Brantley and Others v Constituency Boundaries Commission and Others (Saint Christopher and Nevis)

JurisdictionUK Non-devolved
JudgeLord Hodge
Judgment Date11 May 2015
Neutral Citation[2015] UKPC 21
Date11 May 2015
Docket NumberAppeal No 0028 of 2015
CourtPrivy Council

[2015] UKPC 21

Privy Council

From the Court of Appeal of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis)

before

Lord Mance

Lord Kerr

Lord Clarke

Lord Reed

Lord Hodge

Appeal No 0028 of 2015

Brantley and others
(Appellants)
and
Constituency Boundaries Commission and others
(Respondents) (Saint Christopher and Nevis)

Appellants

Peter Knox QC Thomas Roe QC Douglas Mendes SC Christopher Hamel-Smith SC Rowan Pennington-Benton

(Instructed by Simons Muirhead & Burton)

Respondents

Lord Goldsmith QC Simone Bullen Thompson Angelina Gracy Sookoo Jessica Gladstone

(Instructed by Debevoise & Plimpton LLP)

Heard on 11 and 12 February 2015

Lord Hodge
1

Saint Christopher and Nevis faces the problem that there has, since 1989, been no updating of the boundaries of its 11 parliamentary constituencies. The Commonwealth Assessment Team in 2005 and the Commonwealth Expert Team in 2004 and again in 2010 expressed concerns that a review was overdue. This appeal arises out of an attempt by the former government to break that impasse on 16 January 2015 immediately before calling an election.

2

In this judgment the Board sets out the reasoning for its decision on 12 February 2015 to order that the election, which took place on 16 February 2015, was to be conducted using the electoral list "existing prior to, and apart from, the proclamation bearing the reference No 2 of 2015 purportedly issued and published by the Governor General in Extraordinary Gazette No 3 bearing the date 16 January 2015". The Board also discusses wider constitutional issues which were raised in the appeal but which were not the basis of its determination.

3

The appeal arose out of an interlocutory application. Accordingly, the facts which underlie the substantive challenge have not been established. The appellants, who were representatives of the then opposition political parties or movements, obtained an interim injunction on the evening of 16 January 2015 prohibiting the Governor-General from making the proclamation altering the constituency boundaries until the determination of the appellants' challenge or further order of the court. As more fully set out below, that order was discharged and the Eastern Caribbean Court of Appeal upheld that discharge on the basis that the interim injunction had come too late, because it held that the proclamation had already been made.

4

The Court of Appeal, with the consent of the parties, granted leave to appeal to the Board on 5 February 2015. In an admirably pragmatic arrangement the parties agreed and the Court of Appeal recorded their undertaking that the Electoral Commission and the Supervisor of Elections would (i) prepare two lists of voters, one on the boundaries existing before the purported alteration on 16 January 2015 and the other on the boundaries described in the impugned proclamation and (ii) use for the purposes of the election the list which the Board held to be appropriate.

5

The Board has concluded that the dissolution of the National Assembly occurred before the impugned proclamation was made. Accordingly, the proclamation, if valid, did not govern the election which followed that dissolution. But the appeal also raised important constitutional questions on which it is expedient that the Board express at least tentative views. Those questions are: (i) whether, if there were a deliberate attempt to exclude the review by the courts of the Constituency Boundaries Commission's report, that attempt was unconstitutional because it was contrary to the rule of law, and (ii) whether the publication of the impugned proclamation in the Gazette after the grant of the interim injunction was unlawful and therefore of no effect.

The review of constituency boundaries
6

The Constitution of Saint Christopher and Nevis provides for the supervision of the registration of voters and the conduct of elections by a Supervisor of Elections (section 34). He or she in turn is supervised by an Electoral Commission of three persons appointed by the Governor-General (section 33). Section 49 of the Constitution provides for the Constituency Boundaries Commission ("CBC") of five members appointed by the Governor-General and section 50 requires the CBC to review constituency boundaries to give effect to the rules set out in Schedule 2 and to report to the Governor-General at intervals of not less than two and not more than five years. Schedule 2 provides:

"1. There shall be not less than eight constituencies in the island of Saint Christopher and not less than three constituencies in the island of Nevis and if the number of constituencies is increased beyond 11, not less than one-third of their number shall be in the island of Nevis.

2. All constituencies shall contain as nearly equal numbers of inhabitants as appears to the Constituency Boundaries Commission to be reasonably practicable but the Commission may depart from this rule to such extent as it considers expedient to take account of the following factors, that is to say:

(a) the requirements of rule 1 and the differences in the density of the populations in the respective islands of Saint Christopher and Nevis;

(b) the need to ensure adequate representation of sparsely populated rural areas;

(c) the means of communication;

(d) geographical features; and

(e) existing administrative boundaries."

7

Under section 50, the Prime Minister is required to lay before the National Assembly a draft of a proclamation by the Governor-General for giving effect, with or without modifications, to the recommendations contained in the CBC report. It is appropriate to set out subsection (6), as it is central to the Board's determination of this appeal:

"If any draft proclamation laid before the National Assembly under subsection ( 3) or (5) is approved by a resolution of the Assembly, the Prime Minister shall submit it to the Governor-General who shall make a proclamation in terms of the draft; and that proclamation shall come into force upon the next dissolution of Parliament after it is made."

(The Board's underlining)

8

It is appropriate also to set out the terms of subsection (7), which provides for the ouster of the court's jurisdiction, in view of the appellants' challenge, which the Board notes but is not in a position to determine, that the former governing party deliberately rushed through the approval of the impugned proclamation in order to prevent legal challenge. Subsection (7) provides:

"The question of the validity of any proclamation by the Governor-General purporting to be made under subsection (6) and reciting that a draft thereof has been approved by resolution of the National Assembly shall not be enquired into in any court of law except upon the ground that the proclamation does not give effect to rule 1 in Schedule 2."

The factual background
9

In this section of the judgment the Board records what appear to be uncontested facts, unless otherwise stated. It is sufficient to say by way of background that for several years there have been disputes between supporters of the government and the opposition over the terms of the CBC's reports, giving rise to legal challenges. More recently, a CBC report of 5 September 2013 was subject to a legal challenge and was quashed on the ground of inadequate consultation on 31 July 2014. After the CBC produced revised recommendations, members of the CBC, who had been appointed on the advice of the leader of the opposition, expressed concerns whether those recommendations complied with the requirements of Schedule 2. On 18 December 2014, attorneys acting for representatives of the opposition parties wrote to the Prime Minister to intimate that they were instructed to mount a legal challenge to the revised recommendations in a forthcoming CBC report. Thereafter, on 13 January 2015 the CBC met and by a majority of 3:2 approved the maps of the revised constituency boundaries. This set the scene for the events of 16 January 2015.

10

At about 2 pm on 16 January 2015 the CBC met to consider a draft report which was then tabled. The majority of the CBC signed the draft report; the minority refused to sign. Thereafter, the Clerk of the National Assembly, acting on the instructions of the Speaker, issued a letter summoning an emergency meeting of the National Assembly for 4.15 pm. Once members of the National Assembly had gathered at approximately 4.35 pm, a draft proclamation to give effect to the CBC report was tabled and, after a heated debate, the National Assembly approved the draft proclamation at about 6.10 pm.

11

The Attorney General promptly took the draft proclamation to the Governor-General, who at about 6.20 pm signed both it and a proclamation dissolving Parliament. The Attorney General states in an affidavit that he instructed the proclamation to be gazetted and that on his return to Government Headquarters at about 6.35 pm he received a printed copy of an Extraordinary Gazette containing the proclamation. The parties dispute whether the text of the proclamation at that stage contained all the necessary formalities and on the evidence this appears arguable. But the Board is prepared to proceed on the basis that the Attorney General received a printed copy of the Gazette as it was later published. At some time between 6.30 pm and 6.50 pm the Prime Minister broadcast an announcement that the impugned proclamation had been gazetted and that he had advised the Governor-General to dissolve the Parliament with effect from that day. His announcement and the texts of both the impugned proclamation and a proclamation dissolving the Parliament were placed on the government website. The Prime Minister's press secretary sent copies of the proclamations to the media. Again, the parties disagree whether the full text of the impugned proclamation was placed on the government website; but that has no bearing on the Board's...

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