The Attorney General of Trinidad and Tobago v Carmel Smith (Trinidad and Tobago)

In constitutional redress proceedings, the proper defendant is determined by the constitutional and statutory scheme governing proceedings for and against the State. The Attorney General represents the State and constitutional Service Commissions only where the State Liability and Proceedings Act deems proceedings against them to be proceedings against the State. A public authority is not thereby part of the State for procedural purposes. A statutory body outside that deeming provision is the proper defendant, even if it is amenable to constitutional relief. Lack of incorporation does not prevent a statutory body from being sued through representatives. Practical concerns about recovery of damages or costs cannot alter the statutory construction.

The respondent alleged that the Statutory Authorities Service Commission had discriminated against her and breached her constitutional rights. She brought an originating motion for redress under section 14 of the Constitution, naming the Attorney General as sole defendant. Moosai J held that the Attorney General could not be made a party without consent, struck him out and added the Commission. The Court of Appeal allowed the respondent’s appeal and restored the Attorney General as sole defendant. The central issue before the Board was whether the Attorney General or the Commission was the proper defendant to constitutional redress proceedings. The merits of the alleged discrimination were not considered.

Lord Walker delivered the judgment of the Board. The appeal was allowed, the order of Moosai J was reinstated, and the parties were given 14 days to make written submissions on costs.

1. Statutory scheme. Section 14(3) of the Constitution makes the State Liability and Proceedings Act applicable to constitutional proceedings only so far as its provisions are capable of applying for that purpose. The Attorney General’s constitutional role under section 76(2) is to conduct civil proceedings for and against the State. Section 19(2) of the Act requires proceedings against the State to be instituted against the Attorney General, but sections 19(8) and (9) create a specific deeming rule for constitutional Service Commissions and their members. The definition of authority is confined to the Service Commissions identified in section 3(1) of the Constitution.
2. Application to SASC. SASC was established under the State Authorities Act, was not established by the Constitution, and was not one of the four Service Commissions covered by section 19(8) and (9). It was therefore not deemed to be part of the State. Its status as a public authority potentially amenable to constitutional redress did not make the Attorney General the proper defendant. The Commission itself was the proper defendant.
3. Incorporation and wider concepts of state responsibility. The Board rejected the argument that SASC’s lack of incorporation prevented it from being sued. Unincorporated public bodies can be parties through representatives. A statutory body with defined functions, powers and responsibilities is materially different from a body with only a shadowy existence. European-law concepts of an emanation of the state and the broader meaning of public authority for human-rights purposes did not answer the separate procedural question of statutory construction.
4. Practical considerations. Possible payment of damages or costs by government, and likely involvement of government lawyers, could not override the statutory scheme.

• Privy Council: In [2009] UKPC 50, the Board allowed the Attorney General’s appeal and reinstated the order striking him out and adding SASC.
• Court of Appeal of the Republic of Trinidad and Tobago: On 21 July 2008, the Court of Appeal allowed the respondent’s appeal and restored the Attorney General as sole defendant.
• High Court: On 18 February 2008, Moosai J upheld the Attorney General’s objection, struck him out and granted leave to add SASC.