Visit UKSCGedeon Mahabir (Appellant) v Public Service Commission and another (Respondents) (Trinidad and Tobago)
Case summary
Case ID
JCPC/2022/0011
Parties
Appellant(s)
Gedeon Mahabir
Respondent(s)
(1) Public Service Commission, (2) Martin Martinez (Commissioner of Prisons)
Judgment details
Judgment date
28 January 2026
Neutral citation
[2026] UKPC 3
Hearing dates
Start date
11 November 2025
End date
11 November 2025
Justices
Judgment details
Hilary Term
[2026] UKPC 3
LADY SIMLER:
Introduction
1. This appeal raises two questions concerning a large promotions process of Prison Officers I to the rank of Prison Officer II in Trinidad and Tobago in April 2013. The first is whether the Public Service Commission (“the PSC”) (which is vested with power to appoint and promote officers in the Public Service, including the Prison Service, under section 121(1) of the Constitution of Trinidad and Tobago (the “Constitution”)) had the power to promote, with retroactive effect, five Prison Officers who had left the service and so were no longer holding office at the time of the promotion decisions. The second question is whether the promotions process was unlawful because it failed to comply with the procedural requirements set out in regulation 168 of the Public Service Commission Regulations (“the Regulations”). The procedure envisaged by Regulation 168(2) is that two lists will be produced by the Commissioner of Prisons as part of the promotion process and sent to the PSC: a list of those considered suitable for promotion and a list of those considered not yet suitable for promotion; and under regulation 168(3) there is a requirement to inform those considered not yet suitable that they have been omitted from the list of those considered suitable so that they can make representations to be so included. In the promotion process in question, as explained below, no list was produced by the Commissioner of Prisons.
2. The appellant was a Prison Officer I with 24 years’ service when he was assessed for promotion to the rank of Prison Officer II, along with other officers, under the points-based system established by the PSC for this large promotion process. On 9 April 2013, the PSC implemented its decision to fill the vacancies according to a final order of merit list produced by reference to a points-based system. The PSC did so by promoting the first 180 officers on the list to the rank of Prison Officer II. The appellant was not successful, having been ranked number 181 on the order of merit list. The appellant brought judicial review proceedings dated 31 July 2013, challenging the decision not to promote him as unlawful and unfair.
3. The judicial review was heard by Rajkumar J. By a judgment delivered on 17 June 2015 (CV 2013-03161), Rajkumar J dismissed the claim. He held that the PSC’s decision to promote officers who had been assessed but had subsequently retired or resigned was not unlawful; and that there had been compliance with regulation 168 because the final order of merit list was the list of those suitable for promotion envisaged by regulation 168(2). He held that its effect was to let officers know with transparency who would be promoted when vacancies were to be filled, and in what order. The need for a further list of those being “bypassed” for promotion did not arise.
4. The Court of Appeal (Archie CJ, Smith JA and Dean Armorer JA) agreed with the judge and dismissed the appeal by a judgment dated 8 June 2021: P184 of 2015. The Board will return to the Court of Appeal’s reasons when it addresses each of the two grounds of appeal below.
5. It is helpful first to set out the relevant legislative provisions vesting power in the PSC for promotion decisions, and the provisions dealing with the exercise of those powers. The Board will then summarise the facts relating to the promotions process in this case before coming to the grounds.
The scheme of the relevant legislation
6. The PSC is established by section 120 of the Constitution. By section 121 of the Constitution, the power of appointment and promotion to offices in the Public Service including the Prison Service vests in the PSC. Section 121(1) sets out the various powers vested in the PSC and provides as follows:
“121. (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 and to enforce standards of conduct on such officers shall vest in the Public Service Commission.”
7. By section 129(1) the PSC is given the power, with the consent of the Prime Minister, to regulate its own procedure, whether by regulation or otherwise. The Regulations were first made by the PSC in the exercise of a similar power granted under section 102 of the former Constitution and continue in force by virtue of section 29(3) of the Interpretation Act Chap 3:01. The Regulations are deemed to have been made under section 129 of the present Constitution.
8. The PSC may delegate any of its functions (with certain exceptions) to a public officer and, by Legal Notice No 105 of 2006, the PSC has delegated the power of promotion to offices in the Second Division of the Prison Service to the Commissioner of Prisons. But as is apparent from the history of the promotion process in this case, which is set out below, the PSC (rather than the Commissioner of Prisons) in fact exercised the promotion powers itself in the promotion exercise with which this appeal is concerned. There is no suggestion that it does not retain that power notwithstanding such a delegation.
9. Promotions to offices in the Prison Service are governed by Part II of Chapter XIII of the Regulations. Regulation 168 provides as follows:
“168. (1) (a) A prison officer may apply to the Commission to be allowed to take the Promotion Examination for Prison Officer II when he has been in the Service for at least two years.
(b) A prison officer in a grade lower than that of Prison Assistant Superintendent who has passed an Examination for Promotion to Prison Officer II may apply to the Commission to be allowed to take any promotion examination.
(c) A prison officer who is successful in a promotion examination may be considered for promotion in accordance with this regulation.
(2) The Commissioner of Prisons shall, after taking into account the criteria (specified in regulation 172) submit to the Commission a list of the Officers in the Second Division—
(a) whom he considers suitable for promotion to an office; and
(b) who are not being considered for promotion yet but who have served in the Service for a longer period in an office, or who have more experience in performing the duties of that office than the officers being recommended.
(3) The Commissioner shall also advise those officers referred to in subregulation 2(b) of their omission from the list for promotion, together with the reasons for such omission.
(4) An officer who is advised under subregulation 2(b) may make representations on his own behalf to the Commission within fourteen days of being so advised and the Commission may invite him for interview on the basis of his representations.
(5) The Commission shall advise those officers making representations under this regulation of the outcome of their representations.
(6) The Commission may, after considering all the representations made, endorse or otherwise, the recommendations of the Commissioner when promoting an officer.”
10. Accordingly, regulation 168(1) makes clear that eligibility for promotion is limited to prison officers who have been successful in a promotion examination. The PSC has no discretionary power to depart from the Regulations so as to exempt a candidate from a qualifying condition imposed by the statutory scheme: see by analogy, Romain v Police Service Commission [2014] UKPC 32. Nobody suggests the PSC has sought to do so here.
11. For those who are qualified for promotion, the procedure in regulation 168(2) is designed to assist the PSC in discharging its statutory functions (see, in the context of the analogous regulation 15 procedure for promotions in the Police Service, Ganga v Police Service Commission [2011] UKPC 28 at para 16). It envisages that the Commissioner of Prisons will assess officers against the criteria in regulation 172 and then submit two lists to the PSC: first those recommended candidates considered by him (or her) to be suitable for promotion; and second, a list of those not recommended but who are more senior (in terms of length of service or who have more experience) than those recommended. Officers on the second list must be notified of their omission from the first list and the reasons for it (regulation 168(3)). They are then entitled to make representations to the PSC. The PSC makes the decisions having regard to the recommendations of the Commissioner and any representations received from an officer who has been bypassed. It follows that the list provided by the Commissioner does not bind the PSC in any way: the final decision belongs to the PSC which is bound to make its own independent assessment of the officers under consideration. As regulation 168(6) makes clear, the decision to promote is that of the PSC.
12. Regulation 170 provides:
“Whenever in the opinion of the Commission it is possible to do so and it is in the best interests of the Service, appointments shall be made from within the Service in accordance with these Regulations.”
13. Regulation 172 identifies the general criteria that should be considered by the PSC in deciding whether an officer is eligible and suitable for promotion. It provides:
“(1) In considering the eligibility of prison officers for promotion, the Commission shall take into account the seniority, experience, educational qualifications, merit and ability, together with the relative efficiency of such prison officers and, in the event of an equality of efficiency of two or more prison officers, shall give consideration to the relative seniority of the prison officers available for promotion to the vacancy.”
14. Other particular matters listed in regulation 172(2) (including for example, general fitness, position on the seniority list and on the list of results of the promotion examinations, appraisal reports, any special qualifications, letters of commendation or special reports), must also be taken into account by the PSC.
The background to the points-based system and the impugned promotion process
15. The factual background is not materially in dispute. It appears from a number of affidavits filed in the course of the judicial review proceedings, including the affidavits of Ms Seerattan who was Acting Deputy Director of Personnel Administration in the PSC.
16. In June 2010, the PSC met with officers and members of the Prisons Officers Association (Second Division) to solicit their views on the implementation of a points-based system for promotion of prison officers in what was to be a large promotion exercise. Following further meetings, a three-day workshop took place in July 2011, attended by 757 prison officers together with representatives of the Association. At the conclusion of the workshop, the Prisons Officers Association (Second Division) agreed to the implementation of the points-based system for promotions.
17. On 21 September 2011, in accordance with a direction by the PSC and pursuant to regulation 172, the Commissioner of Prisons issued an order (General Order no 78 of 2011) which set out the range of points to be awarded under a series of headings that corresponded with the criteria set out in regulation 172. For example, in relation to seniority, officers with 20 years and above in the Prison Service would be awarded 15 points whereas those with 5 years or less would receive 3 points, with a range in between; in relation to performance appraisal reports for the year to 31 December 2010, the highest points of 35 would be awarded for “outstanding” and the lowest of 0 points for “unsatisfactory” with a range in between. The order records that it was agreed that officers who scored sixty (60) points and more in the assessment should be considered for promotion. There were some adjustments made to the points-based system as recorded in a further order issued by the Commissioner of Prisons dated 6 October 2011 (General Order no 82 of 2011). The Board understands that both orders were published.
18. On 30 September 2011 the Director of Personnel Administration and the Commissioner of Prisons agreed to establish three assessment teams to assess the eligibility of all officers in the rank of Prison Officer I who submitted the necessary documents by the published deadline, for promotion to Prison Officer II.
19. The assessment exercise was conducted in the period from 18 October to 30 November 2011 based on information as at 31 December 2010. Officers (including the appellant) were notified of the assessment and initially given until 3 October 2011 (subsequently extended to 14 October 2011) to submit the necessary documents and information for assessment. The appellant was among the officers assessed in this points-based assessment process.
20. On 13 December 2011 the PSC considered and approved the assessment team reports resulting from the assessment exercise and established a first order of merit list (“OML”) based on the points awarded to each officer.
21. The Commissioner of Prisons was informed of the OML by memo dated 21 December 2011 and the PSC directed the Commissioner to use the OML to make promotions in accordance with his delegated powers.
22. In the memo of 21 December 2011, the PSC also directed the Commissioner that he “should follow the procedures outlined at regulation 168(2)”. In context, it seems clear to the Board that, if the Commissioner was exercising his delegated power to promote, this cannot be understood as a direction that he should make recommendations to himself pursuant to regulation 168(2). Nor can it have been (or been understood as) a direction to provide the PSC with a list of officers who should then be assessed against the criteria in regulation 172, because the PSC had already assessed all qualified officers against the criteria in regulation 172. Rather, properly understood, this was a direction that officers should be given an opportunity to make representations within 14 days, in particular as to the points score awarded to them by the assessment. That is plainly how it was understood by the Commissioner as demonstrated by his letter to the appellant dated 9 January 2012.
23. By letter dated 9 January 2012 from the Commissioner of Prisons, the appellant was notified that he had been successful at the assessment having attained a score of 92 points and that he had been placed at number 201 on the OML which was valid for two years. At that time there were 71 vacancies, and he was informed that “therefore in light of your position on the [OML] you will not be among the officers considered for promotion at this time”. The letter continued, “you are invited to make any representations to my office within fourteen (14) days of your receipt of this notification. Such representations will be forwarded to the office of the Director of Personnel Administration for review.”
24. The appellant and 220 other officers took the opportunity to make representations. In consequence, there was a re-assessment exercise conducted in April 2012, and further reports produced by the assessment teams. At a meeting on 28 August 2012, the PSC considered the reports, cancelled the first OML and established a second OML by reference to the revised assessments. The Commissioner of Prisons was notified of the revised assessments and the second OML and directed by the PSC to inform officers and give them a further opportunity to make representations within 14 days.
25. By letter dated 14 September 2012, the appellant was notified in similar terms as before that his points had increased to 97 and he was then ranked at number 147 on the second OML. The letter explained that there were 79 vacancies and that, given his position on the OML, he would not be considered for promotion at that time. He was again invited to make representations within 14 days. The appellant made no further representations (stating in his subsequent affidavit that he was satisfied with the marks awarded to him).
26. However, 86 officers took the opportunity to make further representations leading to a further re-assessment exercise and a revised, third OML being established by the PSC on 9 April 2013. Also on 9 April 2013, the PSC decided to make the first batch of promotions in accordance with the third and final OML and decided to promote the officers ranked at 1 to 180 on the list to the post of Prison Officer II with effect from dates in December 2011. The PSC directed the Commissioner to publish this decision, and he did so by general order on 23 May 2013.
27. By letter dated 15 May 2013 the Commissioner of Prisons notified the appellant that, having attained a score of 97 points, he was placed at number 181 in the third OML, which was valid for two years. The letter continued, “You will be recommended for promotion on the basis of your position on the Order of Merit List, the existing number of vacancies, and the staffing requirements of the Prison Service, as determined by the Prison Administration”.
28. It is clear from this summary of the promotion procedure adopted that, having earlier directed the Commissioner of Prisons to make promotions using his delegated powers, in the end the PSC made the promotion decisions itself; and directed that they should take effect on earlier dates in December 2011. The decision under challenge in the judicial review is the decision of the PSC on 9 April 2013 to promote the first 180 officers listed on the third OML, with effect from the date given in December 2011 for officers appointed with effect from those dates.
The appeal
29. Against that background the Board turns to consider the appellant’s appeal, final leave having been granted by the Court of Appeal.
30. There are two grounds of appeal. First, the appellant contends that the Court of Appeal erred in law in its interpretation of section 121(1) of the Constitution as allowing for the making of promotions after a date when the person concerned no longer held public office. Secondly, he contends that the Court of Appeal erred in law in its interpretation of regulation 168(2)(b) and (3) and in finding that there had been no breach of regulation 168 of the Regulations.
Ground 1: the extent of the power to promote under section 121(1) of the Constitution
31. The Court of Appeal held that there was nothing unlawful in the promotions of the five officers who retired or resigned subsequently. The period of assessment for the purposes of the points-based system ended on 31 December 2010; the process of assessment commenced on 18 October 2011; and the promotions had all been backdated to dates in December 2011. At all these dates the officers concerned remained public officers. A promotions process which commenced while a prison officer was still a public officer and which related to a period of service while the prison officer was still a public officer could lawfully be put into effect after the prison officer had retired or resigned his post.
32. The appellant challenges that decision. On his behalf, Mr Seepersad submits that the PSC had no power on 9 April 2013 to promote persons who were not at that time officers in the Prison Service, even if the decision was said to take effect from a time when they were in the Service. He contends that the words of section 121(1) of the Constitution can only be construed as applying to those officers holding office at the date of the decision to promote, i.e. on 9 April 2013. It is therefore contrary to the express wording of the section to imply a power to promote former office holders. It is also contrary to its purpose. Although there was some internal contradiction in the appellant’s case before the Court of Appeal (because he said that he did not intend to challenge or reverse the promotions which were decided on 9 April 2013, including the promotion of the five former officers) his case before the Board is that the decision to by-pass him for promotion in favour of the five former officers was ultra vires the powers of the PSC under section 121(1) and should be quashed as unlawful.
33. The Board rejects those submissions in agreement with the respondents and the Court of Appeal.
34. The starting point is that the language of section 121(1) of the Constitution is plainly capable of covering a promotion decision directed to take effect at an earlier date or, put another way, made in relation to a past period.
35. Section 121(1) covers powers in relation to two broad activities: first the power to appoint persons to hold offices, which expressly includes a power to make appointments on promotion and transfer; and secondly, a power to remove and exercise disciplinary control and enforce standards of conduct. Although the second power (of removal and discipline) contains qualifying words limiting the exercise by the PSC of the power to “persons holding or acting in such offices”, those words do not qualify the first power, and there are no other limiting words. The first power is a broad power with no express restrictions.
36. The appellant concedes that section 121(1) can operate retroactively in the sense that the PSC has the power to make promotions with retroactive effect but contends that this can only be done if the officer remains in office at the date the promotion decision is made. Since the power to promote was exercised by the decisions made on 9 April 2013 and by that time the five offices were no longer holding office, the promotion decisions were ultra vires in this case.
37. The Board notes that retroactive promotions are far from unusual in Trinidad and Tobago. As Mr Strang, who appears on behalf of the respondents, points out, judgments in Trinidad and Tobago often refer to promotions that took effect from an earlier date in time or to court orders directing Service Commissions to use their power to promote claimants retroactively despite having left service. Rudolph Jones v Public Service Commission (CV2017-00796 and CV2021-01659) is an example. Mr Jones, a retired Fire Officer, complained that, notwithstanding the existence of many vacancies, promotions to the higher office had been delayed for many years while he and others had acted up in the higher office for almost five years. Shortly after his compulsory retirement, many officers were promoted to the higher office, and he therefore missed out on the higher pension and other benefits that would have flowed from his promotion to the higher office. He complained that a decision not to consider him for retroactive promotion was unfair and unlawful. In his first case, the court agreed and ordered the PSC to consider whether to promote him retroactively: see paras 47 and 51, CV2017-00796. (See also Boland v Board of Inland Revenue [2023] UKPC 27 at para 10 where the Board dealt with a case in which there had been a retroactive promotion and Ollivierra v Chief of Defence Staff (CV 2023-01681) where, at para 51, the Court of Appeal issued a mandatory order directing the defendants to “retroactively promote” the claimant to the appropriate positions on relevant seniority lists.)
38. Once it is accepted that the PSC has the power to set the date for a promotion to take effect retroactively, there is nothing in the wording of section 121(1) to support the appellant’s argument that this can only apply in the limited circumstances for which he contends. The wording of section 121(1) does not distinguish between officers still in service at the time the decision is made and those who have left service by the date of the decision. The critical date is the date when the promotion takes effect and what is necessary is that the individual holds office at that date. In other words, what is necessary is that the PSC has power to promote in relation to the officer at the effective date of the decision.
39. There are strong policy reasons why this should be so. First, it is in the interests of good administration that promotion decisions are operated in an orderly way by having a clear date from which they take effect. Secondly, it is fair to candidates for promotion that they should not be penalised by delay or events beyond their control (for example, the need to reconsider an assessment exercise) and thereby deprived of the benefits to which they would otherwise be entitled if the final period of their service is treated as having been service in the higher office.
40. The PSC undoubtedly had the power to promote the five officers at the date the decision took effect in this case. As the Court of Appeal observed, the assessments were conducted in 2011 by reference to the period ending 31 December 2010 and the PSC’s decision was to promote officers with effect from certain dates in December 2011. It is common ground that the five officers who later retired or resigned all remained in the post of Prison Officer I on each of these dates.
41. Accordingly, both the ordinary language and the policy considerations point strongly in favour of the interpretation adopted by the Court of Appeal and advanced by the respondents.
42. The appellant relied for the first time before the Board on an argument based on section 42 of the Interpretation Act. Section 42 provides that:
“An appointment (however described or designated) under a written law may be made to have effect retrospectively from the date upon which the person appointed in fact first performed any of the functions of his appointment.”
43. The appellant contends that this power circumscribes the power to promote retroactively under section 121(1) of the Constitution.
44. The Board notes that there may be a question about the extent to which section 42 of the Interpretation Act can qualify the power in section 121(1) of the Constitution, given that the Constitution is superior law. However, the Board received insufficient argument on this point, which was not in any event raised or addressed below.
45. Furthermore, the application of section 42 plainly depends on the facts about when the person “first performed any of the functions of his appointment”. Here, as Mr Strang submits, if the appellant had raised the point below, the respondents could have adduced evidence to establish which of the functions of the higher office were first performed by the five retroactively promoted officers and when. This is not merely theoretical. It is highly likely that there is an overlap between the functions carried out by officers in ranks I and II, and it follows that certain rank I officers will have carried out some of the higher office functions before their promotion. Equally, they may have done so on an acting up basis. Finally, as Mr Strang noted, all officers promoted were in fact awarded the full score (5 points) for knowledge of duty in the higher role and that too may mean that rank I officers carried out functions of the rank II role. In these circumstances it is not open to the appellant to raise this argument in this appeal.
46. This decision did not disadvantage the appellant in any event. Its only effect was to record that the retired and resigned officers had attained the rank of Prison Officer II for a relatively short period before leaving the Prison Service (and presumably that would have had a positive financial effect on their pensions and other retirement benefits). Those officers could not, as at 9 April 2013, have been standing between the appellant and an actual vacancy in the post of Prison Officer II, because they were no longer in the Prison Service.
47. For all these reasons, which are essentially the same as those given by the Court of Appeal, this ground of appeal fails and is dismissed.
Ground 2: the effect of non-compliance with regulation 168(2) and following
48. On this issue, the Court of Appeal’s essential reasons were that the third OML consisted of officers who were considered suitable for promotion in the order they appeared on the list, and so it amounted to a list of officers considered suitable for promotion pursuant to regulation 168(2)(a) because they had all scored 60 points or more in the assessment exercise. No Prison Officer I on the third OML was considered not suitable for promotion to Prison Officer II. Therefore, and considering the judgment of the Judicial Committee in Ramoutar v Commissioner of Prisons [2012] UKPC 29, the Court of Appeal held that there was no need to prepare a second list pursuant to regulation 168(2)(b). Moreover, by adopting the points-based system and third OML, the Commissioner of Prisons did not abdicate his duties under regulation 168. To the contrary, the Commissioner actively engaged, consulted, accepted and implemented the new points-based system and the OML in tandem with the PSC and the representative bodies of the prison officers. Accordingly, the Court of Appeal concluded that neither the Commissioner nor the PSC was acting in breach of regulation 168 when the promotions were made in accordance with the new points-based system.
49. The appellant challenges that decision. In summary, he contends that regulation 168 places mandatory statutory duties upon the Commissioner of Prisons which must be undertaken before exercising the power to promote; namely, to submit the two lists referred to in regulation 168(2) and to notify those on the second list of their rights to make representations to the PSC in regulation 168(3). None of that occurred and Mr Seepersad submits that the reasoning of the courts below impermissibly sought to shoehorn General Order no 82 of 2011 and the third OML into regulation 168(2) as serving the purpose of a list for promotion. That was wrong: the OML is not a list for promotion and cannot be treated as a recommendation by the Commissioner of Prisons without any exercise of discretion on his part. The Commissioner was required to exercise his own discretion as to the suitability of officers recommended for promotion.
50. Mr Seepersad submits that the order of merit lists merely tabulated the results of the assessment process under the general order applying the criteria of regulation 172 and ranked those capable of being promoted if found suitable. It was at most an assessment tool. Parliament has laid down a specific scheme in regulation 168 for the exercise of promotion powers and that scheme cannot lawfully be amended or otherwise changed on an informal basis, as occurred here. Moreover, fairness demands that sufficient information be provided to enable representations to be made and the courts below ought properly to have recognised that without the appellant being informed that he was not being recommended for promotion (when the vacancies changed from 79 to 180) he was unable to make effective representations as to why he should not be by-passed or recommended for promotion.
51. The Board does not accept these submissions, although for the reasons set out below, it does not agree with the Court of Appeal’s reasoning in relation to the relationship between the third OML and the lists specified in regulation 168(2).
52. The respondents concede that regulation 168 was not operated in this case. As Mr Strang put it, the respondents do not suggest that the publication by the Commissioner of Prisons of any of the order of merit lists took place in the context of a recommendation by the Commissioner to the PSC under regulation 168(2). The order of merit lists were not submitted by the Commissioner to the PSC but were given by the PSC to the Commissioner as a direction. The respondents do not therefore submit that the order of merit lists served the purpose of a list under regulation 168(2) as the Court of Appeal suggested. The Board has no doubt that this concession was correctly made.
53. Nonetheless, the procedure in regulation 168(2) and following is the only procedure specified in the Regulations for making promotion or appointment decisions. In those circumstances, the question that arises is whether the statutory requirement to submit a list of recommended officers by the Commissioner to the PSC was, pursuant to regulation 168(2), a necessary legal precondition for the PSC’s exercise of its promotion powers and decision on 9 April 2013 to make promotions.
54. In answering that question, it seems to the Board that the approach in R v Soneji [2005] UKHL 49; [2006] 1 AC 340 applies. The case concerned confiscation proceedings under the Criminal Justice Act 1988. The Crown Court in England made confiscation orders after the expiry of the relevant statutory time-limit, without finding there to be exceptional circumstances on the basis of which the statute would have permitted departure from that time-limit, and the question was whether that procedural failing invalidated the orders subsequently made. The UK House of Lords held that it is unhelpful and outdated to ask whether a procedural requirement laid down in a statute is mandatory or directory. Rather the question is whether the legislature intended that failure to comply with the procedural requirement should render the act or decision invalid. This requires an evaluation of the purpose served by the statutory procedural requirement and of the intended consequences of a failure to comply with it, together with a consideration of the specific facts of the case to determine whether substantial compliance occurred so that the purpose of the provision was substantially achieved: see the discussion and analysis of the Soneji approach in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27; [2025] AC 1075 at paras 48-56 and 61-68, per Lord Briggs and Lord Sales JJSC. As the UK Supreme Court said in that case, “A test of substantial compliance with a procedural rule may be an appropriate way to allow for such a balance to be struck between competing purposes. If there has been substantial compliance with the rule, so that the purpose served by it has largely (if not completely) been fulfilled, it may more readily be concluded that fulfilment of the competing substantive purpose of the legislation should be given priority” (para 63).
55. The purpose of regulation 168(2) is to provide the PSC with a shortlist of candidates for promotion, selected by the Commissioner of Prisons, before the PSC decides, applying the regulation 172 criteria, which officers to promote. For those senior officers who are not recommended, the requirement to give them notice under regulation 168(3) affords them an opportunity to persuade the PSC that they too should be assessed by it against the regulation 172 criteria.
56. In this case the PSC decided, in the circumstances described above, that it should be provided with the complete list of all qualified officers, in order to assess all of them against the regulation 172 criteria using the newly consulted upon and agreed points-based system. Nothing in regulation 168 prohibits this. Nor did this decision exclude the Commissioner of Prisons or require him to abdicate his duties under regulation 168(2).
57. To the contrary, the points-based system was introduced by the PSC in consultation with the Commissioner of Prisons (and, indeed, the relevant representatives of the prison officers concerned). The agreed adoption of an order of merit list procedure in which officers were ranked according to points awarded by reference to the regulation 172 criteria was an objective and transparent means of effecting a large promotion process for a relatively junior officer rank. It minimised the subjectivity inherent in an assessment of the general and particular criteria identified in regulation 172, given that that regulation does not indicate what weight should be given to the different criteria listed. Nobody has suggested otherwise, and the appellant has not challenged the order of merit process itself; in fact, his first ground of appeal depends on it being the appropriate mechanism for selection. Having made the decision to adopt an order of merit approach, there was no need for a subjective override by the Commissioner of Prisons. Indeed, a subjective override would have undermined the whole system.
58. Moreover, the promotion procedure adopted did not deprive the appellant of any of the protections inherent in regulation 168. First, the requirement under regulation 168(2) for the Commissioner to provide the PSC with a shortlist of qualified officers was obviated by the PSC decision to call for a list of all qualified officers, and no unfairness was thereby caused. Secondly, since all qualified officers were assessed by the PSC against the regulation 172 criteria, the appellant lost nothing in the absence of an opportunity to make representations under regulation 168(3).
59. Thirdly, and significantly, the only realistic role of representations by disappointed officers under the promotion system adopted was to increase their own points award. Officers making representations have no say in the number of vacancies but are properly only concerned to ensure that their points award is fair. Rightly, it has not been suggested that fairness in this scheme required that officers should have the opportunity to seek to reduce the points awarded to other officers or to argue that they should be promoted in preference to someone with more points. Prison officers knew in general terms that the better their score, the better their own chances of promotion. They had an individual incentive to bring forward as much information as possible to increase their scores, irrespective of knowledge about the relative scores of others, and in the knowledge that the final order of merit list would be in place for two years and so would not apply to this promotion round only, but to forthcoming ones as well. The appellant had two opportunities to make representations about his own score and took up one of these opportunities. His points award was increased as a result of his representations; and he was then satisfied that his new points accurately reflected his qualifications in accordance with the points system. He was given sufficient opportunity to ensure that his points award was reasonable and fair and that he had been appropriately ranked in the order of merit list on that basis.
60. For all these reasons the Board is satisfied that the substance of the protections and requirements for fairness in regulation 168 was provided. That being so, there was sufficient compliance with its requirements as a predicate for the lawful exercise of the power in section 121(1) of the Constitution and under regulation 172 of the Regulations. Moreover, the Board notes the possibility under regulation 170 for the PSC to depart from the Regulations when in its opinion it is in the best interests of the Prison Service to do so. This too suggests that compliance with regulation 168 (which would ordinarily be operated) is not a necessary legal precondition to the exercise of the promotion powers in section 121 and regulation 172.
61. Accordingly, this ground also fails.
Conclusion
62. It follows that the appellant’s submissions on both grounds are rejected, and the appeal must therefore be dismissed.