PC Appeal No 84/2006

IpsofactoJ.com: International Cases [2008] Part 9 Case 3 [PC]


THE PRIVY COUNCIL

(from the Court of Appeal, Trinidad & Tobago)

Coram

Kenneth Suratt

- vs -

Attorney General of

Trinidad and Tobago

LORD BINGHAN OF CORNHILL

BARONESS HALE OF RICHMOND

LORD CARSWELL

LORD BROWN OF EATON-UNDER-HEYWOOD

LORD MANCE

21 JULY 2008


Judgment

Lord Brown of Eaton-under-Heywood

(delivered the judgment of the Board)

  1. This is a second stage of an appeal before the Board in protracted proceedings brought by the appellants consequent on the government's non-implementation of the Equal Opportunity Act 2000, an Act brought into force in January 2001. When the Act came into force, no steps had yet been taken to establish either an Equal Opportunity Commission or an Equal Opportunity Tribunal, both of them bodies central to the Act's workings and for which it made provision. The reason for the Act's continuing non-implementation, however, was not that but rather because the government in power since December 2001 was advised that the Act was unconstitutional, a conclusion reached also in the course of the appellants' ensuing constitutional challenge by Smith J in the High Court on 10 May 2004 and by the Court of Appeal (Sharma CJ, Archie and Mendonca JJA) on 26 January 2006.

  2. The first stage of this appeal was concluded on 15 October 2007 when the Board (Lord Bingham of Cornhill dissenting) allowed the appellants' appeal (with costs), declaring the Act (as later immaterially amended) not to be inconsistent with the constitution of Trinidad and Tobago and that it should be implemented "without further delay". The appellants were given liberty to apply to the Board, if so advised, for further relief. It is pursuant to that provision that this further stage of the appeal is now before the Board (constituted as before). For the purposes of this judgment their Lordships will take as read the very full judgments previously given both by Baroness Hale of Richmond on behalf of the Board and by Lord Bingham of Cornhill. The present judgment is, accordingly, best regarded as a further chapter of the earlier judgments (albeit this time unanimous).

  3. The additional relief which the appellants now claim is essentially threefold.

    • First, they seek a further declaration that the non-implementation of the Act has breached their fundamental right to "the protection of the law" under section 4(b) of the Constitution.

    • Secondly, by way of "redress" pursuant to section 14 of the Constitution, they seek damages for the section 4(b) breach and invite the Board so to order and to remit the quantification of this claim to the High Court for hearing.

    • Thirdly, they complain that, despite the Board's order of 15 October 2007, much still remains to be done in the way of establishing a Commission and a Tribunal before the Act can take effect. Whilst not going so far as to contend that the government has failed to act consistently with the Board's declaration, they ask for a specific order that they have leave to apply to the High Court at some future date if so advised and they ask the Board to declare that upon any such application the High Court would have the jurisdiction to make coercive orders against the government.

  4. It is convenient to deal first with this third head of relief which the Board can do very shortly. Just three weeks after the Board's judgment was given on 15 October 2007 a general election was held in Trinidad and Tobago. Although no one could suggest that since then the government has exactly rushed to implement the Act, the Board are not persuaded that it has been dragging its feet. Their Lordships have been provided both with a report from the Solicitor-General fully explaining the position up to 21 April 2008 when a new Commission chairman and four Commissioners were sworn in, and at which time the Judicial and Legal Service Commission was in the process of appointing the Tribunal members, and also, during the course of the hearing on 10 June 2008, with an affidavit sworn that day by the permanent secretary to the Attorney-General's Ministry detailing the staged processes by which staff are to be appointed and suitable accommodation provided both for the Commission and the Tribunal, including a timetable of the further steps necessary up until October 2008. The Board do not envisage any need for further proceedings to hasten the final implementation of the Act but plainly nothing could prevent the appellants, if so advised, from instituting a fresh motion in the High Court. There is no occasion for the Board to make any order in this regard and in their Lordships' view nothing could be more inappropriate than that, against the possibility of such a future motion, the Board should determine in advance whether the judge would have the power then to make a coercive order against the government, an issue said by the appellants to be "of acute constitutional importance".

  5. Turning to the two other claims for further relief, the Board propose to deal with these together. It is the appellants' contention that the non-implementation of legislation which is in force and to their advantage has violated their fundamental human right to "the protection of the law" under section 4(b) of the Constitution and that that right has not been satisfied by their entitlement to seek (as here they have) the Court's ruling that the legislation is indeed constitutional and so must be implemented. The respondent contends to the contrary essentially that access to the Courts in itself provides "the protection of the law".

  6. This issue is plainly of great importance and its resolution by the Board would determine the position not just for Trinidad and Tobago but for most of the Caribbean States. Although raised as an issue in the present proceedings, it was, of course, immaterial so long as the view was taken, as it was in both courts below, that the Act was in any event unconstitutional. Smith J accordingly dealt with the issue (at paras 18-22 of his judgment) "in a summary way", concluding (para 21):

    Suffice it to say that I preferred the arguments proffered by the applicants and I find that all things being equal, the suspension/non-implementation of the Act would have deprived the applicants of the due protection of the law.

    [emphasis added by the judge]

  7. Archie JA's single judgment for the Court of Appeal simply never addressed the issue, concluding only (para 62):

    In light of the finding that the EOA is unconstitutional and therefore void, it follows that the appellants were not deprived of the protection of the law.

    Whether the Court of Appeal was thereby implicitly approving Smith J's dictum is a point itself no doubt open to argument.

  8. Against this background, and having heard no argument on the issue during the original hearing of the appeal, not all of their Lordships were prepared for full argument on the point at the subsequent hearing and certainly, at the conclusion of this further hearing, not all of their Lordships were of the same view on the issue. However and this will explain why the Board have chosen to deal with this issue and the section 14 issue together their Lordships have all reached the clear view that, whether or not the non-implementation of the Act is properly to be regarded as having deprived the appellants of the protection of the law, the making of the declarations already made by the Board on 15 October 2007 provides the appellants in the particular circumstances of this case with proper and sufficient "redress" pursuant to section 14 of the Constitution.

  9. No one has ever questioned the government's good faith throughout the course of these events. They need never, of course, have enacted this legislation or brought it into force in the first place. Indeed, on the Board's findings, they could have repealed it (and still could) by a simple majority vote in Parliament. Had they waited (as convention perhaps dictates government would ordinarily have been expected to do) until the Commission and Tribunal were already in place before bringing the rest of the Act into force, and during that interval been advised that the Act was not after all constitutional, no question of the appellants being denied the protection of the law would have arisen. It is true that some two years elapsed before proceedings were brought to test the constitutionality of the Act and that these proceedings were brought by the appellants, not the government. And as Lord Bingham observed at para 37 of his judgment expressing in this regard the view of the Board as a whole:

    It is not a desirable practice to leave the statute unimplemented until action is brought against the government by a private complainant seeking an order against the government to implement the statute after a delay of some years.

    But that provides no sound basis for an award of damages.

  10. Their Lordships think it plain that no call arises here for "vindicatory" damages. Sometimes, of course, such an award is appropriate. As Lord Nicholls of Birkenhead put it in his judgment for the Board in Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15; [2006] 1 AC 328, 336 (para 19):

    An additional award, not necessarily of substantive size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches.

  11. Unsurprisingly on the facts of that case the complainant having repeatedly been assaulted by a police officer the Board held that it would be open to the judge to make such an award. The facts of the present case are, however, strikingly different.

  12. In the present case, indeed, the Board conclude that no compensatory award is required either. By the same token that the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673 held that United Kingdom courts, exercising the power to award damages or order compensation given to them under section 8 of the Human Rights Act 1998 should, consistently with the ECtHR exercising its article 41 jurisdiction under the European Convention on Human Rights, treat the finding of the violation, certainly in article 6 cases, as in itself affording just satisfaction to the injured party rather than speculate on what the outcome of the proceedings would have been but for the violation, and generally should award damages only where satisfied that loss had in fact been caused by the violation, so too their Lordships believe that the Board's declarations already made on 15 October 2007 provide adequate and appropriate redress for the appellants here. Obviously the analogy with the application to due process violations of section 8 of the Human Rights Act (and article 41 of the Convention) is not an exact one. But what the appellants have been deprived of here assuming always in their favour that their section 4(b) constitutional right has been breached is the opportunity in recent years to bring discrimination complaints against private persons. What the upshot of any such complaints would have been is in the highest degree speculative.

  13. Of course in a case such as Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385, where the appellant (as it happens, one of the appellants' team of counsel presently before the Board) was imprisoned for seven days for contempt of court in violation of his right to due process, compensation was ordered for his deprivation of liberty including his consequential loss of earnings. But, as with Ramanoop's case, the situation there could hardly have been more different from the present case and, as the Board repeat, they can find no equivalent right to monetary compensation arising here, bearing in mind that all the redress for which section 14 provides is discretionary.

  14. In the result it remains unnecessary, just as in the courts below (although now for a different reason), to reach any concluded view on the section 4(b) issue and, in the circumstances set out in paras 6-8 above, the Board are clear that it would be wrong to do so.

  15. From all this it follows that the present application fails. The parties will have 21 days in which to make written representations as to costs. This order will make no provision for liberty to apply.


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