Save Guana Cay Reef Association Ltd and others v The Queen and others (Bahamas)

In judicial review of a major development, a legitimate expectation of consultation requires a process undertaken while proposals remain formative, with sufficient reasons, adequate time and conscientious consideration of responses. Where no statute requires an environmental impact assessment or public consultation, an assessment prepared for expert governmental scrutiny does not itself create a wider democratic consultation duty. A high-level government framework for a complex project is not an improper fetter on later statutory discretions where detailed approvals remain with specialist authorities. Disclosure and cross-examination remain exceptional in judicial review. Apparent bias depends on all the circumstances and whether a fair-minded and informed observer would see a real possibility of bias; a fixed-term acting judge with constitutional security of tenure was not thereby disqualified.

The appellants sought judicial review of the Government of the Bahamas’ support for a large resort development on Great Guana Cay. They alleged inadequate public consultation, unlawful commitments in Heads of Agreement, irrationality, fettering of discretion, and apparent bias by the acting judge. Carroll J (Ag) dismissed the application on 12 October 2006. The Court of Appeal of the Commonwealth of the Bahamas dismissed the appeal on 18 February 2008. The appeal to the Privy Council concerned whether the consultation was adequate, whether the Heads of Agreement unlawfully constrained later decisions, whether interlocutory disclosure and cross-examination should have been ordered, and whether the acting judge was independent and impartial.

Lord Walker delivered the judgment of the Board. The Privy Council unanimously dismissed the appeal.

1. Consultation. The residents had a legitimate expectation of consultation. Proper consultation required proposals to remain at a formative stage, sufficient reasons to permit an intelligent response, adequate time, and conscientious consideration of the consultation product, as explained in R v North and East Devon Health Authority Ex p Coughlan [2001] QB 213. The two public meetings, together with the information made available at the second meeting, satisfied that standard. The failure to hold a further promised meeting and the late availability of the environmental impact assessment were imperfections, but not enough to invalidate the process.
2. Environmental assessment and governmental framework. Bahamian law imposed no statutory requirement for an environmental impact assessment or public consultation. The assessment was prepared principally for expert scrutiny by the BEST Commission, unlike the statutory regimes considered in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6 and Berkeley v Secretary of State for the Environment [2001] 2 AC 603. The Cabinet could adopt a strategic framework for a complex development. Under section 72 of the Constitution, the decision was one for the highest level of elected government. The Heads of Agreement provided a framework and political commitment, while leaving detailed approvals to the appropriate specialised authorities. It did not improperly fetter discretion.
3. Disclosure and cross-examination. Following Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650, disclosure was not confined to cases where the decision-maker’s evidence was inaccurate or misleading. Nevertheless, disclosure and cross-examination remained exceptional in judicial review. The refusal was within the judge’s discretion because the orders were unnecessary and amounted to a fishing expedition.
4. Apparent bias. The test in Porter v Magill [2002] 2 AC 357 required all circumstances to be considered and asked whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Kearney v HM Advocate 2006 SC(PC) 1 showed that no single factor was decisive. The acting judge’s fixed six-month appointment carried the same security during that period as a permanent appointment, removal being limited by the Constitution to inability or misbehaviour. His former political role, judicial salaries and the sensitivity of the case did not establish apparent bias.

The Board declined to consider late amicus submissions. The parties were given 21 days to make written submissions on costs.

• Privy Council: Appeal dismissed; the Board advised that the appeal should be dismissed.
• Court of Appeal of the Commonwealth of the Bahamas: Appeal dismissed on 18 February 2008.
• Supreme Court of the Bahamas: Carroll J (Ag) dismissed the judicial review application on 12 October 2006.