OK, government, have at it

One of the new government’s promises, implicit in the pledge for more open and transparent accountability, is that it will govern according to the rule of law – a concept of our constitution, which is at its very heart.

Go to it. Govern, administer, investigate, legislate, repeal and reform.

The residents of the Islands wish it and democracy demands it. Do it – but do it in the name of the rule of law.

However, a number of recent minsterial pronouncements, whether in the exercise of executive functions or at meetings of the PPM, are troubling, and indicate an urgent need for ministers to attend a crash course in administrative law before they, too, fall into the legal traps for the unwary.

Odd, in a way, that they have allowed themselves to do so since a number of cabinet members are attorneys.

In any case, we are fortunate in having an Attorney-General whose knowledge of administrative law is both extensive and profound.

When it comes to public pronouncements about the exercise of the functions of administrative decision-makers, the pronouncer would do well to pass a draft of his intended statement across the vigilant scrutiny of the Attorney General, if he is not to cause apoplexy amongst Cayman’s constitutional lawyers.

One of the fundamental principles of Cayman administrative law is that persons (the Chief Immigration Officer is a classic example) or bodies, whether agencies of the executive arm of government such as, for example, the Central Planning Authority and the Public Transport Board, or independent autonomous statutory corporations such as, for example, the Monetary Authority and the Electricity Regulatory Authority, vested with discretion in the exercise of their decision-making powers, have the exercise of that discretion determined by ministerial or governmental policy – either specifically or generally.

That rule of law was emphasised in a number of cases decided in the Grand Court in the ’80s.

As one highly-regarded appeal court judge in England put it: ‘….policy must not dictate the outcome of the exercise of a discretion’.

The reason is obvious: What is the point in vesting an unfettered discretion in a person or body with one hand if you are going to restrict or limit the exercise of that discretion with the other?

So reading statements from ministers such as ‘… my board …’ is a chilling reminder how easy it is to allow reformist zeal to subvert a cornerstone of constitutional law.

That is not to say that general governmental policy may not be taken into account by an administrative decision-maker as a relevant consideration in the exercise of discretion and, more often than not, it will be decisive.

That way lies uniformity.

However, there will always be cases which, on their facts, demand that the decision-maker departs from policy in the exercise of the discretion.

The answer from government, when faced with an unacceptable decision, is not to seek to revoke the decision by way of unlawful cabinet or ministerial diktat, nor to sack the decision-maker nor threaten the entire board with dismissal. (Don’t smirk at the back. All have happened in recent memory. The responsible minister should instruct the Attorney-General to launch an appeal. If it has merit it will succeed.

Lest any might think I wish to curtail this government’s reformist zeal – you are wrong.

All I ask is that, before this administration commits old mistakes, it should be required to sit a viva in administrative law and remember that, in making executive decisions or in seeking properly to influence autonomous administrative decision-makers, they have a ‘judge over their shoulder’ and govern under the canopy of the rule of law.

Now … have at it.

Stephen Hall-Jones

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