The Jeff Cumberbatch Column – The Supremacy of Parliament

Jeff Cumberbatch - Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

My Constitutional Law lecturer at university, the late Professor Ralph Carnegie, was of the view that the Constitution, with a capitalized “C”, and signifying the written document was but a part of the constitution (small “c”) of a jurisdiction; this latter signifying the panoply of practices and conventions constituting the rules of governance. I think that it was Ralph too, as I later reluctantly came to know him, who disabused us of the populist notion that Parliament could do anything except make a man a woman. In his view, so long as it was not constrained by Constitutional regulation, it had the power to declare that in law a man was a woman. And since the definition of a man and a woman is a legal precept for most purposes, including that of capacity to contract a marriage at common law, condign drafting might easily achieve this objective.

I trust that I have not bored my readers as yet, but I recalled both of these statements on Tuesday last when the United Kingdom Supreme Court, in an 8 to 3 decision, upheld the earlier judgment of the Divisional Court of England and Wales that the Executive, acting through the Secretary of State, did not have the constitutional power to give the necessary Notice of Intention to withdraw from the European Union under Article 50 of the Treaty without the prior authorization of Parliament.

This decision reaffirms the supremacy of Parliament over the Executive…, as it should be. We in the region have come to accept a contrary ordering, especially where, out of either constraint or gratitude, there exists some Cabinets that can easily outvote opposing voices in Parliament even though the Constitution expressly provides, at section 64(2) in our case, that “The Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the government of Barbados and shall be collectively responsible therefor to Parliament “. [Emphasis added].

It also reinforces the first Carnegian thesis by showing clearly that it is possible for there to be a constitution (which was the basis of the decision) without there being a Constitution (which the UK assuredly does not have).

The enhanced numerical composition of the Court heralded the constitutional significance of the decision, although the notion of an enlarged panel in British jurisprudence is not peculiar to constitutional issues. Indeed, only this week, I lectured on the decision in Murphy v Brentwood District Council where the then highest court in England, the House of Lords, transformed itself into a seven-member court (up from the usual five) to deliver its judgment on the existence of a duty of care in negligence.

The decision itself is understandable, although it might be considered that parliament had already devolved its supreme authority to the people in the “Brexit” referendum. The notion that parliamentarians are mere representatives of the popular will divided by constituency would tend to suggest some exegesis of vox populi, vox curiae.

However, the decision turned on the much more arcane point that section 2 of the European Communities Act, the statute that gives effect to the UK’s obligations under the EU Treaty, created a process whereby EU law became an overarching part of UK law. So long as it remained in force, it operated as a transfer of legislative power by the subordinate UK parliament to the EU law making bodies and thus could be annulled by Parliament only.

Nor did the provision that EU law would apply only in the absence of withdrawal confer a power on the Executive to withdraw from the Treaties, given that any such withdrawal would effect a change in UK domestic law and since their Lordships perceived a vital distinction between variations in UK law resulting from changes in EU law and those arising as a consequence of withdrawal from the EU. To their minds, this initiative would have the inevitable consequence of removing one source of UK law, a fundamental change that constitutionally required Parliamentary assent. Too besides, withdrawal would remove some of the currently existing rights of UK citizens under EU law, a phenomenon that is not permitted without parliamentary approval.

The majority also dealt with the rather nice argument that the existence of the Ministers’ accountability to Parliament, referred to in its Barbadian formulation above, allowed Parliament to play a sufficiently substantial role in the affair. According to the majority, “It was also suggested that it should not cause surprise if ministers could exercise prerogative powers to withdraw from the EU Treaties, as they would be accountable to Parliament for their actions. This seems to us to be a potentially controversial argument constitutionally. It would justify all sorts of powers being accorded to the executive, on the basis that ministers could always be called to account for their exercise of any power. There is a substantial difference between (i) ministers having a freely exercisable power to do something whose exercise may have to be subsequently explained to Parliament and (ii) ministers having no power to do that thing unless it is first accorded to them by Parliament”.

My preliminary view of the matter was that the purported withdrawal could not itself remove existing law in the UK, already a fait accompli, even though it would do so eventually. Some reasoning akin to this appears to have found favour with one of the dissentients, Lord Carnwath. In his opinion;

“Service of an article 50(2) notice will not, and does not purport to, change any laws or affect any rights. It is merely the start of an essentially political process of negotiation and decision-making within the framework of that article. True it is that it is intended to lead in due course to the removal of EU law as a source of rights and obligations in domestic law. That process will be conducted by the Executive, but it will be accountable to Parliament for the course of those negotiations and the contents of any resulting agreement. Furthermore, whatever the shape of the ultimate agreement, or even in default of agreement, there is no suggestion by the Secretary of State that the process can be completed without primary legislation in some form.

The highest court in the UK has now ruled on the matter. Not everyone will agree with it, but it is, nevertheless, the correct one. Which serves to bring to mind another Carnegian bon mot, “ The decision of the highest court is not right because of superior reasoning, it is right because there can be no appeal from it.”


  • @ 9 of 9

    Salve Magister.

    I am watching but do note that your style is not that of Chad of the 9’s in this submission and that I might have been wrong plussing Chad of the 9’s does not know Latin.

    “You went south and came back north” and displayed a mastery in both actions, albeit that while the southern voyage was longer, when you flew north you went straight to the point.

    How many Bajans, outside of those people reading this blog, and even among those reading this blog, have picked up that when this deal was sealed in the Ministry of Energy that what was contemplated was giving specific parties lifelong interests to their heirs and successors in the oil drilling rights of Barbados FOREVER???

    I wonder if, now that you have made this disclosure that, Barbados’ ONLY proactivist lawyer will hasten to his task to seek an injunction and that Barbados’ Silent but Deadly lawyer, he knows who he is, will act to destroy the plans of one Quisling.

    I see that you yourself are a legal man who, as is evidenced by your writing, in conjunction with your intelligence gathering skills, has been able to discern why this sale is being hurried through in the clear light of day.

    This is why Carl Moore and AC hate Barbados Underground so much, they and the rest of the posse find that their plans are exposed bigly here on BU.

    THis is why Mugabe is going to close it down IF SHE GETS IN POWER



    Excellent exposee.

    But by this act one sees who you are though, walk carefully, they are not going to like this exposure by a lawyer who is privy to the Oil Exploration escapades of the GoB? with such sound institutional history?


  • @ Piece Uh De Rock Yeah Right – INRI January 30, 2017 at 11:51 PM #

    desalination plants, other water storage accessories
    garbage collection and processing
    sewerage plants
    roads refurbishment namely cement
    housing construct
    education namely financial support structures
    health monopolies
    land valuation structures
    Interest Rates structures
    exclusion of prosecution structures


  • @9of9
    the sale is the BN..Terminal…CL, not the BN..Oil…CL; the former being a subsidiary of the latter. The BNTCL deals with the distribution of finished goods.
    I could be wrong, but I do not believe oil rights for exploration accrue in the sale. However, it remains unknown to me as to whom those rights belong.


  • @ NorthernObserver January 31, 2017 at 1:52 AM #

    the sale is the BN..Terminal…CL, not the BN..Oil…CL; the former being a subsidiary of the latter. The BNTCL deals with the distribution of finished goods”….

    It would benefit the class to have some clarity on the subject, also what goods are processed and produced and where is it done. Even under correction , the sale means a life long enterprise, does it not?


  • pieceuhderockyeahright

    @ Northern Observer.

    An interesting observation and hierarchical structure that reinforces the need for BU to eyeball the hidden agreement.

    One would not be surprised if said document has some nefarious condition to extend to oil drilling rights by way of “strengthening the parent organization” or some inane condition like how Honda ole place on Bay Street get sell out? For Hyatt heheheheh

    I wonder if these quisling people doan tink dat dem cyan speak stuttering selves, after carving up all the energy reserves distribution and exploration?, doan tink dat dem going dead? Seriously!!!

    @ 9 of 9’s

    As if to reiterate my point your 12.49 post last night, rather, this morning, indicated that every one of those kickback structures has (1) a ministry and teifing minister (2) a complicit? permanent secretary? and participating staff (3) external actors and beneficiaries (4) documents that record the scam (5) legal enablement for the contracting agents to the scam and ensuingly lawyers, most likely the office of the attorney general and its clerks who are willing? Parties to the crime.

    Again this is why, any smart political party can say that it will prosecute all parties to these crimes on assuming office.

    Mugabe cannot say this cause she is purported to have benefitted from that Syrup contract at the MoE and received emoluments from de udder big scam dat it had years later.

    As Plantations always is saying “all uh dem hands nasty”

    Send Barbados Underground de files and evidence nah??



    Did you hear head of BREA’s comment in the news this morning? How can he comment with such certainty and the terms of the agreement have not been made public? You have to listen carefully to these talking heads.

    Liked by 1 person

  • Is he not a lawyer David?
    …and you expect better?


  • …and how about the Simpson fella who ‘does not see it as Government’s role to own national assets’?
    One wonders then, how he envisions that the PEOPLE OF BARBADOS would otherwise collectively have anything of their own….
    He sees no problem with foreigners owning every shiite …. but with BAJANS doing so…

    These semi-literate blacks who take it upon themselves to be spokesmen of albino-centric principles need to be exposed for the female rabbits that they are.

    The ‘Government of Barbados’ DO NOT OWN A SINGLE SHIITE…!!
    It is the people of Barbados that own(ed) those assets….. and the PEOPLE OF BARBADOS have every right to own their energy assets, their banks, their supermarkets, their manufacturing and tourism plant.

    Only traitors to the people, and blinded jackasses says otherwise.

    Liked by 1 person

  • @ Bushie

    Unless there is a viable, personal, threat to these people this game will forever continue.


  • @ Pacha
    There IS a viable, personal threat to the JAs …. it is called suicide…
    …but they are too stupid and brainwashed to see it….

    How black people can be made to see the ‘point’ being made by John, Money B, Lawson and Chad99999 that unbridled capitalism – as espoused by the albinos of the North, is the way for Black people to go is REALLY beyond Bushie….

    Owen started the shiite, …but it seems that he was influenced by various cheques that were later exposed by thieving Thompson…. but how do we explain the other lackies who, after being educated at the expense of our taxes, can now stand up in public and call for us to sell off our national assets to foreigners and descendants of the plantocracy (who can afford to buy them – having benefitted for centuries of free black labour.)

    Economists (whatever the hell those are) are even worse than lawyers.
    A pox on all their asses.

    Liked by 2 people

  • Barbados did a survey of its’ waters for oil deposits quite recently, large deposits were found. Subject to correction, Trinidad and Tobago disputed the demarcation of territorial waters of which they were laying claims these finds. An International Court mitigated these claims and ruled that indeed Barbados has legitimate claim.

    The value of these deposits would have to be in excess of US$100M.

    Might as well be US$100 trillion and the bulk of that oil might still never be recovered, and not because oil had become obsolete after our economies switched to renewable energy sources, but for the reasons outlined below in an Oct 2016 Peak Prosperity blog podcast (46min):

    Gail Tverberg: Why There’s No Economically Sustainable Price For Oil Anymore

    Our modern, energy-hungry societies’ predicament in a nutshell:

    When on the rising side of the Hubbert curve, everybody has good wage level and everybody can feed themselves. You can build new oil wells and everything works out fine. But what happens as you get past the 50% mark is that you no longer have enough oil coming out for the economy to keep growing. It starts going down. And what happens then is that the economy doesn’t function in the same way. You start getting the prices to spike as you try to get higher-cost oil out. And this is what we saw in the 2007-2008 period.

    The price of oil spikes and you get recession. Then the price of oil comes back down. But wages don’t recover and you get the very low price problem that we have right now. So it doesn’t work right. You can’t keep getting the same amount of oil out, essentially because the wages of the people don’t stay up high enough in order to afford the output of the economy.
    At this point, it has gotten bad enough that there is no price that works. The price that producers need is higher than what the market will bear.

    If we go to a place like Saudi Arabia, you’d say: They can get it out of the ground for $20 a barrel. But then when you look at it, you discover that they really need a much higher price if you include in all of the taxes and all of the funding they need to keep social order, import lots of wheat and the many other things that their economy needs, and build a desalination plant. So they really can’t get along on $20 a barrel. They learned how they can get along on $100 or $120 a barrel, but they can’t get along on $50 a barrel  — even in Saudi Arabia.

    So you end up with a situation where there isn’t any kind price that really will work.



  • Parliament has re-asserted itself again as the Govt has submitted a 100-word Great Repeal bill. The amendments run to 85 A-4 pages. This means a full debate must b had, and rightly so. Parliament rules, that is the message, not governments.


  • @ Green Monkey
    It that not the identical quandary we face in Barbados?

    During Arthur’s time, easy loans gave us the idea that we could live at a high level – with expensive cars, big salaries and plush offices. We were, however living a lie, and really being financed by loans.
    Now that our credit cards have been maxed out, we do not know how to revert to a standard of living that we can ACTUALLY really afford….
    …how do we live without free education; free health care, free bus fares; free school meals; free housing…? …. unheard of…!!

    So we can’t access funds to sustain our (false) standard of living, …but there is NO WAY that we can give up these ‘basics’ of life. What happens when the Central Bank can no longer write bounced cheques…?

    This quandary always only ends with one result….






  • Until we have solar powered planes or cruise ships, how de ferners get here, the concept of 100% renewables is very long-term. If he thinks the divestiture of BNTCL is some new government focus, rather than turning assets into cash, methinks he dreams.

    Liked by 1 person

  • Endeavour J. Morse

    “The PEOPLE OF BARBADOS have every right to own their supermarkets … Only traitors to the people, and blinded jackasses says otherwise.”

    Wow. Just, like, “wow”. Another total lol from the teaboy.


    If you want “the PEOPLE” to own a supermarket, then get the PEOPLE to open a supermarket. It’s been tried, in many countries over many decades, and somehow it always ends up with 78 year-olds standing in line from 4 a.m. in the pitiful hope that they can get some flour or toilet paper today. Or perhaps, in very recent memory, get their hands on some plastic Bulgarian shoes that will fall apart the fifth time they try to put them on.

    Christ, your economic illiteracy is truly wearying. And the “traitors to the people” shite just dates you.

    Grow. The. Phuque. Up.

    You’re best as the disciple in non-natural fibers, leading the brothers and sisters towards that always-changing Next Tuesday tea-time with the Big. The Boss. The Engineer.


  • @ NorthernObserver

    I was going to express something similar in the vein to the non-immediacy of implementation vis a vis a replacement of fossil fuel by 100% renewables

    The question any reasonable minded promoter of Renewables needs to ask is how long before this country can migrate from fossil fuels?

    One can actually ask that questions in several ways that are all not too complimentary of remarks presented by the said Aidan Rogers.

    1.Given this country’s inability to even implement Solar Water heaters in the 40 years that Solar Dynamics first came on the scene as the leader? in solar heated water

    2.Given that government has had 40 years in that sector

    3.Given that this government has received millions of dollars in grants, bilateral aid and technical assistance

    4.Given that successive GoB administrations have not made any inroads into improving that sector

    why would Aidan Rogers like us to believe that the sale, and possible realization? of $100m would have any immediate, or medium term, impact on the national status of renewables?


  • Bernard Codrington.

    @ David
    What a tour de force , starting with a judicial ruling in UK. It seems as though the West minster model has died in Barbados. We now have a pelau of British law and constitution and American governance practices. So our system of governance is evolving. At least BU seems to be a midwife.

    @ Bush Tea

    The whacker seems to be old technology. It is not working. Time for a re-engineering excercse. But evolution is a safe process although it does not fit in with your philosophy of theology nor governance.


  • I do not believe in unbridled capitalism. Where do you get that impression? I do not believe in exploitation. I do not believe that thousands of people should work to make superprofits for a few hundred major shareholders.


  • millertheanunnaki

    @ Piece Uh De Rock Yeah Right – INRIJanuary 31, 2017 at 2:41 PM
    “Given that successive GoB administrations have not made any inroads into improving that sector
    why would Aidan Rogers like us to believe that the sale, and possible realization? of $100m would have any immediate, or medium term, impact on the national status of renewables?”

    Another question to ask is who will be paying this lobbyist posing as an ‘impartial consultant’ on this fire sale?

    This distress sale (a transaction which should occurred since 2012 and involving a broad range of investors both individual and institutional like the Credit Unions) has nothing to do at this stage of the economic conflagration with the promotion of renewables or even to accelerate the pace of privatization but merely to save the forex ass of the present sorry administration amidst the growing spectre of the devil called Devaluation.

    The only thing going with this sale to create a private sector monopoly is that the base price of ground fuels will have to rise to about 15% to meet the required ROI to justify this purchase in a stagnant ‘growth’ market in a sunset industry.

    This permanent hike in prices should make the switch to renewables e.g. electric-powered vehicles a bit more attractive.

    If Rogers were a true promoter of renewables and defender of the environment from the threats posed by fossil fuels he would speak out vehemently about government’s stated pursuit of a programme of offshore drilling for hydrocarbons which can only be some of the dirtiest in the world and most expensive to recover and refine.

    You can bet any actual programme of offshore drilling would be a goodbye kiss to tourism. Maybe then the Hayatt erection would be the only hotel left ‘standing’ and still open to accommodate the thousands of oil barons conducting business to sell heavy oils to the light-sweet Arabs.

    Liked by 1 person

  • Actually the two questions to ask IF the project is approved are as foolows:

    1.what will be the net inflow of foreign to Barbados i.e. 100 minus imports.

    2.will the 100 million be sourced in the external market and will government have to provide a sovereign guarantee?


  • @ Miller
    This distress sale (a transaction which should occurred since 2012 and involving a broad range of investors both individual and institutional like the Credit Unions)
    Yuh mean you still with this nonsense…?
    What sell what assets to what Credit Unions what??!!

    Do you understand that these assets ALREADY belong to the Bajan public?
    Do you understand that the government is only the temporary administrators of the assets?

    So how do you suggest selling assets that ALREADY belong to bajans, back to Bajans – in the form of credit unions?
    So if your family is having cash flow problems …do you sell the house back to yourself? …or to various groups of your children?

    Skippa, if the parents are incompetent, and have failed to manage the family business successfully, then the CORRECT and proper thing to do is not to mortgage the damn house and continue to squander the money in their incompetence, …BUT they should seek out the most competent of their family …and HAND MANAGEMENT DUTIES over to them….. for the good of the whole family.

    ….why wunna continue to be guided by the money-grabbing, albino-centric thinking continues to elude the bushman….
    Would you REALLY sell your home to strangers …unless your children could match their bids…?

    It must be the stupid eddykashun…!!

    Liked by 1 person

  • Bernard Codrington.

    @ Bush Tea @ 7:39 PM

    Tell them. The transaction adds nothing to the foreign reserves and is a temporary and inadequate response to the Debt / GDP ratio. It may however add to the inflation rate, if the rate of return on investment is as high as Miller indicated in an earlier intervention.
    Partial analysis is the fundamental problem in these knee jerk solutions. They appear to solve a problem in isolation but create bigger ones elsewhere in the system.


  • @ Bush Tea January 31, 2017 at 7:39 PM #

    Hoping to drive a BRAND new FORD in ALBERTa Canada, the latest electric model. lol.

    Couldn’t say it better.

    David is right, you just have to listen to these people very carefully and you see an agenda.
    How many of you realize that there’s a lot of money to be had when a government becomes a signatory to the Treaties of International Organizations.

    What is Climate Change?…..Global Warming?
    The Parris Agreement ?….. Bio-diversifying?
    Sustainable Development?…renewable energy?



  • As usual, I am right. The Brexit Article 50 legislation easily passed the UK House of Commons by a vote of 498-114.

    Note: The chump Hal Austin contradicted my prediction that the Brexit authorization was an easy lift.



  • Well Well & Consequences

    This post is so disheartening, obviously sent by someone with accurate, forst hand knowledge of EMERA and IONICS…..both stealing from the bajan consumers and taxpayers.


  • De ole man knows that “The Writer” has an understandable rule where he does not comment on the particular elements of his post at a specific entity and I, for one, respect that stance.

    I have only posted this as an aside for general consumption since, while perusing that rag time paper, whose name i shall not call, (having mentioned it once before today) I came across this article

    “…New York sues Charter, alleges Time Warner fraud on internet speeds.

    NEW YORK – New York filed a lawsuit on Wednesday accusing Charter Communications Inc. of short-changing customers who were promised faster internet speeds than it could deliver. The lawsuit in State Supreme Court in Manhattan accused Charter’s Spectrum unit, until recently known as Time Warner Cable, of systematically defrauding customers…”

    I wonder if the lawyers among us here on BU particularly the man “who is “lawyer adverse”” (heheheheh, he knows who he is) would care to comment on why it is that, in the face of many instances of teifery and oppression by our telecommunications providers why it is that

    (i) not a feller, INCLUDING David Commissiong, even wid all his cases contra the DLP (i ent think David got contra BLP matters under his portfolio) why, not a feller ent bring some sort of class action suit gainst those 4G “masqueraders” who giving people 3G speed while coercing 4G rates from the consumers?


    (ii) Why it is that the FTC, in the interest of the people, does not bring any lawsuits against the ISP teives, at any time, like dem does do in Jamaica?

    Doah de ole man dun say dat when de FTC big staff, not my Chairman, lef he out uh dis, is purported to be getting Galaxy 7 for dem Family, and heirs, dat may account for de bias against the very consumers that they are supposed to be protecting

    I wonder if, given the oligarchical type targets of these accusations, and their dominance of the telecommunications, de ole man was hoping that this tangentially imputed some “supremacy” and therefore would not be deemed too far “off topic” heheheheeheeh.


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