The Judicial Committee of the Privy Council Decisions

Perch & Ors v. Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2003] UKPC 17 (20 February 2003)

ADVANCE COPY



Privy Council Appeal No. 57 of 2001

(1) Martha Perch

(2) Ingrid Dennie and

(3) Jennifer Commissiong Appellants

v.

The Attorney General of Trinidad and Tobago Respondent

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 20th February 2003

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Present at the hearing:-



Lord Bingham of Cornhill

Lord Steyn

Lord Hutton

Lord Millett

Lord Walker of Gestingthorpe

[Delivered by Lord Bingham of Cornhill]

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1. In the course of hearings before Gregory Smith J at first instance and the Court of Appeal (de la Bastide CJ, Warner and Nelson JJA) and before the Board, the issues in this litigation have been progressively refined and simplified. The crucial question which now arises is whether persons employed in the Trinidad and Tobago Postal Corporation, a body established by the Trinidad and Tobago Postal Corporation Act 1999 and known as "Trinidad and Tobago Post", are to be regarded as in "the service of the Government of Trinidad and Tobago in a civil capacity" within the meaning of those words in section 3(1) of the 1976 Constitution of the Republic of Trinidad and Tobago. On the answer to that question depends the constitutionality of the 1999 Act, or some sections of it, which the appellants challenge.
2. In Trinidad and Tobago, as in many other countries, the Post Office was historically treated as a department of government and its employees as public servants. Thus in the Post Office Act 1938 (Chap. 47: 01) it was provided in section 41(1):

"There shall be in the public service a Postmaster General for Trinidad and Tobago and such number of Postmasters and subordinate officers as may be necessary for the purposes of this Act."

It is unnecessary to elaborate this point, which is not controversial. Thus it is plain that recognised grades of postal workers were entitled to the protection afforded to public officers by the 1962 Constitution: see Trinidad and Tobago (Constitution) Order in Council 1962 (SI 1962/1875), Second Schedule, sections 92, 93, 105(1).

3. The Civil Service Act 1965 (Chap 23: 01) regulated the Civil Service, of which recognised grades of postal workers were part by virtue of section 3(1), the First Schedule to the Act as originally enacted and later Classification Orders. In Regulations made under the Act there was scheduled a list of civil service offices distributed between different classes, including the various grades of postal workers. Section 12 of the Act specified the various modes by which a civil servant might leave the Civil Service which included

"(a) on dismissal or removal in consequence of disciplinary proceedings;

(b) on compulsory retirement;

(c) on voluntary retirement;

(e) on resignation;

(g) on the abolition of office;

(h) in the case of a civil servant on probation, on the termination of appointment; …"

4. Closer attention must be paid to the 1976 Constitution, for it is this which the 1999 Act is said to violate. This Constitution was scheduled to the Constitution of the Republic of Trinidad and Tobago Act 1976. Section 2 of the Constitution provides that it should be the supreme law and that any other law inconsistent with it should be void to the extent of such inconsistency. Section 3(1) lays down a number of definitions, of which the most important for present purposes are these:

"'public office' means an office of emolument in the public service;

'public officer' means the holder of any public office and includes any person appointed to act in any such office;

'public service' means … the service of the Government of Trinidad and Tobago in a civil capacity."

Attention was drawn in argument to subsections (4) and (5) of section 3, to which the definition of "public service" is expressly subject, but these contribute little to the present problem. More germane is subsection (6):

"References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service."

5. Chapter 9 of the Constitution governs appointments to and the tenure of public offices. Provision is made for a Police Service Commission and a Teaching Service Commission and, relevantly to these appellants, a Public Service Commission. All three commissions are so composed, structured and regulated as to ensure that they are independent and immune from political pressure, the object being to ensure that civil servants, police officers and teachers are similarly independent and immune. Lord Diplock explained the purpose of these provisions in Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113 at 124 in a way which, although directed to the 1962 Constitution, remains apposite. Section 121 of the Constitution includes the following subsections central to this appeal:

"(1) Subject to the provisions of this Constitution, power to appoint persons to hold or act in offices to which this 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 shall vest in the Public Service Commission.

(7) 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 to be made by the President."

6. In Trinidad and Tobago, as in other countries, there came a time when the policy of the Government was to limit its participation in commercial activities, as Mr George, Permanent Secretary of the Ministry of Public Utilities, deposed in an affidavit sworn on 14 July 1999. Technological advances such as facsimile transmissions and electronic mail were rendering postal services vulnerable to competition. The Universal Postal Union, of which Trinidad and Tobago is a member, contemplated a change of practice as early as September 1994 and at its Congress held at that time appealed to the governments of member countries (among other things) to "Give the Post a legal status and a modern management system which guarantee it appropriate financial independence, and of course accountability, in particular, as regards a commercial approach and greater satisfaction of customers' needs".
7. The 1999 Act was Trinidad and Tobago's response to this appeal and to the changed environment in the postal world. The Act did not apply to telephones, which had always been run by a commercial company. The Act repealed most of the Post Office Act (section 64(1)) and established the corporation referred to at the outset of this judgment, Trinidad and Tobago Post, which was charged to provide inland and foreign postal services (section 6(a)) and empowered to carry out related businesses (section 6(b) and (c)). It was given wide powers (section 7), including borrowing powers (sections 31 and 32), and was required to operate on sound business principles (section 8(a)) and to implement Government policy as conveyed to it (section 8(b)). It was given certain exclusive rights for a 5-year period (section 9(1)). Management of the corporation was entrusted to a small board, appointed by the President (section 11(1)) acting on the advice of the responsible Minister, on terms specified in the First Schedule. The President could revoke the appointment of a board member (First Schedule, paragraph 1(7)), and the Minister could give directions in writing to the board on matters of broad public policy, to which the board was obliged to give effect (section 17). The board was required to prepare a corporate plan, a financial plan for the forthcoming year and an annual report, which were to be submitted to the Minister (sections 19, 21 and 24). The board was required to have regard to specified operating and accounting rules (sections 21(3) and 22) and the corporation was subject to annual audit by the Auditor-General or his nominee (section 23). There were detailed financial provisions in Part V of the Act: the corporation was to be financed partly by parliamentary appropriations, partly by sums standing to the credit of the Government under the Post Office Act, partly by its earnings and partly from other sources (section 25).
8. Part VI of the Act is headed "Staff", and it is necessary to recite the terms of sections 35 and 36:

"35. The Board may employ such staff as is required by Trinidad and Tobago Post.

36. (1) This section applies to an officer who on the date of assent of this Act –

(a) holds a permanent appointment to; or

(b) holds a temporary appointment to, and has served at least two continuous years in,

a public office specified in the Third Schedule.

(2) A person to whom this section applies may, within three months of the date of assent of this Act, exercise one of the following options:

(a) voluntarily retire from the public service on terms and conditions agreed between him or his appropriate recognized association and the Chief Personnel Officer;

(b) transfer to Trinidad and Tobago Post with the approval of the Public Service Commission on terms and conditions no less favourable than those enjoyed by him in the Public Service; or

(c) remain in the Public Service provided that an office commensurate with the office held by him in the Public Service prior to the date of the assent of this Act, is available."

The Third Schedule listed all the grades of postal worker to which the appellants, and those whom they represent, belonged.

9. The Act was passed on 12 January 1999. It received the assent of the President on 10 February 1999, upon which date certain sections of the Act, including sections 35 and 36, came into effect. Thus the 3-month period from the date of assent, specified in section 36(2) for the exercise of the statutory options, began to run on 10 February. The remainder of the Act took effect on a date fixed by presidential proclamation, which was made on 1 July 1999.
10. On the date of assent the first-named appellant was the Post Mistress of Gasparillo Post Office, having served in the Post Office for just under 10 years. The other two named appellants served under her in more junior ranks. The 3 named appellants, and those whom they represent in these proceedings (some 66 others, all of them postal workers called upon to opt under section 36(2) of the Act), opted to remain in the public service as provided in subsection (2)(c). In the cases of some who chose that option alternative offices in the public service were available. But in each of the appellants' cases an office commensurate with the office held by them in the public service before the date of assent proved to be unavailable. So they were faced with a choice between the options in subsections (2)(a) and (2)(b). They chose (2)(a) and retired. But they claim that the imposition of this choice violated their constitutional right enshrined in section 121(1) of the Constitution.
11. In advancing this argument on the appellants' behalf, Mr Fitzgerald QC was able to set out from the proposition, accepted as correct, that, at any rate until the 1999 Act took effect, the appellants were holders of public offices in the Civil Service and were persons engaged in the service of the Government in a civil capacity. Thus their appointment, whether initially or on promotion and transfer, and their removal and discipline, were within the exclusive power of the Public Service Commission as provided by section 121(1) of the Constitution. This was common ground. Controversy entered with Mr Fitzgerald's next and all-important contention: that the postal service operated directly by the Government before 1999 remained a postal service operated by the Government, despite the changes made by the 1999 Act in the means by which the service was delivered, since the new corporation was subject to close governmental control. This was not a pure privatisation, therefore, but a postal service run by the Government in a different way and those who worked for the new corporation worked in the service of the Government in a civil capacity, just as when they had worked for the old Post Office. They remained entitled to the protection of section 121(1). It followed that power to appoint to the new corporation or remove them from the Post Office was exclusively vested in the Public Service Commission. Mr Strachan QC for the Attorney-General took issue with this argument. He submitted that those employed by the new corporation were not holders of any public office and were not employed in the service of the Government in a civil capacity.
12. The draftsman of section 36(2) plainly intended to draw a contrast between transferring to the new corporation and remaining in the public service. Those transferring were not regarded as remaining in the public service: hence the provision that the terms and conditions on transfer should be no less favourable than those enjoyed in the public service. The draftsman's intention is by no means irrelevant; but it cannot supersede the view properly to be taken on the substance of the matter.
13. The 1999 Act exemplifies a widespread international trend towards the divestment by governments of functions previously carried on by them directly or indirectly but forming no part of the core functions of government (such as defence, the maintenance of law and order and the administration of justice) and lending themselves to commercial non-governmental operation in the interests of efficiency and economy. If it were sought to devolve the police service or the prison service to a corporation analogous to Trinidad and Tobago Post there would be strong arguments (on which it is unnecessary to pronounce) for holding that such a change contradicted express terms of the Constitution and assumptions on which it was based. But no such problem arises here. There is nothing intrinsically governmental in collecting and delivering letters and parcels, any more than there is in operating telephones, or trains, or lotteries, or meteorological offices, or scientific laboratories, or libraries, or hospitals. It is certainly true, as Mr Fitzgerald emphasised and as is apparent from the summary in paragraph 7 above, that the Government reserved a significant measure of control over the new corporation. This is understandable. Since it had no shareholders, the corporation could only be accountable to the Government; and since the corporation could not fail without grave damage to the credit of the state, a degree of oversight was to be expected. But the Minister's power of direction under section 17 did not extend to operational matters and, significantly, the board was to be composed of persons (section 11(1)) with "proven experience or qualifications in postal services, business, law, financial management, economics and human resource management". This was intended to be a high grade commercial business. The observations of Denning LJ in Tamlin v Hannaford [1950] 1 KB 18 at 24, although directed to the British Transport Commission and calling for modification in a republican context, remain pertinent:

"It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not Crown property. It is as much bound by Acts of Parliament as any other subject of the King. It is, of course, a public authority and its purposes, no doubt, are public purposes, but it is not a government department nor do its powers fall within the province of government."

At page 25, Denning LJ contrasted "commercial matters" with those which were "essentially the province of government", although he recognised that historically the carriage of mail had enjoyed a special position. As Shaw LJ said in Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 at 576,

"Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature."

Sovereign states are no longer immune from suit in respect of such commercial transactions (see State Immunity Act 1978, section 3, a provision reflecting the current rule of public international law on this point) and it is not surprising that those engaged in such transactions should cease to be regarded as servants of the state.

14. Reliance was placed on Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113 at 123, where Lord Diplock deprecated the spoils system which has operated elsewhere, notoriously in the Post Office, and Mr Fitzgerald warned of the danger if employees of the new corporation were to lose the protection of section 121(1). But Lord Diplock was addressing the risk if civil servants, police officers and the like were dismissible summarily without cause, a risk against which the Constitution provides express protection. Employees of the new corporation enjoy all the rights of employees in the private sector. If the members of the board were to exercise the corporation's employment powers to advance the interests of any party or faction they would act outside the powers conferred upon them and would be susceptible to challenge. So would the Minister if he purported to direct board members to act in such a way. He would also be susceptible to challenge on the ground discussed in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357.
15. The Board is of the clear opinion that employees of the new corporation are not holders of any public office and are not employed in the service of the Government in a civil capacity within the meaning of section 3(1) of the Constitution. It remains to enquire whether, that being so, section 36(2) of the 1999 Act violated the rights of these appellants. In the case of those who, like the appellants, chose option (c) and for whom, unlike the appellants, another office was available in the public service, there would plainly be no violation, although the appointment to another department on transfer from the Post Office would require to be made by the Public Service Commission by virtue of section 121(1), a requirement with which section 36(2) does not purport to dispense. For those, like the appellants, who chose option (c), but for whom no other office in the public service was available, there was again no constitutional violation. Retirement, whether voluntary or compulsory, is a mode of leaving the public service recognised by section 12 of the Civil Service Act. So is the abolition of an office held, which in the appellants' case was imminent. It is established that a legislature or (subject to any relevant legislation) a government may abolish a public office in the interests of good administration: Young v Waller [1898] AC 661; Reilly v The King [1934] AC 176; Pillai v The State of Kerala [1974] 1 SCR 515. It would seem, by virtue of the extended meaning given to "remove" by section 3(6) of the Constitution and by virtue of section 12 of the Civil Service Act, that the retirement of the appellants would require the sanction of the Public Service Commission. But there is again nothing in section 36(2) which dispenses with that requirement if it did apply; the sanction of the Commission would inevitably have been given, with the abolition of the appellants' offices imminent; there is no evidence that the sanction of the Commission was not given; and even if the correct procedure was not followed it caused the appellants no harm and in any event affords no ground for impugning the constitutionality of the 1999 Act. The option offered in section 36(2)(a) raises no issue beyond these already discussed even if, as Mr Fitzgerald suggested, the appellants' retirement from the public service was not truly voluntary. Option (b) involved a transfer to an employer (namely the new corporation) outside the public service. For reasons already given, it would seem that such a transfer involved retirement from the public service, and so required the sanction of the Commission, but there is nothing in the 1999 Act which purports to dispense with that requirement and the sanction of the Commission would inevitably have been given. There is, in short, nothing in section 36 which is in any way incompatible with the Constitution.
16. Gregory Smith J held that section 36 of the 1999 Act was incompatible with section 121(1) of the Constitution insofar as it abolished the offices of postal officers and terminated their employment in the public service. Since the provision was not passed by the special majority needed for a constitutional amendment, it was unconstitutional. Mr Fitzgerald did not seek to support this reasoning, since it is not a breach of section 121(1) for Parliament to abolish a post in the public service, as the Court of Appeal rightly held. Whilst the Board would not support all the reasoning of the Court of Appeal in allowing the Attorney-General's appeal against the judge's ruling in favour of the appellants, it is in complete agreement that the establishment of the new corporation, undertaken for sound governmental, administrative and commercial reasons, involved no breach or threatened breach of the appellants' constitutional rights. It follows that the appeal must be dismissed with costs.