The Judicial Committee of the Privy Council Decisions

Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v. The Hon. Vernon J. Symonette M.P. and 7 Others (Bahamas) [2000] UKPC 31 (26th July, 2000)

Caribbean and the Americas and Others Appellants

v.

The Hon. Vernon J. Symonette M.P. Speaker of the

House of Assembly and 7 Others Respondents

and

Ormond Hilton Poitier and 14 Others Appellants

v.

(1) The Methodist Church of The Bahamas

(3) The Attorney-General of The Bahamas Respondents

FROM

THE COURT OF APPEAL OF THE BAHAMAS

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

11th July 2000, Delivered the 26th July 2000

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Present at the hearing:-

Lord Bingham of Cornhill

[Delivered by Lord Nicholls of Birkenhead]

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1. Ten years ago unhappy differences among the 6,000 members of the Methodist Church in the Bahamas came to a head. In the words of Chief Justice J.C. Gonsalves-Sabola, good men and women on both sides of the schism found themselves in irreconcilable disharmony. The issue which divided them was whether the Methodist Church in The Bahamas should be established as an independent church, rather than continue as a district of the Methodist Church in the Caribbean and the Americas which was based overseas. The controversy was insoluble by internal effort. Some of those within the church took steps to promote legislation to achieve their objective. The Bill thus promoted was enacted as The Methodist Church of The Bahamas Act 1993 ("the 1993 Act"). The plaintiffs in these two sets of proceedings challenge the constitutional validity of this Act.

 

2. Methodism has a long history in the Bahamas. Its origins are to be found in a mission inaugurated in 1786 in the West Indies under the authority of John Wesley himself along with others and in work begun in Antigua. For present purposes it is sufficient to go back to 1967. At that time the Methodist Church comprised the church established in 1932 by an (English) Deed of Union, dated 20th September 1932, uniting three churches formerly known as the Wesleyan Methodist Church, the Primitive Methodist Church and the United Methodist Church. In 1967, by virtue of the Methodist Church Ordinance 1967 (of Antigua) and a Deed of Church Order dated 18th May 1967, the Methodist Church in the Caribbean and the Americas was constituted and established as an autonomous body of Christian believers. For convenience their Lordships will refer to this church as "the Caribbean Church". The doctrinal standards of the Caribbean Church were the same as those of the Methodist Church (the parent church), as set out in the Deed of Union dated 20th September 1932.

 

3. The governing body of the Caribbean Church was its "Conference". The Conference had authority to make such arrangements and give such directions it thought fit for the arrangement, disposition and use of all buildings and land for the use of the Church or any of its local bodies. The Conference also had power to alter any of the provisions of the Deed of Church Order, save for those setting out the doctrinal standards and the procedure for uniting with other churches. The Caribbean Church was, under the Conference, divided ("ordered") into districts, which in turn comprised a number of circuits. The oversight of a district was vested in the chairman of the district in conjunction with the district synod.

4. The establishment in this way of an autonomous local church and conference was not a novel step within the Methodist Church. During the 20th century many autonomous Methodist Conferences were established throughout the world. This was encouraged as nations matured to independence. In 1996 there were 90 Methodist Conferences in the World Methodist Council in 120 countries.

 

5. Before 1968 The Bahamas District was a district of the Methodist Church (the parent church). In 1968 The Bahamas District acceded to the 1967 Deed of Church Order and became a district of the Caribbean Church. Thereafter its affairs were administered pursuant to the constitution of the Caribbean Church. The Bahamas District was later extended to embrace the Methodist Church in the Turks and Caicos Islands.

 

6. In 1982 The Bahamas Methodist Trust Corporation Act established The Bahamas Methodist Trust Corporation as a corporate body. The Act recited its background and purpose. Title to property to which The Bahamas District was beneficially entitled was vested in a United Kingdom company, the Wesleyan Methodist Missionary Trust Association. It was desirable that title to this property should be vested in and administered on behalf of The Bahamas District by a body incorporated in The Bahamas. Section 3 provided that the newly-created corporation should consist of between five and ten members. These comprised the president and secretary of the Conference of the Caribbean Church, the chairman and secretary of The Bahamas District, and six persons appointed on behalf of The Bahamas District. Section 6 of the Act vested in the newly-created corporation all property in The Bahamas vested in or to which the Wesleyan Methodist Missionary Trust Association or The Bahamas District "or local or ancillary bodies" were beneficially or otherwise entitled "excepting such as is vested in a legally constituted body of trustees". Section 8 provided that all property of The Bahamas Methodist Trust Corporation should be held by the corporation "for the use and benefit of The Bahamas District". The Bahamas District meant The Bahamas District of the Caribbean Church: see section 2.

 

 

The main action

7. On 3rd February 1993 the Methodist Church of The Bahamas Bill was introduced in the House of Assembly. On 17th February court proceedings were instituted by The Bahamas District, The Bahamas Methodist Trust Corporation and the Reverend Dr. Kenneth Huggins. Dr. Huggins was the chairman and general superintendent of The Bahamas District and a member and chairman of The Bahamas Methodist Trust Corporation. These proceedings challenged the constitutionality of the Bill. The defendants were the Speaker of the House of Assembly, the Prime Minister, the President of the Senate, the Clerk of the two Houses, and the Attorney-General. Two other defendants, the Reverend Dr. Colin Archer and Mr. Reginald Eldon, both members of The Bahamas District, were added later at their own request.

 

8. In these proceedings the plaintiffs asserted that the Bill, if enacted, would contravene several of the fundamental rights and freedoms guaranteed by the Constitution of The Bahamas. It would hinder members of the congregations which comprised The Bahamas District of the Caribbean Church in the enjoyment of their freedom of religion (article 22), their freedom of expression (article 23), and their freedom of peaceful assembly (article 24). It would discriminate against members of these congregations by affording them, by reason of their creed, different treatment from that afforded to those who no longer faithfully subscribed and conformed to the constitutional discipline of the Methodist Church (article 26). Additionally, and this is the complaint which subsequently acquired most prominence, it would infringe the protection from deprivation of property guaranteed by article 27. At a later stage the plaintiffs added a claim that the Bill was a private Bill which was introduced in the House of Assembly in breach of rule 15 of the Rules of the House. Accordingly, it was said, the passage of the Bill through Parliament contravened article 59(1) of the Constitution. It will be convenient to refer to these proceedings as "the main action".

 

9. The plaintiffs sought interlocutory relief. Clause 1(2) of the Bill provided that the Act should come into force on such date as the minister might appoint by notice in the Gazette. On 23rd February 1993 Hall J. granted an injunction restraining the Attorney-General from taking steps to appoint such a date by notice in the Gazette if both Houses passed the Bill and the Governor-General gave his assent. The injunction was for a limited period: until 1st July 1993. Efforts by the plaintiffs to obtain an extension of the injunction were unavailing. With minor amendments, immaterial for present purposes, the Bill was passed by both Houses. On 1st July 1993 the Bill received the Governor-General's assent, and the Act was brought into force on the following day, 2nd July 1993.

 

The 1993 Act

10. The constitutional challenge makes it necessary to refer in detail to some of the provisions of the Act. Section 3(1) provided that after the execution of a "Deed of Church Union" the body of Christian believers known as the Methodist Church of The Bahamas should be recognised as autonomous. The Act refers to this Church as the "Church". To avoid confusion their Lordships will refer to this Church as "the new Church". Section 3(2) and (3) provided that the new Church should be a body corporate, whose members should be such persons as might be specified in the Deed of Church Union. The steps leading to the establishment of the new Church were that a conference, to be known as "the Uniting Conference", was to be held by 'the Participating Churches'. The Participating Churches were defined as such of the congregations of The Bahamas District of the Caribbean Church as agreed to participate in the Uniting Conference. The purpose of this conference was to adopt and execute the Deed of Church Union. This deed, when duly adopted by the Uniting Conference, was to be the constitution of the new Church. The governing body of the new Church should be a Conference, to be constituted in accordance with the Deed of Church Union. Section 14(1) empowered the Conference to make bye-laws for the purpose of giving effect to the provisions of the Act. The doctrinal standards of the new Church were to be those of the British Methodist Church formed on 20th September 1932. (It will be recalled that these are the same standards as those of the Caribbean Church.)

 

11. Thus far the provisions of the 1993 Act would seem unlikely to provide serious grounds for constitutional challenge. Sections 3 to 14 are essentially concerned with the establishment and recognition of a new church and its establishment as a corporate body. Members of The Bahamas District of the Caribbean Church were free to remain as members of their existing church, or to join the new Church, as they might choose. Sections 15 and 16 are a different matter. They impinged directly upon the property of The Bahamas District of the Caribbean Church. Section 15 repealed The Bahamas Methodist Trust Corporation Act 1982. This was the statute which had created The Bahamas Methodist Trust Corporation and vested in it all, or most, of the property of The Bahamas District. Section 16 provided what was to happen to this property. Section 16(1) provided that, subject to subsections (3) and (4), all lands situate in The Bahamas held by or in trust for The Bahamas Methodist Trust Corporation were thereby transferred to and vested in the new Church. Section 16(2) made similar provision regarding all personal chattels located within The Bahamas. Section 16 (3) and (4) were in these terms:-

"(3) All lands and personal chattels hereby transferred to and vested in [the new Church] other than such lands and personal chattels as would, but for the provisions of this Act, have been held by The Bahamas Methodist Trust Corporation upon trust for the use and benefit of such churches as are not Participating Churches, or any of them, shall be held by [the new Church] upon trust for the use and benefit of the Participating Churches.

 

(4) All lands and personal chattels hereby transferred to and vested in [the new Church] which would, but for the provisions of this Act, have been held by The Bahamas Methodist Trust Corporation upon trust for the use and benefit of such churches as are not Participating Churches, or any of them, shall be held by [the new Church] upon trust for the use and benefit of such churches as are not Participating Churches."

 

12. Apart from any other considerations, these two subsections are open to the criticism that they do not accord with the legal position existing when the Act came into force. Contrary to the assumption which seems to underlie these two subsections, property held by The Bahamas Methodist Trust Corporation was not, strictly, held upon trust for the use and benefit of particular churches. This was so, it seems, even in respect of church buildings. All the property vested in The Bahamas Methodist Trust Corporation was held by it, pursuant to section 8 of the 1982 Act, for the use and benefit of The Bahamas District, viz., for the District as a whole. Despite this ineptness of language, the intention of section 16(3) and (4) is reasonably plain. By a means not specified in the Act, congregations within The Bahamas were to decide whether to participate in the Uniting Conference. Congregations which did not agree to participate were not Participating Churches. The title to the lands and personal chattels used by the non-Participating Churches would vest, along with all the other lands and personal chattels of The Bahamas District, in the new Church. But, as to the lands and personal chattels used by non-Participating Churches, the new Church would hold these upon trust for the use and benefit of the non-Participating Churches. That is the effect of subsections (1) and (4) of section 16.

 

13. Subsection (3) of section 16 has a similar but, in one respect, a wider operation. Subsection (3) has a similar operation, in favour of the Participating Churches, regarding lands and personal chattels used by Participating Churches. But subsection (3) applies to all lands and personal chattels vested in the new Church save only for those held for the use and benefit of non-Participating Churches. The land vested in The Bahamas Methodist Trust Corporation by the 1982 Act included, or may have included (this is a matter of dispute), additional property besides church buildings and manses and other buildings used in connection with particular churches. Notably, it may have included some land held as an investment, and also two denominational schools: Queen’s College, Nassau, and St. Paul’s College, Freeport. The effect of subsections (1) and (3), on their face, seems to be that, in so far as these additional properties were held by or in trust for The Bahamas Methodist Trust Corporation, they were transferred to the new Church for the use and benefit exclusively of the Participating Churches.

 

14. The remaining subsections of section 16 can be noted shortly. Subsection (5) is an unexceptionable provision requiring the new Church to indemnify those divested of lands and personal chattels against continuing liabilities. Subsection (6) provided that all property devised or bequeathed to the Methodist Church or the Methodist Church in The Bahamas or in a manner evincing an intention that the property should "inure generally to the benefit of Methodism in The Bahamas" should be deemed to have been devised or bequeathed to the new Church.

 

15. Finally, subsection (7) comprised a somewhat unspecific provision for compensation:-

"Notwithstanding the foregoing provisions of this section, where any person alleges that his interest in or right over any property of any description has been compulsorily acquired by virtue of those provisions [the new Church] shall upon demand compensate that persons [sic] the market value of the interest in or right over the property so acquired failing which that person shall be at liberty to apply to a Court of competent jurisdiction for a determination as to his right to compensation and the extent thereof and for the purposes of which application the provisions of the Acquisition of Land Act shall mutatis mutandis apply."

 

16. The Uniting Conference was held at the end of July 1993, and the Deed of Church Union dated 30th July 1993 was signed on behalf of 31 Participating Churches. There were, it seems, six non-Participating Churches.

 

The Grants Town action

17. Shortly after the 1993 Act came into force difficulties arose over the use and occupation of the Wesley Methodist Church, Grants Town, Nassau, and the Joseph Paul manse occupied by the minister of that church, the Rev. Henley Perry. This was a non-Participating Church. Title to this church and manse are disputed.

 

18. By a deed dated 20th February 1952 the Wesleyan Methodist Missionary Trust Association appointed, or purported to appoint, 24 persons resident in New Providence as co-trustees of several pieces of land held by the trust association in connection with the Wesley Methodist Church, Grants Town. These properties included the land on which the chapel building stood. The deed declared that the trust association and the co-trustees held all this land upon charitable trusts, of which the primary trust was to permit the chapel to be used for a place of religious worship by the Methodist Church. On 12th May 1994 the majority of the individual trustees issued proceedings against the new Church and the Rev. Dr. Colin Archer regarding this property and regarding also certain other land at Market Street, Nassau, which, it was said, was held by the Wesleyan Methodist Missionary Trust Association upon a bare trust for the trustees of the 1952 deed. The details of how the latter trust was said to have arisen are not material for present purposes. The Joseph Paul manse is on this Market Street property.

 

19. The substance of the claim in the Grants Town action was that the new Church had wrongly claimed the right to take possession of Wesley Methodist Church, Grants Town. Sundry persons had seized possession of this church and prevented services being conducted by the appointed minister. This had been done at the instigation of Dr. Archer and with the assistance of the new Church. In August 1993 the new Church had appointed one of its ministers to officiate to those who had seized the church. The new Church treated this church as though it were a Participating Church. Further, in August 1993 Dr. Archer had led a group of supporters of the new Church in an unsuccessful attempt to take possession of the manse, on the ground that this was needed for the new minister of the church. The plaintiffs denied that title to any of this property had vested in the new Church, either by virtue of the 1993 Act or otherwise. They asserted that, in any event, the 1993 Act was unconstitutional as contravening substantially the same fundamental rights and freedoms as those relied upon by the plaintiffs in the main action. In their defence the new Church and Dr. Archer denied the allegations of wrongdoing made against them.

 

The preliminary issues

20. On 2nd August 1994 the two actions came before Gonsalves-Sabola C.J. By consent he considered the constitutional issues first. After several adjournments the hearing concluded on 21st February 1995, and the Chief Justice gave his judgment on 21st July 1995. He dismissed both actions. He held that the main action was misconceived. Its sole target was the Bill. The Bill was not justiciable in a court of law. The court may strike down an Act of Parliament for repugnance to the Constitution, but the court does not make pre-emptive strikes against Bills. The alleged procedural breach, based on rule 15 of the Rules of the House of Assembly and article 59(1) of the Constitution, was not an exception: the sanction for procedural indiscipline in Parliament does not reside in a court of law. As to the Grants Town action, the Act did not infringe the constitutional guarantee of freedom of religion, as it went no further than to facilitate the establishment of a named church. There was no coercion of secession in the Act. Nor did the Act discriminate against those who remained in the Caribbean Church on any of the grounds specified in article 26. As to article 27, the proper plaintiff to assert a claim that charity property had been compulsorily acquired in violation of that article was the Attorney-General. In any event, article 27(2)(k)(iv) thwarted the challenge based on article 27. The plaintiffs in the Grants Town action failed on the constitutional issue. The Chief Justice said: "I hold the 1993 Act to be a valid law as enacted by Parliament".

 

21. The plaintiffs in both actions appealed to the Court of Appeal. The appeals were heard by Kenneth George, Zacca and Burton Hall JJ.A. Judgment was given on 30th January 1998. Differing from the Chief Justice, Hall J.A. held that a Bill is not always immune from judicial scrutiny, but on the pleaded grounds the Bill was immune from challenge. The plaintiffs in the Grants Town action need not have enlisted the Attorney-General for the prosecution of their claim. That action should return to the trial court for adjudication of the plaintiffs' claim. Hall J.A. expressed no view on the constitutional issues raised in the Grants Town action.

 

22. George J.A. agreed that any failure by Parliament to observe rule 15 was not justiciable in the court. As to the other alleged infringements of the Constitution, the court had jurisdiction to entertain the challenge by The Bahamas Methodist Trust Corporation at the Bill stage because, if enacted, the Bill would have deprived that corporation of its right to challenge the constitutionality of the Act. The other plaintiffs in the main action were not at risk in this regard and, so far as they were concerned, the court had no jurisdiction to consider the Bill at the Bill stage. The challenge by The Bahamas Methodist Trust Corporation based on article 27 failed because of article 27(2)(k)(iv). The corporation was not affected by any other breaches of the Constitution of which it complained. Regarding the Grants Town action, George JA held if the plaintiffs' claim to the properties was well founded, those who occupied the properties or threatened to do so were trespassers or persons bent on committing trespass. That was a primary issue which must be resolved before any questions of breach of fundamental rights and freedoms could be addressed. The Attorney-General was not a necessary plaintiff. Zacca J.A. agreed with George J.A.

 

23. In the result, the Court of Appeal affirmed the Chief Justice's dismissal of the main action. The Court of Appeal reinstated the Grants Town action, but with a direction that the non-constitutional issues should be determined first. Although this direction envisaged that, if necessary, the constitutional issues could proceed thereafter, the ruling of the Chief Justice and George J.A. on the effect of article 27(2)(k)(iv) posed a difficulty for the plaintiffs in the Grants Town action.

 

24. The plaintiffs in both actions appealed to the Board. The defendants did not appeal. They accepted the ruling of the Court of Appeal that the Attorney-General was not a necessary plaintiff in the Grants Town action.

 

The main action and prematurity

25. The first issue to be considered is the issue raised by the defendants' primary submission in the main action. Mr. Beloff Q.C. submitted that the main action failed in limine. The action was aimed exclusively at the Bill. In general it is no part of a court’s function to restrain the legislature from making unconstitutional laws, as distinct from declaring such laws invalid after enactment. The plaintiffs had no cause of action at the Bill stage, since it was not unlawful for the two Houses to consider the Bill. The perpetuation of a claim against the Bill which had become an Act invited the court to rule, inappropriately, on an academic matter.

26. This prematurity argument raises questions concerning the relationship of the courts and Parliament. Two separate, but related, principles of the common law are relevant. They are basic, general principles of high constitutional importance. The first general principle, long established in relation to the unwritten constitution of the United Kingdom, is that the Parliament of the United Kingdom is sovereign. This means that, in respect of statute law of the United Kingdom, the role of the courts is confined to interpreting and applying what Parliament has enacted. It is the function of the courts to administer the laws enacted by Parliament. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament: see the well known case of Pickin v. British Railways Board [1974] AC 765.

 

27. The second general principle is that the courts recognise that Parliament has exclusive control over the conduct of its own affairs. The courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions: see Prebble v. Television New Zealand Ltd [1995] 1 AC 321, 332, where some of the earlier authorities are mentioned by Lord Browne-Wilkinson. The law-makers must be free to deliberate upon such matters as they wish. Alleged irregularities in the conduct of parliamentary business are a matter for Parliament alone. This constitutional principle, going back to the 17th century, is encapsulated in the United Kingdom in article 9 of the Bill of Rights 1689: "that … proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". The principle is essential to the smooth working of a democratic society which espouses the separation of power between a legislative Parliament, an executive government and an independent judiciary. The courts must be ever sensitive to the need to refrain from trespassing, or even appearing to trespass, upon the province of the legislators: see Reg. v. Her Majesty’s Treasury, Ex parte Smedley [1985] 1 Q.B. 657, 666, per Sir John Donaldson M.R.

 

28. In the United Kingdom these two basic principles must now be considered in the light of constitutional developments such as the enactment of the European Communities Act 1972. The extent to which these developments have affected the application of the general principles in the United Kingdom is not a matter which is germane to the issues arising on the present appeals.

 

29. That is the basic position in the United Kingdom. In other common law countries their written constitutions, not Parliament, are supreme. The Bahamas is an example of this. Article 2 of its Constitution provided that "This Constitution is the supreme law of the Commonwealth of The Bahamas". Article 2 further provided that, subject to the provisions of the Constitution, if any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. Chapter V of the Constitution made provision for a Parliament of The Bahamas, comprising Her Majesty, a Senate and a House of Assembly. Article 52 provided that "subject to the provisions of this Constitution" Parliament may make laws for the peace, order and good government of The Bahamas. Thus, in The Bahamas, the first general principle mentioned above is displaced to the extent necessary to give effect to the supremacy of the Constitution. The courts have the right and duty to interpret and apply the Constitution as the supreme law of The Bahamas. In discharging that function the courts will, if necessary, declare that an Act of Parliament inconsistent with a constitutional provision is, to the extent of the inconsistency, void. That function apart, the duty of the courts is to administer Acts of Parliament, not to question them.

 

30. Likewise, the second general principle must be modified to the extent, but only to the extent, necessary to give effect to the supremacy of the Constitution. Subject to that important modification, the rationale underlying the second constitutional principle remains as applicable in a country having a supreme, written constitution as it is in the United Kingdom where the principle originated.

 

31. Their Lordships consider that this approach points irresistibly to the conclusion that, so far as possible, the courts of The Bahamas should avoid interfering in the legislative process. The primary and normal remedy in respect of a statutory provision whose content contravenes the Constitution is a declaration, made after the enactment has been passed, that the offending provision is void. This may be coupled with any necessary, consequential relief. However, the qualifying words "so far as possible" are important. This is no place for absolute and rigid rules. Exceptionally, there may be a case where the protection intended to be afforded by the Constitution cannot be provided by the courts unless they intervene at an earlier stage. For instance, the consequences of the offending provision may be immediate and irreversible and give rise to substantial damage or prejudice. If such an exceptional case should arise, the need to give full effect to the Constitution might require the courts to intervene before the Bill is enacted. In such a case parliamentary privilege must yield to the courts' duty to give the Constitution the overriding primacy which is its due.

 

32. Their Lordships consider that this approach also leads ineluctably to the conclusion that the courts have jurisdiction to entertain a claim that the provisions in a Bill, if enacted, would contravene the Constitution and that the courts should grant immediate declaratory or other relief. The courts have power to enquire into such a claim and consider whether any relief is called for. In their Lordships' understanding, that is what is meant by "jurisdiction" in this context. The exercise of this jurisdiction is an altogether different matter. The courts should exercise this jurisdiction in the restrictive manner just described.

 

33. One of the constitutional complaints made in the main action relates, not to the contents of the Bill, but to an alleged irregularity in the law-making process: failure to comply with the requirements of the Rules of the House of Assembly regarding the introduction of private Bills. In their Lordships' view the principles discussed above are equally applicable to this complaint. If after enactment the court would have power to declare that the Act is void for contravention of the Constitution, it would be only in exceptional circumstances that the court would intervene at an earlier stage.

 

In Rediffusion (Hong Kong) Ltd v. Attorney-General of Hong Kong [1970] AC 1136 the plaintiffs sought a declaration that it would not be lawful for the Legislative Council of Hong Kong to pass a particular Bill, together with an injunction to restrain the members of the council from passing it. The Board held that the court had jurisdiction to entertain the claim. The Board also held, by a majority, that the action should be dismissed summarily as disclosing no cause of action. Passing a Bill which, on enactment, was repugnant to an Imperial Act of Parliament might by a waste of time for the legislators, but it was not in itself unlawful. The conduct of the Legislative Council could not affect the legal rights of anyone, because the Ordinance would be void and inoperative. Lord Diplock said, at page 1161:-

"Conduct however much it lies outside the legal power of the actor does not give rise to any cause of action on the part of any person unless it infringes or threatens to infringe that person's legal rights. Such an infringement can only occur when steps are taken to enforce the void Ordinance. It is committed not by the makers of the Ordinance but by those who take steps to enforce it after it has been made."

 

34. Their Lordships say nothing about the decision in that case. The decision was made in the light of the terms of the particular legislation and the claims in the writ and the two summonses there involved. As Lord Morris of Borth-y-Gest noted in his dissenting judgment, the wording of the writ seems to have given rise to a somewhat arid dispute over the meaning of the word "lawful". Lord Diplock's observations must be read in this context. Their Lordships are unable to read that decision or Lord Diplock's observations as meaning that, where a Bill contains provisions which on enactment would contravene the Constitution, the court can never grant declaratory or other relief before the Bill is enacted. Indeed, Lord Diplock recognised there could be circumstances where a court remedy would be needed at the pre-enactment stage of the legislative process: see page 1157F. Their Lordships have already expressed the view that pre-enactment relief should be granted only when, exceptionally, this is necessary to enable the courts to afford the protection intended to be provided by the Constitution. When that state of necessity exists, to deny the courts power to intervene would, ex hypothesi, be a failure to safeguard citizens' rights under the Constitution. When that state of necessity exists, the threatened enactment of legislation, which will be void under the Constitution but nevertheless cause irreparable damage, is a sufficient foundation (or "cause of action") for the complainant's application to the court.

 

35. This approach is consistent with the preponderant view expressed in the High Court of Australia in Cormack v. Cope (1974) 131 C.L.R. 432. That case concerned an alleged constitutional irregularity in the law-making process. Barwick C.J., at page 454, noted that ordinarily the court's interference to ensure due observance of the constitution in connection with the making of laws is effected by a post-enactment declaration that what purports to be an Act is void. In general, this is a sufficient means of ensuring that the processes of law-making which the constitution requires are properly followed. But in point of jurisdiction the court is not limited to that method of ensuring the observance of the constitutional processes of law-making. In an appropriate, though no doubt unusual, case the court is able, and indeed in a proper case bound, to interfere. Gibbs J., at pages 466-7, expressed a substantially similar view. Mason J., at page 474, seems to have envisaged that, exceptionally, there might be intervention in the parliamentary process. A different approach, or a different emphasis, appears in the judgments of Menzies J. and Stephen J. Menzies J. stated that it was no part of the authority of the court to restrain Parliament from making unconstitutional laws, but he left open the case where the adoption of a particular law-making procedure would defeat the constitutional power of the court to deal effectively with legislation when enacted: see pages 464-6. Similarly, Stephen J., at page 472, based the limitation of court intervention on jurisdictional and not discretionary grounds, but he envisaged there may be exceptions.

 

36. These differences serve to illustrate how discussion on this issue is all too easily bedevilled by confusion over the meaning in this context of the slippery expression "jurisdiction". Jurisdiction and cause of action are different concepts: see the helpful analysis of Lord Diplock in the Rediffusion case, at page 1151. Their Lordships have already mentioned their understanding of what is meant by that expression in the present context.

 

37. Applying the principles set out above, their Lordships consider the court had jurisdiction to entertain the constitutional issues raised in the main action. However, their Lordships also consider that no case was made for treating these proceedings as exceptional. Accordingly, had the main action come to trial before the enactment of the 1993 Act, the court would have been bound to decline to intervene in the legislative process. The court would have been bound to refuse to grant, at that stage, either coercive (injunctive) relief or persuasive (declaratory) relief against representatives of the legislature. The feature which comes nearest to making this an exceptional case concerns the effect of the Bill, when enacted, on the second plaintiff, The Bahamas Methodist Trust Corporation. Section 15 of the 1993 Act repealed The Bahamas Methodist Trust Corporation Act 1982. This was the statute which had established the trust corporation as a body corporate. But even assuming that the repeal of the 1982 Act had the effect of dissolving the trust corporation, as to which their Lordships express no view, the enactment of the 1993 Act did not preclude the trust corporation from coming before the court and seeking a post-enactment declaration that the Act was void. If the 1993 Act contravened the Constitution and was void accordingly, the trust corporation remained and remains in being. That being so, the law recognises that, notwithstanding the terms of the 1993 Act, the trust corporation remains in being to the extent necessary for it to mount and pursue a claim that the Act is void.

 

38. So far as the claims against the legislature are concerned, that is what the position would have been if the main action had been tried before the enactment of the Act. The main action also included a claim for an injunction to restrain the minister from exercising his power, conferred by section 1(2) of the Act as it became, to appoint a date by notice in the Gazette for the coming into force of the Act. That is a claim against the executive, although it concerns the exercise of a power which is closely related to the legislative process even if not strictly part of that process. Their Lordships need not consider what is, or should be, the approach of the courts to a claim of this character. Nothing now turns on the existence of this claim in the present case.

 

39. In the event, the main action did not come on for hearing before the Bill had been enacted. When the constitutional issues were argued in front of the Chief Justice in August 1994 the 1993 Act was already on the statute book and in force. This changed state of affairs gave rise to a pleadings point. The main action was started before the enactment of the 1993 Act. In one sense, and not surprisingly, the pleadings and relief claimed in this action were, unquestionably, aimed exclusively at the Bill and, hence, by August 1994 they had been overtaken by events. In another and more substantial sense the pleadings and claims for relief were always looking ahead to what would be the position if the Bill became an Act. The pleadings raised constitutional issues of substance, based on the contents of the Bill and alleged defects in the legislative process. Those issues of substance, clear for all to see, did not vanish when the Bill was enacted. The declarations sought regarding the Bill remained in point after the Bill was enacted, subject only to the obvious difference of nomenclature necessitated by the fact that the Bill had become an Act.

 

40. It seems that before the Chief Justice, and again before the Court of Appeal, counsel for the plaintiffs in the main action resolutely declined to tidy up the pleadings. Their Lordships share Burton Hall J.A.'s puzzlement on this. Even so, their Lordships consider it would be to take an inappropriately narrow and technical view of the pleadings to regard them as no longer applicable once the Bill had been enacted. In the course of his reply, Sir Nicholas Lyell Q.C., for good measure sought leave to amend the statement of claim in the main action by adding one sentence repeating, in relation to the 1993 Act, the grounds of challenge pleaded in relation to the Bill, and by adding a prayer for a declaration that the 1993 Act is inconsistent with the Constitution of The Bahamas and void. Their Lordships consider that, since the main action will not be disposed of by this appeal, it would be in the interests of clarity in the further conduct of this action that this amendment should be made.

 

41. Their Lordships therefore are unable to accept the defendants' primary submission. The court always had jurisdiction to entertain the main action. The difficulties confronting the plaintiffs in obtaining pre-enactment relief ceased to exist long before the hearing in August 1994. The main action remained an adequate and suitable proceeding in which to consider, post-enactment, the constitutional issues of substance raised in the action. The court was not being asked to rule on an academic matter.

 

Article 59(1) of the Constitution and rule 15 of the Rules of the House of Assembly

42. The constitutional challenge to the regularity of the law-making process which led to the passing of the 1993 Act is founded on the combined effect of article 59(1) of the Constitution and rule 15 of the Rules of the House of Assembly. Article 59(1) provides:-

"Subject to the provisions of this Constitution and of the rules of procedure of the Senate or the House of Assembly, as the case may be, any member of either House may introduce any Bill or propose any motion for debate in, or may present any petition to, that House, and the same shall be debated and disposed of according to the rules of procedure of that House."

 

43. Rule 15 of the Rules of the House of Assembly is part of a fasciculus of rules intituled "Rules relating to entering of motions, notices, bills and resolutions". Rule 15 is headed "Private Bills", and reads:-

"That a Bill of a private nature shall not be introduced in the House except upon petition from the party or parties desiring such Bill or until a report has been made by a committee appointed to enquire into the allegations of such petition. Evidence of advertisement of the petitioner's intention in at least two newspapers in The Bahamas shall be required by the Chair at the time of the introduction of the Bill."

 

44. Rule 49, headed "Practice of Parliament", provides:-

"That in cases of doubt these Rules shall be interpreted in the light of the relevant practice of the Commons House of Parliament of Great Britain and Northern Ireland. In any matter for which these Rules do not provide the said practice shall be followed ..."

 

45. The Attorney-General desired to keep open the question whether the Methodist Church of Bahamas Bill fell within rule 15 and, if it did, whether the procedure stipulated by rule 15 was breached. The plaintiffs’ claim proceeded before the Board, as before the courts below, on the assumption, which the Attorney-General reserved the right to challenge, that the Bill fell within rule 15 and that when introduced it did not comply with the procedural requirements of the rule.

 

46. Rule 15 sets out certain requirements which must be satisfied before a Bill "of a private nature" is introduced into the House. Once introduced, there seems to be no distinction between public and private Bills. All Bills introduced into the House are dealt with in the same way, regardless of whether they are public or private: see the official Manual of Procedure in the Business of the House of Assembly, 3rd edition, 1964, page 41. Sir Nicholas Lyell emphasised the importance of the protection this introductory private Bill procedure gives to those who will be adversely affected. Their Lordships were told that the procedure in the Parliament of The Bahamas is substantially the same as that in operation at Westminster. The Bill must be based on a petition to the House from those promoting the Bill. The petition must be advertised, so that those who may wish to oppose the Bill have opportunity to do so. The preamble to the Bill contains in recitals the facts relied upon for the private legislation and the reasons motivating the proposal. The promoters of the Bill must prove the "allegations" in the preamble to the satisfaction of a committee of members of the House. Persons opposing the Bill are entitled to present a petition against the Bill in which they set out their grounds of objection. They may argue against the preamble and put down amendments to clauses. They may be represented by lawyers, call witnesses and make submissions. If the promoters fail to prove the allegations in the preamble to the Bill to the satisfaction of the committee, the Bill fails and proceeds no further. In carrying out these functions Parliament is exercising both a legislative and a judicial function. Parliament accepts a duty to make sure that a private Bill, introduced by a promoter for his own benefit, will not unfairly prejudice others. In practice, the committee can exercise much influence upon the promoters and the petitioners to consult, modify and compromise to produce a fair Bill which takes account of and balances the interests of those who will be affected by the proposed legislation.

 

47. The value of this parliamentary procedure as a safeguard is not in question before the Board. The issue before the Board is different. In accordance with the principles already discussed, irregularity in the conduct of parliamentary business is a matter for Parliament, not the courts. Indeed, one of the leading cases in which these principles were enunciated concerned the very question of non-compliance with parliamentary procedure on the introduction of a private Bill by failure to advertise: see Edinburgh and Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & Fin. 710. Lord Campbell's observations in that case, at page 725, were approved and applied in Pickin v. British Railways Board [1974] AC 765.

 

48. The issue before the Board is whether article 59(1) of the Constitution has the effect of displacing these principles by making compliance with the rules of procedure of the House of Assembly, or at least such of them as afford safeguards for citizens, a constitutional requirement. This is a question of interpretation of article 59(1). Both the Chief Justice and the Court of Appeal held that article 59(1) did not have this effect and that, accordingly, the departure from the procedure prescribed by rule 15, if there was a departure, did not violate the Constitution. Their Lordships agree, and can state their reasons shortly.

 

49. Chapter V of the Constitution makes provision concerning Parliament. Part 4 of that chapter, comprising articles 52 to 64, concerns the powers and procedure of Parliament. Article 55(1) provides:-

"Subject to the provisions of this Constitution, each House may regulate its own procedure and for this purpose may make rules of procedure."

 

50. Thus, subject to contrary provision in the Constitution, the Constitution entrusts to each House power to manage its own affairs. Several articles in the Constitution do make contrary provision, restricting the freedom of the House of Assembly or the Senate in particular respects. Two examples will suffice, one relating to each House. Article 59(3) precludes the House of Assembly from proceeding on any Bill for the raising of tax except on the recommendation of the Cabinet. Article 60 restricts the power of the Senate regarding money Bills.

 

51. Article 59(1) must be read against this background. Article 59(1) is a provision with a wide, general application. The first limb of article 59(1) is permissive, or enabling: subject to the provisions of the Constitution and the rules of procedure of the relevant House, any member of the House may introduce a Bill, propose a motion for debate, or present a petition. Their Lordships do not think this provision was intended to be restrictive, so as to found a claim for violation of the Constitution if a member were permitted to introduce a Bill, or propose a motion for debate or present a petition, in breach of the rules of the House. The second limb of article 59(1) provides what is to happen to any proceeding initiated by a member: "the same shall be debated and disposed of according to the rules of procedure of that House". Their Lordships do not think this reference to the rules of procedure of the two Houses was intended to deprive either House of the power given by article 55(1) to regulate its own affairs. Clearer language would be required before it would be right to construe this provision as having the far-reaching effect of opening up to court scrutiny the procedures followed in Parliament on all Bills, motions and petitions initiated by members.

 

Article 27: protection from deprivation of property

52. Chapter III of the Constitution of The Bahamas is concerned with the protection of fundamental rights and freedoms of the individual. Section 15 recites that every person in The Bahamas is entitled to these fundamental rights and freedoms, and declares that the subsequent provisions of Chapter III shall have effect for the purpose of affording protection to these rights and freedoms subject to such limitations as are contained in these provisions.

 

53. The main complaint of the plaintiffs is founded on an alleged violation of article 27. They complain that the 1993 Act took away their property and gave it to the new Church. Article 27(1) provides:-

"No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say -

 

(a) the taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of any property in such manner as to promote the public benefit or the economic well-being of the community; and

 

(b) the necessity therefor is such as to afford reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and

 

(c) provision is made by a law applicable to that taking of possession or acquisition –

 

(i) for the making of prompt and adequate compensation in the circumstances; and

 

(ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court ... for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt payment of that compensation; …"

 

54. Article 27(2) provides that nothing in article 27 is to be construed as affecting the making or operation of any law so far as it provides for the taking of possession or acquisition of property for a number of specified purposes. One of these purposes, set out in paragraph (k) of article 27(2), specifies the vesting, taking of possession, acquisition or administration of certain types of property: enemy property, property of deceased persons, persons of unsound mind or minors, persons adjudged insolvent, and companies in course of liquidation and, in subparagraph (iv):-

"property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust."

 

55. The courts below rejected the claim based on article 27 on the short and narrow ground that the case fell within the scope of the exception set out in article 27(2)(k)(iv). Their Lordships are unable to agree. If this interpretation of article 27(2)(k)(iv) were accepted, it would mean that article 27 would never apply to a statutory expropriation of trust property if the legislature were to adopt the simple expedient of first declaring new trusts on which the property was to be held and then vesting the property in a new trustee. That cannot be right. Nor does this interpretation fit happily with the language. The expression "the trust", which occurs twice in the body of the provision, reads more naturally as a reference back to the trust mentioned in the opening phrase "property subject to a trust". Read in this way, and broken down for ease of assimilation, the provision reads as follows:-

"(2) Nothing in this Article shall be construed as affecting the making or operation of any law so far as it provides for the taking or acquisition of property -

...

(k) to the extent that the law in question makes provision for the vesting or taking of possession or acquisition or administration of -

…

(iv) property subject to a trust, [either] [A] for the purpose of vesting the property in persons appointed as trustees [whether] under the instrument creating [that] trust or by a court or, [B] by order of a court, for the purpose of giving effect to [that] trust."

 

56. The vesting of the property of The Bahamas Methodist Trust Corporation in the new Church did not fall within this provision. Prior to the 1993 Act the trust corporation held the property upon the trusts set out in The Bahamas Methodist Trust Corporation Act 1982, namely, upon trust for The Bahamas District of the Caribbean Church. Under the 1993 Act the property was vested in the new Church upon the trusts set out in section 16(3) and (4).

 

57. Before proceeding further their Lordships must examine the trust position a little more closely. The property vested in The Bahamas Methodist Trust Corporation was not held upon trust for a specific individual or class of individuals. The Bahamas District, for whom the trust corporation held the property vested in it, was not a corporate body. The Bahamas District was one of several districts which made up the Caribbean Church. Stated broadly, a trust in favour of The Bahamas District was a charitable trust for the maintenance and furtherance of the Methodist Church in The Bahamas as part of the Caribbean Church. The Caribbean Church, as already noted, was the organisation established and regulated by the Deed of Church Order dated 18th May 1967.

 

58. Problems arising from schisms within churches have often come before the courts. If some members of a church, be they many or few, wish to depart from the church's constitution and set up their own church, they are at liberty to do so. But, subject to the provisions of the church's constitution, they are not at liberty to take with them property belonging to the church from which they are seceding. The well-known observation of Lord Eldon L.C. in Craigdallie v. Aikman (1813) 1 Dow. 1, 16, bears repetition:-

"... if property was given in trust for A, B, C, etc., forming a congregation for religious worship; if the instrument provided for the case of a schism, then the court would act upon it; but if there was no such provision in the instrument, and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society, at the expense of a forfeiture of their property by the cestui que trusts, for adhering to the opinions and principles in which the congregation had originally united. He found no case which authorised him to say that the court would enforce such a trust, not for those who adhered to the original principles of the society, but merely with a reference to the majority; …"

59. This approach was treated as settled law by the House of Lords in General Assembly of Free Church of Scotland v. Overtoun [1904] AC 515.

 

60. However, the court does not go to the length of enforcing the letter of the constitutional instrument when, in changed circumstances, this would defeat the underlying charitable purpose for which the trust was set up. When it has become impossible or impracticable to give effect to the original directions, the court may order that the trust should be administered cy-près in accordance with a scheme settled by the court in the exercise of its jurisdiction over charitable trusts. In the nineteenth century the courts interpreted this jurisdiction restrictively by giving impossibility and impracticability a narrow definition. In England this over-rigid approach was relaxed by statutory intervention, in section 13 of the Charities Act 1960, subsequently re-enacted as section 13 of the Charities Act 1993. The case of Varsani v. Jesani [1999] Ch. 219 is a recent illustration of the application of this jurisdiction. A Hindu religious sect had split into two factions. The court held it had jurisdiction to order that the assets of the sect should be divided and held upon separate trusts for the two factions.

 

61. There is no comparable statutory provision in The Bahamas. Despite this, the question whether, in the early 1990s, it was practicable for the Methodist Church in The Bahamas to continue as a district of the Caribbean Church must be answered by an application of today's notions of practicability. As already noted, the Chief Justice referred to "irreconcilable disharmony" which was "insoluble by internal effort". Whether, in these circumstances, a court order settling a scheme could have been obtained is not a point which need be pursued. Suffice to say, and this is what matters, the "rights" of persons interested in the property of The Bahamas District were not strictly analogous to the interests of beneficiaries under a private (non-charitable) trust. These persons had no personal, beneficial interest in the property of The Bahamas District, held as it was on charitable trusts. They did have a very real, and legitimate, interest in seeing that the property was properly applied for church purposes, but this interest was always subject to the power of the court to exercise its cy-prés jurisdiction in appropriate circumstances so as to give effect to the underlying charitable purpose.

 

62. Their Lordships must mention one further background matter. Human rights conventions and equivalent constitutional provisions recognise that the protection afforded to rights of property is not absolute. Sometimes the public interest may necessitate the compulsory acquisition of property. Broadly stated, a balancing exercise is then called for. Interference with a person's property cannot be justified unless done with a legitimate aim. Additionally, and importantly, a fair balance must be struck between the general interests of the community and the requirements of the protection of the individual's right. In the context of property, the burden of promoting the public interest should not fall excessively on a property owner. Further, public interest in this context should be given a wide meaning. Thus, in James v. United Kingdom (1986) 8 EHRR 123 the applicants claimed that the compulsory enfranchisement provisions in the (United Kingdom) Leasehold Reform Act 1967 were in breach of the entitlement to peaceful enjoyment of possessions guaranteed by article 1 of the First Protocol to the European Convention of Human Rights. The statute gave certain tenants of houses the right to acquire the freehold on payment of an amount far below the market value of the freehold reversion. The European Court of Human Rights held, at paragraph 40, that the compulsory transfer of property from one individual to another may, depending upon the circumstances, constitute a legitimate means for promoting the public interest.

 

63. Their Lordships now turn to article 27(1). Sir Nicholas Lyell criticised the 1993 Act as altogether too blunt an instrument. It is a "sledgehammer of an Act", which is manifestly unreasonable and oppressive.

 

64. Their Lordships consider that sections 15 and 16 can be justified if, but only if, the Act represented a genuine and reasonable attempt by Parliament to further the Methodist Church in The Bahamas by dividing the property of The Bahamas District between the two irreconcilable factions in a fair and reasonable manner. This approach, and the plaintiffs' criticisms of the Act, underline what is obvious: that the application of article 27(1) to the present case raises issues which are, to use the modern jargon, fact sensitive.

 

65. Unfortunately, their Lordships are here confronted with an insurmountable difficulty, posed by a paucity of factual information. The Board has only a sketchy impression of the background events leading to the introduction of the Bill. These appear to be contentious. For instance, the defendants through their counsel asserted that the introduction of the Bill followed upon a decision of the majority of The Bahamas District Synod to become an autonomous Methodist Church. The plaintiffs disputed the nature and mandate of this meeting. More importantly, the Board has inadequate information on the property to which section 16 of the 1993 Act applied. This information is vital. When considering whether a statute is unconstitutional because of its effect, a court must be informed of sufficient facts to enable it to decide, if this is disputed, what the practical effect of the statute has been or is likely to be. Sometimes the practical effect may be self-evident. That is not so here. To take an example: there was no evidence or agreement between the parties on the trusts affecting the two schools, or what effect the Act had on the schools. A similar position prevailed regarding some land which their Lordships were told was held as an investment. Further, a division of the church buildings on the simple basis of whether a church was a Participating Church or not was not necessarily bound to achieve overall fairness. Factors such as geographical distribution, the comparative wealth and size and financial needs of individual churches, and their relative importance in the historic traditions of Methodism might call for departures from this simple basis or, at the least, provision for compensation. On none of these matters does the Board have any evidence. Nor has the Board been apprised of the response forthcoming from within the Church to the provisions of the 1993 Act. Even basic facts, such as the voting figures, were in dispute between the parties.

 

66. Some of these matters are, no doubt, common knowledge in The Bahamas. As such they would have been known by the judges in the courts below. But the extent of disagreement between the parties before the Board on important questions of fact demonstrated all too plainly that the matters of common knowledge are limited.

67. Their Lordships have been confronted by a further difficulty: they do not know the views of the Chief Justice or the Court of Appeal on the issues raised by article 27(1). When deciding these issues, knowledge of local conditions is of prime importance. Their Lordships would be exceedingly reluctant to decide such questions without having the benefit of reasoned conclusions reached by the judges who, unlike the Board, have such knowledge.

 

68. This means that the question whether the 1993 Act or any of its provisions breached article 27 will have to be remitted to the Supreme Court for further hearing. Their Lordships are conscious that the Act has now been in force for seven years, but no other course is open. The Board can do no more than make some general observations on the interpretation of article 27(1) in an endeavour to assist.

 

69. In their Lordships' view, one would not expect to find that a fair and reasonable division of the property of a religious body, necessitated by a prolonged, public and internally intractable dispute between two factions over matters of governance, was outside the competence of the legislature of a democratic society. A general statutory power, along the lines of the United Kingdom legislation, enabling the courts to resolve such a dispute in this way, would seem to be unexceptionable. If Parliament can confer such a power on the courts, and the courts can validly exercise such a power, it would be curious if Parliament itself could not validly seek to resolve a particular dispute in similar fashion.

 

70. That said, it must be recognised at once that, at first sight and read literally, the language of article 27 does not fit easily with this expectation. Unlike article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), the Constitution of The Bahamas does not contain a general provision envisaging that a person may be deprived of his possessions in the public interest. Instead, article 27(1) lists with some particularity the conditions in which alone compulsory acquisition is permissible. None of the purposes listed in article 27(1)(a) seems directed at the present type of case: public defence, public safety, public order and so on. Utilisation of property in such a manner as to promote the public benefit comes closer. However, even here, the language is not apt. Bringing to an end this dispute over how the Methodist Church should be governed may have been of benefit to the public. But the provisions enacted for this purpose can hardly be said to be directed at the manner in which property should be utilised.

 

71. If, then, condition (a) in article 27(1) cannot be met, is one driven to the conclusion that a fair and reasonable division of the property of The Bahamas District was beyond the competence of Parliament? Their Lordships think not. The key lies in the purpose of article 27 and the need to construe the article purposively. Broadly stated, the aim of article 27 is to afford protection against all forms of arbitrary, in the sense of unfair, compulsory acquisition of property interests. Property interests are affected by many forms of non-consensual interference. A comprehensive and detailed definition of the forms which are acceptable and those which are not is well-nigh impossible. But the intended scope of article 27 is illuminated by article 27(2). Article 27(2) lists many instances of compulsory taking which are not to be regarded as falling within the generality of the prohibition on compulsory acquisition contained in article 27(1). These instances range widely. In addition to those stated in paragraph (k), already mentioned, they include compulsory taking in satisfaction of tax, by way of penalty for breach of the law, as an incident of a lease or contract, in execution of court orders, following extinguishment of title by adverse possession, and by reason of buildings being dangerous or unhealthy. Nothing in article 27 is to be construed as affecting the listed instances. The characteristic shared by each of these instances, and others in article 27(3) and (4), is the absence of the element of arbitrariness, or unfairness, against which article 27 gives protection. In each instance there is a good reason for the compulsion.

 

72. This list is to be understood as a valuable guide, rather than as an exhaustive statement. A fair partition of jointly-owned property cannot be regarded as within the mischief at which article 27 is directed even when effected against the will of one of the joint owners. Such a partition is, in essence, the regulation of property interests between the owners. Again, the application of property held on charitable trusts pursuant to a cy-près scheme or its equivalent is regulation, or administration, of the trusts even when this is contrary to the wishes or interests of the trustee and some of those interested under the trusts. That also, depending on the broad fairness of what is done, may not be a compulsory taking or acquisition for the purposes of article 27(1). Article 27 is not aimed at that type of happening.

 

73. The present case is to be approached against this background. A division of the property of a charitable body between two internal factions differs significantly from the types of property interference at which article 27 is aimed. Provided the division is fair and reasonable, an enactment providing for such a division may fall wholly outside the article. Property interests are, indeed, affected by such a division. But where the essential purpose of the division is genuinely to promote the existing underlying charitable objectives in changed circumstances brought about by a schism, the division of property may, depending upon the facts, properly be regarded as for the overall benefit of all those who are interested under the existing trusts. A property division of this nature is not a taking or acquisition of property within the meaning of article 27. For reasons already given, their Lordships are unable to express a view on whether the 1993 Act satisfies these criteria.

 

74. Their Lordships have three further comments. In the 1993 Act Parliament sought to cope with the consequences of a schism in the Methodist Church over the issue of autonomy. It did so by facilitating the setting up of an autonomous Methodist Church in The Bahamas. Local autonomy is not a method of governance which is alien to the Methodist tradition. Far from it. As mentioned earlier, over the years there has been a widespread move towards establishment of local Methodist Conferences. Second, under the 1993 Act the lands and personal chattels held for the non-Participating Churches were vested in the new Church. This seems a surprising, and rather disquieting, choice of trustee for property of the non-Participating Churches. This is one of the matters the court will wish to take into account when considering whether the division was fair and reasonable. Third, if there were any significant unfairness or unreasonableness, it is doubtful if this would be cured by the compensation provision in section 16(7). The effect of this provision is obscure. Among the assets of which The Bahamas Methodist Trust Corporation and The Bahamas District were deprived were all the Participating Churches. Section 16(7) cannot have been intended to enable The Bahamas Methodist Trust Corporation or The Bahamas District to recover the market value of these properties. However, having regard to the language used, it is difficult to see how the subsection can be treated as re-focused in an altogether different direction and made to accommodate an award of compensation to an unspecified person for an unfair division of the properties of The Bahamas District.

 

Other alleged breaches of fundamental rights and freedoms

75. The plaintiffs' claims based on contravention of other articles of Chapter III of the Constitution will be of significance only if the claim founded on article 27 fails. If the claim based on article 27 succeeds, the other claims will not greatly matter. Their Lordships, therefore, approach these further claims on the footing, which may or may not prove to be the case, that the 1993 Act did not contravene article 27. The following observations must be read with this in mind.

 

76. So far as material, article 22 provides that, except with his own consent, no person shall be hindered in the enjoyment of his freedom of religion or his freedom, alone or in community with others, to manifest and propagate his religion in worship, teaching, practice and observance. Article 22(5) excepts any provision which is reasonably required for the purpose of protecting the rights and freedoms of others. In their Lordships' view, the 1993 Act did not contravene this article. Members of the Methodist Church, and others, remained free to become members of the Caribbean Church and to worship in churches which continued to be part of the Caribbean Church.

 

77. It is true that the minority members of Participating Churches suffered the inconvenience of having to go elsewhere if they wished to continue to attend a church which was part of the Caribbean Church. That was a problem brought about by the schism. Co-existence together within one chapel or church was no longer possible. Short of closing down the building, one or other of the groups attending the chapel or church had to move elsewhere. This applied to minorities in the non-Participating Churches as much as minorities in the Participating Churches. Given that the division was made genuinely and reasonably for the legitimate purpose of ending the existing internal schism in the interests of both groups, the inconvenience flowing from this cannot be regarded as a hindrance of the practice of religion.

 

78. The plaintiffs also relied upon article 23 (protection of freedom of expression), article 24 (protection of freedom of peaceful assembly and association), and article 26 (protection from discrimination). In the course of oral argument the plaintiffs through their counsel accepted that these claims were all of one piece with, and subordinate to, the claim for contravention of article 22. Having rejected the claim based on article 22, their Lordships need say no more than that these further claims also fail.

 

Conclusion

79. It was for these reasons that on 11th July 2000 their Lordships humbly advised Her Majesty that the appeal in the main action should be allowed and the appeal in the Grants Town action dismissed. Their Lordships will not make, in either action, any of the declarations sought by the plaintiffs. The order made by the Chief Justice dismissing the main action will be set aside. That action will be remitted to the Supreme Court for further hearing in the light of the judgment of the Board. The order of the Court of Appeal in the Grants Town action, allowing the plaintiffs’ appeal from the decision of the Chief Justice, will stand. The Supreme Court should consider afresh what will be the most convenient course for the further hearing of both actions and all the issues raised therein.