EVERYDAY LAW: Broad duty to act fairly


The doctrine of legitimate expectation is an aspect of the broad duty of administrative bodies or functionaries to act fairly.Lord Diplock in the English case of R vs Commission for Racial Equality exp. Hillingdon LBC (1982) expressed the broad duty in this way:“Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions.”ConcernedIn last week’s article which dealt with the unreported Barbados High Court case of Hugh Atherley vs The Chief Personnel Officer (2010), another issue that concerned the court was whether the Chief Personnel Officer acted unlawfully and/or ultra vires by submitting a second name to the Public Service Commission for its decision despite the recommendation of the acting permanent secretary that Mr Atherley was the only applicant who had the requisite qualifications for the post and should be the only person to be interviewed to determine his suitability for the position.You would recall that the Chief Personnel Officer (“CPO”) had discovered in her review of the applications that there was another candidate that met the qualifications for the job and after independent verification of this, she also submitted this name to the commission.You are also reminded that the relevant provisions of the Service Commissions (Public Service) Regulations, 1978 mandated the CPO to “submit matters to the commission for decision”.ProvisionCounsel for Mr Atherley had submitted that the above provision did not permit the CPO to submit any names other than those that she was directed to submit by the Permanent Secretary.Justice Crane-Scott commented on this opinion in the following terms:[125]    “Counsel for the Applicant argues that it was no part of the Chief Personnel Officer’s duty under regulation 9(a) to verify the accuracy of recommendations received from a permanent secretary and the recommendation made by the acting permanent secretary ought to have been submitted for the commission’s decision exactly as it had been received.  In so doing, he argued, she committed an error in law and exceeded her powers.[126] The Court cannot accept that regulation 9(a) is as limited in its scope as [counsel] contends. In addition, the Court is satisfied that taken to its logical conclusion, such an interpretation of the regulation would have the unintended effect of reducing the role of the Chief Personnel Officer to that of a mere post box![127] Furthermore, if the Chief Personnel Officer were to be precluded from herself checking on and seeking independent verification of the correctness of the recommendation received from a Permanent Secretary as to which of two candidates for a vacant post is eligible for appointment she would, on that restricted view of regulation 9(a), be obliged to place obviously incorrect and erroneous information before the commission for its decision. The narrow interpretation of regulation 9(a) would also permit unfair manipulation of the appointment process, compromise fairness and transparency and bring the entire Public Service recruitment process into disrepute![128]    Most importantly, such an interpretation would undermine the Public Service appointment process laid down in the Constitution by in effect permitting a permanent secretary, rather than the commission, to decide which of two or more eligible candidates should be recommended for appointment to a vacant post in the public service.Procedural fairnessOn the issue of procedural fairness the learned judge said:“[154] Procedural fairness also dictates that all candidates who have responded to an official advertisement regarding a vacancy in the Public Service, and who hold the prescribed qualification requirements for appointment to the post, must each have a procedural and substantive ‘legitimate expectation’ that their names will be submitted by the Chief Personnel Officer to the relevant Service Commission for its consideration. [155] Though not expressly set out in any statute or regulation, the Court is satisfied that the Chief Personnel Officer was under an implied duty (reasonably incidental to her mandate under regulation 9 of the Service Commissions (Public Service) Regulations, 1978), to ensure that no eligible candidate who had applied for permanent appointment to the post of Chief Licensing Officer was excluded from consideration by the commission.”The Court then concluded that the CPO, by submitting the name of Mr Dash who also met the qualifications for interview, had acted fairly.•Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, The Nation, Fontabelle, St Michael. Send your email to cnmc@caribsurf.com


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