Richard Clayton QC wins Privy Council appeal about High Court appointment procedure in Trinidad

In AG of Trinidad and Tobago -v- Maharaj [2019] UKPC 6 the High Court and Court of Appeal in Trinidad decided that the Judicial and Legal Services Commission (which appoints High Court judges) could comprise just judges and ex judges. However, in an important new judgment the Privy Council reversed the Trinidad courts.

Section 110(3) of the Trinidad constitution defines the composition of the Commission, and everyone now agreed that it must comprise five members including one judge. The debate concerned whether more than one judge could be appointed to the Commission.

This involved the proper interpretation of s 110, a question which Lady Black described as “not without difficulty”. The Board did not find the legislative history helpful and could not adopt a purposive interpretation- it was unable to identify a legislative purpose for s 110. Nevertheless, the Board acknowledged that the 1976 Constitution was drafted at a time when judges were not expected to return to practice as lawyers when they retired from the Bench, an issue which was key to construing s 110(3)(b).

The Board took the view that the precise words of s 110(3)(b) itself were critical, and that the sub-paragraph must be considered in conjunction with the rest of s 110(3), and in the context of s 110 as a whole. The Board focused on the s 110(3)’s structure: the legislature took the trouble of separating the candidates for appointment to the Commission into two distinct and separately described pools, and stipulated the number of appointments to be made from each pool.

However, the scope of the s 110(3)(b) pool “is not easy to discern … the meaning of the provision must be assembled from a series of indicators”. Section 110(3)(b) dictated that at least one of the pool appointments is not to be “in active practice [as a person with legal qualifications]”. The Board felt that it is an awkward use of language to speak of being in practice as a person with legal qualifications.

But the problem is at its starkest in relation to a serving judge if, as the AG contended, he could be appointed under s 110(3)(b). Did the serving judge fit into the s 110(3)(a) pool or the s 110(3)(b) pool? The Board answered the case by deciding that only s 110(3)(a) deals with judges and retired judges, so that they are not within the scope of section 110(3)(b).

The upshot is that the Commission must now include member who are not judges. The Board also confirmed that the Commission must comprise five members (which had become an issue in the Court of Appeal).

The full judgment can be seen here