising consensual same-sex intimacy was also constitutional, despite the Inter-American Commission of Human Rights in 2020 having determined Jamaica to be responsible in international law for the criminalisation of LGBTQI+ people, a determination also applicable to Trinidad and Tobago and St Vincent and Grenadines.
Prime Minister, Theresa May, acknowledged the UK’s responsibility and publicly apologised in 2018 for these laws and the death and suffering that they caused all around the Commonwealth. Yet, in these three jurisdictions, their courts ruled for their constitutionality by holding that they were bound by their apex court’s case law to do so. Their apex court is the Judicial Committee of the Privy Council (“JCPC”) whose members are mostly British judges of the UK Supreme Court. The JCPC has been the British imperial court that the UK Parliament created in 1833 and since then has functioned as the apex court for all its colonies. When the UK granted independence to some of its Caribbean colonies in the 1960s, the UK parliament enacted their first constitutions, which provided these countries with legislative and executive independence but retained the British JCPC as the head of their judicatures. This situation was acknowledged by the Privy Council itself in lbralebbe, [1963] UKPC at [440]:
“[I]t is … a basic fallacy to suppose that the irrevocable cession of legislative authority to the Parliament of Ceylon or the vesting of the executive power of the Island in a Governor-General acting on the advice of a Cabinet of Ministers responsible to that Parliament has by any necessary implication terminated the judicial power of Her Majesty under the system of appeals as it existed at the date of independence.”
Different reasons may explain the retention of sovereignty over the judicature, but one of these was the assumption that Caribbean people were not fit for the full enjoyment of self-governance and independence. This assumption does not hold true any longer (if it ever did) after the Treaty signed by all Anglophone Caribbean nations (save for the Bahamas) and Suriname in Barbados in 2001 to establish the Caribbean Court of Justice to replace the British JCPC.
British judges have, since 2001, pivoted as necessary to please the Caribbean establishment to prevent them from leaving the JCPC’s jurisdiction – even by packing panels that heard some appeals from these jurisdictions to achieve outcomes desired by Caribbean governments, as revealed by Lord Millett in 2015 in his memoirs had happened in Boyce in 2004 . More recently even by interfering with internal political matters as Lord Reed, the current president of the JCPC, did publicly when he beseeched Jamaicans to retain the JCPC as their apex court. More seriously, as part of these efforts, the JCPC developed an entirely novel constitutional doctrine, which provides some Caribbean governments with total impunity to affect, without judicial control, the colonial machinery of social control and oppression that the UK left behind, including criminalisation of LGBTQ+ people. This included declaring colonial laws unassailable (Boyce 2004) and unrepealable (Pinder 2002), and fundamental rights unenforceable (Campbell-Rodriques 2007). These are the decisions referred to by the courts in these three jurisdictions as binding upon them today.
In 2007, the Inter-American Court and the Inter-American Commission of Human Rights found these JCPC decisions, in effect, to be in breach of international human rights treaties. In 2018, the Caribbean Court of Justice reversed these decisions for Barbados (in Nervais) and for Guyana (in McEwan). In 2022, in the case of Chandler, the JCPC had an opportunity to follow the Caribbean Court of Justice and do the same for Trinidad and Tobago. The JCPC accepted that the Boyce ruling was, in fact, in breach of international law. It also accepted – astonishingly – that there was nothing mandatory or inevitable in its construction in Boyce. Yet, the JCPC nonetheless upheld Boyce’s immunity of all colonial laws out of newfound respect for stare decisis, about which it did not care when it decided Boyce in 2004.
Attempts to get declarations of unconstitutionality from the local courts against British colonial laws that criminalise LGBTQI+ people in Guyana, Barbados and Dominica were fortunately successful due to the precedents set by the Caribbean Court of Justice in 2018. Yet, similar claims for unconstitutionality in Jamaica, Trinidad and Tobago and St Vincent and Grenadines failed because the courts there were bound by the JCPC’s novel constitutional doctrine that colonial laws are unassailable, above the constitutions and thus out of scrutiny by Caribbean judges.
It is shocking that notwithstanding the acknowledged death, suffering and breaches of the rule of law by a UK Prime Minister, these laws continue to be enforced by British judges. Trinidad and Tobago is paradoxical in that it became a Republic in 1976, but was allowed by the UK to retain the JCPC as its most senior court; the JCPC no longer advises the British Crown to deliver judgments for Trinidad and Tobago but delivers judgment directly, without the intervention of the Crown. Trinidad and Tobago is, in essence, outsourcing its apex court to the UK. By allowing this outsourcing, the UK government allows British judges to be used by Trinidad and Tobago to weaponise inhumane and degrading British colonial laws against innocent LGBTQ+ citizens.
In a statement by the International Bar Association’s Human Rights Institute about the situation in Hong Kong, Baroness Helena Kennedy stated:
‘My view is that the law in Hong Kong is being weaponised and used against the pro-Democracy movement. I do not think UK judges should sit on the court, and nor should UK lawyers participate in prosecuting cases, and I have made that view very clear.’
The UK Supreme Court took also the stance that UK judges should take no part in cases in Hong Kong given the assault on the Rule of Law “without appearing to endorse an administration which has departed from values … to which the Justices of the [UK] Supreme Court are deeply committed”.
The role of British judges in Trinidad and Tobago is similar (although not identical) to the role of British judges in Hong Kong; the similarity lies in that in both jurisdictions the judicial power of His Majesty under the system of appeals, as it existed in colonial times, has ceased to exist. Trinidad and Tobago’s insistence in defending the constitutionality of the British colonial laws of 1925 banning consensual same-sex shows that it does not care for the human dignity of its citizens. This should be a value to which the justices of the UK Supreme Court, I hope, should be also deeply committed. If this is so, then, there is no reason why such an assault on the rule of law should be “endorsed” by the [UK] Supreme Court’s justices sitting on the JCPC other than remnants of yesteryears colonial homophobic agenda, double standards or perhaps their cynicism
By Dr Leonardo Raznovich
Profile
Visiting Research Fellow at GAIN – Gender: Ambivalent In_Visibilities – University of Vienna and English practising barrister (called 2010) whose work focuses on human rights and British colonial constitutional law. Leo’s experience includes high-profile cases instrumental in advancing LGBTQI+ rights across the British Overseas Territories. His groundbreaking litigation includes formulating legal strategies in cases such as Day v Governor of the Cayman Islands [2022] UKPC 6, which established the right of same-sex couples to a legal framework functionally equivalent to marriage, and the application, as intervener, to the European Court of Human Rights in the matter of regression of rights in AG v Roderick Ferguson [2022] UKPC 5. Leo also submitted written evidence to the British Parliament’s Foreign Affairs Select Committee, whose recommendations on same-sex marriage were adopted in its 2019 report. Leo has successfully influenced legislative reform, including consulting on the drafting of the Cayman Islands’ Civil Partnership Act 2020 to ensure functional equivalence to marriage and the protection of minority rights, by successfully lobbying the UK’s FCDO to drop a constitutional amendment that would have weakened protections for LGBTQI+ people.
