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[Originally published in Counsel Magazine, October 2025.]

On 29 July 2025, the High Court of St Lucia declared unconstitutional British colonial-era laws that criminalise same-sex intimacy. This followed similar decisions in Barbados and Dominica. These three jurisdictions, along with Belize and Guyana, have as apex court the Caribbean Court of Justice (“CCJ”), which, in 2018, declared unconstitutional British colonial-era laws that criminalise transgender people in Guyana (McEwan v. AG [2018] CCJ 30 (AJ)). In contrast, similar claims for unconstitutionality in Jamaica, St Vincent and Grenadines, and Trinidad and Tobago failed because their courts held to be constrained by precedents of the Judicial Committee of the Privy Council (“JCPC”), which also acts as apex court for the Bahamas, Grenada, St Kitts and Navis and Antigua and Barbuda. The decision in Trinidad and Tobago has been appealed to the JCPC.

Passing Acquaintance with Fundamental Rights? 

The JCPC comprises judges of the UK Supreme Court, although from time-to-time Caribbean judges are added. The JCPC is the last remnant of British colonialism holding effective imperial power in the nations for which it remains its apex court. Therefore, despite more than half a century of political independence, these seven Caribbean nations have not yet achieved judicial independence.

This was the result of actions of the UK as the coloniser. Upon granting independence, the UK drafted and imposed constitutional frameworks, which allowed the UK to retain the JCPC as their apex court to determine what their constitutions and laws are and how they may evolve. In addition, in the Bahamas, Jamaica, and Trinidad and Tobago, the UK imposed a constitutional “savings clause,” which shielded colonial laws from judicial scrutiny. The JCPC construed these arrangements to secure the permanence of colonial era-laws. Its decisions proved lethal by draining some Caribbean nations of fundamental rights, as neighbouring nations under the CCJ enjoy growth in rights and freedoms:

• In 2002, the JCPC declared the permanency of colonial laws by holding that after being repealed, they may be re-enacted as if they had never been repealed and thereby regain their colonial law status (Pinder v The Queen [2002] UKPC 46).
• In 2004, the JCPC declared that the Bill of Rights in the constitutions of Barbados, Jamaica and Trinidad and Tobago, was non-enforceable in relation to colonial laws because of the operation of the savings clause (Boyce v The Queen [2004] UKPC 32).
• In 2007, the JCPC declared constitutional rights, including rights to liberty, equal protection, and non-discrimination, as non-enforceable, which confirmed in 2014, lest those rights could be used to scrutinise colonial-era laws, prohibited by the savings clause pursuant to Boyce (Newbold v Comm of Police [2014] UKPC 12).

Are these results mandated by the constitutional text? Or are they the consequence of the JCPC’s choice of interpretation? The savings clause saga suggests the latter. The JCPC had originally decided that the savings clause shields existing colonial laws from being invalidated, but not from being construed to conform with the Bill of Rights (Roodal v Trin&Tobago [2003] UKPC 78), a balanced decision keeping relevant the savings clause and the bill of rights. A year later, in Boyce, ignoring stare decisis, a bitterly split JCPC (5-4) reversed Roodal by holding the savings clause to be a “complete” shield against the bill of rights; hence colonial-era laws were out of scrutiny by Caribbean judges, thus unassailable and above the constitutions. In 2007, the Inter-American Court and the Commission of Human Rights held Pinder and Boyce to breach the American Convention on Human Rights. In 2018, the CCJ returned to Roodal in Barbados and Guyana, declaring the savings clause, as construed in Boyce by the JCPC in 2004, “an unacceptable diminution” of freedoms, depriving persons “in perpetuity” of their fundamental rights (Nervais v The Queen [2018] CCJ 19 (AJ)). In 2022, the JCPC revisited Boyce and unanimously accepted that Boyce breached international law and that there were tenable alternative choices to construe the savings clause.  Yet, the JCPC upheld Boyce’s immunity of colonial laws out of newfound respect for stare decisis, about which it did not care when it decided Boyce (Chandler v The State (No.2) [2022] UKPC 19).

The JCPC’s passing acquaintance with fundamental rights is also impacting on the Caribbean British Overseas Territories. In 2022, in appeals from Bermuda and the Cayman Islands, the JCPC held that equality, human dignity and non-discrimination did not apply to LGBTQI+ persons. This was also a choice: the JCPC overruled every judge in Bermuda and rejected the reasoning of the Chief Justice of the Cayman Islands, all of whom, along with Lord Sales dissenting in Bermuda, found that they did apply. The European Court of Human Rights is considering a complaint, preliminarily admitted, regarding the decision in Bermuda.

Privy Council’s Need to Please its Master

The persistence of the British judiciary in construing Caribbean constitutions with the effect of denying fundamental rights and against international law is difficult to fathom. Whether coincidently or consequently, the establishment of the CCJ in 2001 (pursuant to a Treaty signed by Surinam and all English-speaking Caribbean countries, save for the Bahamas) marks the moment when some British judges started to pivot, as necessary, to please the Caribbean establishment.

Lord Millet, for instance, revealed in his memoirs (As in Memory Long (2015), p 92) that Roodal was reversed thanks to the contrived composition of the panel that heard the appeal in Boyce. Moreover, the majority in Boyce had to develop an entirely novel constitutional doctrine, which vested Caribbean governments, operating within a savings clause-based system (then the Bahamas, Jamaica, Trinidad and Tobago, Barbados and Guyana), with total impunity to affect, without judicial control, the colonial machinery of social control and oppression that the UK left behind. The novelty was that this would have been legally impossible in colonial times – colonial laws in breach of colonial constitutions were “void and inoperative” (Colonial Laws Validity Act 1865); yet, the day after independence, the same colonial law was shielded by the JCPC from being found unconstitutional, curtailing checks and balances, leaving Caribbean people worse off after their independence than under the UK´s colonial regime. A need to please its Caribbean master has been used to explain such flagrant breaches of the rule of law.

Lord Reed fuelled this hypothesis when he publicly beseeched Jamaicans to retain the JCPC as their apex court in a letter published in the press in Jamaica, meddling, in an unorthodox and unbefitting manner, with an internal political process (Letter of the Day | Lord Reed ‘Privy Council here to serve Jamaicans’, The Jamaican Gleaner (23 Nov 2023)).

The CCJ has not made life easy for the JCPC. Since its inauguration in 2005, it has differentiated itself from the JCPC by broadly construing fundamental rights in interpreting the exact same constitutional texts. This explains why St Lucia, Barbados and Dominica declared unconstitutional colonial-era laws that criminalise same-sex intimacy and why courts in Jamaica, Trinidad and Tobago and St Vincent and the Grenadines claim they cannot.

Completing the decolonisation process

Jamaica and recently Grenada publicly denounced the retention of the King as head of state; the King being, since their independence, a purely symbolic character with no real power. Yet, little or nothing is said regarding the JCPC, a relic of British imperialism with actual, genuine, power over them and their people and whose decisions have undermined fundamental rights and created damage that is significant and demonstrable on persons, communities and populations.

Caribbean people do of course have the right to maintain the JCPC, but such lack of judicial independence is not reconcilable with the “inalienable” nature of the right to self-determination and independence in international law. As recognised by the International Court of Justice in the Chagos case: independence cannot be waived or revoked; let alone blocked as happened to Jamaica’s attempt to replace the JCPC with the CCJ in 2004: the JCPC blocked it by interpreting Jamaica’s Constitution as requiring procedural steps not apparent on the face of the text.

For these same reasons, it is overdue that the UK accepts that the retention of the JCPC constitutes a failure to decolonise the Caribbean region. Until this is rectified, the UK and the Crown remain responsible in international law for the JCPC and its decisions. In the end, the UK and the Crown were the creators of the colonial laws that are used today to criminalise same-sex intimacy (as acknowledged by Prime Minister Theresa May in her public apology in 2018); the UK and the Crown were the creators of the constitutional frameworks that shield such colonial laws from judicial scrutiny; and the UK and the Crown retain in British judges the exclusive prerogative (or nearly exclusive) to construe the countries’ constitutions and adjudicate the constitutionality of colonial laws. It is time that an international court pierces this constitutional veil to highlight the incomplete decolonisation and hold the UK and the Crown to account.

The JCPC is due to hear next year the appeal from Trinidad and Tobago regarding colonial law criminalising same-sex intimacy. This is its opportunity to show that, notwithstanding its history, it can use the retention of the colonial judicial authority responsibly to further fundamental rights rather than to please its master. The international community is watching.