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How to Exercise Statutory Powers ProperlyCayman Islands Administrative Law
By Bilika H Simamba
AuthorHouseCopyright © 2012 Bilika H. Simamba
All right reserved.
1.1 What this book is about
Outside of Imperial Legislation, that is, legislation promulgated by the British Government and applied to the Cayman Islands, legislative power in the Islands is exercised through Laws passed by the Legislative Assembly. It is also exercised through the making of regulations by other public authorities, usually the Governor in Cabinet. On the executive side, in exercise of statutory or inherent powers, the government exercises power through the grant or rendering of other decisions relating to licences, the award of contracts, and numerous other classes of decisions made through a range of public authorities. These other authorities include not just the Governor in Cabinet, but also the Governor acting alone, certain individuals in government, bodies set up under the Constitution, ministries, portfolios, departments, statutory authorities, government companies, tribunals and other state agencies exercising powers of a governmental nature. Courts constitute a part, albeit a special part, of these structures in that they make rules of procedure governing their proceedings. All these public authorities, including courts, must exercise their powers in accordance with the Constitution of the Cayman Islands. Specifically in relation to public officials, the Constitution provides:
"19.—(1) All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.
(2) Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act."
Broadly speaking, this section of the Constitution covers the whole field of what is known as administrative law. In subsection (1), "lawful" means that officials must observe not only the Constitution and the letter of the relevant law, but also certain implied principles and rules developed by the courts. The requirement that a decision be "rational" loosely approximates to proper exercise of discretion or avoiding abuse, discussed under heading 2.4, and the concept of proportionality is discussed under heading 2.4.5. Procedural fairness is considered under heading 2.1.2 though the constitutional concept appears to be wider than that of procedural vires discussed there. The duty to give reasons, referred to in subsection (2), is considered under heading 2.4.10. Guided by these and other considerations, the exercise of government power is controlled or supervised through the process of judicial review. The nature of judicial review is explained under heading 1.4. This book discusses the rules of law contained in statutes (as interpreted by the courts), as well as other rules developed by the courts over the centuries.
1.2 Human rights and the Constitution
The Cayman Islands Constitution Order 2009, UKSI 1379, which, in its Schedule, contains the Constitution of the Cayman Islands, came into force on 6 November of that year, except the Bill of Rights, Freedoms and Responsibilities. By operation of section 4(2) of the Order, the Bill of Rights, as it is more commonly known, is due to come into force three years after 6 November, 2009, except section 6(2) and (3) of the Constitution. Section 6 reads as follows:
'6. (1) All persons deprived of their liberty (in this section referred to as "prisoners") have the right to be treated with humanity and with respect for the inherent dignity of the human person.
(2) Save where the interests of defence, public safety, public order, public morality, public health or the administration of justice otherwise require, unconvicted prisoners shall be segregated from convicted prisoners; and every unconvicted prisoner shall be entitled to be treated in a manner appropriate as an unconvicted person.
(3) Juvenile prisoners shall be segregated from adult prisoners and every juvenile prisoner shall be treated in a manner appropriate to his or her age and legal status and, if he or she is an unconvicted prisoner and unless he or she is earlier released, shall have any criminal proceedings against him or her pursued with the greatest possible expedition.'
Subsections (2) and (3) are due to come into force four years after 6 November 2009. It will be seen that subsection (1) is not included in the exception.
Further, the Constitution provides:
"24. It is unlawful for a public official to make a decision or to act in a way that is incompatible with the Bill of Rights unless the public official is required or authorized to do so by primary legislation,in which case the legislation shall be declared incompatible with the Bill or Rights and the nature of that incompatibility shall be specified." (Emphasis added)
In the local, Caymanian context, the expression "primary legislation" means a Law passed by the Legislative Assembly as opposed to regulations, that is, subordinate legislation.
In the case of incompatibility, the Constitution further provides:
"23. (1) If in any legal proceedings primary legislation is found to be incompatible with this Part, the court must make a declaration recording that the legislation is incompatible with the relevant section or sections of the Bill of Rights and the nature of that incompatibility.
(2) A declaration of incompatibility made under subsection (1) shall not constitute repugnancy to this Order and shall not affect the continuation in force and operation of the legislation or section or sections in question.
(3) In the event of a declaration of incompatibility made under subsection (1), the Legislature shall decide how to remedy the incompatibility." (Emphasis added)
Finally, the Constitution of the Cayman Islands provides that:
"25. In any case where the compatibility of primary or subordinate legislation with the Bill of Rights is unclear or ambiguous, such legislation must, so far as it is possible to do so, be read and given effect in a way which is compatible with the rights set out in this Part."
It is worth noting that this approach is different from that taken in some other countries which have written constitutions. Many Constitutions provide, in effect, that if a Law or regulation is incompatible with the Constitution, a court may strike out that provision from the statute book. A number of Caribbean Constitutions, as do many others elsewhere, specifically contain a provision that states in effect that an ordinary Act of the Legislative Assembly that contravenes the Constitution is void to the extent of the inconsistency. This can be found, for example, in section 2 of the Constitution of Jamaica, which provides, subject some other provisions, that "... if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void." In practice, this means that a court can so declare unless there are special provisions as exist in the Constitution of the Cayman Islands to save it.
In the United States of America, the power of a court to declare void a statute that contravenes the Constitution was established many years ago in the case of Marbury v Madison, where the Supreme Court asserted its power to review acts of Congress and invalidate those that conflicted with the Constitution. Chief Justice John Marshall, who delivered the opinion of the court, is said to have established the principle of judicial review. Essentially, his reasoning was that: the Constitution was the supreme law of the land; the judiciary was vested with judicial power and responsibility; judges are sworn to uphold the Constitution; accordingly, the judiciary had the duty to interpret the Constitution and other laws. If, therefore, Congress, which is also a creature of the Constitution, exceeds its powers by enacting a law that is in breach of the Constitution, the judiciary is duty bound to point that out and to strike down that law in exercise of its judicial power.
1.3 European human rights standards in Cayman
Through the United Kingdom, the Cayman Islands are bound by all United Nations international human rights treaties which have been applied to it. Thus all of the major international instruments, except the Convention on the Elimination of Discrimination against Women, have effect in relation to the Islands. Accordingly, the Government of the Islands has to ensure that these international obligations are met. To ensure this, there is a standing instruction in government that these treaties and covenants should be taken into account when drafting laws. However, these rights are not directly enforceable in the courts. In other words, a litigant who tries to invoke in the courts a right that is contained within an international instrument will not succeed unless that right has been recognized in a law promulgated in the Cayman Islands. However, the observance of the international obligations is supervised through a system of periodic reporting to the relevant UN agencies. These agencies often bring to the attention of relevant governments the need to make their legislation compliant.
In addition to the UN treaties and conventions, the Islands are bound by the European Convention on Human Rights (ECHR). Unlike the UN legal instruments, the rights contained in the ECHR are directly enforceable in the European Court of Human Rights. Individuals in the Islands may, after exhausting all domestic remedies, apply to that court for redress. In effect, this means that an individual in the Cayman Islands can, after taking their case up to the Privy Council, bring before the European Court of Human Rights a case against the Government of the United Kingdom, as it is responsible for the protection of its citizens in the British Overseas Territories. If the litigant is successful, Her Majesty's Government would then be under an obligation, in accordance with the Convention, to remedy the breach and, if the remedy calls for legislative change, by changing the law, or causing it to be changed by the Cayman Islands Government, to bring it in line with the Convention. Procedurally the change can be effected directly by the UK Government through an Order in Council applied to the Islands or, where the Cayman Islands Government is directed to make the change, this would be done through a Law passed by the Legislative Assembly or a regulation made by the Governor in Cabinet. In some cases, compliance can be effected through changes in administrative practices, without legislative change.
The obligation to change the law in such circumstances arises from Article 1 of the Convention by which the parties "shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention." Then, under Article 46, the parties to the Convention "undertake to abide by the final judgments of the Court in any case to which they are parties." Further, the final judgment of the Court "shall be transmitted to the Committee of Ministers which shall supervise its execution."
1.4 What is judicial review?
Judicial review is concerned with the legality of a decision and not its merits. Thus it does not allow a court to reopen all issues in a matter. If a court is satisfied that an authority acted within the scope of the power conferred by statute (acted intra vires) and that the rules of natural justice discussed under heading 2.3 were observed, it will not interfere with the decision. This is so even if the decision can be viewed as being wrong on the basis of some moral or other criteria. The idea is to draw a balance between two competing interests: the right of authorities to make decisions without undue interference and the duty of the courts to check excess of power.
In sum, the courts use judicial review to ensure that: (a) a Law passed by the Legislative Assembly or regulation made by the Governor in Cabinet or other authority is applied correctly; (b) a discretion conferred by a Law or regulation is exercised in a lawful manner; (c) a decision maker has acted fairly; and (d) the exercise of a power by a public authority does not involve a violation of human rights.
1.5 Acts and authorities that are subject to judicial review
Only public authorities are subject to judicial review. In determining whether an authority is public for this purpose, the essential element is not whether it is a government body as such. Rather it is whether the authority exercises powers of a public nature. To put it another way, even a body that is not part of core government can, for purposes of being amenable to judicial review, be held to be a public body if its powers or some of them are of a public nature. This test is elaborated in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank.
Also, the recommendations of bodies that merely advise and do not take decisions can be subject to judicial review. An example of this is found in the case of Proprietors, Strata Plan No. 1013 v. Developments Advisory Board and Dios Mar Ltd. Under section 6 of the Development Planning Law (1999 Revision), the Development Advisory Board had power to recommend to the Development Planning Authority whether planning permission should be granted. Dios Mar applied for planning permission to build a hotel in West Bay. The Proprietors of Strata Plan No. 103 objected. The Development Advisory Board recommended that there being no special concerns, the application should be granted and the Authority granted it. The Grand Court had to decide whether the recommendations of the Board were subject to review.
In deciding whether the opinion of the Board, as a purely advisory body, was amenable to review, the court considered whether the Board's recommendations were given pursuant to an express statutory mandate, the importance of that mandate, whether some further condition must be satisfied before the opinion could affect legal rights, the number of further procedural steps before the final decision, and how far the opinion was likely to influence that decision. Henderson Ag J held that given the purpose, composition and influence of the Developments Advisory Board, its recommendations could not be immune from judicial review, even though it had no direct or immediate effect on the applicants' rights.
Henderson Ag J further observed that the Board was clearly intended to fulfill a different function to that of the Authority and to give opinions which would carry weight, as indicated by the broad individual mandates of its members, the requirement that it consider economic and social issues of national importance in relation to only the largest developments, and the fact that it, and the Authority, were chaired by the same person. On the facts of the case, he set aside the Board's recommendation and remitted the matter to the Authority for further consideration.
Also, in Dilbert v Public Service Commission and Attorney General, the now defunct Public Service Commission, acting under the then Public Service Commission Regulations, 1975, recommended to the Governor that Dilbert be dismissed from office. The Grand Court (Collett CJ) held that such a recommendation could be challenged by prerogative orders against the Commission if the Commission did not observe the prescribed procedures or, in following those procedures, failed to observe the rules of natural justice. However, the application was dismissed on other grounds.
1.5.1 What bodies are public in a conventional sense?
Bodies that are part of core government, that is, ministries, portfolios and departments, are of course public and are therefore subject to judicial review. So are bodies deriving their powers from the Constitution, a Law or regulation. As we shall see further below, decisions relating to commercial matters (even by a conventional public body) and issues of policy are not subject to review. Beyond that, matters are less clear-cut.
In R v Legal Aid Board ex parte Donn and Co (a firm) the Legal Aid Board put out a tender for a contract to represent generic plaintiffs in a multiparty action. Donn and Co challenged the decision on the grounds of procedural irregularity and denial of natural justice. It was argued for the Board that even if it was a public authority, the use of the tender process was an "exclusively commercial transaction only amenable – if at all – to private law remedies". In rejecting the argument, Ognall J reasoned:
"I believe that the function exercised by this committee ... the purpose for which they were empowered to act and the consequences of their decision making process, all demand the conclusion that it would be wrong to characterize this matter as one of private law. Even if there were to be arguable some private law remedy, or whether there is none, I am satisfied that, quite independently, the public dimensions of this matter are of a quality which make it justiciable in public law"
Excerpted from How to Exercise Statutory Powers Properly by Bilika H Simamba Copyright © 2012 by Bilika H. Simamba. Excerpted by permission of AuthorHouse. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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