The Jeff Cumberbatch Column – Enforcing Proper Administration

Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FTC

“An Act to provide for the improvement of administrative justice in Barbados and for related matters.Administrative Justice Act (Barbados), Cap 109B

Former Prime Minister, the late David Thompson, might have turned in his grave on Wednesday last week with the handing down of the decision in at least one of the two judicial rulings that went against the governing administration. I recall that soon after he assumed the reins of office, he summoned the Chairpersons and Deputy Chairpersons of all the statutory boards to a “confab” with him and some members of his Cabinet at what is now the Lloyd Erskine Sandiford Centre. I attended as the deputy chairman of the Anti-Money Laundering Authority, then under the chairmanship of Sir Neville Nicholls.

It was not a social occasion merely though; Mr. Thompson, as a lawyer, was concerned with the more efficient administration of the statutory boards and perhaps the insulation of his administration from court action. I recall clearly that he counselled all those present to familiarize themselves with the principles of the Administrative Justice Act, Cap 109B of the Laws of Barbados. Last week’s High Court decision in the Barbados Investment and Development Corporation [BIDC] matter to the effect that for the corporation to compulsorily retire seven of its employees before the date required was an unreasonable exercise of its discretion under the Statutory Boards Pensions Act thus might have, if it were at all possible, elicited a wistful smile from him.

Of course, in matters of law, a legal opinion is just that, an opinion, although some might be more informed than others and, in the case of the opinion of a judge of the High Court, binding until and unless a higher court overrules it.

I should issue two caveats at this point; first, that I have not read a transcript of the decision in question and second, in any case, it is subject to imminent appeal so that scholarly commentary on it would be highly improper at this stage.

Given the first, I am unaware of the evidence led or of the submissions of counsel in the matter that would have moved the judge to conclude that that the exercise of the BIDC’s discretion under section 8 (1)of that Act was unreasonable, but this provision;

[“A Board may require an officer in its service to retire at any time after he attains the age of 60 years.]”

appears to controvert directly that section of the Employment Rights Act 2012 that expressly treats as a contravention of the employee’s right not to be unfairly dismissed “where the reason” for the dismissal is “a reason that relates to the race, colour, gender, age, marital status, religion, political opinion…”(emphasis added).

Nor does it seem cogently arguable that the compulsory retirement contemplated by the section is not a dismissal, given the wide interpretation given to this latter concept at section 26 (1)(a) of the ERA 2012, nor that the ERA2012 does not apply to employment by a statutory board –see section . It does not appear, however, that the case was contested on this private law basis on this occasion, but these statutory conflicts are arguably unwholesome, untidy and unnecessary.

The second decision, also adverse to the interest of the governing administration, but one on which Mr Thompson did not address those gathered on the occasion referred to earlier, was that Mr. David Comissiong did indeed have the locus standi [the capacity to bring a court action] to challenge the official decision to permit the onset of construction of the Hyatt. Again, I must confess that I have not yet read this decision, although I have only recently gained access to a copy. The AJA itself is clear in section 6 as to those entitled to relief-

“The Court may on an application for judicial review grant relief in accordance with this Act

1. (a)  to a person whose interests are adversely affected by an administrative act or omission;

(b)  to any other person if the Court is satisfied that that person’s application is justifiable in the public interest in the circumstances of the case.

The question for the court therefore would have been whether the applicant satisfied either arm of the provision according to the relevant case law on the matter. The decision published demonstrates that the judge was so persuaded on the authorities. This decision is also, as I understand it, subject to appeal.

A blessed and joyful Christmas day to all my readers and their families.

33 comments

  • Hi Jeff

    On behalf of the BU household- those who manage the blog- best wishes to you and your family for the season.

    We take this opportunity to extend best wishes to ALL that BU describes as the BU family. Richest blessings we pray be bestowed on you.

    Like

  • Well Well & Cut N' Paste At Your Service

    Happy Holidays to you and yours Jeff.

    Like

  • Well Well & Cut N' Paste At Your Service

    Same to you and yours Blogmaster.

    Like

  • Jeff

    I have been arguing for a long time that section 8 of the Statutory Boards (Pensions) Act does not apply to workers who availed themselves of the Government’s offer to continue to work until the National Insurance pensionable age, 67 from next week. That offer was contained in the new section 8A and in the policy announced by government during the debate to amend the act.

    In 2004 the Act was amended to say that notwithstanding section 8, the retirement age would now be in accordance with the schedule which mirrored the NIS scheme.

    I am of the view that having given the workers a right to go on to 67, Government could not just come and extinguish that right by a mere board decision.

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  • There are many norms in Barbados. The scholars might know 75 %, lawyers and judges 50 %, civil servants 25 %.

    It is simply a typical problem of developing countries that norms are neither known nor applied. Barbadian legal system is not the English common law. To make Barbados work, we need to revoke at least 90 % of all acts and statutes, so that even the average clueless lawyer understands what is going on in his rum shop.

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  • Caswell Franklyn December 24, 2017 at 8:56 AM #

    Barbados, with a population of about 300000, has more pensions legislation than the UK, with a population of 65m – and it is still a mess. Interesting.

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  • I commiserate with those having the man Stuart for a client.Worst yet having the Democratic Labour Party as a client post Errol Walton Barrow.An effing disaster at every step,with every decision.A colossal calamity this lot of rotten dems.

    Like

  • Bernard Codrington

    @ Jeff
    @ David

    Thank you very much for your kind wishes and the same to you and your families. It has been a wonderful year. One in which we have learned about ourselves and one in which we have learned respect for each other and our diversities of views.

    @ Jeff

    Is this not why we have judges ? Their job is to come to a conclusion based on the evidence before them. They are also very human and ipso facto will bring their own personal biases to the interpretation of the facts and the law. We cannot escape this.

    It would be ideal if the draughtsmen would compare related legislation when draughting new laws and regulations for conflicts.

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  • Hi Jeff

    On behalf of the BU household- those who manage the blog- best wishes to you and your family for the season.

    @David, Thank you kindly and I wish the same for you and your household…Indeed, season”s greetings and best wishes for 2018 to all the BU regulars…

    Like

  • Happy Holidays to you and yours Jeff.

    Same to you, WW&C’NPAYS. Do have a pleasant Xmas eve!

    Like

  • I have been arguing for a long time that section 8 of the Statutory Boards (Pensions) Act does not apply to workers who availed themselves of the Government’s offer to continue to work until the National Insurance pensionable age, 67 from next week. That offer was contained in the new section 8A and in the policy announced by government during the debate to amend the act.

    In 2004 the Act was amended to say that notwithstanding section 8, the retirement age would now be in accordance with the schedule which mirrored the NIS scheme.

    @Caswell, I am inclined to agree with you…but section 8A speaks to office holders only. In any case, the legitimate expectation may be based on the assertion made during the debate…

    Like

  • Thanks Jeff. Do have a blessed Christmas and I wish you a healthy and happy New Year.

    Remain true to yourself, Barbados needs more like you.

    Sent from my iPad

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  • @ David

    I also take this opportunity to wish you and all BU contributors, the very best for the Holiday Season and the new year. May good things attend you all.

    Like

  • Merry Christmas and a happy new year to David and the BU household…….and to all BU bloggers.

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  • Thank you for all the well wishes, a reminder that the BU project is a work in progress defined by the participation of us ALL. We need to go the next phase and with your help we will achieve this goal in 2018.

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  • Merry Christmas to all.

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  • Pardon me Sir but I cannot understand what your submission is intended to convey to lesser mortals like myself. I was hoping that with your legal scholarship you would have been able to indicate whether in your opinions the decisions were right or wrong and if you have not yet had the opportunity to read the decisions then you should not have commented rather than appear to be sitting on both sides of the fence.

    Like

  • Well Well & Cut N' Paste At Your Service

    Happy Holidays to all, even the yardfowls.

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  • Distinguished jurist Sandra Mason is Barbados’ 8th Governor General.

    Female GG

    Next will be a Female PM.

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  • Looks like a grab for the female vote. Can we research what are Mason’s outstanding achievements? She was not outstanding enough to be given the CJ’s job?

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  • Mason is part of the problem, not the solution. Like the other judges at the Supreme Court, Mason is responsible for the very low quality of the judgements delivered and the constant backlogs. Just another national disgrace.

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  • Wasn’t her application for a seat on the CCJ rejected?

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  • @ David,

    On another note. Richard Starkey (Ringo Starr) will be Knighted.

    He will join other famous ( or infamous ) musicians like Sir Mick, Sir Elton, Sir Paul.

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  • @Hants

    What is in a Sir anyway.

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  • International standards and Barbadian standards are very different when it comes to the question what “distinguished” means. I fear we won´t see any Barbadian judge at the CCJ for the next decades, since the local elite only promotes mediocrity.

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  • The ” Sir ” is just another bullshit title to make the recipients feel superior to others.

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  • With the appointment of Justice of Appeal Sandra Mason, this Government has finally done something that I can support without reservation.

    She was the preferred candidate to become Chief Justice and the Government blundered and put her to work under someone that was her inferior by far, and she knew it, but like a gracious lady she continued to work without showing any outward signs of disappointment.

    I want to congratulate Miss Mason on her imminent elevation.

    Sent from my iPad

    Like

  • @ David,

    “Sandra Mason (born 17 January 1949) is a Barbadian lawyer and judge.

    She was the first woman admitted to the Bar in Barbados.

    She served as chair of the CARICOM commission to evaluate regional integration, was the first magistrate appointed as an Ambassador from Barbados, and was the first woman to serve on the Barbados Court of Appeals.

    She was the first Bajan appointee to the Commonwealth Secretariat Arbitral Tribunal and served briefly as the Governor General of Barbados. She has been called one of the 10 most powerful women in Barbados.”

    Like

  • @Hants

    Her resume appears impressive?

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  • She is a good role model for the little girls of Barbados.

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  • So if Mason did not make it to the CCJ but is superior to CJ Gibson … does it mean that Gibson is only a 3rd rate lawyer?

    Anyway, for me the murder of Rihanna´s cousine is more important. Many people – and some, I would like to stress, on BU – have lost their loved relatives this year! Mason and Gibson just represent a political and social system where these things are allowed to happen. How would Mason and Gibson react, if one of their relatives were murdered? Or is the live of a member of the Barbadian elite worth much more than the live of ordinary taxpayers and tourists?

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  • @ Tron who wrote, ” Anyway, for me the murder of Rihanna´s cousin is more important ”

    It is more important to the International news media so you have your wish.

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  • Taylor struck the jersey bars and died while Haynes complained of discomfort about the body (another road traffic tragedy)

    Yet another example of the failure of the administrative state. Bull bars were invented as so-called protection against kangaroos in the Australian outback. They are now banned in Australia and every civilised country – but not in Barbados.

    Like

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