Attorney-General v Ryan

Privy Council 24 July 1979

[1980] 2 W.L.R. 143
[1980] A.C. 718

Lord Diplock, Viscount Dilhorne, Lord Russell of Killowen, Lord Keith of Kinkel and Sir
Clifford Richmond

1979 June 11, 12; July 24

[Appeal from the Court of Appeal of the Commonwealth of the Bahamas]

Bahamas, The—Constitution—Citizenship—Constitutional right to registration as citizen—

Legislation qualifying right—Validity—Minister's decision refusing application for
registration—Whether decision contrary to natural justice—Minister's decision not "subject to
appeal or review"—Whether jurisdiction of court ousted—Bahamas Independence Order 1973
(S.I. 1973 No. 1080), Sch., art. 5— Bahamas Nationality Act 1973 (No. 18 of 1973), ss. 7, 16

Article 5 of the Constitution of the Commonwealth of The Bahamas provides:

"... (2) Any person who, on July 9, 1973 possesses Bahamian status under the provisions of the
Immigration Act 1967 and is ordinarily resident in The Bahamas Islands, shall be entitled, upon
making application before July 10, 1974, to be registered as a citizen of The Bahamas ... (4) Any
application for registration under paragraph (2) of this article shall be subject to such exceptions
or qualifications as may be prescribed in the interests of national security or public policy."

Article 137 (1) defines "prescribed" as "provided by or under an Act of Parliament."

By the proviso to section 7 of The Bahamas Nationality Act 1973 1 the Minister of Home Affairs
may refuse an*719 application for registration on the specified grounds in paragraphs (a) to (e)
or "for any other sufficient reason of public policy." Section 16 provides:

"The Minister shall not be required to assign any reason for the grant or refusal of any
application ... under this Act ... and the decision of the Minister ... shall not be subject to appeal
or review in any court."

In 1966 the respondent, who had been ordinarily resident in the Bahamas Islands since 1947, was
issued with a certificate that he belonged to The Bahamas for the purposes of the Immigration
Act 1963, and he thereby gained Bahamian status. In June 1974 he applied for registration as a
citizen of The Bahamas under article 5 (2) of the Constitution of 1973. He attended an interview
at which questions were asked about his activities since 1947, but no suggestions were made that
he might have done anything that would be a ground for the Minister to refuse the application
either under paragraphs (a) to (e) of the proviso to section 7 of The Bahamas Nationality Act
1973 or "for any other sufficient reason of public policy." His application was refused and at no
time was he given any reasons for that refusal. He issued a summons against the Attorney-
General for a declaration that on the true construction of the Constitution he was entitled to be
registered as a citizen of The Bahamas.

The Supreme Court held that the respondent was entitled to a fair hearing in accordance with the
principles of natural justice and, since he had not been given an opportunity to be heard, the
Minister's decision was a nullity, but the two judges differed on whether the court was entitled to
grant the declaration with the result that the summons was dismissed. The respondent appealed.
The Court of Appeal allowed the appeal and made a declaration that at the inception of the
proceedings the respondent was entitled to be registered as a citizen of The Bahamas subject to
his compliance with article 5 (3) of the Constitution.

On appeal by the Attorney-General to the Judicial Committee: -

Held:

(1) that by virtue of sections 7 and 8 of the Act of 1973 the Minister was a person having legal
authority to determine a question affecting the rights of individuals, and, therefore, he was bound
to observe the principles of natural justice when exercising that authority; that the failure to
inform the respondent of the nature of the case against granting the application and to give him a
reasonable opportunity of answering it was in breach of the principles of natural justice- and
accordingly that the decision to refuse the application was a nullity (post, p. 727C-D).

(2) That those provisions of the Constitution which empowered Parliament, by legislation passed
by a simple majority, to impose limitations on entrenched rights which the Constitution gave to
individuals, were not to be construed expansively so as to enable Parliament to pass legislation
which deprived the individual of the substance of his constitutional rights; that, therefore,
although article 5 (4) ot the Constitution permitted Parliament to limit or qualify the right to
registration in the interests of national security or public policy, the limitations had to be stated
clearly in the legislation so that no discretion was vested in the executive to limit or withdraw the
rights of registration and so that an individual, on reading the statutory provisions, would
know*720 whether he came within a category of persons whose applications for registration
might lawfully be refused notwithstanding that they satisfied the requirements of article 5 (2) and
(3); and that, since the last part of the proviso to section 7 of the Act of 1973, in contradistinction
to paragraphs (a) to (e) of the proviso, purported to give the Minister such a discretion by making
him the sole judge of what constituted "any other sufficient reason of public policy," it was ultra
vires the Constitution and void (post, pp. 728E - 729B, D-F).

(3) That ouster clauses such as section 16 of the Act of 1973 only prohibited the court from re-
examining the decision of an inferior tribunal, which included executive authorities exercising
quasi-judicial powers, if the decision was one which the tribunal had jurisdiction to make; that
any decision affecting the legal rights of individuals arrived at by a procedure which offended
against natural justice was outside the jurisdiction of the decision-making authority; and that,
accordingly, since the Minister's decision was made without jurisdiction, section 16 did not
prevent the court from inquiring into its validity and the application would be remitted to the
Minister to be determined according to law (post, pp. 730B-F, 732F).

Dictum of Lord Selborne in Spackman v. Plumstead District Board of Works (1885) 10

App.Cas. 229, 240, H.L.(E.) and Anisminic Ltd. v. Foreign Compensation Commission [1969] 2
A.C. 147, H.L.(E.) applied.

Order of Court of Appeal varied.

The following cases are referred to in the judgment of their Lordships:

• Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2

W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).
• Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B.
223; [1947] 2 All E.R. 680, C.A..
• Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).
• Spackman v. Plumstead District Board of Works (1885) 10 App.Cas. 229, H.L.(E.).

The following additional cases were cited in argument:

• Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R.
924; [1968] 1 All E.R. 694, C.A. and H.L.(E.).
• Secretary of State for Education and Science v. Tameside Metropolitan Borough Council
[1977] A.C. 1014; [1976] 3 W.L.R. 641; [1976] 3 All E.R. 665, C.A. and H.L.(E.).

APPEAL (No. 29 of 1977) from a decision dated March 16, 1977, of the Court of Appeal of the
Commonwealth of The Bahamas (Hogan P., Duffus and Blair-Kerr JJ.A.) allowing an appeal by
the respondent, Thomas D'Arcy Ryan, from a judgment of the Supreme Court of The Bahamas
(Knowles C.J. and Graham J.) given on June 23, 1976, dismissing an originating summons dated
April 7, 1976, brought by the respondent against the Attorney-General, whereby the respondent
sought a declaration that on the true construction of the Constitution of The Bahamas of 1973
*721 , he was entitled to be registered as a citizen of The Bahamas in accordance with the
provisions of the Constitution.

The facts are stated in the judgment of their Lordships.

Representation

Christopher French Q.C. and Gerald Davies for the Attorney-General.

The concluding words of the proviso to section 7 of The Bahamas Nationality Act 1973 are not
ultra vires the Constitution. The judges in the Court of Appeal, in rejecting this submission, said
that the Constitution did not permit a decision as to what was or was not in the public interest, in
the context of citizenship, to be entrusted to the sole decision of a Minister, since that would
convert an entitlement or right to citizenship into a mere hope; and that the concluding words did
not "prescribe" exceptions and qualifications: they merely, in substance, repeated article 5 (4) of
the Constitution. The concluding words, however, are no less "prescribed," i.e., "provided by or
under an Act of Parliament," than the remainder of the proviso to section 7. The Court of Appeal
gave insufficient weight to the consideration that the right in article 5 (2) is only a right to apply
to be registered as a citizen, which is qualified in the manner laid down by an Act (The Bahamas
Nationality Act) which came into force on the same day as the Constitution. There seems to have
been a fear, underlying the Court of Appeal judgments, that the Minister would abuse his
discretion, and refuse registration even though he was not satisfied of the existence of one of the
grounds for refusal in section 7. That fear can only be allayed by Parliament, to whom the
Minister is responsible for the proper discharge of his duties.

There are areas of public policy where decisions are entrusted to a Minister and are completely
beyond challenge, for example the prerogative of mercy. This is so even where there is a written
Constitution. National security is an area where one would expect there to be a discretion which
was wholly or substantially unfettered, and where it would be inappropriate for the Minister to
give reasons for his decisions; national security might be jeopardized were he to do so. See S. A.
de Smith, Judicial Review of Administrative Action, 3rd. ed. (1973), pp. 261-262: "... one can
say that the courts will show special restraint in applying tests of legality where ... (iii) the
'policy' content of the power is large and its exercise affects large numbers of people." The
policy content in the decision whether a person should be admitted to citizenship is high, and
therefore it was perfectly proper for Parliament to prescribe the exceptions and qualifications by
granting a discretion to the Minister. The specific grounds (a) to (e) in the proviso to section 7 do
not cover the whole field of public policy, and the Minister may well have to consider other
factors such as population levels. However worthy an individual a particular applicant is, he may
be refused on such grounds, as long as they are legitimately matters of public policy. The
Minister himself must be the judge of what is a "sufficient" reason of public policy since the
exigencies of public policy and national security change from time to time.

If the concluding words are intra vires the Constitution, it cannot be assumed that the Minister
did not act under that provision, and the*722 onus is on the respondent to show that he did not do
so, or that he acted on grounds bad in law. If there is an area within which the Minister may have
acted properly, no court can assume that he did not do so: Secretary of State for Education and
Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014. If and in so far as the
Minister had regard to the concluding words, the respondent would have no right to be heard,
since considerations of public policy would be involved and nothing the respondent had to say
would be material. The Minister's decision, where such considerations are concerned, is
administrative rather than judicial, and essentially discretionary.

If, contrary to these submissions, the concluding words of the proviso are ultra vires the
Constitution, the respondent is entitled to some relief, since it is inescapable that the Minister
based himself either on one or more of grounds (a) to (e), and failed to give the respondent an
opportunity to meet the case against him, or on the concluding words, which ex hypothesi are
ultra vires.

The Minister cannot rely on the ouster clause in section 16 of the Act of 1973 if he acted on
grounds (a) to (e), since he did not give the respondent a hearing and there was thus a breach of
natural justice. But if he based his decision on the concluding words, and they are intra vires, he
can rely on the ouster clause.

If the respondent succeeds, the appropriate order is that the matter be remitted to the Minister to
be determined according to law, rather than a declaration of entitlement to be registered, since
there is no positive evidence that none of grounds (a) to (e) applied to the respondent. The
respondent swore an affidavit that they did not so apply, but that is not accepted by the appellant,
and is not sufficient evidence by itself. There may be very cogent reasons for refusing the
application. The order proposed is the type of order made in Padfield v. Minister of Agriculture,
Fisheries and Food [1968] A.C. 997.

Davies followed.

Representation

Cecil v. Wallace-Whitfield and Harvey O. Tynes (both of the Bahamas Bar) for the respondent

[LORD DIPLOCK. The Board would like to hear you on the appropriate remedy.]

There should be a declaration in the terms granted by the Court of Appeal. The respondent has
been ordinarily resident in The Bahamas since 1947. In 1966 he obtained a "belonger"
certificate. He made application before July 10, 1974, to be registered as a citizen of The
Bahamas in the prescribed manner. The uncontroverted evidence of the respondent is that none
of the exceptions or qualifications laid down in section 7 of The Bahamas Nationality Act 1973
applies to him; therefore the Minister had no jurisdiction to refuse his application.

[LORD DIPLOCK. But it is the Minister who has to be satisfied under section 7. He does not
have to give reasons for the refusal, and has not in fact done so. There is no evidence on his
side.]

There are three preconditions, all of which the respondent meets, in article 5 (2) of the
Constitution: the applicant must have possessed Bahamian status, he must have been ordinarily
resident in The Bahamas*723 on July 9, 1973, and he must have made application in the
prescribed manner to be registered as a citizen of The Bahamas before July 10, 1974. That is all
that is required to satisfy the first limb of section 7.

[LORD RUSSELL OF KILLOWEN. Section 7 should be taken as one, and not split up. The
Minister may have a case under grounds (a) to (e). A declaration would shut out that possibility.]

The respondent gave evidence that none of grounds (a) to (e) applied to him. The court is obliged
to decide the case on the basis of the evidence before it.

Cur. adv. vult.

July 24. The judgment of their Lordships was delivered by LORD DIPLOCK.
These are proceedings brought by Mr. Ryan, the respondent to this appeal, in an endeavour to
establish his entitlement to be registered as a citizen of The Bahamas under article 5 (2) of the
Constitution. The appeal to this Board is brought by the Attorney-General against an order of the
Court of Appeal declaring that at the inception of the proceedings the respondent:

"was entitled to be registered as a citizen of the Commonwealth of The Bahamas subject to his
compliance with paragraph 3 of article 5 of the Constitution of the said Commonwealth of The
Bahamas."

The respondent is a citizen of Canada by birth. He first came to The Bahamas in 1947 at the age
of 22 and has been ordinarily resident there ever since, except that he returned to study
accountancy in Canada from 1949 to 1954 and obtained a professional qualification there. He
married in Nassau in 1951 a lady who is a citizen of The Bahamas by birth. It is, and has been at
least since 1966, his intention of making his permanent home in The Bahamas; and, what is most
relevant to the constitutional right that he claims to be registered as a citizen of The Bahamas,
there was issued to him on February 2, 1966, by the Immigration Board a certificate that he
belonged to the Bahamas Islands for the purposes of the Immigration Act 1963.

The relevant sections of the Immigration Act 1963 were replaced by corresponding sections in
the Immigration Act 1967 and persons to whom such certificates of belonging to the Bahamas
Islands had been issued under either of those two Acts have since 1969 been referred to as
possessing "Bahamian status."

The current Constitution of the Commonwealth of The Bahamas is contained in the Schedule to
The Bahamas Independence Order 1973, which came into operation on July 10, 1973. By article
2 of the Constitution it is the supreme law of The Bahamas and, subject to its provisions:

" ... if any other law is inconsistent with this Constitution, this Constitution shall prevail and the
other law shall, to the extent of the inconsistency, be void."

Chapter II of the Constitution deals with citizenship of The Bahamas. It provides that certain
categories of persons shall become citizens*724 automatically on July 10, 1973; but there are
other categories, dealt with in articles 5, 7 and 10, whose entitlement to become citizens of The
Bahamas is dependent upon their making application for citizenship and obtaining registration as
citizens.

By virtue of his certificate of February 2, 1966, the respondent possessed Bahamian status
immediately before the current Constitution came into force, and so fell into one of these
categories. The relevant provisions of the Constitution applicable to his case are to be found in
article 5 (2), (3) and (4):

"(2) Any person who, on July 9, 1973, possesses Bahamian status under the provisions of the
Immigration Act 1967 (a) and is ordinarily resident in the Bahamas Islands, shall be entitled,
upon making application before July 10, 1974, to be registered as a citizen of The Bahamas. (3)
Notwithstanding anything contained in paragraph (2) of this article, a person who has attained
the age of 18 years or who is a woman who is or has been married shall not, if he is a citizen of
some country other than The Bahamas, be entitled to be registered as a citizen of The Bahamas
under the provisions of that paragraph unless he renounces his citizenship of that other country,
takes the oath of allegiance and makes and registers such declaration as may be prescribed:
Provided that where a person cannot renounce his citizenship of the other country under the law
of that country he may instead make such declaration concerning that citizenship as may be
prescribed. (4) Any application for registration under paragraph (2) of this article shall be subject
to such exceptions or qualifications as may be prescribed in the interests of national security or
public policy."

The expression "prescribed" is defined in article 137 (1) as meaning: "provided by or under an
Act of Parliament [sc. of The Bahamas]."

These provisions of the Constitution, and the corresponding provisions dealing with the other
categories of person entitled to acquire citizenship by registration, contemplate that they will be
supplemented by legislation which will provide machinery for applying for and granting
registration as a citizen of The Bahamas, and which may make subject to exceptions or
qualifications the prima facie entitlement of a person who possessed Bahamian status on July 9,
1973, to be registered as a citizen.

In fact such legislation had already been enacted by the legislature of the Bahamas Islands in
anticipation of the coming into force of the new Constitution. This was done under powers
conferred upon that legislature by section 4 (2) of The Bahamas Independence Order 1973. It is
to be found in The Bahamas Nationality Act 1973, of which the long title is: "An Act to provide
for the acquisition, certification, renunciation and deprivation of citizenship of The Bahamas and
for purposes incidental thereto or connected therewith." The relevant sections of this Act which
deal with applications for registration as a citizen under article 5 (2), (3) and (4) of the
Constitution are as follows:

"7. Any person claiming to be entitled to be registered as a citizen of The Bahamas under the
provisions of article 5, 7, 9 or 10 of the Constitution may make application to the Minister in
the*725 prescribed manner and, in any such case if it appears to the Minister that the applicant is
entitled to such registration and that all relevant provisions of the Constitution have been
complied with, he shall cause the applicant to be registered as a citizen of The Bahamas:
Provided that, in any case to which those provisions of the Constitution apply, the Minister may
refuse the application for registration if he is satisfied that the applicant - (a) has within the
period of five years immediately preceding the date of such application been sentenced upon his
conviction of a criminal offence in any country to death or to imprisonment for a term of not less
than 12 months and has not received a free pardon in respect of that offence; or (b) is not of good
behaviour; or (c) has engaged in activities whether within or outside of The Bahamas which are
prejudicial to the safety of The Bahamas or to the maintenance of law and public order in The
Bahamas; or (d) has been adjudged or otherwise declared bankrupt under the law in force in any
country and has not been discharged; or (e) not being the dependent of a citizen of The Bahamas
has not sufficient means to maintain himself and is likely to become a public charge, or if for any
other sufficient reason of public policy he is satisfied that it is not conducive to the public good
that the applicant should become a citizen of The Bahamas.
"8. A person registered under section 5, 6 or 7 of this Act shall be a citizen of The Bahamas by
registration as from the date on which he is registered.

"16. The Minister shall not be required to assign any reason for the grant or refusal of any
application or the making of any order under this Act the decision upon which is at his
discretion; and the decision of the Minister on any such application or order shall not be subject
to appeal or review in any court."

By section 19 the Minister was empowered to make regulations for giving effect to the
provisions of the Act. Such regulations, called The Bahamas Nationality Regulations 1973, were
made by the Minister on August 31, 1973. They provide among other things for the maintenance
of registers and for the forms in which applications to the Minister for registration are to be
made.

On June 27, 1974, the respondent duly lodged with the Minister an application form for
registration as a citizen of The Bahamas under article 5 (2) of the Constitution. On October 24,
1974, he was invited by Mr. Walkine, an Under Secretary in the Ministry of Home Affairs, to
attend at the Ministry for an interview accompanied by his wife. He did so on November 7, 1974,
and was then interviewed by Mr. Walkine who asked him a number of questions about his
whereabouts and occupation from 1947 onwards. It is, however, common ground that at no time
was it suggested to him that he had done anything that was capable of bringing him within any of
the categories of undesirable persons set out in paragraphs (a) to (e) of the proviso to section 7 of
The Bahamas Nationality Act 1973, or anything else that might make it not conducive to the
public good that he should become a citizen of The Bahamas.*726

Nevertheless on June 16, 1975, he received a letter from the Permanent Secretary to the Ministry,
informing him laconically that his application had not been approved. No reasons for the refusal
of registration were given; none has been given since. The Minister's decision to refuse
registration had in fact been made on May 28, 1975.

On April 7, 1976, the respondent began these proceedings by originating summons against the
Attorney-General for a declaration:

"that upon the true construction of the Constitution of the Commonwealth of The Bahamas the
[respondent] is entitled to be registered as a citizen of the Commonwealth of The Bahamas in
accordance with the provisions of the said Constitution."

The summons was heard, with admirable promptitude, before two justices of the Supreme Court
(Knowles C.J. and Graham J.) who, after a 12-day hearing devoted to legal argument, delivered
judgment on June 23, 1976. At the hearing a number of points of law were argued which were
rejected in the reasons for judgment of both justices and are no longer relied upon by either
party. Four questions of law, each one of considerable constitutional importance, remain for
consideration by this Board. (1) Is the Minister, before rejecting an application to be registered as
a citizen of The Bahamas under article 5 (2) of the Constitution, required to give to the applicant
the opportunity of a hearing which complies with the principles of natural justice; and, if so,
what is the consequence of the Minister's failure to observe this requirement? (2) Are the general
words "or if for any other sufficient reason of public policy he [sc. the Minister] is satisfied that
it is not conducive to the public good that the applicant should become a citizen of The
Bahamas," which appear at the end of the proviso to section 7 of The Bahamas Nationality Act
1973, inconsistent with the Constitution and void under article 2; and, if so, what is the
consequence upon the Minister's decision to reject the respondent's application for registration as
a citizen? (3) Does the provision in section 16 of The Bahamas Nationality Act 1973 that the
decision of the Minister "shall not be subject to appeal or review in any court" oust the
jurisdiction of the Supreme Court to inquire into questions (1) and (2)? (4) If the answer to
question (1) or (2) is that the Minister's decision of May 28, 1975, to reject the respondent's
application for registration is a nullity, is the respondent entitled to a declaration that at the
inception of these proceedings of April 7, 1976, he " ... was entitled to be registered as a citizen
of the Commonwealth of The Bahamas, subject to his compliance with paragraph (3) of article 5
of the Constitution of the said Commonwealth of The Bahamas"?

Applicability of the principles of natural justice

In the Supreme Court both judges were of the opinion that the respondent had a constitutional
right to a fair hearing in accordance with the principles of natural justice before his application to
be registered as a citizen was rejected by the Minister; and that a failure to accord him this
rendered the Minister's decision a nullity. This means that he was at least entitled to be informed
of the nature of the case against*727 acceptance of his application and to be given a reasonable
opportunity of answering it. It does not mean that there must necessarily be an oral hearing
conducted in accordance with procedures appropriate to trials in a court of law. What is an
appropriate and fair procedure is very much a matter for the Minister to determine in his
discretion having regard to the kind of things which he is required to take into consideration - in
the instant case, the various matters referred to in the proviso to section 7 of The Bahamas
Nationality Act 1973. Their Lordships, however, need not go further into this, on which ample
authority is cited in the judgments of the courts below, since it is now conceded that neither at
his interview with Mr. Walkine nor on any other occasion was the respondent given any
indication of the grounds upon which the Minister contemplated rejecting his application for
registration, so, cadit quaestio, he was given no opportunity of answering them.

Their Lordships agree with the judges of the Supreme Court (as did the Court of Appeal) that as
an applicant for registration as a citizen of The Bahamas under article 5 (2) of the Constitution,
the respondent was entitled to a fair hearing in accordance with the principles of natural justice
before his application was rejected by the Minister. By virtue of sections 7 and 8 of The
Bahamas Nationality Act 1973, the Minister was a person having legal authority to determine a
question affecting the rights of individuals. This being so it is a necessary implication that he is
required to observe the principles of natural justice when exercising that authority; and, if he fails
to do so, his purported decision is a nullity. In view of the citations of so many cases in the
judgments below, their Lordships upon this branch of the law do not find it necessary to do more
than to refer to Ridge v. Baldwin [1964] A.C. 40 and particularly to the speech of Lord Reid, at
pp. 74-76.

Although in the Supreme Court both judges were agreed that the Minister's decision to reject the
application was a nullity upon this ground, they differed upon the answer to question (2).
Knowles C.J. was not prepared to hold that the last part of the proviso to section 7 of The
Bahamas Nationality Act 1973 was void for inconsistency with article 5 (2) and (4) of the
Constitution. Graham J. on the other hand would have so held. This would have left as valid
grounds for refusing the respondent's application only those specified in paragraphs (a) to (e) of
that proviso; and since the respondent had sworn an affidavit deposing that he had done nothing
which could bring him within any of those paragraphs and the Minister had filed no evidence to
contradict this Graham J. regarded himself as entitled to find as a fact that none of those
disqualifications was applicable. He would have made a declaration of the respondent's right to
be registered as a citizen in terms which were subsequently adopted by the Court of Appeal.
Knowles C.J., on the other hand, consistently with his view that the last part of the proviso was
valid, considered that the Minister's rejection of the application might have been for some other
reason of public policy which in reliance on section 16 of The Bahamas Nationality Act 1973 he
had not been willing to disclose and which, in consequence, the respondent had not been able to
deal with in his affidavits that were before the court.*728 Knowles C.J. would have ordered the
matter to be remitted to the Minister for him to consider the respondent's application according to
law.

There was thus agreement between the two judges of the Supreme Court that the Minister's
purported rejection of the respondent's application for registration as a citizen was a nullity, but
disagreement as to the appropriate order to be made. Under rule 4 of the Supreme Court (Special
Jurisdiction) Rules 1976 this had the consequence, somewhat bizarre in all the circumstances,
that the respondent's summons was dismissed and the Minister's rejection of his application
stood. So the respondent found himself in the role of appellant in the Court of Appeal.

As has already been indicated parenthetically, all three members of the Court of Appeal (Hogan
P., Duffus and Blair-Kerr JJ.A.) agreed with Knowles C.J. and Graham J. upon the answer to
question (1): the Minister's purported decision was a nullity. On the matter that had divided the
two judges in the Supreme Court they agreed with Graham J. Their Lordships will accordingly
turn to question (2).

Validity of the proviso to section 7 of The Bahamas Nationality Act 1973

In answering this question their Lordships are concerned in the first place with the construction
of provisions contained not in an ordinary statute but in a written Constitution. They appear in a
part of the Constitution, comprising Chapters II and III, which confers upon the individual rights
which cannot be withdrawn or limited by any action of the executive and by article 54 are deeply
entrenched against interference by Parliament in the absence of a referendum, except to the
extent that the Constitution itself expressly so permits. A provision - and there are many - in
Chapters II and III of the Constitution, which permits Parliament, by legislation passed by a
simple majority vote, to impose limitations or qualifications upon any of those entrenched rights,
is not to be construed expansively so as to authorise it to deprive the individual of the substance
of the right which prima facie is conferred on him by the Constitution, under the guise of
imposing limitations or qualifications upon it.

Article 5 (2) and (3) of the Constitution gives to every person who possessed Bahamian status on
July 9, 1973, a prima facie legal right to be registered as a citizen of The Bahamas on making
timeous application and satisfying the requirements of paragraph (3). Paragraph (4), however,
authorises the Parliament of The Bahamas to make that prima facie legal right subject to
"exceptions or qualifications" in the interests of national security or public policy. Any such
exception or qualification, if it is to be valid under the Constitution, must be "provided by or
under an Act of Parliament."

In their Lordships' view this entails that the exceptions and qualifications must be spelt out
clearly in legislation, either primary or subordinate; they may not be left to the discretion of the
executive. The description of the circumstances the existence of which in relation to an applicant
are to deprive him of his legal right to insist on being registered as a*729 citizen must be set out
in an Act of Parliament either in full detail in the Act itself or in more general terms in an Act
which also confers power upon some executive authority to make subordinate legislation
providing for more detailed descriptions of particular circumstances falling within those general
terms. The circumstances so far as they involve matters of fact must be described in the
legislation (whether it be primary or subordinate) in such terms that whether they exist or not can
be determined objectively, so that a would-be applicant upon reading the legislation can know
whether he falls within a category of persons whose applications for registration may lawfully be
refused notwithstanding that they satisfy the requirements of article 5 (2) and (3).

Where in the case of a particular applicant circumstances described in the legislation as

constituting an exception or qualification do exist, it is not contrary to the Constitution to confer
on the executive a discretion to allow the registration of the applicant notwithstanding that he has
no legal right to demand it. Likewise it is not contrary to the Constitution to confer upon an
executive authority or administrative tribunal jurisdiction to determine whether the
circumstances described in the legislation exist in relation to any particular applicant, provided
that in making the determination the principles of natural justice are observed. What article 5 (4)
does not permit Parliament to do is to make the right of persons with Bahamian status to be
registered as citizens of The Bahamas subject to the discretion of the executive branch of the
government. Yet that, in their Lordships' view, is the effect of the words which form the last part
of the proviso to section 7 of The Bahamas Nationality Act 1973. In contradistinction to
paragraphs (a) to (e) of the proviso, what they do in substance is to leave to the Minister sole
discretion to refuse registration to any applicant whose admission to citizenship would in his
opinion not be conducive to the public good; for his freedom under section 16 from any
obligation to give any reason for his refusal of registration makes him, in effect, the sole judge of
what constitutes "any other sufficient reason" for refusing the application.

Their Lordships accordingly agree with the Court of Appeal and with Graham J. that the last part
of the proviso to section 7 of The Bahamas Nationality Act 1973 (which follows on paragraph
(e)) is ultra vires the Constitution and void.

If the Minister in rejecting the respondent's application was relying on this part of the proviso
rather than upon any of the paragraphs (a) to (e) he would have been taking into consideration
matters which he ought not to have considered and this would be a further reason for holding that
his decision to refuse the application was a nullity; but since he has not revealed to the court
whether this was so or not, this does not provide another ground for setting aside his refusal
additional to his failure to comply with the principles of natural justice by letting the respondent
know at the hearing of his application what the case against him was. It underlines the
importance of that ground.

The effect of the ouster clause

The relevant ouster provisions of section 16 of The Bahamas Nationality Act 1973 are:*730

"... the decision of the Minister on any such application [sc. for registration as a citizen of The
Bahamas] ... shall not be subject to appeal or review in any court."

"Appeal" in the context of an ouster clause means re-examination by a superior judicial authority
of both findings of fact and conclusions of law as to the legal consequences of those facts made
by an inferior tribunal in the exercise of a jurisdiction conferred upon it by statute to decide
questions affecting the legal rights of others, and the substitution of the superior judicial
authority's own findings of fact and conclusions of law for those of the inferior tribunal. In
"review" the function of the superior judicial authority is limited to re-examining the inferior
tribunal's conclusions of law as to the legal consequences of the facts as they have been found by
the inferior tribunal. It is by now well-established law that to come within the prohibition of
appeal or review by an ouster clause of this type, the decision must be one which the decision-
making authority, under this Act the Minister, had jurisdiction to make. If in purporting to make
it he has gone outside his jurisdiction, it is ultra vires and is not a "decision" under the Act. The
Supreme Court, in the exercise of its supervisory jurisdiction over inferior tribunals, which
include executive authorities exercising quasi-judicial powers, may, in appropriate proceedings,
either set it aside or declare it to be a nullity: Anisminic Ltd. v. Foreign Compensation
Commission [1969] 2 A.C. 147.

It has long been settled law that a decision affecting the legal rights of an individual which is
arrived at by a procedure which offends against the principles of natural justice is outside the
jurisdiction of the decision making authority. As Lord Selborne said as long ago as 1885 in
Spackman v. Plumstead District Board of Works (1885) 10 App.Cas. 229, 240: "There would be
no decision within the meaning of the statute if there were anything ... done contrary to the
essence of justice." See also Ridge v. Baldwin [1964] A.C. 40.

Their Lordships, in agreement with all the judges in the courts below, would therefore conclude
that the ouster clause in section 16 of The Bahamas Nationality Act 1973 does not prevent the
court from inquiring into the validity of the Minister's decision on the ground that it was made
without jurisdiction and is ultra vires.

The form of the declaration

It is here alone that their Lordships find themselves in disagreement with the Court of Appeal.
They have considerable sympathy with the reasons which led the Court of Appeal to make a
declaration that the respondent was entitled at the inception of the proceedings to be registered as
a citizen of The Bahamas. It might be said with some justification that the Minister brought this
upon himself by the tactical stance that has been adopted on his behalf throughout this litigation.
In reliance on section 16 of The Bahamas Nationality Act 1973, he has claimed his "right to
silence" and has steadfastly refused to reveal to the court his reasons for refusing the respondent's
application - presumably for fear of thereby creating a precedent.*731

Their Lordships, however, recognise that to adopt this attitude, even at the risk of forfeiting the
sympathy of the court, was the only course which was consistent with the two main propositions
of law that were initially advanced on his behalf in the Supreme Court and persisted in to the
very end both before the Court of Appeal and before this Board. These were, first, that he had a
wide discretion to refuse the respondent's application to be registered as a citizen if, for any
reason at all, he thought this to be desirable from the point of view of public policy; and,
secondly, that the discretion to refuse the application was a purely administrative discretion
untrammelled by any principles of natural justice and, accordingly, that the respondent was not
entitled to be told the reasons which actuated the Minister in coming to his decision, let alone to
be given an opportunity to attempt to answer them before the decision was reached.

As propositions of law, the first depended largely upon the presence at the end of the proviso to
section 7 of The Bahamas Nationality Act 1973 of the provision which their Lordships, in
agreement with the Court of Appeal and Graham J., have held to be inconsistent with the
Constitution and consequently void, with the result that the only valid grounds upon which the
Minister could have rejected the respondent's application would have been if he were satisfied
positively that one or other of the circumstances described in paragraphs (a) to (e) of the proviso
did in fact exist in relation to the respondent, there being no onus upon the respondent to satisfy
the Minister that they did not. Nevertheless, the Court of Appeal did not know, and neither do
their Lordships, whether the Minister's refusal of the application was based on one of the
grounds specified in paragraphs (a) to (e) or was made in reliance upon some "other sufficient
reason of public policy" under that part of the proviso which has now been held to be invalid.

The Court of Appeal and Graham J. were impressed by the fact that the respondent had filed in
the proceedings an affidavit specifically denying as respects each of the grounds specified in
paragraphs (a) to (e) that it applied to him, and no evidence to contradict these denials was
adduced by the Minister. Graham J. went so far as to find as a fact that none of the paragraphs (a)
to (e) applied to the respondent: but this appears to have been based upon a misunderstanding of
the attitude that had been adopted by counsel for the Minister, which was that the Minister was
under no legal obligation to reveal to anyone his reasons for refusing the application and that
counsel had no instructions as to whether the Minister had purported to act under any of the
paragraphs (a) to (e) of the proviso or had purported to act under the last (invalid) part of the
proviso. The Court of Appeal took a similar line to Graham J. Hogan P. summarised his reasons
for granting the declaration of the respondent's entitlement to citizenship of The Bahamas as
follows:

"On the facts disclosed to this court no reasonable Minister acting with a due sense of his
responsibilities under the legislation would, at the inception of these proceedings, have been
justified in refusing the [respondent's] application for registration as a citizen" (emphasis
supplied).

*732 This assumes that all the factual material that was before the Minister when, as deposed to
by the first assistant secretary in the Ministry of Home Affairs, Mr. Turnquest, he studied the
"whole of the file" relating to the respondent's application, was also before the court. Had that
been so, Hogan P. would have applied the proper test of "reasonableness" in administrative law
as laid down in the classic judgment of Lord Greene M.R. in Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 229, and it would be right to make
the declaration, since any decision other than one to grant the application would be a nullity. But
unfortunately it was not so. The only contents of the file that were before the court were the
respondent's application form and the notes made by Mr. Walkine of his interview with the
respondent and his wife on November 7, 1974. For all their Lordships know, "the whole file"
may have contained material which contradicted or conflicted with the respondent's subsequent
denials on affidavit that any of the paragraphs (a) to (e) of the proviso applied to him. The
Minister, consistently with the submissions as to the law to which his counsel have adhered
throughout this litigation, has refused to reveal whether there was any such material or not.

No doubt when the Minister determines the respondent's application of June 27, 1974, according
to law, which he has not done yet, he will be obliged, if he is contemplating refusing the
application, to inform the respondent of the grounds on which he relies as justifying this course
and giving to the respondent a reasonable opportunity of answering or refuting them; but The
Bahamas Nationality Act 1973 involves no conflict with any provision of the Constitution in
conferring as it does, upon the Minister, sole jurisdiction to the exclusion of all courts of law to
determine whether, in relation to any applicant, there exist facts which justify refusing his
application for citizenship upon any of the grounds specified in paragraphs (a) to (e) of the
proviso to section 7. Provided that the Minister has not misconstrued the provisions of the statute
which confer the power, has observed the principles of natural justice in the procedure he has
adopted in the course of reaching his decision and has not acted upon material that is devoid of
probative value his findings of fact are not subject to be upset by any court of law.

Their Lordships are thus reluctantly driven to the conclusion that the respondent's application
must go back to the Minister to be decided by him according to law. The procedure to be adopted
in dealing with the application must be in accordance with the principles of natural justice as
they have been stated earlier in this judgment; and the Minister will be under a legal obligation to
cause the respondent to be registered as a citizen upon his complying with article 5 (3) of the
Constitution, unless the Minister is satisfied upon evidential material of probative value that the
respondent has been guilty of conduct which brings him within one or other of paragraphs (a) to
(e) of the proviso to section 7 of The Bahamas Nationality Act 1973.

In view of the respondent's affidavit in these proceedings it seems most unlikely that there is any
other evidential material on which the Minister could reasonably be satisfied of this; and their
Lordships would*733 express the hope that after the long delay caused by this litigation, the
respondent's application can be granted promptly without the need for any further hearing.
Nevertheless they do not think that it would be proper to go so far as to deprive the Minister of
his statutory jurisdiction to base upon proper evidential material, if it should exist, findings of
fact relevant to the matters referred to in paragraphs (a) to (e); and that is what a declaration that
the respondent is entitled to registration as a citizen would do.

Their Lordships accordingly propose humbly to advise Her Majesty that for the single
declaration made by the Court of Appeal, the following declarations as to the several questions
of law that have been raised by these proceedings should be made: (1) a declaration that the
Minister's decision of May 28, 1975, to refuse the respondent's application dated June 27, 1974,
for registration as a citizen of The Bahamas is null and void; (2) a declaration that the final words
of the proviso to section 7 of The Bahamas Nationality Act 1973, viz:

"or if for any other sufficient reason of public policy he is satisfied that it is not conducive to the
public good that the applicant should become a citizen of The Bahamas"

are inconsistent with the Constitution of the Commonwealth of The Bahamas and are void; and
(3) a declaration that the respondent is entitled to have his application for registration as a citizen
of The Bahamas dated June 27, 1974, reconsidered by the Minister according to law, as it has
been stated in their Lordships' reasons for their humble advice to Her Majesty in this appeal.

Although technically this involves allowing this appeal to the extent of varying the terms of the
declaration made by the Court of Appeal, it has in substance been a victory for the respondent.
The appellant must pay to him his costs of the appeal to this Board. The Court of Appeal's order
awarding him his costs there and below will not be disturbed.