Toussaint v Attorney General of St Vincent and the Grenadines
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 16 July 2007 |
| Neutral Citation | [2007] UKPC 48 |
| Court | Privy Council |
| Docket Number | Appeal No 28 of 2006 |
| Date | 16 July 2007 |
[2007] UKPC 48
Present at the hearing:-
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Mance
Privy Council
[Delivered by Lord Mance]
The appellant, Mr Toussaint, appeals against a decision of the Court of Appeal dated 14 March 2005. The Court of Appeal allowed his appeal against a decision of Blenman J dated 25 May 2004 to strike out certain paragraphs of the appellant's claim and affidavit in support, but did so only on a limited basis. Mr Toussaint's claim is against the Government for constitutional relief in respect of what he alleges to have been discriminatory and/or illegitimate expropriation of property, and he seeks in his claim form dated 6 October 2003 to rely upon a statement allegedly made by the Prime Minister during the budget debate in the House of Assembly on 5 December 2002. The Court of Appeal held that, no permission having been given by the Speaker for its use in court, the statement was inadmissible under s. 16 of the House of Assembly (Privileges, Immunities and Powers) Act 1966 ("the Privileges Act 1966"). But it also held that, if and when the debate and proceedings on 5 December 2002 are printed by the Government Printer (an event which, perhaps surprisingly, has not yet occurred), they would become admissible in that form under s. 40 of the Evidence Act 1988. The appeal to the Board thus raises questions about the use in support of a claim for constitutional relief of a ministerial statement made in the House of Assembly. It also raises an issue about costs under Part 56.13(6) of the Eastern Caribbean Civil Procedure Rules 2000, which applies to administrative law proceedings.
Mr Toussaint was in 1990 the Commissioner of Police of The Saint Vincent and The Grenadines Police Force. In that year, he bought 12,957 sq. ft. of land in Canouan in the Grenadines from the Development Corporation for $6,478.50. Its sale and conveyance to him were subject to covenants in schedule 2 that no (re)sale would take place without the Corporation's agreement, that the land would be developed within three years and that failure to develop it would mean its reversion to the Corporation at the original selling price. However, in 1993 Mr Toussaint sought and evidently obtained a three year extension in respect of the covenant to develop, and in 1996 he sought and obtained a deed of release from all the schedule 2 covenants.
The government of the Islands changed and on 26 March 2002 the respondent, the Attorney General, wrote asserting that the land had to Mr Toussaint's knowledge had development potential, that it had been sold at a low price not reflecting its fair market value because of Mr Toussaint's close relationship with the previous government, and that "the entire process was patently wrong". She required him to pay $84,220.50 (evidently representing the alleged shortfall of the price paid below the market value in either 1990 or 2002) plus stamp duty forthwith. This request not being met, she wrote again on May 9, 2002 to say that "the Government is now providing you with an opportunity to return the said land to the State and be refunded the purchase price which you paid".
On 5 December 2002 the Prime Minister during the budget debate in the House of Assembly made the statement upon which Mr Toussaint wishes to rely. It explained why the cabinet had, that day, taken a decision compulsorily to purchase Mr Toussaint's land under the Land Acquisition Act 1946 (No. 22 of 1946) and to publish an extraordinary Gazette containing a declaration to that effect. The budget debate was televised and Mr Toussaint watched it, and later obtained what he says is a videotape, the transcript of which is before the Board.
On the same day, the Prime Minister's Office caused the issue and publication of a declaration in the Government Gazette (Extraordinary) to the effect that the Governor-General, acting in accordance with the advice of the Cabinet and pursuant purportedly to s. 3 of the Land Acquisition Act 1946, considered that Mr Toussaint's land "should be acquired for a public purpose, to wit, a Learning Resource Centre for the people of Canouan", such acquisition to take effect upon the second publication of the declaration, which in fact occurred on 10 th December 2002. The declaration said nothing about any compensatory payment. But on 12 March 2003 the Lands and Surveys Department wrote telling Mr Toussaint that $9,717.80 had been deposited at the Treasury Department in his name, being "payment (plus interest at the rate of 5% over a period of ten years)" for the land acquired by him in 1990. The compulsory acquisition purportedly affected was thus not at the alleged market value, but at the original purchase price, plus 5% per annum simple interest.
Mr Toussaint claims that the Prime Minister's statement during the budget debate on 5 December 2002 shows the true reasons for the acquisition. He alleges that these were political. He also alleges that the public purpose of a Learning Resource Centre alleged in the declaration was "a sham and a stratagem to deprive him of his land unlawfully".
The Attorney General's application to strike out relied on s. 46 of the Constitution, on ss. 3, 4 and 16 of the Privileges Act 1966 and on s. 40 of the Evidence Act 1988. As developed before the Board, the Attorney General's case also rests substantially upon article 9 of the Bill of Rights 1689 and the wider common law principle concerning freedom of speech and parliamentary privileges and immunities discussed in Prebble v. Television New Zealand Ltd. [1995] 1 AC 321. The Board will start with the relevant constitutional and other legislative provisions:
The Constitution
"46. Without prejudice to any provision made by Parliament relating to the powers, privileges and immunities of the members and officers of the House and of other persons concerned in the business of the House or its committees, no civil or criminal proceedings may be instituted against any member of the House for words spoken before, or written in a report to, the House or a committee thereof or by reason of any matter or thing brought by him therein by petition, bill, resolution, motion or otherwise."
The Privileges Act 1966
"3. Neither the Speaker nor any officer of the House shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or such officer by or under the Constitution, this Act or any order of the House.
4. No civil or criminal proceedings may be instituted against any member –
(a) in respect of words spoken before;
(b) in respect of words written in a report to; or
(c) by reason of any matter or thing brought by petition, bill, motion or otherwise, before –
the House or a committee thereof.
16. No evidence relating to any of the following matters, that is to say –
(a) debates or proceedings in the House;
(b) the contents of the minutes of evidence taken or any document laid before the House or a committee or any proceedings of or before, or any examinations had before the House or any such committee,
shall be admissible in any proceedings before a court or person authorised by law to take evidence, unless the court or such last mentioned person is satisfied that permission has been given by the Speaker for such evidence to be given."
Evidence Act 1988
"All documents purporting to be copies of the debates and proceedings of the House of Assembly or of papers presented to the House of Assembly, if purporting to be printed by the Government Printer, shall on their mere production be admitted as evidence thereof in all courts."
Article 9 of the Bill of Rights 1689:
"That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament."
The Court of Appeal was clearly correct in considering neither s. 46 of the Constitution nor s. 4 of the Privileges Act 1966 to be of present moment. These sections concern only proceedings against members of the House for or in respect of words or conduct within the House. The present proceedings are against the executive for action taken outside the House. The Court of Appeal also correctly identified s. 16 of the Privileges Act 1966 as on its face applicable: Mr Toussaint is seeking to rely on evidence relating to a debate in the House without any permission to do so from the Speaker, and s. 3 of the Constitution affirms the independence of the Speaker from any judicial control in respect of the exercise of his powers. Mr Clayton QC's response is that s. 16 must yield on the particular facts to Mr Toussaint's constitutional right to access to justice in respect of his complaint of discrimination and/or expropriation. Mr Astaphan SC submits on the other hand that there is not merely an evidential bar under s. 16, but also a fundamental constitutional bar to any investigation of or reference to what the Prime Minister may or may not have said, based upon article 9 of the Bill of Rights and the wider common law principle.
Finally, it is common ground that the Court of Appeal was in error in the potential significance attached to s. 40 of the Evidence Act 1988. Mr Clayton accepts that, all else failing, that section cannot enable Mr Toussaint to rely on the Prime Minister's statements in the House, even after printing by the Government Printer of the debate and proceedings on 5 th December 2002. S. 40 is merely machinery by which otherwise admissible evidence of matters occurring in the House of Assembly may be adduced. It cannot itself make admissible evidence of matters which are privileged from use,...
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