The essential question to be determined is:
" Whether the right of final appeal of citizens of Jamaica to the Judicial Committee of the Privy Council (Privy Council) should be abolished (at this time) and if it should be abolished, what are the conditions which should be in place and what, if anything, is to take its place?"

The proposal is that the Judges of the CCJ, would come from the Caribbean and wider Commonwealth and most persons have little doubt that we could, given the will, put together a Court of which we in the Caribbean could all be very proud.

But should the Privy Council be abolished and under what conditions?
There is a very strong case for abolition and while there are detractors, the issue for the well informed has really become "when and under what conditions" and not
"if ". There is no need for indecent haste in the matter, whatever the view in the UK, official or unofficial, may be.

In my view, we cannot lawfully abolish the Privy Council by ordinary legislation passed by a simple majority in Parliament and I express this view in the face of the fact that the Privy Council is not expressly entrenched under the Constitution. We certainly cannot engage this country in the CCJ by an Ordinary Act of Parliament.

This above conclusion results from an examination of our Westminster constitution and the impact of the decision of the Privy Council sitting on appeal from Jamaica, in 1976 (the Hinds case) in part and the obiter (comments of the Judges) in that decision.

In Hinds, Lord Diplock made the point that you had to look to the substance of what is being attempted by ordinary legislation and the necessary implications of same. If what is being done conflicts with the constitution it can't stand. It is the constitution which is the fundamental law not ordinary legislation.

In the instant scenario, the people of this country at independence (on the creation of the Constitution), had the right to look to the Privy Council to review the decisions of an entrenched Court of Appeal (Jamaica). If that tier is wiped away by ordinary legislation, we would have lost a right to this third and highest tier of appeal, which we previously enjoyed under the constitution. To this, the response would no doubt be that the constitution permits it as the Privy Council is not expressly entrenched. True, but what is the substance and necessary implication of what is proposed and does it conflict with the intent of the fundamental law (i.e. the Constitution)?

The substance of what is being done, is that a simple majority in Parliament, would be removing the highest level of our appellate system which sits in review of an entrenched Court which that simple majority could not directly impact in Parliament by the passage of ordinary legislation.

Firstly, you will be losing the right of appealing to the highest tier of the judicial system, which consists of Judges of the highest caliber and so recognised before and after our independence. Thus if you take it away and provide nothing in its place, that is a diminution of a right I previously enjoyed which related to the highest level of our judiciary. Not something in the ordinary governance and running of a country such as the imposition of taxes etcetera; something qualitatively different and fundamental to how the society of which I am a member, is to operate in the Judicial sphere.

Secondly, if you take away this substantial right, you should, (so as not to diminish that which I previously enjoyed), provide a Court of similar quality (insofar as the protection of judges is concerned) in its place or secure the agreement of a majority of members or of the people to make the changes. This can be achieved if a sufficient number of members in Parliament (both houses) supported the Bill so as to amend the Constitution and entrench the court if thought fit. If that support does not exist in Parliament the bill can only be passed if the support of a sufficient majority of the votes polled is secured in a referendum.

Thirdly, once the Privy Council is "removed by this simple majority", the possibility that in the future a "more well -intentioned Parliament" could return this final tier, is remote or nil. Once abolished, as a practical matter, the Privy Council, is gone forever.

Fourthly, the removal of the Privy Council, destroys the integrity of the system citizens had a legitimate expectation to expect would remain intact, certainly with respect to the final tier of appeal, and only removed and adjusted after consultation with them or possibly if a sufficient majority in Parliament also agree.
The reverse is not the same however.

Thus while the Constitution did not expressly entrench the Privy Council, when you look to the substance and the necessary implications of what is proposed, it seems clear to me that its abolition by a simple majority conflicts with the constitution and common sense and should be struck down as a matter of law.
This ordinary legislation which is proposed, would be diminishing a substantial right previously enjoyed by citizens which our constitution does not permit.
Anything less will be the "thin edge of the wedge" and those less well intentioned will in the future have their way with us and with our children and our children’s children.