Surratt v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,BARONESS HALE OF RICHMOND |
| Judgment Date | 15 October 2007 |
| Neutral Citation | [2007] UKPC 55 |
| Court | Privy Council |
| Docket Number | Appeal No 84 of 2006 |
| Date | 15 October 2007 |
(on behalf of himself and 14 others)
[2007] UKPC 55
Present at the hearing:-
Lord Bingham of Cornhill
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
Privy Council
DISSENTING JUDGMENT OF LORD BINGHAM OF CORNHILL
This appeal raises a question of great difficulty and importance. It is whether the Equal Opportunity Act 2000 ("the EOA" or "the Act") is inconsistent with the Constitution of Trinidad and Tobago, which by section 2 of the Constitution is the supreme law, and so void. It was held to be so by Smith J sitting in the High Court and his decision was upheld by the Court of Appeal (Sharma CJ, Archie and Mendonca JJA) in a judgment of Archie JA with which the other members of the court agreed. The appellants challenge that conclusion.
The EOA was passed by a simple majority of both Houses of Parliament and was assented to on 20 October 2000. Part VI of the Act was brought into force in November 2000 and the remainder of the Act in January 2001. It was amended in May 2001, in a way immaterial for present purposes, by an Act passed by both Houses, again by a simple majority, and assented to in June 2001. But the EOA has not been implemented. This, it appears, is because the government in power since December 2001 was advised that the Act was, or might be, unconstitutional. The appellants, all persons claiming to be victims of discriminatory treatment prohibited by the EOA, brought these proceedings by way of constitutional motion in May 2003, complaining of the government's failure to implement the Act.
For historical reasons which it is unnecessary to explore, there is in the population of Trinidad and Tobago a degree of racial, religious and cultural diversity which, while enriching and strengthening the national life, has also been recognised as giving rise to problems of discrimination. Section 4 of the Constitution provides that the fundamental human rights and freedoms listed in the section had existed and should continue to exist "without discrimination by reason of race, origin, colour, religion or sex", but it is common ground that this refers only to discrimination by the state on the grounds specifically mentioned. Harmful discrimination may, however, be exercised otherwise than by the state and on grounds, such as disability, other than those mentioned. In 1987 an eminent Constitution Commission was appointed, which reported in 1990 and considered the establishment of an Equal Rights or Equal Opportunities Commission, strongly advocated by Dr La Guerre. In January 1996 the Law Commission of Trinidad and Tobago published a Working Paper on Equal Opportunity Legislation, which included a comparative survey of such legislation in other jurisdictions. A Joint Select Committee of Parliament was appointed to consider this Working Paper, and it submitted its Report in November 1997. The Attorney General obtained the advice of leading counsel in England in June and July 1998, and in June 1998 the Law Commission reported on the constitutionality of the Equal Opportunity Bill 1998. While counsel for the Attorney General, resisting the appellants' challenge in these proceedings, insisted on the unconstitutionality of the EOA, he said nothing to disparage the objects of the Act. The government is seeking to achieve very similar objects in its Equal Opportunity Bill 2007, for which it will seek an enhanced parliamentary majority.
The EOA is similar in many respects to comparable legislation elsewhere. In Parts II – V it defines "discrimination" and specifies the fields in which the Act is and is not to apply. Part VI establishes an Equal Opportunity Commission, the function of which is broadly to promote the elimination of discrimination. Part VII deals with complaints, which the Commission is to investigate. Where feasible the Commission may seek to resolve these by conciliation, but where this cannot be done the Commission must report and, with the consent of the complainant, initiate proceedings before the Tribunal. The EOA arms the Commission with powers appropriate for its functions, and no separate question arises on the constitutionality of the Commission. The issue arises on Part VIII, which in sections 41-52 provides for the Equal Opportunity Tribunal ("the Tribunal").
The Tribunal comprises a chairman and two lay assessors. Decisions of the Tribunal in any proceedings are to be made and delivered by the chairman (s. 44(7)) and the lay assessors are to assist the chairman in arriving at a decision (s. 42(4)). The jurisdiction and powers of the Tribunal are exercisable by the chairman and at least one lay assessor (s. 44(1)). The Tribunal may (subject to the approval of the President of the Republic) make rules to govern the procedure and practice of the Tribunal, including costs (s. 44(8)).
The Tribunal is to be a superior court of record and is to have, in addition to the jurisdiction and powers conferred on it by the Act, all the powers inherent in such a court (s 41(1)). Such powers, it is agreed, include a power to fine a contemnor or commit him to prison for contempt. In the case of a superior court of record at least this power exists even where the contempt is not committed in the face of the court: R v West Yorkshire Coroner, Ex p Smith (No. 2) [1985] QB 1096. The Tribunal has jurisdiction to hear and determine complaints referred to it by the Commission, to require persons to attend for the purpose of giving evidence and producing documents, and to make such declarations, orders and awards of compensation as it thinks fit (s. 41(4)). A summons signed by the Registrar for enforcing the attendance of a witness or the production of documents has the same effect as formal process issued in the High Court (ss. 44(5), 45(3)). The Tribunal has the same powers, rights and privileges as are vested in the High Court in relation to the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders, "the entry on inspection of the property" (sic) and other matters necessary or proper for the exercise of its jurisdiction (s. 45(1)). Provision is made in section 48 for the recovery and enforcement of compensation and damages awarded by the Tribunal on the filing of a certificate of the Registrar as civil debts or as if they were High Court judgments. Fines are recoverable by the Registrar of the Tribunal, whose certificate is conclusive, and are paid into the Consolidated Fund (s. 48(2), (6)). An appeal lies from the Tribunal to the Court of Appeal, whether as of right or with leave, on grounds specified in section 50(2) of the Act, but subject to that the orders, awards, findings or decisions of the Tribunal in any matter may not be challenged, appealed against, reviewed, quashed or called in question on any account whatever and the Tribunal may not be subject to prohibition, mandamus or injunction in any tribunal on any account whatever (s. 50(1)).
The chairman of the Tribunal is to be "a Judge of status equal to that of a High Court judge (s. 41(2))". The parties are agreed that he need not be, and will not become, a High Court judge. He is to be appointed by the President acting in accordance with the advice of the Judicial and Legal Service Commission (s. 42(1)). This is the body which has the duty under the Constitution of advising the President on the appointment of judges other than the Chief Justice, and the EOA provides that the relevant provisions of the Constitution, including those pertaining to tenure and removal, shall apply to the chairman. The chairman is entitled to receive the same salary and allowances as a judge of the High Court, chargeable on the Consolidated Fund, and his conditions of service, other than those as to pension, shall also be the same (s. 43(1), (2)). His salary, remuneration, allowances and other conditions of service may not be altered to his disadvantage during his tenure of office (s. 43(5)). The office is pensionable (s. 43(6)).
The lay assessors are to be appointed by the President as persons appearing to him to be qualified by virtue of their knowledge of or experience in law, religion, race relations, gender affairs, employment issues, education, culture, economics, social welfare or human rights, having served in those fields or a combination of them for at least ten years (s. 42(3)). They hold office for a renewable term of not less than three years, determined by the President (s. 42(5)). Their appointment may be terminated by the President on the recommendation of the chairman, on any one of several specified grounds (s. 42(7)). Their terms of service are to be prescribed by the President (s. 43(3)) and they are to be paid such salary and allowances as may be recommended by the Salaries Review Commission and approved by the minister responsible for finance (s. 43(4)). Their salary, remuneration, allowances and conditions of service may not be altered to their disadvantage during their tenure of office (s. 43(5)). Their office is pensionable (s. 43(6)).
The Constitution
Chapter I of the Constitution, comprising sections 4-14, is concerned with the recognition and protection of fundamental human rights and freedoms. Reference has already been made to section 4, in which certain such rights and freedoms are guaranteed "without discrimination by reason of race, origin, colour, religion or sex". In attacking the government's failure to implement the Act, the appellants have invoked the right of the individual to the protection of the law (s. 4(b)), the right of the individual to equality of...
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