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.