Lana Horsford-Harrigan v The Deputy Governor of Anguilla
| Jurisdiction | Anguilla |
| Judge | ‘Innocent, J.’ |
| Judgment Date | 24 February 2022 |
| Judgment citation (vLex) | [2022] ECSC J0224-1 |
| Docket Number | CLAIM NO. AXAHCV 2021/0019 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. AXAHCV 2021/0019
Mr. D. Michael Bourne, instructed by Sagis LP, of counsel for the claimant
The Honourable Attorney General, Mr. Dwight Horsford, with him Mr. Sasha Courtney, Crown Counsel, Attorney General's Chambers, of counsel for the defendant
Judicial review — Transfer of public officer to office with no immediate increase in emoluments — Whether a public officer had a legitimate expectation that they would receive lead notice and be consulted with by the Public Service Commission or the Governor prior to their transfer — Whether the transfer of the public officer was ultra vires the Public Service Commission Regulations — Public Service Commission Regulations, sections 10, 17 and 21 — Public Service Commission Act, section 6 — Anguilla Constitution Order, 1982 (‘the Constitution’), sections 65 and 66
The present proceedings concern a claim for judicial review brought by the claimant against the Deputy Governor of Anguilla (the Deputy Governor) in which she seeks various declaratory reliefs which are summarised in the following manner, that is to say, a declaration (1) that the Deputy Governor's decision effecting her transfer to the substantive post of Postmaster General in the Anguilla Public Service was contrary to the legitimate expectation that she held that any such transfer would be undertaken in accordance with the applicable Public Service Regulations; (2) that the Deputy Governor's decision effecting her transfer to the substantive post of Postmaster General in the Anguilla Public Service ran contrary to the legitimate expectation established by long-standing practice that there would be prior consultation with her; (3) that the Deputy Governor in deciding to transfer her to the post of Postmaster General failed to take into account relevant considerations contained in the Public Service Commission Regulations; and in making the decision to transfer her as aforesaid, took into account irrelevant considerations; and (4) that the Deputy Governor's decision effecting her transfer as aforesaid was unreasonable, ultra vires and biased.
The claimant joined the Anguilla Public Service in the year 1987. She was appointed to the substantive post of Director Human Resource Management on 16 th February 2006, a post that she held until her transfer to the post of Postmaster General in the Anguilla Public Service effective 18 th January 2021.
The claimant became aware of her transfer by memorandum from the Deputy Governor to the Permanent Secretary, Public Administration dated 5 th January 2021. On 6 th January 2021, the claimant received a letter from the Permanent Secretary Public Administration informing her of her transfer to the post of Postmaster General.
The claimant alleged that prior to the receipt of the memorandum of 5 th January 2021 and the letter of 6 th January 2021 she had received no official communication from the Public Service Commission, the Governor's Office nor the Department of Public Administration concerning her impending transfer.
Section 66(1) of the Constitution vest in the Governor the power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in such offices, acting in his discretion in relation to the offices of Deputy Governor, Attorney-General and Chief Auditor and in relation to all other offices acting after consultation with the Public Service Commission. Provided that before appointing any person to any such other office being that of a permanent secretary or head of a department, the Governor shall in addition consult with the Chief Minister. Section 66(2) of the Constitution empowers the Governor, acting after consultation with the Public Service Commission, in his discretion, by regulations published in the Official Gazette, to delegate to any member of the Commission or any public officer or class of public officer, to such extent and subject to such conditions as may be prescribed in the regulations, any of the powers vested in him by section 66(1) of the Constitution.
The Deputy Governor is appointed by the Governor in pursuance of instructions given by Her Majesty through the Secretary of State. 1 The role and function of the Deputy Governor is to assist the Governor in the exercise of his functions relating to matters for which he is responsible under the Constitution. 2 The Governor, acting in his discretion, may by writing under his hand, authorise the Deputy Governor to exercise for and on behalf of the Governor, subject to such exceptions and conditions as the Governor may from time to time specify, any or all of the functions of the office of Governor. 3
By virtue of Instrument under the hand of the Governor dated 12 th December 2018 and published in the Official Gazette on 14 th December 2018, the Governor delegated to the Deputy Governor the powers vested in the Governor over the Anguilla Public Service limited to the power of control and management of the Anguilla Public Service, reserving onto the Governor the power to dismiss public officers. The authority delegated to the Deputy Governor included the power to transfer public officers. In the premises, the Deputy Governor was the relevant decision maker who effected the claimant's transfer within the Anguilla Public Service.
Section 21 of the Public Service Commission Regulations 4 (the ‘Regulations’), made pursuant to section 6 of the Public Service Commission Act 5, makes provision for the transfer of public officers within the Anguilla Public Service. The section stipulates that transfers shall be dealt with under the principles of selection for promotion when an increase in emoluments is involved, and under the procedure for appointments when there is no immediate increase in emoluments.
The provisions of the Regulations which deals with the procedure for appointments are contained at section 17 of the Regulations and provides that (1) The Commission shall be responsible for the form and manner in which applications are to be made for appointments to public offices within its purview and for the conduct of any examination for recruitment to such offices, and shall determine whether any candidate has the necessary qualifications for appointment to such offices. (2) The Commission may interview candidates for appointment and shall consider in respect of each candidate (a) his educational qualifications;(b) his general fitness;(c) any previous employment of his in the public service or otherwise; and (d) any reports for which the Commission may call from persons such as the principal, headmaster or headmistress of a candidate's university, college or school or any referees named by the candidate.
Section 1 of the Public Service Commission Act defines “transfer” as the conferment, whether permanently or otherwise, of some public office other than that to which the officer was last substantively appointed, which does not constitute promotion and which does not refer to the posting of an officer between duty posts in the same grade.
It appears that the relevant provisions of the Constitution, the Act and the Regulations are complimented by the provisions of the General Orders 2010 (the ‘General Orders’). Clause 1.3 of the General Orders provides that:
“The conditions of service for Public Officers, instructions for the conduct of such officers and of public business and in regard to other miscellaneous
matters are embodied in this code of regulations, which are known as General Orders. These orders are intended to be read in conjunction with the Public Service Commission Act and Regulations, the Constitution and the Ray Durrant Report.”
In addition, Chapter 2 of the General Orders particularly clause 2.20 thereof makes provision for “Transfers and Mobility Obligation” and provides:
“An officer may be required at any time to serve in any department in the exigencies of the Service. When an officer is required, whether permanently or otherwise to perform the duties of some public office other than that to which the officer was last substantively appointed, which does not constitute promotion and which does not refer to the normal posting of an officer between duty posts in the same grade, the officer shall be transferred.”
The following issues arise for determination in the present proceedings, namely:
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(1) Whether the claimant had a legitimate expectation that her transfer within the Anguilla Public Service would not be effected without prior consultation; and by extension, whether there exists a long-standing policy or practice in the Anguilla Public Service of prior consultation with a public officer prior to transfer.
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(2) Whether the claimant had a legitimate expectation that the provisions of the Regulations and the Constitution regarding the transfers of public officers that was frustrated by the failure of the Deputy Governor to adhere to the dictates of the aforementioned statutory provisions in effecting the claimant's transfer.
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(3) Whether the claimant had a legitimate expectation that the principle of natural justice and procedural fairness would be adhered to in relation to her when effecting her transfer which was frustrated by the failure of the Deputy Governor to engage in prior consultation with her before effecting her transfer.
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(4) Whether the Deputy Governor's decision to transfer the claimant was made without any recommendation from the Public Service Commission; and if so, whether this failure resulted in the Deputy Governor's decision being unlawful.
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(5) Whether the Deputy Governor's decision to effect the claimant's transfer was ultra...
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