Smart v Director of Personnel Administration and another (Trinidad and Tobago)

Regulation 15 of the Public Service Commission Regulations is self-standing. A decision to advertise a vacancy externally does not require a prior finding under regulation 14 that no suitable internal candidate exists. The Commission may advertise where it considers, having regard to qualifications, experience and merit, that obtaining an external appointment would be advantageous and in the service’s best interests. Once that course is chosen, internal and external candidates must ordinarily compete on a level playing-field. Regulation 18 governs selection for promotion within the service, but does not create a hybrid process for an advertised competition. The presumption of regularity cannot replace a public authority’s duty of full and candid disclosure in judicial review proceedings.

The appellants were legal officers in Trinidad and Tobago’s Chief State Solicitor’s Department. Vacancies for Senior State Solicitor were advertised internally and publicly under regulation 15 of the Public Service Commission Regulations. The competition resulted in appointments of external and internal candidates, while some appellants were not informed of the process and two did not apply.

The High Court dismissed their challenges. The Court of Appeal dismissed the appeals by a majority, holding that regulation 15 conferred a discretion to advertise without a prior assessment of internal candidates, and that regulation 18 did not apply to the advertised process. The appellants appealed to the Privy Council, challenging the construction and application of regulations 14, 15, 18 and 13(4), and alleging that undisclosed correspondence had tainted the appointments.

The Board dismissed both appeals and confirmed the orders below.

1. Regulations 14 and 15. Regulation 15 is self-standing. Its operation does not depend on a prior decision under regulation 14 that there is no suitable internal candidate. It presents two alternatives: the Commission may advertise where it considers that no suitable internal candidate is available; or where, having regard to qualifications, experience and merit, it considers that securing an external candidate would be advantageous and in the best interests of the service. Those criteria concern the qualities required for the post generally, and do not require separate assessment of internal officers.
2. Regulation 18. The regulation 18 criteria apply to selection for promotion within the service. Once a decision has properly been made to advertise under regulation 15, the Regulations contain no basis for treating internal candidates differently from external candidates. The Commission must provide a level playing-field. Regulation 18 mainly requires matters to be taken into account and, subject to regulation 18(2), does not prescribe the weight to be given to particular factors. Seniority attracts greater weight only for promotion to an office involving routine work.
3. Regulation 13(4). The provision does not override the later appointment procedures or impose a general duty to investigate the potential qualities of officers who have shown no overt interest in the vacancy.
4. Disclosure and regularity. The Board endorsed the duty of a public authority in judicial review proceedings to disclose all relevant facts, reasoning and primary documents at the earliest opportunity. It approved the approach in Police Service Commission v Dennis Graham, 26 March 2010, and explained the procedural guidance in R v Lancashire County Council, Ex p Huddleston, [1986] 2 All ER 941. The presumption of regularity cannot shield an authority from that duty. Procedural failures should ordinarily be addressed by the trial judge through measures such as interrogatories or cross-examination. Because the appellants abandoned cross-examination and the lower courts made concurrent factual findings that the Commission had not been improperly influenced, the Board would not reopen those issues.

The Chief State Solicitor was entitled to express views on the course the Commission should take and on a candidate’s merits. There was no basis to question the Commission’s independent consideration.

• Privy Council: Smart v Director of Personnel Administration and another and Almarales and others v Director of Personnel Administration and another, [2019] UKPC 35: appeals dismissed and the lower-court orders confirmed.
• Court of Appeal of the Republic of Trinidad and Tobago: appeals dismissed by a majority. The court held that regulation 15 conferred a discretion to advertise without first assessing internal candidates, that regulation 18 did not govern the advertised process, and that the presumption of regularity applied.
• High Court: claims dismissed. The judge held that regulation 15 was a stand-alone power, that the regulation 18 criteria were inapplicable, and that the procedural complaints did not establish unlawful appointments.