Attorney General of Antigua and Barbuda et Al v Lake
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton,Lord Lloyd of Berwick,Lord Nicholls of Birkenhead,Lord Hope of Craighead,Lord Clyde |
| Judgment Date | 08 October 1998 |
| Court | Privy Council |
| Docket Number | No. 58 of 1997 |
| Date | 08 October 1998 |
Privy Council
Lord Hutton
Lord Lloyd of Berwick
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Clyde
No. 58 of 1997
Constitutional law - Fundamental rights and freedoms — Public Servants — Respondent claimed that his removal from the post of Medical Superintendent infringed his constitutional rights — Court did not decide the question but held that the High Court was entitled not to exercise the discretion given to it by the proviso to section 18(2).
On 20th July 1998 their Lordships agreed humbly to advise Her Majesty that the appeal should be dismissed and that the appellants should pay the costs of the appeal and that they would deliver their reasons later. This they now do.
In April 1994 Mr. CuthwinLennard Lake C.B.E., F.R.C.S. (whom their Lordships will call “Dr. Lake”), was the Medical Superintendent of Holberton Hospital in Antigua. He claims that in the course of that month he was removed from that position. In November 1994 Dr. Lake brought a motion in the High Court against the four appellants, the attorney-general of Antigua and Barbuda, the Public Service Commission for Antigua and Barbuda, the Honourable Lester Bryant Bird, the Prime Minister of Antigua and Barbuda, and the Chief Establishment Officer, in which he claimed a declaration that his removal from his duties as the Medical Superintendent of Holberton Hospital by the second-named and third-named appellants was an infringement of his Constitutional rights, and he claimed further declarations giving effect to his Constitutional rights. Dr. Lake also claimed a declaration that the third named appellant, the Honourable Lester Bryant Bird, had been guilty of misfeasance in public office in relation to him and damages against the first and second-named appellants and damages and exemplary damages against the third named appellant.
Dr. Lake's motion was listed for hearing before Benjamin J. on 20th February 1995. Prior to the hearing of the motion the appellants applied to the High Court for a ruling that the court had no jurisdiction to embark on the hearing of the motion on the ground that the facts alleged by the applicant (if proved) did not constitute a breach of his Constitutional rights or give rise to remedies under the Constitution. After full argument Benjamin J. dismissed the appellants' application and held that Dr. Lake's motion gave rise to issues under the Constitution which the High Court had jurisdiction to entertain. The appellants appealed to the Court of Appeal, and the Court of Appeal dismissed the appeal and upheld the order of Benjamin J. The appellants now appeal to this Board, with special leave, against the decision of the Court of Appeal.
The relevant provisions of the Constitution of Antigua and Barbuda
The relevant provisions of Chapter II are as follows:–
“14. …
(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions or affiliations, colour, creed, or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description.”
“18.-(1) If any person alleges that any of the provisions of sections 3 to 17 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction –
(a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; …
and may make such declaration and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 17 (inclusive) of this Constitution:
Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.”
The relevant provisions of Chapter VII under the heading “The Public Service” are as follows:–
“99.-(1) There shall be a Public Service Commission for Antigua and Barbuda (hereinafter in this section referred to as the Commission) which shall consist of a chairman and not less than two nor more than six other members who shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister:
Provided that the Prime Minister shall consult the leader of the opposition before tendering any advice to the Governor-General for the purposes of this subsection.
…
(11) The Commission shall, in the exercise of its functions under this Constitution, not be subject to the direction or control of any other person or authority.”
“100.-(1) Subject to the provisions of this Constitution, the power to appoint persons to hold or act in offices in the public service (including the power to make appointments on promotion and transfer and to confirm a appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Service Commission.
…
(6) In the performance if its functions the Public Service Commission shall act in a manner consistent with the general policy of the Government as conveyed to the Commission by the Prime Minister in writing.”
“101.-(1) This section applies to the offices of Secretary to the Cabinet, Permanent Secretary, head of a department of government, deputy head of a department of government, any office for the time being designated by the Public Service Commission as an office of a chief professional adviser to a department of government and any office for the time being designated by the Commission, after consultation with the Prime Minister, as an office the holders of which are required to reside outside Antigua and Barbuda for the proper discharge of their functions or as an office in Antigua and Barbuda whose functions relate to external affairs.
(2) The power to appoint persons to hold or to act in offices to which this section applies (including the power to confirm appointments), and, subject to the provisions of section 107 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Governor-General, acting in accordance with the advice of the Public Service Commission:
Provided that-
…
2. before the Public Service Commission tenders advice to the Governor-General with respect to the appointment of any person to hold an office to which this section applies (other than appointment to an office of permanent secretary on transfer from another such office carrying the same salary) it shall consult with the Prime Minister and if the Prime Minister signifies his objection to the appointment of any person to the office, the Commission shall not advise the Governor-General to appoint that person;”
The relevant provisions of Chapter IX are as follows:–
“119.-(1) Subject to the provisions of sections 25(2), 47(8)(b), 56(4), 65(5), 123(7)(b) and 124 of this Constitution, any person who alleges that any provision of this Constitution (other than a provision of Chapter II) has been or is being contravened may, if he has a relevant interest, apply to the High Court for a declaration and for relief under this section.
(2) The High Court shall have jurisdiction on an application made under this section to determine whether any provision of this Constitution (other than a provision of Chapter II) has been or is being contravened and to make a declaration accordingly.
(3) Where the High Court makes a declaration under this section that a provision of this Constitution has been or is being contravened and the person on whose application the declaration is made has also applied for relief, the High Court may grant to that person such remedy as it considers appropriate, being a remedy available generally under any law in proceedings in the High Court.
(5) A person shall be regarded as having a relevant interest for the purpose of an application under this section only if the contravention of this Constitution alleged by him is such as to affect his interests.
(6) The rights conferred on a person by this section to apply for a declaration and relief in respect of an alleged contravention of this Constitution shall be in addition to any other action in respect of the same matter that may be available to that person under any other law or any rule of law.”
The facts relied on by Dr. Lake
No witnesses were heard or cross-examined before the High Court and the High Court and the Court of Appeal considered the question whether Dr. Lake's motion raised Constitutional issues on the basis that the facts alleged by him were true. In summary the facts relied on by Dr. Lake are as follows. On 1st December 1967 he was appointed a Surgeon Specialist at the Holberton Hospital and, with the...
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