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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Harding v Attorney General of Anguilla (Anguilla) [2018] UKPC 22 (30 July 2018) URL: http://www.bailii.org/uk/cases/UKPC/2018/22.html Cite as: [2018] UKPC 22 |
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Trinity Term
[2018] UKPC 22
Privy Council Appeal No 0018 of 2017
JUDGMENT
Harding
(Appellant) v Attorney General of
From the Court of Appeal of the Eastern Caribbean
Supreme Court ( |
before
Lord Reed Lord Kerr Lord Sumption Lord Hodge Lord Briggs
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JUDGMENT GIVEN ON |
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30 July 2018 |
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Heard on 9 July 2018 |
Appellant |
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Respondent |
Horace R Fraser |
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John McKendrick QC |
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Attorney General,
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(Instructed by Simons Muirhead & Burton LLP) |
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(Instructed by Attorney General’s Chambers) |
LORD SUMPTION:
1.
In these proceedings, Mrs Harding claims that she was removed from
office before the expiry of her final term in breach of the Constitution of
Anguilla
, and that she had a legitimate expectation of reappointment which was
violated by the failure to reappoint her. Her claim was rejected in the High
Court and again in the Eastern Caribbean Court of Appeal for reasons which
appear to the Board to be entirely correct. They will therefore content
themselves with indicating briefly the points which were argued and the reasons
why they have now failed at every stage.
2.
The Constitution of Anguilla
provides:
“Power to appoint, etc, to judicial offices
68(1) Power to make appointments to the offices to which this section applies and to remove and exercise disciplinary control over persons holding or acting in such offices shall vest in the Governor, acting after consultation with the Judicial Service Commission.
(2) This section applies to
the office of Magistrate, to any office in the public service of any registrar
or other officer of the High Court who is required to possess legal qualifications
and to such other offices in the public service, for appointment to which
persons are required to possess legal qualifications, as may be prescribed by
any law for the time being in force in Anguilla
.”
3.
Mrs Harding was the first holder of the office of Registrar of the High
Court of Anguilla. She was originally appointed for a term of two years with
effect from 10 January 1999. On the expiry of that term she was reappointed for
six further consecutive terms, the last one expiring on 10 January 2012. The
terms of her appointment were set out on each occasion in a written contract.
Three clauses of the final contract, dated 21 January 2010, are relevant. The
first, clause 1, provided that her appointment was limited to two years, from
11 January 2010. The second was clause 7, which entitled the Governor to
terminate her appointment at any time without cause on three months’ notice
after consulting the Judicial Service Commission. The third was clause 11,
which provided that six months before the end of the term her appointment would
be advertised, and that if she wished to be considered she must submit a
curriculum vitae, which would be submitted to the Governor along with the
curriculum vitae of any other suitably qualified applicant.
5. In those circumstances, Mrs Harding’s only possible complaint was that she should have been reappointed. Contractually, she had no right to be reappointed. Her appointment was for a limited term and provided that six months before the expiry of that term her job would be advertised. She does not claim that the constitution gives her security of tenure. That would have been an impossible contention given the absence of any express right to tenure in the Constitution and the well established principle that the holder of a lower judicial office may properly be employed on a fixed term contract: see Hinds v The Queen [1977] AC 195, 218 (Lord Diplock). Instead, it was submitted on Mrs Harding’s behalf that as the incumbent office-holder she had a substantive legitimate expectation of reappointment. The difficulty about this submission, and it is an insuperable one, is that the practice of opening appointments to competition at the expiry of their terms had been formally adopted and announced by the Department of Public Administration in 2004 and notified by letter to Mrs Harding. Subsequent contracts had been on terms similar to clause 11 of her latest contract of 2010. Indeed, on 8 July 2011 she had written asking to be “considered for a further period of employment”, expressly invoking that clause. A legitimate expectation is not the same as an unqualified right. It is a factual situation in which a public authority has caused a person to believe on reasonable grounds that he or she would enjoy some advantage. If, which the Board doubts, Mrs Harding had ever had a legitimate expectation of reappointment, it could not have survived the notification to her in 2004 of the administration’s intention to open public appointments to competition at the expiry of their existing terms, or her consent to the terms of successive contracts drawn on that basis thereafter.