Michaelmas Term
[2017] UKPC 31
Privy Council Appeal
No 0090 of 2015
JUDGMENT
Mohammed (Appellant) v Public Service
Commission and others (Respondents) (Trinidad and Tobago)
From the Court of Appeal
of Trinidad and Tobago
before
Lord Kerr
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
19 October 2017
Heard on 19 July 2017
|
Appellant
Richard Clayton QC
Anand Ramlogan SC
Phillip Patterson
Kent Samlal
(Instructed by
Alvin Pariagsingh)
|
|
Respondents
|
|
Satvinder S Juss
(Instructed by
Charles Russell Speechlys LLP)
|
THE FOLLOWING JUDGMENT OF THE BOARD WAS DRAFTED BY LORD
WILSON:
1.
In the relatively small community of Trinidad and Tobago there is
considerable sensitivity about the risk of political influence upon the process
of making appointments, including promotions, of officers in the public
service. Constitutional provisions are designed to buttress the independence of
the process; see the analysis offered by Lord Diplock on behalf of the Board in
Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113 at 124.
2.
The issue in the present appeal is a sequel to the judgment of the Board
in Cooper and another v Director of Personnel Administration and another
[2006] UKPC 37, [2007] 1 WLR 101. That appeal concerned the promotion of police
officers, which, under section 123(1) of the Constitution, is the
responsibility of the independent Police Service Commission. In 2003, however,
the commission had declared that the conduct of examinations for promotion
within the force was the responsibility of the Public Service Examination Board
(“the PSEB”), being the second respondent to the present appeal, whose members
had for long been appointed by the Cabinet. By its order, the Board (of the
Privy Council) declared that under the Constitution it was the responsibility
of the commission, rather than of the executive in the form of the Cabinet, to
appoint the members of the board which, under its ultimate control, would set
and mark examinations within the police service.
3.
The present appeal concerns the promotion of fire-fighters rather than
of police officers. Under section 121(1) of the Constitution their appointment,
including their promotion, is the responsibility of the independent Public
Service Commission (“the PSC”), being the first respondent to the appeal. Until
14 December 2007 it had been the practice of the PSC to cede to the PSEB
(appointed by the Cabinet) responsibility for the setting and marking of
examinations in the areas of public service assigned to it under the
Constitution; and, in respect of the setting and marking of examinations for
fire-fighters, it had been the practice of the PSEB to cede responsibility to
the Fire Service Examination Board (“the FSEB”), being the third respondent to
the appeal. The members of the FSEB had been appointed by the Minister of
National Security: regulation 14(1) of the Fire Service (Terms and Conditions
of Employment) Regulations, made by the President under section 34 of the Fire
Service Act, provided in terms for an “Examinations Board” referable to
fire-fighters to be “appointed in writing by the Minister”.
4.
In the light of the judgment of the Board in the Cooper case,
which was delivered on 6 July 2006, the PSC came to realise that its practice
and that of the PSEB in respect of examinations for fire-fighters, set out in
para 3 above, needed to change. On 14 December 2007 the PSC arrogated to itself
the responsibility for appointing the members of the PSEB and therefore
relieved the Cabinet of responsibility for doing so. It therefore became lawful
for the PSEB to direct the conduct of the examinations in the areas of public
service (including the fire service) for which responsibility was assigned to
the PSC under the Constitution. In respect of examinations for fire-fighters,
an early plan to keep the FSEB in being, albeit with members appointed by the
PSC rather than by the Minister, seems to have been abandoned; for the Board is
told that the FSEB has become defunct. The PSEB must have made another
arrangement for the future setting and marking of examinations for
fire-fighters.
5.
On 14 December 2007 the PSEB, as reconstituted on that day, addressed a
particular problem: what was to be done about the results declared by the FSEB
of examinations for promotion which it had conducted in October and December
2006? Those results had been declared in July 2007 but had not by then been
acted upon by the PSC in the making or refusing of promotions. On that day the
PSEB reached the decision which is under challenge in the present proceedings:
it decided to adopt the results which the FSEB had then declared.
6.
The appellant has been a fire-fighter since 1987. In 2006 he sought
promotion to the rank of fire sub-officer. In December 2006 he therefore
underwent a practical examination set by the FSEB. In July 2007 he learnt of
the FSEB’s decision that he had failed the examination. Early in 2008 he learnt
that the PSEB had decided to adopt the results declared by the FSEB.
7.
In the present proceedings, brought by way of judicial review, the
appellant seeks a declaration that the decision of the PSEB on 14 December 2007
to adopt the examination results declared by the FSEB in July 2007 was
unlawful. He argues that the appointment by the Minister of the members of the
FSEB was unconstitutional; that Regulation 14, which required him to appoint
them, was therefore void; that its decisions were therefore unlawful; and that
they could not have been made lawful as a result of their adoption by the PSEB.
On 15 February 2011 Dean-Armorer J dismissed the claim and on 24 November 2014
the Court of Appeal (Archie CJ and Jamadar JA, and Smith JA who gave the only
substantive judgment) dismissed the appellant’s appeal. Against their decision
he brings this further appeal before the Board.
8.
In substance, submits Mr Clayton QC with the charm and skill which are
characteristic of him, it was the islands’ government which decided that his
client had failed the examination. All results declared by the FSEB, appointed
by the Minister, were (so the argument continues) void as in breach of the
constitution: so its declarations that others had passed the examinations in
2006 were equally void, as were all its declarations of the result of
examinations which it had set in previous years, although (adds Mr Clayton) the
law of limitation would now preclude challenge to promotions granted or refused
by reference to them.
9.
Mr Clayton’s submission requires the Board to give close attention to
its judgment in the Cooper case, cited at para 2 above. For Lord Hope,
who delivered it on behalf of the Board, added a subtle qualification to its
conclusion that it was the responsibility of the Police Service Commission,
rather than of the Cabinet, to appoint the board which would set and mark
examinations within the police service. The qualification, set out in para 28,
was as follows:
“A distinction can be drawn
between acts that dictate to the Commissions what they can or cannot do, and
the provision of a facility that the Commissions are free to use or not to use
as they think fit. The appointment of a Public Service Examination Board by the
Cabinet for the commissions to use if they choose to do so is not in itself
objectionable. The advantages of using such a centralised body are obvious, and
in practice the commissions may well be content to continue to make use of
them.”
Lord Hope added at para 29:
“The Constitution, for its part,
does not permit the executive to impose an examination board on the Commission
of the executive’s own choosing. It is for the Commission to exercise its own
initiative in this matter, free from influence or interference by the
executive. It may, if it likes, make use of a Public Service Examination Board
appointed by the Cabinet. There may be advantages in its doing so. This no
doubt is a service that must be paid for somehow. Where resources are scarce
the Commission cannot be criticised if it chooses to make use of an existing
facility. On the other hand it cannot be criticised if it chooses not to do so.
The Constitution requires that it must have the freedom to exercise its own
judgment.”
10.
On the face of them Lord Hope’s dicta clearly yield the answer to the
appellant’s claim. For, if it was within the power of the Police Service
Commission to choose to make use of the results of examinations set and marked
by a body appointed by the Cabinet, it was surely within the power of the PSEB,
once appointed by the PSC, to choose to adopt the results of an examination set
and marked by a body appointed by the Minister.
11.
Mr Clayton seeks to escape this conclusion by reference to Lord Hope’s
use of the word “facility”. The word, so it is said, looks to the future. He
contends that, although the PSEB may have been entitled to elect to make use of
some form of governmental assistance in the setting and marking of future
examinations in the fire service, it was not entitled retrospectively to adopt
examination results already declared by a body appointed by the Minister; and
that no greater validity could attach to these results on 14 December 2007 than
had attached to them on 13 December 2007. But Mr Ramlogan SC, in a short but
forceful submission which followed that of Mr Clayton, challenged Lord Hope’s
dicta head-on. They were (he submitted) too broad; they had already caused
problems on the islands; and they detracted from the constitutional imperative
of protection from the potential for executive interference in this area.
12.
The Board has acceded to the appellant’s request that it should look
critically at its dicta in the Cooper case but in the event it finds no
reason either to depart from them or to distinguish them from application to
the facts before it. In the Board’s view its dicta in the Cooper case
drew a distinction which was not only helpfully pragmatic but stayed loyal to
the constitutional imperative to which Mr Ramlogan referred. On 14 December
2007 the PSEB, by then lawfully appointed by the PSC, exercised its own
judgement in deciding to adopt the results of the examinations in 2006 declared
by the FSEB; and, analogously, the PSC later exercised its own judgement in
deciding to use them in its grant and refusal of promotions. There is before
the Board (and was before those two bodies) no suggestion of any actual
executive interference in the work of the FSEB in the setting and marking of
the examinations in 2006; and the common sense which underlay the decisions
first to adopt and later to use the results, and conversely the complications
which would have attended any decision not to do so, need no elaboration.
13.
Both of those decisions were lawful and the appeal must be dismissed.
