R Misick v Secretary of State for Foreign and Commonwealth Affairs

JurisdictionEngland & Wales
JudgeHughes LJJ,Carnwath LJ,Laws,Richards,Mitting J
Judgment Date12 August 2009
Neutral Citation[2009] EWCA Civ 1549
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2009/0951
Date12 August 2009

[2009] EWCA Civ 1549




(Lord Justice Carnwath; Mr Justice Mitting)

Before: Lord Justice Laws

Lord Justice Richards


Lord Justice Hughes

Case No: C1/2009/0951

The Queen on the Application of Misick
Secretary of State for Foreign and Commonwealth Affairs

Mr E Fitzgerald QC, Ms R Brander and Ms A Gerry (instructed by Messrs Simons Muirhead Burton) appeared on behalf of the Appellant.

Mr P Havers QC & Mr J Johnson (instructed by Treasury Solicitors) appeared on behalf of the Respondent.

Lord Justice Laws

Lord Justice Laws:


This is a renewed application for permission to appeal, with the substantial judicial review to follow if permission is granted, against the refusal of the Divisional Court (Carnwath LJ and Mitting J) on 1 May 2009 to grant permission to the applicant to bring judicial review proceedings in order to challenge the legality of the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (“the order”). The order was expressed to be made under the West Indies Act 1962 on 18 March 2009 and laid before Parliament on 25 March. The order is not yet in force. If it comes into force it will for a period of two years abolish the right to jury trial in the Turks and Caicos Islands (“the TCI”) and replace representative government by the national assembly with a system of direct administration by the Governor.


The order was a response to an interim report published on 16 March 2009 by the Governor of the TCI compiled by Sir Robin Auld, who had been appointed by the then Governor on 10 July 2008 to conduct a commission of enquiry into possible corruption or other serious dishonesty by members of the legislature in recent years. In the interim report summary, paragraph 6, the Commissioner stated his finding that:

“…there is information of possible corruption and/or other serious dishonesty, including misfeasance in public office, in relation to five present elected Members of the House of Assembly….”


They included the Honourable Michael Misick, formerly Premier of the TCI. He is the applicant in these proceedings. The Commissioner recommended among other things (summary, paragraph 8) partial suspension of the 2006 Constitution and interim direct rule from Westminster and trial by judge alone and partial reversal of the burden of proof in relation to criminal process prompted by the interim report. The body of the report reveals deep concerns as to the financial and political state of the TCI. The Commissioner referred to “chronic ills collectively amounting to a national emergency”. Detailed citations from the report are given in Carnwath LJ's judgment below at paragraphs 10–13.


On 16 March 2009, when the report was published, the Governor of the TCI issued a statement as follows:

“In light of the accumulation of evidence in relation to TCI in the last year or so, and fortified by the Commissioner's interim report, the UK Government has formed the view that parts of the Constitution will need to be suspended and has decided to take steps to enable it to do so.”


Although the Commissioner's final report has, as I understand it, been received since the judgment of the Divisional Court, the order, as I have said, has not yet been brought into force. The Treasury Solicitor on instructions gave an assurance subject to liberty to apply to the court that it would not be brought in before 11 August 2009. That of course is yesterday, but I assume the assurance is in effect until today.


The provisions of the order sought to be challenged are twofold. Both aspects amend the 2006 Constitution of the TCI. First, for a period of two years the order removes the office of Premier and all ministerial offices, provides that “the cabinet shall cease to exist”, dissolves the house of assembly, calls all members of the house to vacate their seats and sets in place a system of administrative government by the Governor subject only to directions from the Secretary of State. Secondly, and again for a two-year period, the order suspends section 6(2)(g) of the Constitution, which declared and affirmed the right to trial by jury. The vires or purported vires of the order was, as I have said, the West Indies Act 1962. Section 5(1) provides in part:

“Her Majesty may by Order in Council make such provision as appears to Her expedient for the government of any of the colonies to which this section applies, and for that purpose may provide for the establishment for the colony of such authorities as She thinks expedient and may empower such of them as may be specified in the Order to make laws either generally for the peace, order and good government of the colony or for such limited purposes as may be so specified subject, however, to the reservation to Herself of power to make laws for the colony for such (if any) purposes as may be so specified.”


The 2006 Constitution was itself made by order under this provision. Section 7 of the 1962 Act makes it clear that the power to make an order under section 5(1) includes power to vary or revoke an earlier order.


There is an ancillary matter which I shall briefly describe. The Secretary of State has determined that before the order is brought into force the application of Article 3 of the First Protocol to the European Convention on Human Rights will be withdrawn from the TCI. Article 3 of Protocol I (A3P1) provides:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”


Article 4 of the First Protocol allows the United Kingdom to withdraw A3P1 from the TCI without any preconditions. It is to be noted that the Human Rights Act 1998 does not extend to the TCI. The withdrawal of A3P1 from the Turks and Caicos will be an act done in the course of the United Kingdom's treaty-making powers.


In his skeleton argument prepared for his leave application Mr Fitzgerald QC for the applicant sought to challenge the prospective withdrawal of A3P1, but he has not pursued his arguments to that end before us this morning. It seems to me he was right not to do so. Since the withdrawal of A3P1 will be an act done in the course of the United Kingdom's treaty-making powers, it is not justiciable in proceedings of this kind.


Mr Fitzgerald submits that the power conferred by sections 5 and 7 of the 1962 Act is subject to implied limitations, such that the provisions contained in the order to which the applicant objects are beyond the statute's scope and therefore ultra vires.. In very broad terms, Mr Fitzgerald described these limitations as the principle of legality and fundamental rights, and in relation to the abrogation of representative government the right to self-determination, which he submits is a norm of customary international law having effect erga omnes.


Evidently it is necessary to start with first principles. It remains a first principle of our constitutional law that Parliament in enacting primary legislation is sovereign. Parliamentary sovereignty has been qualified though not departed from in different ways by our adoption of the law of the European Union through the European Communities Act 1972 and by the Human Rights Act 1998. I ventured some observations about the law's development in this constitutional area in Thoburn v Sunderland City Council [2003] QB 151. Where neither the EU nor the Human Rights Act touches the case in hand, which is the position here, Parliament's power to make any law of its choosing is unconfined. We have not yet reached the point where outside the two European spheres Parliament lacks the legal authority to legislate contrary to liberal political norms or so as to curtail hallowed personal rights such as trial by jury; though increasingly and quite independently of the two Europes the court will insist that such legislation must be crystal clear, leaving no room for doubt as to the actual intention of the legislature. These general considerations demonstrate to my mind what is in truth elementary: that the scope of the powers given by section 5 of the West Indies Act 1962 is a matter of that provision's correct construction and of nothing else, and its correct construction will depend not only on the provision's words but on the court's ascertainment of the statutory purpose – see for example (though in a very different context) the seminal authority of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.


Mr Fitzgerald cites well known learning to show that basic or fundamental rights can only be abrogated by the appearance of specific words in the enabling legislation – see for example R (Simms) v SSHD [2000] AC 115 per Lord Hoffman at 131 E-G. I have, with respect, already emphasised the same point. Section 5 of the West Indies Act 1962 is, submits Mr Fitzgerald, in general terms. He submits that that is insufficient to authorise the abrogation of jury trial and representative government. Moreover, he submits that the suspension of representative government not only violates the international norm of self-determination but also the United Kingdom's international obligations arising under the United Nations Charter and Article 25 of the International Covenant on Civil and Political Rights 1966. He cites the East Timor case (International Court of Justice (ICJ) Reports 1995 page 90 paragraph 29) for the proposition that the right of...

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    ...AC 453 per Lord Hoffmann at para 50, per Lord Rodger of Earlsferry at para 109, per Lord Carswell at para 130; R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 per Laws LJ at para 18), the short answer to this proposed ground is that it is clearly es......
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    ...power concerned: see X v Bedfordshire [1995] 2 AC 633 at 736. 65 For good measure, Mr Chamberlain drew my attention to Misick v SSFCA [2009] EWCA Civ 1549 where an Order in Council suspending provisions of the Turks and Caicos constitution was challenged. The enabling power under the West I......

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