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1st Appellant
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Respondents
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Rowan
Pennington-Benton
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Howard Stevens QC
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Ms Alana Rambaran
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Ms Hafsah Masood
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(Instructed by Alvin
Pariagsingh)
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(Instructed by Charles
Russell Speechlys LLP)
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2nd –
4th Appellants
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Peter Knox QC
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Robert Strang
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(Instructed by BDB
Pitmans LLP)
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Appellants:-
(1) Nairob Smart
(2) Lesley Almarales
(3) Svetlana Dass
(4) Savi Ramhit
LORD CARNWATH:
Introduction
1.
This appeal concerns the legality of the process adopted by the
respondent Commission in making appointments to the Judicial and Legal Service
(“the Service”) as long ago as October 2013. The appellants were all legal
officers employed in the Chief State Solicitor’s Department (“the Department”),
which is part of the Ministry of the Attorney General.
2.
The respondents are the Judicial and Legal Service Commission (“the
Commission”) and the Director of Personnel Administration (“the Director”). The
Commission is the body established under the Constitution (sections 110-111) to
make appointments to offices in the Service. Under the Public Service
Commission Regulations (“the Regulations”) the administration of the process of
appointment by the Commission is entrusted to the Director. As this Board
explained in Endell Thomas v Attorney General of Trinidad and Tobago
[1982] AC 113, 124 per Lord Diplock, the purpose of vesting powers of
appointment and dismissal in an independent commission was to “insulate [them]
… from political influence exercised directly upon them by the government of
the day”.
3.
It is not suggested by the appellants that the process should now be
re-run or the appointments invalidated, but they seek appropriate declarations,
and clarification of the process for the future. Mr Smart also seeks damages
for what is said to have been “loss of a real prospect of securing promotion to
the position of Senior State Solicitor”.
The Regulations
4.
Regulation 13(1) provides that, as soon as it is known that a vacancy
will occur, the Permanent Secretary or Head of Department is to communicate to
the Director in writing and “shall make his recommendations regarding the
filling of the vacancy”. By regulation 13(4), the Director is required from time
to time to publicise notice of vacancies which exist in the particular service,
following which -
“… any officer may make
application for appointment to any such vacancy. Such application shall be
forwarded through the appropriate Permanent Secretary or Head of Department to
the Director, but the failure to apply shall not prejudice the consideration of
the claims of all eligible public officers.”
5.
The principal issues in the appeal concern the interpretation of, and
relationship between, regulations 14, 15 and 18, which are in the following
terms (preceded in italics by their marginal notes):
“Appointments to be by
competition within the particular service
14. Whenever in the opinion
of the Commission it is possible to do so and it is in the best interest of the
particular service within the public service, appointments shall be made from
within the particular service by competition, subject to any Regulations
limiting the number of appointments that may be made to any specified office in
the particular service.
Advertisement of vacancies
15. Where the Commission
considers either that there is no suitable candidate already in the particular
service available for the filling of any vacancy or that having regard to
qualifications, experience and merit, it would be advantageous and in the best
interest of the particular service that the services of a person not already in
that service be secured, the Commission may authorise the advertisement of such
vacancy.
…
Principle of selection for
promotion
18(1) In considering the
eligibility of officers for promotion, the Commission shall take into account
the seniority, experience, educational qualifications, merit and ability,
together with relative efficiency of such officers, and in the event of an
equality of efficiency of two or more officers, shall give consideration to the
relative seniority of the officers available for promotion to the vacancy.
(2) The Commission, in
considering the eligibility of officers under subregulation (1) for an
appointment on promotion, shall attach greater weight to -
(a) seniority, where
promotion is to an office that involves work of a routine nature, or
(b) merit and ability,
where promotion is to an office that involves work of progressively greater and
higher responsibility and initiative than is required for an office specified
in paragraph (a).
(3) In the performance of
its functions under subregulations (1) and (2), the Commission shall take into
account as respects each officer -
(a) his general fitness;
(b) the position of his
name on the seniority list;
(c) any special
qualifications;
(d) any special courses of
training that he may have undergone (whether at the expense of Government or
otherwise);
(e) the evaluation of his
overall performance as reflected in annual staff reports by any Permanent
Secretary, Head of Department or other senior officer under whom the officer
worked during his service;
(f) any letters of
commendation or special reports in respect of any special work done by the officer;
(g) the duties of which he
has had knowledge;
(h) the duties of the
office for which he is a candidate;
(i) any specific
recommendation of the Permanent Secretary for filling the particular office;
(j) any previous
employment of his in the public service, or otherwise;
(k) any special reports for
which the Commission may call;
(l) his devotion to duty.
(4) In addition to the
requirements prescribed in subregulations (1), (2) and (3), the Commission
shall consider any specifications that may be required from time to time for
appointment to the particular office.”
6.
In Sankar v Public Service Commission [2011] UKPC 27 the Privy
Council had to consider the relationship between regulations 14 and 18. Lord
Mance (giving the judgment of the Board) observed that the relationship between
the various regulations was “not straightforward” (para 17). He rejected a
submission for the Commission that the reference to “eligibility” in regulation
18 indicated that the criteria there set out applied only to the initial
decision to accept a candidate for consideration for promotion, rather than the
actual decision to promote. As he said:
“18. It is true that this word
can have the threshold meaning assigned to it by Mr Knox’s submission (as the
word ‘eligible’ in regulation 13(4), (5) and (7) appears to). But in the
context of regulation 18 the Board has no doubt that the word ‘eligibility’ is
the equivalent of ‘suitability’, and relates to the final decision whether or
not to promote. Otherwise, the Regulations would contain no criteria at all
regarding the basis for final decisions whether or not to promote. The Board
therefore agrees with the Court of Appeal that regulations 14 and 18 must be
read together. Where a promotion is to be made from within the public service,
it should be by competition, but the decision which of the competitors to
promote should be made taking into account the criteria set out in regulation
18.”
7.
This passage makes clear that the criteria in regulation 18 must be
taken into account in choosing between internal candidates under regulation 14.
It says nothing about their relevance if any to the advertisement procedure
under regulation 15, which is in issue in this appeal.
The factual background
8.
At the relevant time appellants Lesley Almarales, Nairob Smart and
Svetlana Dass held the post of State Solicitor II; Savi Ramhit held the post of
State Solicitor I. The post of State Solicitor II is a post in the civil law
section of the Service, identified in the First Schedule to the Judicial and
Legal Service Act. In the Department, it is senior to the post of State
Solicitor I, and junior to the post of Senior State Solicitor. Ms Almarales was
the most senior State Solicitor II in the Department; Ms Ramhit was the most
senior State Solicitor I.
9.
In July 2012, there was a vacancy for the office of Senior State
Solicitor. On 25 July 2012, the Chief State Solicitor in response to memoranda
from the Director gave his views on the filling of the vacant office. He gave
brief details of Ms Almarales’ and one Ms Ramdin’s service as State Solicitor
II, commenting that he was “not in a position to advance one’s cause against
the other”. He believed that “the fairest resolution of this issue would be if
in accordance with regulation 14” both would be interviewed and “the one who
tops the interview process” should be the “one to be promoted on merit”.
10.
On 20 September 2012, the Chief State Solicitor wrote to the Attorney
General, copied to the Director. He referred to Ms Petal Roopnarine, a Legal
Officer III, who had been working in the Department since 2006, not as a member
of the Service but on successive fixed term contracts. He attached her letter
expressing her frustration at remaining in a post without security of tenure
and her wish to take up a post in the Department. The Chief State Solicitor
warmly recommended her skills, her experience gained in private practice, and
her qualifications, and recommended that “everything be done to assist [her]”
in her quest to join the establishment. He concluded by asking the Attorney
General to -
“… use your good offices to ensure
by communication with the Chief Justice as head of the Judicial and Legal
Service Commission that the vacancy in the post of Senior State Solicitor that
currently exists on the Chief State Solicitor’s establishment be urgently
advertised so that the process of interviews can commence.”
11.
On 25 October 2012, the Chief State Solicitor wrote another memorandum
to the Director, referring back to the earlier exchanges and confirming his
recommendation that the (now) two posts of Senior State Solicitor should be
advertised. On 26 October 2012, the Chief State Solicitor sent this memorandum
to the Permanent Secretary in the Ministry of the Attorney General, asking him
to forward it to the Director as a matter of urgency. This he did with a
covering letter, in which he noted that the Chief State Solicitor’s department
had been faced with a severe shortage of experienced Attorneys-at-Law at the
mid-management level due to a rapid turnover of staff at that level; and said
that in an effort to attract attorneys with “considerable legal experience,
practice, knowledge and expertise” to the Department, the Chief State Solicitor
was of the view that it is “in the best interests of the Department that these
positions be advertised and thus such a recommendation was made”. He asked the
Director to advertise the two positions “as a matter of urgency to address the
current staff shortage within the Department at this level”. In a further
memorandum dated 16 November 2012 the Permanent Secretary repeated and endorsed
the Chief State Solicitor’s recommendation.
12.
The Director advertised the vacancies internally within the public
service by means of a circular memorandum dated December 2012. In response, on
13 December 2012 Mr Smart applied for the position of Senior State Solicitor.
The Director also advertised the vacancies publicly by means of newspaper
advertisements in December and January. These led to applications by (among
others) Ms Roopnarine and Ms Almarales. Ms Dass and Ms Ramhit were unaware of
the advertisements or the circular memorandum, and made no applications. (Both
were working in other Ministries at the time.) They became aware of the
vacancies after they had been filled, and after Mr Smart issued his claim in
the High Court.
13.
Interviews were conducted in June 2013. The candidates included, in addition
to Ms Roopnarine, four internal candidates (the appellants, Mr Smart and Ms
Almarales; and Ms Ramdin and Ms Priscilla Rampersad), and another outside
candidate (Ms Mitchell). As a result of the interviews, an “Order of Merit”
list was drawn up, which placed Ms Roopnarine first, Ms Ramdin (State Solicitor
II) second, and Ms Priscilla Rampersad (State Solicitor I) third. The first two
were offered appointments to the two posts. Ms Roopnarine accepted appointment
with effect from 1 October 2013. Ms Ramdin was offered promotion to the second
vacant post, but did not take it up, and Ms Rampersad was subsequently
appointed.
14.
The appellants were not immediately informed of the results of the
competition. It is to be noted also that the exchanges in 2012 between the
Chief State Solicitor and the Director first became known to the present
appellants in July 2014, in a somewhat belated response to a Freedom of
Information request made by Mr Smart in December 2013.
The proceedings
15.
The present proceedings were commenced initially by Mr Smart by
application for leave in January 2014. The other three appellants made separate
applications in July 2014. They made a number of complaints about the
procedure, but (at least by the time the case came to trial) the principal
grounds of challenge related to the failure to assess them for promotion in
accordance with regulation 18, and the unjustified use of advertisement and
interviews under regulation 15 to create an Order of Merit list for the
appointments. There was also an allegation by Mr Smart that the Chief State
Solicitor had acted in bad faith in seeking to prefer Ms Roopnarine.
16.
Evidence in reply to the claims was given in an affidavit by Ms
Pile-O’Brady, the Acting Director of Personal Administration. Having described
the exchanges leading to the advertisement and interviews, and the subsequent
procedure, she addressed the complaints under the rules. She said that the
office had been advertised under regulation 15 because the Commission
“considered it advantageous and in the best interest of the Service to do so
having regard to the matters stated in regulation 15”; and that in those
circumstances regulation 18 was “not applicable”. She rejected the claim that
the Commission had “deliberately departed from regulation 18 so as to
facilitate Ms Petal Roopnarine and appoint her to the office of Senior State
Solicitor”, saying:
“This was not a situation of
promotion within the Service. It is a regulation 15 appointment.”
Although there had been an application to cross-examine her
on certain parts of her affidavit, the court was later informed that the
parties had agreed not to pursue it.
17.
The claims were heard together by Jones J on 6 May 2015. In a judgment
dated 29 May 2015 she dismissed all the claims. She held (inter alia) that the
Commission had been entitled to advertise under regulation 15, whenever it
considered that either of the two conditions therein was satisfied; that regulation
15 was a “stand-alone” regulation which did not require the Commission to apply
the regulation 18 criteria; that it was fair to proceed by way of an interview
process and compile an order of merit under which all candidates were treated
equally; and that while the Chief State Solicitor’s letter of 20 September had
been “inappropriate” the applicants had failed (in the absence of
cross-examination) to justify the inference that it had been drawn to the
attention of the Commission.
18.
The appellants appealed to the Court of Appeal. They argued inter alia
that the judge had erred in holding that the Commission was entitled to
advertise under regulation 15 without first considering the suitability of the
appellants for the post, and also in declining to infer that the Chief State
Solicitor’s letters had been before the Commission. The appeals were heard by
the Court of Appeal (Yorke-Soo Hon, Narine and Mohammed JJA) on 15 June 2016,
and dismissed by a majority. In the majority judgment (given by Mohammed JA)
the court held in summary that the words “where the Commission considers” in
regulation 15 conferred a discretion on the Commission to decide whether it
should authorise the advertisement of a vacancy, and that it was not necessary
first to make an assessment that officers within the service were not suitable;
that, in so far as there was any lack of express evidence of the Commission’s
thinking, “the presumption of regularity” applied so that it was presumed to
have taken the proper criteria into account; that regulation 15 did not require
the application of the regulation 18 criteria; and that, although (contrary to
the judge’s view) it was reasonable to infer that the earlier letters would
have been before the Commission, there was no evidence that the Commission was
wrongly influenced by them or abdicated its independent decision-making function.
19.
Dissenting, Narine JA held that the decision to engage regulation 15 was
flawed, there being no evidence that the Commission had conducted any exercise
to ascertain whether there was any suitable candidate within the Service, nor
evidence of the “qualifications, experience and merit” on which it based its
conclusion that it was advantageous and in the best interest of the Service to
advertise the vacancies; and further that the letter of 20 September 2012
should have been disclosed at the earliest opportunity, and that, in the
absence of evidence of whether and how it was taken into account, it had had
“the potential to unfairly and improperly influence the Commission in favour of
appointing Roopnarine”.
20.
Before the Board, submissions for Mr Smart were made by Mr
Pennington-Benton of counsel, who also adopted the fuller submissions for the
other appellants made by Mr Peter Knox QC. Mr Howard Stevens QC replied for the
two respondents, the Director and the Commission. There were raised in summary
three issues:
i)
Was the decision to advertise externally unlawful, having regard to the
correct construction of regulations 14 and 15?
ii)
Did the Commission in any event err in failing to apply the criteria set
out in regulation 18?
iii)
Was the decision tainted by the existence of undisclosed documents?
The Board will take these in turn.
Regulations 14 and 15
21.
This issue raises a short point of construction of the relevant
regulations. Without disrespect to Mr Knox’s careful submissions, the Board has
no doubt the courts below were correct to hold that regulation 15 is
self-standing, and that its application is not dependent on the Commission
forming a prior view as to the lack of suitable internal candidates, under
regulation 14 or otherwise. Not only is there no such pre-condition in the
wording of regulation 14 or 15, but regulation 15 clearly gives the Commission
a choice between two alternatives, neither dependent on the other.
22.
The first applies where the Commission considers that there is no
suitable candidate within the service. The second by implication may apply even
where there are suitable internal candidates. It requires no more than that the
Commission should consider it “advantageous and in the best interest of the
service” to secure the services of a person not already in the service. That
view must be formed “having regard to qualifications, experience and merit”.
Contrary to Mr Knox’s submissions, those words cannot be read as requiring
separate consideration of the qualities of the officers within the service. The
criteria are expressed in general terms, apt to apply to the consideration of
the range of the qualities required for the post, whether from internal or
potential external candidates. They may be contrasted with the similar criteria
in regulation 18, which are addressed specifically to the qualities of the
internal candidates (“… educational qualifications, merit and ability … of such
officers” (emphasis added)).
23.
Even on this basis, Mr Knox submits that there is inadequate evidence of
the consideration given by the Commission to this issue. To justify the use of
the advertisement procedure, it is not enough, he submits, for the Acting
Director simply to assert that the Commission “considered it advantageous and
in the best interest of the Service to do so having regard to the matters
stated in regulation 15”. Not only is there no indication of the source of her
knowledge of the consideration given by the Commission; but she does not say to
whose “qualifications, experience and merit” (apart from those of Ms
Roopnarine) the Commission had regard.
24.
The Board is not persuaded by this submission. In the absence of any
challenge to the good faith or conduct of the Commission itself, it was
appropriate and normal for the evidence on its behalf to be given by the Acting
Director as the officer responsible for the administration of the process. The
request for cross-examination was not pursued, and there was, as the Board
understands, no challenge to the reliability of her evidence in that respect.
The principal complaint to which she was responding at that stage was that the
Commission had failed to treat consideration of the internal candidates as a
pre-condition to advertisement. If, as the Commission considered, that was not
required on a proper interpretation of the Regulations, it was a sufficient
response to make that position clear. Further, the evidence went on to quote
the memorandum of 26 October 2012 which referred to the “severe shortage of
experienced Attorneys-at-Law at the mid-management level …”, and the wish to
attract new recruits with considerable legal experience and expertise. There is
no basis for suggesting that this assessment was unjustified, nor that the
Commission could not, or did not, properly give it weight.
Regulation 18
25.
This again raises a short issue of interpretation. The courts below
accepted the Commission’s submission that regulation 18 is relevant, as its
marginal note implies, only to selection for promotion within the service, and
has no application to the outside advertisement procedure under regulation 15.
Mr Knox submits that this was wrong. As I understand it, he does not argue that
the regulation 18 criteria are relevant to the assessment of outside candidates
as such. Indeed some criteria (such as “the evaluation … in annual staff
reports …”) are clearly inapplicable. Rather, in so far as a choice falls to be
made between internal candidates, they must be judged by reference to those
criteria.
26.
In this case, therefore, it was unlawful, in his submission, for the
Commission to judge Ms Rampersad against the other internal candidates simply
by reference to the interview process. Instead, as between them, the choice
should have been made in accordance with regulation 18. Further there was good
reason to think that as a result the appellants lost a good chance of
promotion. They were all senior to Ms Rampersad, and they all asserted that
they had more experience and qualifications than her. Indeed Ms Almarales had
already been recommended as a candidate for promotion to Senior State Solicitor
in the Chief State Solicitor’s memorandum of 25 July 2012.
27.
The Board is unable to accept this submission. It has some sympathy for
Ms Almarales in particular, who may feel in retrospect, at least having seen
the various exchanges between her superior officer and the Director in 2012,
that the procedure was weighted against her by the decision to advertise.
However, it is impossible in the Board’s view to read into the Regulations a
hybrid process of the kind which Mr Knox appears to envisage. Once the decision
has been made under regulation 15 to advertise a post, there is nothing to
indicate that internal and external candidates should be treated any
differently. The Commission’s duty, in the absence of provision to the
contrary, is to secure a level playing-field between all candidates, whether
internal or external. There might well be complaints of a different kind if it
were otherwise. There is no suggestion, and no basis for any suggestion, that
the Commission failed in that respect.
28.
It is worth noting in any event that in general the criteria under
regulation 18 are no more than matters to be “taken into account”. With limited
exceptions (in regulation 18(2)), they give rise to no presumption as to the
weight to be given to any particular factors. Thus, for example, seniority is a
matter to be given “greater weight” only where promotion is to an office “that
involves work of a routine nature” (regulation 18(2)(a)). It seems unlikely
that the office of Senior State Solicitor, which was in issue in the present
case, could have been regarded as falling into that category. Thus, even under
a procedure governed by regulations 14 and 18, there could have been no
necessary expectation that seniority, or any other particular criterion, would
have carried the day.
29.
Before leaving this aspect, the Board should note Mr Knox’s suggestion
in oral argument that the process was flawed also by reason of the Commission’s
failure to consider the potential qualifications of even those officers, such
as two of his clients, who made no application. He relies on regulation 13(4)
which provides in terms that “failure to apply shall not prejudice the
consideration of the claims of all eligible public officers”. The Board is
unable to read this as overriding the detailed processes prescribed by the
following regulations. As the Board reads the regulation, it is simply making
clear that failure to follow the particular procedure there prescribed does not
in itself invalidate a claim for consideration. It does not impose on the
Commission a general obligation to investigate the potential qualities of
internal candidates who have not shown any overt interest in the post in
question.
Undisclosed documents
30.
On the material before the Board, there seems, at least, to have been an
unfortunate lack of transparency about the appointment process. Once the
decision had been made to advertise, arrangements should have been made to
ensure that interested candidates were kept fully informed of the process and
the decisions. It also seems unfortunate that the response to Mr Smart’s
Freedom of Information request was so delayed. It is perhaps not surprising
that his suspicions were aroused. The judge described some of the Chief State
Solicitor’s language as “inappropriate” and spoke of a “lack of candour” by the
Director in not disclosing the correspondence at an earlier stage. But neither
she, nor the Court of Appeal, found any basis for inferring that the Commission
had been improperly influenced by the letters or had abdicated its independent decision-making
function in the appointment process. These were concurrent findings on what was
essentially a question of fact, with which the Board would rarely if ever
interfere.
31.
The Board agrees with the Court of Appeal that the Chief State Solicitor
was clearly entitled to express his views on the appropriate course for the
Commission, and on the merits of a particular candidate. The only criticism
that could be made was of the implied suggestion that the Attorney General
might bring his political influence to bear. But the Board sees no reason to
question the Court of Appeal’s conclusion as to the integrity of the
Commission’s own consideration of the matter.
32.
Mr Knox seeks to develop a legal challenge by reference to the Court of
Appeal’s reliance on the so-called “presumption of regularity”, which he says
cannot override the well-established duty on a public authority to respond to a
judicial review application with “all the cards face upwards on the table” (R
v Lancashire County Council, Ex p Huddleston [1986] 2 All ER 941, 945, per
Sir John Donaldson MR).
33.
There is no doubt as to the application of the same principle in this
jurisdiction. In Police Service Commission v Dennis Graham, 26 March
2010, Jamadar JA (at paras 19-20) affirmed the duty of a public authority
respondent, once permission for judicial review has been granted, to cooperate
with the court by making available “all the relevant facts and reasoning
underlying the decision under challenge”. He continued:
“20. It is in this context of
cooperation, where a court has granted leave to pursue judicial review and
where the full and candid disclosure of the claimant’s evidence as well as the
full, frank and uninhibited explanation - with all primary documents relevant
to the challenge (subject only to lawful exemptions) of the public authority
are before the court, that the process of evaluation contemplated by judicial
review is to be undertaken. … the presumption of regularity ought not to
operate as a shield behind which a public authority can hide by refusing to
give evidence on the basis that it is for a claimant to prove his case. This is
an erroneous and misplaced view of how the presumption of regularity ought to
operate in public law matters. Indeed, a presumption of bona fides ought to willingly
lead to full disclosure of all relevant information at the earliest opportunity
- including in response to pre-action enquiries.”
34.
The Board readily endorses that statement of the correct approach.
However, it is necessary also to bear in mind the guidance given by Parker LJ
in the Huddleston case (at p 947) as to the procedures available to the
trial judge (in that case the Divisional Court) to deal with any failure by the
authority in this respect, for example by ordering interrogatories or cross-examination.
These are matters to be sorted out, if necessary, at that stage. In the present
case, the appellants did not pursue their application to cross-examine, perhaps
because they reasonably expected the determinative issues to be ones of law,
turning on the construction of the Regulations. That was entirely
understandable. But that course having been adopted, it was for the trial judge
to draw such inferences as she thought appropriate on the evidence as
presented. It is far too late now to seek to reopen those issues before the
Board.
Conclusion
35.
For these reasons, the Board dismisses the appeals, and confirms the
orders of the courts below.
