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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Mohammed v Public Service Commission & Ors (Trinidad and Tobago) [2017] UKPC 31 (19 October 2017) URL: http://www.bailii.org/uk/cases/UKPC/2017/31.html Cite as: [2017] UKPC 31 |
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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.
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.
“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.”
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.