Lovell Romain v The Police Service Commission

A power to regulate procedure does not include an implied power to waive requirements in a defined promotion scheme. Where regulations create a staged process, they may operate as a self-contained, comprehensive code. A qualifying examination can be the gateway to comparative assessment, while a rule requiring an officer who has not been promoted within a specified period to resit the examination remains effective. A specific exception allowing earlier access to an examination does not create a general exemption from taking it. Discretionary departures may produce an uncertain and unequal process for public appointments.

The appellant, a constable, passed the examination for promotion to sergeant but was not promoted. He later sought exemption from the corporal’s examination. A chief personnel officer supported exemption, but the Commission ultimately refused it. On judicial review, Gobin J declared the exemption binding and the appellant eligible for consideration for promotion. The Court of Appeal allowed the Commission’s appeal, set aside those orders, and awarded costs. The appeal to the Privy Council concerned whether the promotion regulations were a comprehensive code or permitted discretionary departure, and whether delay and the chief personnel officer’s letter gave rise to relief.

The appeal was dismissed. The appellant was ordered to pay the respondent’s costs.

1. The Commission’s regulations, made with the Prime Minister’s consent under section 129 of the Constitution, were intended to provide a self-contained and comprehensive code governing promotions. Their structure and contents were incompatible with exceptions beyond those expressly provided.
2. Regulation 14A provided the gateway to consideration for promotion under regulation 15. Regulation 16(1) closed that gateway where an officer had not been promoted within three years of passing the examination, unless the officer resat and passed it.
3. The exception in regulation 14A(1) concerned only the period of service required before an officer could apply to take an examination. It did not excuse an officer from taking the examination. The regulations contained no general exemption for an officer with other equivalent or superior qualifications.
4. The scheme coherently comprised two stages: a qualifying examination, followed by assessment of the comparative merits of those who had passed, applying regulation 20’s criteria. Allowing every officer to enter the promotion pool would conflict with the notification and representation machinery in regulation 15 and would undermine certainty and equality in public appointments.
5. The anomaly arising from the appellant’s having taken the sergeant’s examination before the corporal’s examination was cured prospectively by the 2006 amendment. The appellant had not argued that the regulations should be construed as treating the sergeant’s examination as qualifying for promotion to corporal.
6. The delay argument failed because the application had already been refused in 1997 and 2000, and the Commission was not obliged to reconsider it. There was no injustice in the costs order because regulation 16(1) was only part of the appellant’s difficulty.

• Privy Council ([2014] UKPC 32) dismissed the appeal and ordered the appellant to pay the respondent’s costs.
• Court of Appeal of the Republic of Trinidad and Tobago allowed the Commission’s appeal, set aside Gobin J’s order, and ordered costs against the appellant.
• High Court (Gobin J) granted declarations that the exemption was binding and that the appellant was eligible to be considered for promotion without taking the corporal’s examination.