Natalie Campbell-Rodriques and Others v Attorney General of Jamaica
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 03 December 2007 |
| Neutral Citation | [2007] UKPC 65 |
| Court | Privy Council |
| Docket Number | Appeal No 40 of 2007 |
| Date | 03 December 2007 |
[2007] UKPC 65
Present at the hearing:-
Lord Hoffmann
Lord Scott of Foscote
Lord Carswell
Lord Mance
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Carswell]
The city of Kingston has for some time had a problem of severe traffic congestion. Delays on the approach roads to the city became a matter of increasing concern, in particular on the route from Portmore, a residential community whose population increase was the fastest in Jamaica in the 1980s and 1990s. The Government decided to put in train a major building programme known as "Highway 2000", part of which involved the construction of a new section of road between Portmore and Kingston, on which a toll was to be charged, and the closure of the old road. The appellants, who are residents of Portmore, claim that this proposal, which has now been implemented, infringes their constitutional rights. The Constitutional Court (Reid, Harris and NE McIntosh JJ) dismissed their claim on 26 September 2005 and the Court of Appeal (Panton, Cooke and McCalla JJA) dismissed their appeal on 10 November 2006. The appellants have appealed to the Privy Council by leave of the Court of Appeal.
In 1999 the Jamaican government initiated a road building project termed Highway 2000, consisting of a toll road from Kingston to Montego Bay, with a spur line to Ocho Rios, which was to be constructed in phases. The segment of the project which is the subject of this appeal is the portion known as the Portmore Causeway Main Road, a heavily used road link between Portmore and Kingston. It was then a two-lane highway, which crossed over a part of Kingston Harbour by the Hunts Bay Bridge. This road was to be replaced by a new six-lane roadway and a new bridge, which would have a traffic carrying capacity approximately three times as great as the old road and bridge. The old bridge was then to be demolished.
The Government decided that the new Portmore Causeway road would be a toll road, for the reasons set out in paragraphs 5 to 7 of the affidavit of Dr Wayne Reid sworn on 30 June 2005:
"5. Increasingly, governments are unable to finance major development projects solely from public funds. An internationally-recognized, tested and proven model for funding such projects is the Public Private Sector Participation model. Under that model, Governments invite members of the private sector to invest in developments which will provide services to the public. The private investors are then allowed to charge a fee and so recover their investment.
6. Public Private Sector Participation is not new to Jamaica and has been operating in many sectors. These include education, health, the supply of water and electricity and even the provision of port facilities. The Government decided to construct Highway 2000 by way of Public Private Sector Participation, as a toll road, as it did not have all the resources required to construct the Highway and it would not have been prudent to increase the public debt.
7. Toll roads are constructed and operated on the basis of 'user pays'. The cost of a major highway development has to be met by someone. It will either be met by those who use the road (which is the case with a toll road) or by the entire taxpaying public, whether they use it or not."
On 8 April 2002 the Minister of Transport and Works made the Toll Roads (Designation of Highway 2000 Phase 1) Order, pursuant to section 8(1) of the Toll Roads Act 2002, designating as toll roads two stretches of road, one of which was the "Portmore Causeway/Dyke Road Upgrading". The order stated that in relation to the Portmore Causeway, Mandela Highway would be the alternative route required by section 8(2), which provides:
"No road shall be designated as a toll road under subsection 1( a) unless in the area in which the toll road is to be established there is an alternative route accessible to the public by vehicular or other traffic."
Mandela Highway is a more northerly route to Kingston, which involves a somewhat longer journey from Portmore (the precise difference in length was the subject of dispute between the parties). Their Lordships do not find it necessary to go into the details of its suitability as an alternative route, since both the Constitutional Court and the Court of Appeal found that it was so suitable.
The appellants are all established residents of communities in the Municipality of Portmore, three of them being registered proprietors and two leaseholders. They claim that Portmore has developed "a strong and necessary dependence upon and strong structural and economic linkages" with Kingston, and that free and unrestricted access to and from Kingston is indispensable to the residents of Portmore and necessary for the appellants to have the peaceful and quiet enjoyment of their properties. They aver that the value of their properties will be reduced by reason of the need to pay tolls in order to travel to Kingston by the new road. This is disputed by the respondent: Dr Reid avers in paragraph 29 of his affidavit of 30 June 2005 that on the contrary "international experience with tolled highways is that they have resulted in an increase in the value of properties in the communities served by them." In the absence of more precise evidence of the effect on the value of properties in Portmore their Lordships will not attempt to reach any conclusion on this issue, as they consider that the appeal will not turn on it.
The appellants claim that the imposition of tolls on the Portmore Causeway road constituted breaches of sections 13 and 18 of the Constitution of Jamaica. Chapter III of the Constitution, entitled "Fundamental Rights and Freedoms", is introduced by section 13, which reads:
"Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—
(a) life, liberty, security of the person, the enjoyment of property and the protection of the law;
(b) freedom of conscience, of expression and of peaceful assembly and association; and
(c) respect for his private and family life, the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
Sections 14 to 17 deal respectively with protection of the right to life, protection from arbitrary arrest or detention, protection of freedom of movement and protection from inhuman treatment. Section 18 then makes provision in respect of compulsory acquisition of property. The material subsection for the purposes of this appeal is subsection (1):
"No property of any description shall be compulsorily taken possession of and no interest in or right over property of any description shall be compulsorily acquired except by or under the provisions of a law that –
(a) prescribes the principles on which and the manner in which compensation therefor is to be determined and given; and
(b) secures to any person claiming an interest in or right over such property a right of access to a court for the purpose of—
(i) establishing such interest or right (if any);
(ii) determining the amount of such compensation (if any) to which he is entitled; and
(iii) enforcing his right to any such compensation."
Section 25(1) is also material:
"Subject to the provisions of subsection (4) of this section, if any person alleges that any of the provisions of sections 14 to 24 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress."
It was contended on behalf of the appellants that section 13 had independent effect in the conferment of constitutional rights, which their counsel Mr James described as "declaratory force". Alternatively, as a minimum he submitted that it was to be given effect as an aid to construction of section 18. Both the Constitutional Court and the Court of Appeal rejected the argument that section 13 had the function of an instrument for providing redress. They relied in particular on the wording of section 25(1), providing for redress in the event of contravention of any of the provisions of section 14 to 24 of the Constitution, without reference to section 13.
In Grape Bay Ltd v Attorney General [2000] 1 LRC 167, 175 Lord Hoffmann adverted to the "family resemblance" between certain constitutions of UK Overseas Territories and former British possessions, now independent states. He went on:
"Typically they contain a chapter on the protection of the fundamental rights and freedoms of the individual which is introduced by a provision such as section 1 of the Bermuda Constitution, stating those rights and freedoms and their limitations in general terms, followed by a series of sections...
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