Cooper  & Anor v.Director of Personnel Administration & Anor (Trinidad and Tobago ) [2006] UKPC 37 (6 July 2006)

Privy Council Appeal No 47 of 2005

(1) Eusebio Cooper
(2) Clifford Balbosa							Appellants
v.
(1) Director of Personnel Administration
(2) The Police Service Commission	Respondents

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 6th July 2006

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Steyn
	Lord Hope of Craighead
	Lord Rodger of Earlsferry
	Baroness Hale of Richmond
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		[Delivered by Lord Hope of Craighead]		

1.	The appellants are both Police Corporals serving with the Trinidad and Tobago Police Service.  In August 2002 they sat the examinations for promotion to the rank of Police Sergeant.  The examinations had been set by the Public Service Examination Board.  The Board also assumed responsibility for marking the examination papers and releasing the results to the candidates.  Many months then passed without the release of any results.  On 7 July 2003 the Trinidad Express published an article by the President of the Police Social and Welfare Association, acting Inspector Christopher Holder.  In that article he complained about the delay. He also said that this was not an isolated problem, as the results of the 1999 examinations were not released until 2001.  He attributed the delays to the Director of Personnel Administration and the Police Service Commission.  They are the respondents in this appeal.
  
2.	On 8 July 2003 the Police Service Commission issued a media release in which it disclaimed any responsibility for the conduct of the examinations.  It contained the following statements:

“The Police Service Commission informs that the sole responsibility for the conduct of examinations falls under the purview of the Public Service Examinations Board, which is a Cabinet appointed body, the management of which is the responsibility of the employer.  The Board is not a part of the Police Service Commission nor for that matter any of the other Service Commissions.

The two examiners, one of whom is a retired Assistant Commissioner of Police and the other an Assistant Superintendent of Police, have not responded to repeated attempts to have the scripts returned on a timely basis.  However, there have been ongoing efforts by the Board to ensure that scripts are returned and the results released.

Passing an examination is not the only criterion for promotion in the Police Service.  There are a number of other factors which must be considered in determining an officer’s eligibility for promotion.  Recommendations for promotion emanate from the Commissioner of Police and the Police Service Commission has acted on all recommendations received thus far.”

The terms of this release came as a surprise to many in the Police Service.  It was the first time that the public had been told that the Public Service Examination Board was a body appointed by the Cabinet. 

3.	On 11 July 2003 the appellants commenced these proceedings for judicial review.  The relief which they sought included declarations that the setting of the examinations by the Public Services Examination Board was unconstitutional and that there had been an unreasonable delay in the publication of the results of the examinations for 2002.  The appellants also applied for an order of mandamus that the Director of Personnel should forthwith correct the papers and release the results.  On 30 December 2003 Meyers J found in the appellants’ favour.  He declared that the appointment of the Public Service Examinations Board by the Cabinet was unconstitutional, illegal, null, void and of no effect and that the Police Service Commission was the only authority responsible for the conduct of promotion examinations for the Police Service, including the setting, marking and timing of the examinations and the publication of the results.  He made various orders for the appointment of examiners to review the papers for the 2002 examinations and release the results.  He also found that the delay in releasing the results of these examinations was unreasonable.

4.	The respondents appealed against the judge’s finding that the appointment of the Public Service Examination Board was unconstitutional.  They did not appeal against the finding that the delay in releasing the 2002 results was unreasonable.  On 19 January 2005 the Court of Appeal (Sharma CJ, Nelson and Kangaloo JJA) allowed the appeal and set aside the declarations and other orders made by Myers J.  In the meantime the results of the 2002 promotion examinations had been released to the candidates.  The appellants were unsuccessful, as they had been in the previous round of examinations.  But nothing turns on that point.  On 23 May 2005 they were granted final leave to appeal to their Lordships’ Board.

The issues

5.	Two main issues were debated before Myers J.  The first was whether the appointment of the Public Service Examination Board by the Cabinet was unconstitutional.  The second was whether the delay in releasing the results of the 2002 examinations was unreasonable.  The second question is no longer a live issue in these proceedings.  There remains for consideration the question whether the appointment of the Public Service Examination Board by the Cabinet was unconstitutional.  Before the Board however the constitutionality of its appointment was no longer the focus of the argument.  Attention was directed instead to the constitutional relationship between the Police Service Commission and the executive and where responsibility lay for the conduct of examinations for appointment to and promotion within the Police Service.    

6.	For the appellants Mr Newman QC submitted that the one of the functions of the Constitution was to insulate the Service Commissions from political interference by the executive.  He said that the Cabinet had no power to appoint an Examination Board for the examination of those seeking appointment to or promotion within the Service Commissions.  This was the responsibility of the Service Commissions themselves, to which the Constitution had given the necessary powers.  So the media release had misrepresented the position.  The Police Service Commission was responsible for the examination of officers who were seeking promotion in the Police Service.  It was not entitled to rely upon a Cabinet-appointed Public Services Examinations Board for this purpose.  For the respondents Mr Dingemans QC accepted that the media release was inaccurate.  But he submitted that the Cabinet had power to appoint the Public Services Examinations Board to conduct the examinations, and that there was adequate legal protection for any unsuccessful police officer who was seeking promotion to prevent wrongful interference by the executive.  He submitted that in any event the Police Service Commission had power to take action in its own interest in the event of any interference by the executive with the independence of the Public Services Examinations Board.

7.	Before addressing these issues their Lordships must first set out the relevant provisions of the Constitution and the Police Service Commission Regulations.

The Constitution and the Regulations

8.	Section 75 of the Constitution provides:

“(1) There shall be a Cabinet for Trinidad and Tobago which shall have the general direction and control of the government of Trinidad and Tobago and shall be collectively responsible therefor to Parliament.

(2) The Cabinet shall consist of the Prime Minister and such number of other Ministers (of whom one shall be the Attorney General), appointed in accordance with the provisions of section 76, as the Prime Minister may consider appropriate.”

9.	That provision falls to be read together with section 45(2) of the Interpretation Act, which provides:

“Where a written law empowers any person or authority to do any act or thing, all such powers shall be deemed to be also given as are reasonably necessary to enable that person or authority to do that act or thing.” 

10.	Chapter 9 of the Constitution is headed “Appointments to, and Tenure of, Offices”.  Part I of that Chapter contains provisions relating to the Public Service Commission, the Police Service Commission and the Teaching Service Commission.  Section 121 deals with the Public Service Commission.  It provides that, subject to the provisions of the Constitution, power to appoint persons to hold or act in offices to which that section applies, including power to make appointments on promotion and transfer and to confirm appointments, and to remove and exercise disciplinary control over persons holding or acting in such offices and to enforce standards of conduct on such officers, shall vest in the Public Service Commission. Section 121(7) provides:

“This section applies to all public offices including in particular offices in the Civil Service, the Fire Service and the Prison Service, but this section does not apply to offices to which appointments are made by the Judicial and Legal Service Commission, the Police Service Commission or the Teaching Service Commission or offices to which appointments are made by the President.”

11.	Section 122 provides for the membership and appointment of the Police Service Commission.  Section 123(1) is in these terms:

“(1) Power to appoint persons to hold or act in an office in the Police Service established under the Police Service Act, including appointments on promotion and transfer and the confirmation of appointments, and to remove and exercise disciplinary control over persons holding or acting in such offices and to enforce standards of conduct on such officers shall vest in the Police Service Commission.”   

Section 125 gives power in almost identical terms to appoint persons to hold or act in public offices in the Teaching Service established under the Education Act, except that it is prefaced by the words “Subject to the provisions of this Constitution”.  Those words do not appear in section 123(1).  But their Lordships consider that, although it does not say so expressly, section 123 read in its context must be taken to be subject to the provisions of the Constitution of which it forms part.

12.	Section 129(1) provides that a Service Commission may, with the consent of the Prime Minister, by regulation or otherwise regulate its own procedure.  The procedure of the Police Service Commission is regulated by the Police Service Commission Regulations.  They were made under section 102 of the former Constitution, and continue in force under the Constitution of the Republic of Trinidad and Tobago by virtue of section 29(3) of the Interpretation Act.  Appointments, promotions and transfers are dealt with in Chapter III.  The following provisions in that Chapter are relevant to the issues raised in this appeal.

13.	Regulation 12 provides that the Commission may prescribe from time to time the form and manner in which applications are to be made for appointment to the Police Service and examinations and interviews are to be conducted for entry to it.  Regulation 15 provides for the establishing of a Promotions Advisory Board and a system of examinations and interviews.  A police officer who holds an office specified in the Second Schedule of the Police Service Act may apply to the Promotions Advisory Board to be allowed to take any promotion examination when he has been in the Service for at least three years.  A police officer who is successful in the promotion examination is interviewed by the Commission or, where the Commission delegates its power to make appointments on promotion to the Commissioner of Police, jointly by the chairman of the Promotions Advisory Board, the chairman of the Examination Board and the Commissioner.  He is then placed in order of merit based on his performance in the examination and interview.

14.	Regulation 19 provides:

“(1) All examinations in the Police Service shall be set and the papers marked by such Examination Board as may be appointed for the purpose.

(2) The Director shall be responsible for the conduct of examinations set under subregulation (1).”   

The “Director” is defined in regulation 2 as the Director of Personnel Administration.  An equivalent provision is to be found in the Public Services Commission Regulations.  That Commission has its own system for the selection of candidates for appointment to the public service and their promotion.  Regulation 17(1) of those Regulations provides that all examinations to be held under them shall be set and the papers marked by such Examination Board as may be appointed for the purpose, and regulation 17(2) provides that the Director of Personnel Administration is responsible for the conduct of those examinations.  

15.	The principles which the Police Service Commission is to take into account in considering the eligibility of police officers for promotion are set out in regulation 20 of the Police Service Commission Regulations.  They include, as respects each police officer, the position of his name on the seniority list and on the list of results of the promotion examinations: regulation 20(2)(b).

16.	It is clear from this summary that examinations play a key role in the system of promotion of those appointed to the public service in general and to the Police Service in particular.  The extent to which, if at all, the appointment of an Examination Board to conduct these examinations is the responsibility of the executive raises the issue of constitutional importance which lies at the heart of this appeal.  

The Public Service Examination Board

17.	In its media release of 8 July 2003 the Police Service Commission said that the sole responsibility for the conduct of examinations fell under the purview of the Public Service Examination Board which had been appointed by the Cabinet.  The history of the matter was described in his affidavit by the Director of Personnel Administration, Michael Mahabir.  The Cabinet began the practice of appointing a Public Service Examination Board in 1966 and it has continued this practice ever since.  In its present form it comprises the Chief Education Officer, a representative from the University of the West Indies, an educationalist, two representatives from industry and the Director.  According to the Director, the Public Service Examination Board has sole responsibility for the regulation of all examinations throughout the public service, including those referred to in the Civil Service Regulations, the Public Service Regulations and the Police Service Regulations and for such other offices as the Public Service Commission may specify.  In his view the Public Service Examinations Board alone bears this responsibility, to achieve uniformity of standards in respect of comparable public offices, consistency of practice, economic use of limited expertise and to avoid unnecessary duplication of scare resources.  The media release of 8 July 2003 was an accurate summary of the position as described by the Director in his evidence. 

18.	Myers J said in para 1 of his judgment that he was not entirely sure whether what the Director said about the policy aims of these arrangements was his own perception of what they must have been, or whether this was what the Cabinet in fact had in mind when it was setting them up.  He was prepared to assume, for the sake of analysis, that these were the Cabinet’s policy objectives.  But, as he explained in para 2, there were other problems with the evidence.  It might explain what the Cabinet thought it was trying to achieve by undertaking the task of appointing a Public Service Examination Board.  But it did not explain why they thought that they were the appropriate body to do this.  There was no evidence before him to explain why the Service Commissions in general, and the Police Service Commission in particular, had ceded the responsibility for setting and marking the examinations to a body appointed by the Cabinet.

19.	Further details of how the system works in practice were provided by Ingrid Seeratan, Human Resource Officer in the Service Commissions Department.  She explained in her affidavit that the Public Service Examination Board has regulated all examinations throughout the public service since 1966.  In the performance of its functions the Board appoints a panel of examiners to set and mark the relevant examination papers.  The conduct of those examinations is the responsibility of the Director of Personnel Administration.  This includes matters such as the printing of the examination papers, preparation of registers of candidates, sourcing of invigilators, organisation of venues throughout Trinidad and Tobago and the provision of stationary and supplies to the candidates.  The National Information Centre is used to establish a database of candidates and to identify the number of candidates to be allocated to the various districts where the examinations are to be held.  Special arrangements have to be made for the sittings of the examinations that are to be held in Tobago, including the provision of air fares and hotel accommodation for the supervisor from Trinidad.  

20.	The Constitution does not provide for the setting up of a Public Service Examination Board.  The place where one would expect to find this is Part I of Chapter 9 of the Constitution, where the provisions about the various Service Commissions and the making of appointments within them are set out.  But this Part makes no mention of the setting up of a Board with the wide-ranging and all-embracing responsibilities that Mr Mahabir describes in his affidavit.  Section 75(1) of the Constitution provides that the Cabinet shall have the general direction and control of the government of Trinidad and Tobago.  No document exists to show that when it set up the Public Service Examination Board the Cabinet was in fact exercising this power.  Nevertheless this, according to the respondents, is where the power to do so is to be found.

21.	On its face, the scope of section 75(1) is very wide.  But the Constitution must be read as a whole, and where the terms of employment and security of tenure of members of the public service are in issue section 75 must be read subject to the provisions of Chapter 9.  In Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113, 124 which was decided under the former Constitution in which the equivalent chapter (although it bore a different headnote) was Chapter VIII, Lord Diplock said:

“The whole purpose of Chapter VIII of the Constitution which bears the rubric ‘The Public Service’ is to insulate members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised upon them directly by the government of the day.  The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service.  These autonomous commissions, although public authorities, are excluded by section 105(4)(c) from forming part of the service of the Crown.  Subject to the approval of the Prime Minister they may delegate their powers to any of their members or to a person holding some public office (limited in the case of the Police Service Commission to an officer of the police force); but the right to delegate, although its exercise requires the approval of the Prime Minister, is theirs alone and any power to delegated is exercised under the control of the commission and not on behalf of the Crown or of any other person or authority.” 

The question is whether, and if so to what extent, the appointment by the Cabinet of the Public Service Examination Board conflicts with the guidance given in that paragraph.  

Where is the line to be drawn?

22.	Myers J said in para 10 of his judgment that the appointment of the Public Service Examination Board by the Cabinet was unconstitutional.  In his view it was a breach of the doctrine of separation of powers as enunciated in Thomas.  In para 43 he said that the principle of executive non-interference displaced the prima facie position that the aims the Cabinet sought to achieve by appointing a Public Service Examination Board was part of the general direction and control of government.  In the Court of Appeal Sharma CJ disagreed.  He said that the source of the power to appoint the Board was to be found in section 75(1) of the Constitution assisted, if necessary, by section 45(2) of the Interpretation Act: paras 21, 22.  The approach which the judge had taken to the doctrine of the separation of powers was too inflexible.  On the facts there was no scope for the application of that doctrine, as the members of the Board were sufficiently insulated from any undue political influence from the executive.  In any event the effect of the unchallenged practice of nearly forty years, whereby the Board was appointed by the Cabinet to ensure that all public servants in the various Service Commissions were meted with equal treatment, had the same force and effect as the functions of the Director of Personnel Administration specified in, for example, regulation 19(2) of the Police Service Regulations: para 27.  Kangaloo JA said that the constitutional objection applied only where there was direct interference by the executive into the affairs of the service commission, and that there was more than sufficient insulation of the examiners from the executive to ensure that the principle of executive non-interference was adhered to: para 11.

23.	The fact that no mention is made in the Constitution of the appointment by the executive of a body such as the Public Service Examination Board opens the door to the argument that in setting up such a body the Cabinet was assuming to itself a power that it did not possess.  There is no doubt that the constitutional principle would be breached if that body were to be used as an instrument which enabled the executive to interfere directly or even indirectly with the appointment and tenure of public offices.  On the other hand, the formulation of policies aimed at uniformity of standards and consistency of practice in the making of appointments to public offices, and at the economic use of limited resources to avoid duplication where this is unnecessary, is a matter of legitimate concern to the executive.  It falls within the ambit of the general direction and control of government.  Where then is the line to be drawn between the proper exercise by the Cabinet of its powers under section 75(1) of the Constitution and the improper exercise of political influence on the making of appointments by the commissions in general and the Police Service Commission in particular?

24.	In Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113, 128 Lord Diplock said:

“ The functions of the Police Service Commission fall into two classes: (1) to appoint police officers to the public service, including their transfer and promotion and confirmation in appointments and (2) to remove and exercise disciplinary control over them.  It has no power to lay down terms of service for police officers; this is for the legislature and, in respect of any matters not dealt with by legislation, whether primary or subordinate, it is for the executive to deal with in its contract of employment with the individual police officer.  Terms of service include such matters as (a) the duration of the contract of employment, eg for a fixed period, for a period ending on attaining retiring age, or for a probationary period as it envisaged by the reference to ‘confirmation of appointments’ in section 99(1); (b) remuneration and pensions; and (c) what their Lordships have called the ‘code of conduct’ that the police officer is under a duty to observe.”

Mr Dingemans, relying on this passage, submitted that passing a promotion examination was a form of qualification and that it thus fell within the sphere of the functions of the executive.  As qualification for promotion was within its sphere, the Cabinet had power to appoint the Public Service Examinations Board.

25.	In the Court of Appeal Sharma CJ said in para 43 of his judgment that the promotion examination was part of the terms and conditions of employment falling within the sphere of the functions of the executive as part of its general power under section 75 of the Constitution.  He found support for this proposition in Lord Diplock’s observations in Thomas at p 128.  He said that Lord Diplock had classified this as an executive function.  In para 45 he said that the appointment of the Public Service Examination Board to conduct its examinations could not by any stretch of the imagination be a function of the Police Service Commission, as this was clearly part of the terms and conditions under which a person qualifies for promotion within the Police Service.  Kangaloo JA said in para 15 of his judgment that it was demonstrated by the passage in Lord Diplock’s judgment at p 128 that it was not correct to say that any involvement by the executive in the affairs of the Police Service was unconstitutional.  In para 18 he noted that regulation 19(1) of the Police Service Regulations was silent as to who has to appoint the Examination Board.  The fact that it did not say that this was a matter for the Police Service Commission, which it could have done, lead him to conclude that the setting and marking of the promotional examination was not a matter for the Commission.  It was part of the qualification or educational requirements, which were matters for the executive.   

26.	Their Lordships consider, with great respect, that this approach is based on a misunderstanding of what Lord Diplock was saying at p 128.  Earlier in his judgment, at pp 123-124, he had drawn attention to the risks that exist under a party system of government such as exists in Trinidad and Tobago.  A power in the executive to dismiss  public servants at pleasure, which is what that case was about, would make it possible for the proper performance of their public duties to be treated as subordinate to the party’s political aims.  He mentioned the prospect, albeit remote in Trinidad and Tobago, of an armed police force being converted into a private army of the majority party at the last election.  It is against that background that the passage at p 128 falls to be read.  

27.	On the one hand there is the function of appointing officers to the police service, including their promotion and transfer.  This is a matter exclusively for the Police Service Commission.  On the other hand there are the terms of service which are to be included in the contract of the individual police officer.  The Police Service Commission does not employ the police officer.  His contract is with the executive.  Terms of service, of which Lord Diplock gave various examples, may be laid down by the legislature.  Where they are laid down in that way they must form part of the contract.  Where there are gaps because the matters at issue have not been dealt with by the legislature, they may be dealt with by the employer.  In the case of police officers, their contract of service is with the executive.  So it is open to the executive to fill the gaps.  But this has nothing whatever to do with the matters that lie within the exclusive preserve of the Police Service Commission.  It is for the Commission, and the Commission alone, to appoint and promote police officers.  Terms of service are what each police officer enters into with his employer following the confirmation by the Commission of his appointment to, or his appointment on promotion within, the Police Service.      

28.	The Constitution requires that the powers which it has given to the Public Service Commissions, and to the Police Service Commission in particular, to appoint persons to hold or act in public offices and to make appointments on promotion must be exercised free from inference or influence of any kind by the executive.  There is room in this system for the taking of some initiatives by the Cabinet.  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.  The objection which has given rise to these proceedings lies in the misapprehension as to where the responsibility for choosing that system lies.  In their Lordships’ opinion the proposition in the media release of 8 July 2002 that the sole responsibility for the conduct of examinations falls under the Public Service Examination Board’s purview was based on a profound misunderstanding of where the line must be drawn between the functions of the Commissions and those of the executive.

29.	There is no doubt that the Police Service Commission Regulations envisage the existence of an Examination Board.  Regulation 15(5) requires that the interview of a police officer who is successful in the promotion examination for promotion to any office in the Service must be conducted jointly by, among others, the chairman of the Examination Board.  So the appointment of an Examination Board is an essential part of the whole process.  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.  It must be free to decline to use the services of the Public Service Examination Board if it suspects that the executive is seeking to use the Board as a means of influencing or interfering, whether directly or indirectly, with appointments to or promotions within the Police Service.  Those are matters that lie exclusively within the responsibility of the Police Service Commission.   

Conclusion

30.	The media release of 8 July 2003 was wrong to say that the sole responsibility for the conduct of examinations for appointment to and promotion within the Police Service lay with the Public Service Examination Board, the management of which was the responsibility of the employer – that is to say, of the executive.  Section 123 of the Constitution declares that the power of appointment of persons to hold office in the Police Service, including appointments on promotion and transfer, is vested in the Police Service Commission.  Sole responsibility for the conduct of examinations for the appointment and promotion of police officers lies with the Commission.  

31.	How the Commission discharges that responsibility is a matter for the Commission itself to determine, in the exercise of its powers under the Police Service Commission Regulations.  Regulation 19(1) provides that all examinations in the Police Service shall be set and marked by such Examination Board as may be appointed for this purpose.  The regulation does not  state in terms by whom that appointment is to be made.  But, in the context of the regulations as a whole, and in the light of Part 9 of the Constitution in particular, it must be understood as reserving the power to do make the appointment to the Commission and not to the executive.  The Director of Personnel Administration, whose duties extend across the entirety of the public service in Trinidad and Tobago, is responsible for the conduct of the examinations under regulation 19(2).  But his responsibility extends only to how the examinations that are to be set and marked by the Board that the Commission has appointed are to be administered in practice.  It does not detract in any way from the responsibility that rests on the Commission, with which the power of ultimate control lies, to make that appointment.

32.	Their Lordships will therefore allow the appeal.  They will declare that it is the sole responsibility of the Police Service Commission to appoint the Examination Board referred to in regulation 19(2) of the Police Service Commission Regulations and that the setting and marking of the papers by the Examination Board is subject to the ultimate control of the Police Service Commission.  The respondents must pay the appellants’ costs before the Board and in the courts below.