Brantley and others v Constituency Boundaries Commission and others

Where a constitution provides that a proclamation takes effect on the next dissolution after it is made, those words bear their natural meaning. A proclamation is made when it is published in the official Gazette, or, only where Gazette publication is not reasonably practicable, by another reasonably practicable and effective means. Signing the document, preparing a hard copy, or placing its text online does not suffice where Gazette publication was practicable. A dissolution occurring before publication therefore precedes the making of the proclamation, so it cannot govern the election following that dissolution. The Board also indicated, obiter, that deliberate interference with access to constitutional adjudication, or deliberate defiance of an interim injunction, may render the resulting act unlawful and open to judicial review despite an ouster clause.

This was an appeal from interlocutory proceedings concerning an attempt to alter parliamentary constituency boundaries in Saint Christopher and Nevis immediately before a general election. The appellants obtained an interim injunction, but the High Court discharged it on the ground that the proclamation had already been made. The Court of Appeal upheld that decision.

The Board considered the proper interpretation of section 50(6) of the Constitution of Saint Christopher and Nevis and the point at which a proclamation is made. It also considered, without deciding the substantive allegations, whether deliberate efforts to prevent constitutional judicial review or to publish a proclamation in breach of the injunction could invalidate it.

Lord Hodge delivered the judgment of the Board, which allowed the appeal.

1. Section 50(6) was to be given its natural and ordinary meaning. A boundary proclamation came into force on the next dissolution of Parliament after it was made. The dissolution of the National Assembly on 16 January 2015 therefore preceded the making of the impugned proclamation and could not trigger its operation.
2. Under section 119 of the Constitution of Saint Christopher and Nevis, a proclamation meant a proclamation published in the official Gazette, unless Gazette publication was not reasonably practicable. The making of a proclamation was not simply the Governor-General’s signing of a document or the production of a hard copy retained on a government file. Where publication in the Gazette was reasonably practicable, publication on a government website was not an alternative.
3. On the unchallenged evidence, the proclamation was not available to the public through the Gazette before 20 January 2015. The dissolution proclamation, although published at the same time, took effect from 16 January. The boundary proclamation, if valid, would consequently take effect only on the next dissolution of Parliament.
4. The Board expressed tentative, non-dispositive views on wider constitutional issues. A deliberate attempt by one branch of government to prevent access to the High Court for constitutional redress was strongly arguable as contrary to the protection of the law and the rule of law. The ouster clause might not apply, and ordinary judicial review for improper purpose might remain available: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
5. It was well established that an interim injunction could bind a minister acting officially or a government department, with breach capable of founding contempt. The order remained valid and had to be obeyed until set aside. Breach could also support judicial review where the decision-maker failed to consider the order or used power to defeat it, as illustrated by M v Home Office [1994] 1 AC 377.

The Board advised that the appeal be allowed and directed the parties to make written submissions on costs within 21 days.

1. Privy Council allowed the appeal from the interlocutory decision and advised that the election should use the electoral list existing before the purported boundary alteration.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) refused the appellants’ appeal on 5 February 2015 and upheld the discharge of the interim injunction.
3. High Court (Carter J) discharged the interim injunction on 27 January 2015, holding that the proclamation had already been made and published before the injunction was served.