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The Judicial Committee of the Privy Council Decisions
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 UKPC 50
Privy Council Appeal No 0021 of 2009
The Attorney General of Trinidad and Tobago v Carmel Smith
From the Court of Appeal of the Republic of Trinidad and Tobago
JUDGMENT DELIVERED BY
14 December 2009
Heard on 13 October 2009
James Guthrie QC
(Instructed by Charles Russell LLP)
Sir Fenton Ramsahoye SC
(Instructed by Bankside Law)
"In accordance with the provisions of Regulation 88(1) and (2) of the Statutory Authorities' Service Commission Regulations Chapter 24: 01, the Statutory Authorities' Service Commission has directed that you cease to report for duty with effect from August 5, 2002, until further notice."
There was then considerable delay (a matter which was ventilated in the judicial review proceedings but is not relevant to this appeal). On 31 March 2004 Mrs Smith received from SASC a formal charge under Regulation 90(6) of the SASC Regulations:
"Statement of Charge;
Misconduct contrary to an implied term in your contract of employment;
Particulars of Charge:
That you, Carmel Smith, Deputy Director, National Lotteries Control Board did an act in breach of an implied term of your contract of employment namely not to exercise your authority unreasonably when during 2000 and 2002 you received a benefit above and beyond your entitlement as acting Director, by accepting and using motor vehicle registration number PBJ 3133 while enjoying an upkeep allowance on your personally owned motor vehicle."
On 16 April 2004 Mrs Smith wrote formally denying the charge.
Relevant provisions of the Constitution
"(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter 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 High Court for redress by way of originating the motion.
(2) The High Court shall have original jurisdiction
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.
(3) The State Liability and Proceedings Act shall have effect for the purpose of any proceedings under this section."
The State Liability and Proceedings Act (Chapter 8: 02) is concerned with proceedings by and against the State. The Judicial Committee has considered the effect of section 14(3) in Durity v Attorney General of Trinidad and Tobago  1 AC 405, explaining (para 24 of the judgment delivered by Lord Nicholls):
"On this the first point to note is that the express but general reference to the State Liability and Proceedings Act in section 14(3) of the Constitution cannot be read as meaning that every provision of that Act is incorporated into the Constitution for the purposes of constitutional proceedings . . . Thus, section 14(3) of the Constitution has to be read as applying to constitutional proceedings such of the provisions of the State Liability and Proceedings Act as are capable of being applied for this purpose."
"The Attorney General shall, subject to section 79 [relating to temporary incapacity], be responsible for the administration of legal affairs in Trinidad and Tobago and legal proceedings for and against the State shall be taken –
(a) in the case of civil proceedings, in the name of the Attorney General;
(b) in the case of criminal proceedings, in the name of the State".
In the Constitution the expression "the State" is not defined (other than by reference to its geographical extent in section 1(2)). Nor is the expression "civil proceedings" defined; in particular, there is no restrictive definition such as is found in the State Liability and Proceedings Act (para 12 below).
"(b) he holds the office of –"
. . .
(iii) Ombudsman or member of the Integrity Commission or member of any other Commission established by this Constitution;
. . .
(v) member of any board, commission, committee or similar body, whether incorporated or not, established by any enactment."
"The whole purpose of Chapter VIII of the Constitution which bears the rubric 'The Public Service' is to insulate members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service. These autonomous commissions, although public authorities, are excluded by section 105(4)(c) from forming part of the service of the Crown."
Section 3(4) of the present Constitution is the counterpart of section 105(4)(c) of the former Constitution.
Other statutory provisions
"'Statutory Authority' means a local authority and any commission, board, committee, council or body (whether corporate or unincorporated) established by or under an Act other than the Companies Ordinance declared by the President under section 3 to be subject to the provisions of this Act."
Section 3 gives no further guidance as to the principles on which the President should exercise his power to make such a declaration, but the context (and the word "authority" itself) indicate that statutory authorities are to be statutory bodies operating in the public sector and exercising some degree of control over particular activities (such as the supervision of the national lottery exercised by the NLCB). In short SASC's functions in relation to statutory authorities are similar to those exercisable by the four Service Commissions in relation to the respective branches of the public sector for which the Constitution gives them responsibility. The SASC, like the other Service Commissions, the Integrity Commission and the Salaries Review Commission, is not established as a corporate body.
"'agent' in relation to the State includes an independent contractor employed by the State but does not include a statutory corporation except where the State has entered into an express contract of agency with the corporation;
'civil proceedings' includes proceedings in the High Court of Justice or a petty civil court for the recovery of fines or penalties, but does not include proceedings analogous to proceedings on the Crown side of the Queen's Bench Division in England;
. . .
'servant' in relation to the State, includes an officer who is a member of the public service and any servant of the State, . . . [but does not include] –
. . .
(f) any officer, employee or servant of a statutory corporation;
. . .
'the State' means the Republic of Trinidad and Tobago."
The definition of "agent" is relevant mainly to section 4 (liability of the State in tort) and does not assist the resolution of this appeal. Section 2(3) provides:
"Any reference in Parts III or IV to civil proceedings by or against the State, or to civil proceedings to which the State is a party, shall be construed as including a reference to civil proceedings to which the Attorney General is a party; but the State shall not for the purposes of Parts III and IV be deemed to be a party to any proceedings by reason only that they are brought by the Attorney General upon the relation of some other person."
Parts III and IV of the Act deal with matters such as enforcement, discovery and limitation. Section 2(3) does not therefore amount to a general widening of the concept of proceedings by or against the State, nor is it circular (as it might be if it applied for the purposes of Part II of the Act).
"Subject to this Act and to any other written law, proceedings against the State shall be instituted against the Attorney General."
They contended that SASC's actions are the actions of the State, nonetheless because of its independence from Government control. Against that counsel for the Attorney General relied on section 19(8) and (9), added by amendment in 1998:
"(8) Proceedings against an authority established by the Constitution or a member thereof arising out of or in connection with the exercise of the powers of the authority or the performance of its functions or duties are deemed to be proceedings against the State.
(9) In this section, 'authority' means a Service Commission as defined in section 3(1) of the Constitution."
Counsel for the Attorney General rely on an implicit but clear distinction between the four Service Commissions referred to in section 19(9), on the one hand, and the Integrity Commission, the Salaries Review Commission and the SASC, on the other hand.
"These are great powers but still we cannot regard the corporation as being his agent, any more than a company is the agent of the shareholders, or even of a sole shareholder. In the eye of the law, the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not Crown property."
17. In the last generation the influence of European law has produced new contexts in which a broader concept of state responsibility is called for. The Court of Justice of the European Communities has held that a body such as a statutory hospital authority or a statutory gas corporation is an "emanation of the state" so as to found state responsibility for its shortcomings in compliance with European directives: Marshall v Southampton and South West Hampshire Area Health Authority  QB 401; Foster v British Gas Plc  1 QB 405. The same approach of broadening state responsibility for failure to respect human rights underlies the concept of "public authority" in the United Kingdom Human Rights Act 1998. Marshall and Fisher were referred to in the impressive judgment of Aboud J (Ag) in Boxhill v Port Authority of Trinidad and Tobago (2004) on the issue of whether the Port Authority is a public authority within the meaning of section 4(d) of the Constitution. But that is a different and broader issue than the procedural issue now before the Board. The procedural issue is one of statutory construction which depends on the language of the Constitution and the State Liability and Proceedings Act, construed in a purposive and practical way.
Lack of incorporation
"The Panel is an unincorporated association without legal personality and, so far as can be seen, has only about 12 members. [The members were then identified] It has no statutory, prerogative or common law powers and it is not in contractual relationship with the financial market or with those who deal in that market."
Nevertheless the Panel was amenable to judicial review.
"It seems to me in the highest degree unlikely that an entity which has . . . no constitution, no finances, no fixed membership, no rules and whose decisions are binding on its members only to the extent that they treat them as binding, on which again there are no rules – that an entity of that sort can be amenable to judicial review or can be a person exercising public functions under section 6 of the Human Rights Act."
But that has no application to this case. SASC is a statutory body with functions, powers and responsibilities clearly defined by Parliament.
Capacity to pay