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Employment Law

Legal guidance - compliance - software

19 JUL 2011

Public Service Appointments

James Goudie QC

In Permanent Secretary and Prime Minister Patrick Manning v Ramjohn and Prime Minister Patrick Manning v Kissoon the Privy Council on 18 July 2011 upheld Judgments of the Trinidad and Tobago Court of Appeal that the Prime Minister had acted unfairly in appointing Ms Ramjohn to a posting to the High Commission in London and then, before she had assumed the duties of the office, and without giving any reasons, revoking the appointment; and that the Prime Minister had acted contrary to the rules of natural justice in vetoing Mr Kissoon's appointment, proposed by the Public Services Commission, as a Head of Department.  In neither case was the process by which the respective decisions came to be taken a fair one.

             In Ms Ramjohn's case Lord Brown said, at para 31:

"On the face of it, nothing could be clearer than that the sudden revocation of a person's foreign posting on grounds of suspected criminality without the person concerned being told of the allegation and given an opportunity to respond ... is unfair."

The Privy Council distinguished the Court of Appeal decision in R (Tucker) v Director-General of the National Crime Squad [2003] ICR 599.  Lord Brown said, at para 39:

"Almost always ... if a decision is to be taken against someone on the basis of an allegation such as that made here, fairness will demand that they be given an opportunity to meet it."

 As regards the Prime Minister exercising his veto against Mr Kissoon's proposed promotion, the Privy Council accepted that the power of veto is subject only to comparatively narrow limitations and that the obligation to act fairly must be viewed in that light.  However, Lord Brown said, at para 45:

 "Clearly the veto power is subject to constitutional rights - the right to equal treatment, for example - and clearly it must not be used for a collateral purpose. ... the veto could properly be exercised to prevent the promotion of a candidate whom the Prime Minister regarded as unsuitable for appointment on other than political grounds. If, obviously, the ground of objection was some specific allegation - as in Ms Ramjohn's case - then fairness would require that it be put to the candidate. But if the Prime Minister was objecting on general grounds involving no particular "case" against the candidate, fairness would not demand any advance notice of the veto."

             Lord Brown continued, at para 46:

 "It follows from this that the challenge to the fairness of the Prime Minister's decision process here cannot be on the basis of a failure to give Mr Kissoon the opportunity to meet the ground of objection in advance. Rather it is that to this day Mr Kissoon does not know what, if any, ground of objection the Prime Minister had to his appointment ... That seems to the Board clearly unfair ..."

 The Privy Council distinguished McInnes v Onslow-Fane [1978] 1 WLR 1520, on the basis (para 48) that Mr Kissoon's case concerned "the exercise of a veto against the proposed appointment of a candidate successful in a competitive selection process for promotion to senior public office.  ...such a person must surely have an expectation of being fairly treated, not least where, as here, he knew that he had topped the promotion interviews and been recommended for the office".

             Lord Brown concluded, at para 52:

"There is no question here of the Prime Minister having acted otherwise than in good faith in each case. The Board's decision is simply that in the very particular circumstances of these two cases, on the evidence put before the reviewing courts, the decision-making processes can be seen to have been unfair to the respective officers concerned. This judgment should certainly not be regarded as a charter for those disappointed in their applications for public service appointments routinely to challenge the process. On the contrary, only exceptionally is it likely that such challenges will succeed."


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