On 11 February 2025, the Judicial Committee of the Privy Council (the Board) delivered judgment in Attorney General of Trinidad and Tobago v Tobago House of Assembly [2025] UKPC 8, a case concerning the financial autonomy of the Tobago House of Assembly (the THA).
John Jeremie SC and Robert Strang represented the appellant, the Tobago House of Assembly, instructed by Simons Muirhead Burton LLP.
Howard Stevens KC and Daniel Goldblatt represented the Attorney General of Trinidad and Tobago, instructed by Charles Russell Speechlys LLP.
Background
The appeal arose from a 2011 decision by the THA to enter into a type of private finance initiative known as a Build, Own, Lease, Transfer (BOLT) arrangement for the construction of a complex of administrative buildings. The BOLT financing mechanism, widely used around the world for construction and infrastructure projects, allows a private entity to construct and own a facility, lease it to a public sector client, and ultimately transfer ownership back to the client.
The THA entered into the arrangement—valued at approximately $310 million—without the approval of central government, without submitting estimates of the project’s cost to the Cabinet of Trinidad and Tobago. The Attorney General challenged the legality of the arrangement, arguing, amongst other things, that the THA had circumvented the statutory financial controls prescribed by Part IV of the Tobago House of Assembly Act 1996 (the 1996 Act).
Decisions of the High Court and Court of Appeal
The High Court, at first instance, held that the THA had the power to enter into the BOLT arrangement without requiring ministerial approval. The judge, however, found that the THA could not enter into a BOLT type arrangement except in accordance with the tendering process set out in the Central Tenders Board Act 1961 (the 1961 Act).
The Court of Appeal upheld the judge’s decision regarding the 1961 Act but overturned the judge’s decision on the issue of ministerial approval, holding that the 1996 Act does not permit the THA to enter into financial arrangements akin to borrowing outside the statutory framework, which imposed central government control and oversight over the THA’s finances.
The THA appealed only the Court of Appeal’s decision with regard to the 1996 Act – the 1961 Act having been repealed in 2023, and the decisions of the judge and the Court of Appeal in that respect having become academic.
The Privy Council’s Judgment
Delivering the judgment of the Board, Lord Lloyd-Jones and Lord Burrows upheld the decision of the Court of Appeal, concluding, in summary, that:
- The THA is required to prepare and submit estimates identifying and providing particulars of each item of expenditure. The Part IV scheme does not operate on the basis of a block grant or allocation of a single sum.
- The claimed power of the THA to enter into a BOLT arrangement to be funded from the THA Fund outside the statutory framework of Part IV of the 1996 Act was neither necessary nor incidental (within the meaning of section 25(2) of the 1996 Act) because it was inconsistent with and offended against the statutory provisions dealing with the control of expenditure and the obtaining of finance by the THA.
- The 1996 Act requires the THA to submit estimates of expenditure for Cabinet consideration and approval.
- It was the obvious purpose of the 1996 Act that the Minister or Cabinet, and ultimately, Parliament should exercise control over the THA’s revenue and expenditure.
- A BOLT arrangement—although not classified as borrowing—is akin to borrowing for capital projects and yet circumvents the requirement under section 51(b) of the 1996 Act for ministerial approval of loans for the purposes of capital investment.
- The THA’s powers do not extend to entering into a BOLT arrangement without the direction and control of the Minister or Cabinet, and ultimately Parliament. Put another way, where the Minister or Cabinet had not approved a BOLT arrangement, it was outside the powers of the THA to enter into such an arrangement which depended on the use of money from the THA Fund.
For the full judgment, click here.
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