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Your Search: "ATTORNEY GENERAL OF BARBADOS" /S WILLIAMS

Date/Time of Request: Thursday, August 7, 2008 19:34 Central
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Database: UK-RPTS-ALL
Citation Text: [1994] 1 W.L.R. 1560
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[1994] 1 W.L.R. 1560 FOR EDUCATIONAL USE ONLY
1994 WL 1063233 (Privy Council), [1994] 1 W.L.R. 1560
(Cite as: [1994] 1 W.L.R. 1560)
*1560 Gladwyn Ophelia King v. Attorney-General of
Barbados [Appeal from The
Court of Appeal of Barbados]
Privy Council
PC (Bar)
Lord Templeman, Lord Browne-Wilkinson, Lord
Mustill, Lord Slynn of Hadley and
Lord Woolf
1994 April 18; May 3
Barbados--Constitution--Human rights and
fundamental freedoms--Right not to be deprived of
property without compensation--Public service office
holder entitled to emoluments attaching to office--
Emoluments reduced by statute-- Whether
unconstitutional--Civil Establishment Act 1948 (c.
21), s. 2(1)-- Barbados Independence Order 1966
(S.I. 1966 No. 1455 of Barbados), Sch., ss. 11, 16,
48--Public Service Reduction of Emoluments Act
1991 (No. 13), s. 4
The appellant was appointed in 1981 to the
office of clerical officer in the Ministry of Education
in Barbados, an appointment established under
section 2 of the Civil Establishment Act 1948 [FN1]
by the Civil Service Establishment (General) Order
1990, which fixed the remuneration for the post. In
1991 enactment of the Public Service Reduction of
Emoluments Act 1991 resulted in her salary being
reduced by 8 per cent. for the period 1 October 1991
to 31 March 1993. The appellant brought proceedings
against the Attorney-General of Barbados for, inter
alia, a declaration that the Act of 1991, in depriving
her of the right to be paid not less than the
emoluments attached to her office by the Order of
1990, contravened sections 11 and 16 of the
Constitution of Barbados. [FN2] The judge dismissed
the appellant's claim and her appeal was dismissed by
the Court of Appeal of Barbados.
FN1 Civil Establishment Act 1948, s. 1: see post, p.
1561E-F.
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Page 1
FN2 Constitution of Barbados, s. 11: see post, p.
1561H. S. 16: see post, pp. 1561H -- 1562A. S. 48:
see post, p. 1562B.
On the appellant's appeal to the Judicial
Committee: --
Held, dismissing the appeal, that the appellant's
only right was to such emoluments as the Minister
under the Civil Establishment Act 1948 or as
Parliament in exercise of its legislative powers
attached to her office; that those emoluments were
lawfully reduced by the Public Service Reduction of
Emoluments Act 1991; and that, since the appellant
had no right to a minimum salary, she had no
property protected by sections 11 and 16 of the
Constitution (post, p. 1563E-F).
Decision of the Court of Appeal of Barbados
affirmed.
No cases are referred to in the judgment of their
Lordships.
The following cases were cited in argument:
Attorney-General of The Gambia v. Momodou
Jobe [1984] A.C. 689; [1984] 3 W.L.R. 174, P.C.
Hinds v. The Queen [1977] A.C. 195; [1976] 2
W.L.R. 366; [1976] 1 All E.R. 353, P.C.
Societe United Docks v. Government of
Mauritius [1985] A.C. 585; [1985] 2 W.L.R. 114;
[1985] 1 All E.R. 864, P.C.
*1561 APPEAL (No. 1 of 1994), with special
leave, by the appellant, Gladwyn Ophelia King, from
the judgment of the Court of Appeal of Barbados
(Smith and Moe JJ.A., Husbands J.A. dissenting)
given on 24 May 1993 dismissing the appellant's
appeal from a judgment of Williams C.J. given on 15
May 1992 in the High Court of Barbados whereby
the appellant's motion for constitutional redress
against the Attorney-General of Barbados was
[1994] 1 W.L.R. 1560 FOR EDUCATIONAL USE ONLY Page 2
1994 WL 1063233 (Privy Council), [1994] 1 W.L.R. 1560
(Cite as: [1994] 1 W.L.R. 1560)

dismissed. possessed by persons

appointed to such offices;
The facts are stated in the judgment of their (d) determine the
Lordships. emoluments to be attached
to such offices; and
Representation (e) authorise the payment
of the cost of passages of
officers and their families
Fenton Ramsahoye Q.C., Richard Cheltenham Q.C., travelling outside the
P. K. H. Cheltenham (all of the Barbados Bar) and Island...
Jacqueline Cheltenham for the appellant. (4) An order under
subsection (1) shall be
Maurice King Q.C., A.-G. (Barbados), James provisional only and shall
Dingemans and Kenny Anthony (of the Barbados be of no effect until it has
Bar) for the Attorney-General of Barbados. been laid before
Parliament and approved
Cur. adv. vult. by a resolution of each
House...
Lord Templeman (5) The power conferred
on the minister by this
3 May. The judgment of their Lordships was section to make orders
delivered by. shall be deemed to include
a power, exercisable in the
like manner and subject to
The appellant, Miss King, became a public
the like conditions, to vary
servant on 1 November 1981. By September 1991
or revoke any such order."
she was a clerical officer in the Ministry of Education
at an annual salary of $18,440.67. By the Public
Service Reduction of Emoluments Act 1991 the rate By the Barbados Independence Order 1966 (S.I.
of emolument payable to an officer in the public 1966 No. 1455), the Constitution of Barbados
service was reduced by 8 per cent. with the result that (Schedule 1 to the Order of 1966) came into effect on
the appellant's salary was reduced to $16,965.50 for 30 November 1966. Chapter III of the Constitution
the period 1 October 1991 to 31 March 1993. The affords protection for fundamental rights and
appellant claims that under the Constitution of freedoms specified in section 11 including: "(b)
Barbados her emoluments could not be reduced protection... from deprivation of property without
without payment to her of compensation. compensation;..." By section 16:
"(1) No property of any
description shall be
The Civil Establishment Act 1948 enacted on 1
compulsorily taken
April 1948 which remains in force provided as
possession of, and no
follows:
interest in or right over
"2
property of any
(1) The minister may from
description shall be
time to time by order --
compulsorily acquired,
(a) establish offices in the
except by or under the
public service;
authority of a written law
(b) determine the number
and where provision
of persons who may be
applying to that *1562
appointed to such offices;
acquisition or taking of
(c) prescribe the
possession is made by a
qualifications to be

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

[1994] 1 W.L.R. 1560 FOR EDUCATIONAL USE ONLY
1994 WL 1063233 (Privy Council), [1994] 1 W.L.R. 1560
(Cite as: [1994] 1 W.L.R. 1560)
written law --
(a) prescribing the
principles on which and
the manner in which
compensation therefor is
to be determined and
given;..."
By section 24 any person who alleges that his
fundamental rights have been contravened may apply
to the High Court for redress and that court may
make such order as it considers appropriate for the
purpose of securing the enforcement of those rights.
An appeal against the decision of the High Court
under section 24 lies to the Court of Appeal and then
to Her Majesty in Council.
By section 48: "(1) Subject to the provisions of
this Constitution, Parliament may make laws for the
peace, order and good government of Barbados."
By the Civil Establishment (General) Order 1990
(S.I. 1990 No. 45 of Barbados) the Minister in
exercise of the powers conferred on him by section
2 of the Act of 1948, revoking and replacing previous
orders under that Act and with the approval of
Parliament as required by that Act, established offices
in the public service and specified the emoluments
attached to each office. The appellant is the holder of
an office in the public service thus established and
down to 1 October 1991 was entitled to and in receipt
of the emoluments attached to her office by virtue of
the Order of 1990.
The Act of 1991 was, by section 3 of and
Schedule 1 to that Act, expressed to apply to the
holders of offices established by order made under
the Act of 1948. The appellant was the holder of such
an office and by the Act of 1991 her emoluments
were reduced from the September 1991 rate by 8 per
cent. during the period 1 October 1991 to 31 March
1993.
When the appellant was appointed to the public
service in 1981, and at all times thereafter down to
the coming into force of the Act of 1991 on 1 October
1991, she was entitled to the emoluments attaching to
her office by virtue of an Order made under the Act
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Page 3
of 1948 by the Minister and approved by a resolution
of both Houses of Parliament, subject to the power
conferred on the Minister by the Act of 1948 with the
like approval to vary or revoke any Order for the time
being in force. The appellant was not entitled to a
minimum emolument but only to such emoluments as
might from time to time be attached to the holder of
her office by an Order made and approved under the
Act of 1948. Under that Act the emoluments attached
to any public office could be increased or reduced by
an appropriate order and could in particular be
reduced by 8 per cent.
The power conferred by section 48 of the
Constitution on Parliament to make laws for the
peace, order and good government of Barbados
included power to make laws affecting the
establishment of and emoluments attaching to offices
in the public service. That power was delegated to the
Minister by the Act of 1948, which remained in force
after the coming into effect of the Constitution. It was
open to Parliament at any time to repeal the Act of
1948 or to withdraw or supersede or exercise the
powers delegated to the Minister by the Act of 1948.
The Act of 1991 was an effective exercise of the
jurisdiction vested in Parliament to determine the
emoluments attaching to offices in the public service,
if Parliament considered that it was desirable to do so
in the public interest.
The appellant does not deny that Parliament had
jurisdiction to enact the Act of 1991 but claims that
the Act deprived her of property which *1563 she
defined as the right to be paid not less than the
emoluments attached to her office immediately
before 1 October 1991. The appellant had no such
right; her only right was and is to receive such
emoluments as the Minister pursuant to the Act of
1948, or Parliament pursuant to its jurisdiction under
the Constitution, from time to time attaches to her
office.
On behalf of the appellant, Dr. Ramsahoye
submitted that every appointment to a public office,
whether contractual or statutory or made pursuant to
the Constitution, was subject to an implied term that
the emoluments attached to that office shall never be
reduced. The Constitution has selected some officers
whose emoluments may not be reduced. By section
[1994] 1 W.L.R. 1560 FOR EDUCATIONAL USE ONLY
1994 WL 1063233 (Privy Council), [1994] 1 W.L.R. 1560
(Cite as: [1994] 1 W.L.R. 1560)
112 of the Constitution:
"(3) The salary and
allowances payable to the
holder of any office to
which this section applies
and his other terms of
service shall not be altered
to his disadvantage after
his appointment, and, for
the purposes of this
subsection, in so far as the
terms of service of any
person depend upon the
option of that person, the
terms for which he opts
shall be taken to be more
advantageous to him than
any other terms for which
he might have opted.
(4) This section applies to
the offices of Governor-
General, Judges, Director
of Public Prosecutions,
Auditor-General,
appointed members of the
Judicial and Legal Service
Commission and members
of the Public Service
Commission and the
Police Service
Commission."
These provisions ensure the independence of the
selected officers free from any financial pressure
which Parliament or the executive might otherwise
exert. Section 112 is inconsistent with the claim put
forward on behalf of the appellant that every officer
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Page 4
in the public service from field marshal to cleaner is
entitled by implication to the protection which
section 112 expressly confers on selected officers.
Even if section 112 had not been included in the
Constitution, their Lordships can discern no possible
justification for any implication that the emoluments
attached to the office of the appellant in the public
service shall never be reduced.
The appellant had no right to a minimum salary.
If she had no right to a minimum salary she had no
property protected by sections 11 and 16 of the
Constitution. Her only right was to such emoluments
as the Minister under the Act of 1948 or as
Parliament in exercise of its legislative powers from
time to time attached to her office. The emoluments
of the appellant were lawfully reduced by the Act of
1991. Williams C.J., sitting in the High Court, and
the Court of Appeal (Smith and Moe JJ.A., Husbands
J.A. dissenting) came to the same conclusion. Their
Lordships will humbly advise Her Majesty that this
appeal ought to be dismissed. The appellant must pay
the costs of the respondent before their Lordships'
Board.
Representation
Solicitors: Simons Muirhead & Burton; Charles
Russell.
C. N.
(c) Incorporated Council of Law Reporting For
England & Wales
END OF DOCUMENT