R the Police Superintendents' Association v HM Treasury
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 15 December 2021 |
| Neutral Citation | [2021] EWHC 3389 (Admin) |
| Docket Number | Case No: CO/1641/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2021] EWHC 3389 (Admin)
Mrs Justice Heather Williams DBE
Case No: CO/1641/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Sharland QC and Stephen Kosmin (instructed by Mariel Irvine Solicitors) for the Claimant
Catherine Callaghan QC, Raymond Hill and Imogen Proud (instructed by Government Legal Department) for the Defendant and the Interested Party
Hearing dates: 16, 17 and 18 November 2021
Approved Judgment
CONTENTS
| Heading | Paragraphs |
| Introduction | 1 – 6 |
| Procedural history and rulings | 7 – 30 |
| New argument: DEI Committee the decision-maker | 16 – 24 |
| The Defendant's additional documentation | 25 – 30 |
| The material circumstances | 31 – 108 |
| The pension schemes and pre-consultation position | 31 – 43 |
| The McCloud litigation | 44 – 45 |
| The consultation and decision-making process | 46 – 104 |
| The January 2020 Ministerial Submission | 46 – 51 |
| The April 2020 Ministerial Submission | 52 – 56 |
| June 2020 events | 57 – 63 |
| The consultation | 64 – 72 |
| EIA1 | 73 – 75 |
| Responses to the consultation | 76 – 81 |
| The December 2020 Ministerial Submission | 82 – 86 |
| 21 and 25 January 2021 emails | 87 – 88 |
| The consultation response | 91 – 99 |
| EIA2 | 100 – 104 |
| The Bill | 105 – 107 |
| EIA3 | 108 |
| Impact of the closure decision | 109 – 120 |
| Applicable legal principles | 121 – 156 |
| Knowledge of the decision-making Minister | 121 |
| Consultation | 122 – 130 |
| Public sector equality duty | 131 – 138 |
| Substantive legitimate expectation | 139 – 144 |
| Material error of fact | 145 |
| Section 31(2A) SCA 1981 | 146 – 149 |
| Parliamentary privilege | 150 – 156 |
| Conclusions | 157 – 215 |
| Ground 1: unlawful consultation | 157 – 166 |
| Gunning (1) | 157 – 160 |
| Gunning (2) | 161 |
| Gunning (4) | 162 – 166 |
| Ground 2: breach of the PSED | 167 – 177 |
| Material considered by the CST | 168 – 171 |
| Adequacy of EIA1 and EIA2 | 172 – 177 |
| Ground 3: breach of substantive legitimate expectation | 178 – 191 |
| Size of the class | 179 – 191 |
| Legitimacy of the representations | 186 – 188 |
| Proportionality of departing from the expectation | 189 – 191 |
| Ground 4: error of fact | 192 – 197 |
| Summary of conclusions on Grounds 1 – 4 | 198 |
| Relief | 199 – 215 |
| Section 31(2A) SCA 1981 | 199 – 206 |
| Parliamentary privilege | 207 – 215 |
| Outcome | 216 – 217 |
Introduction
In these proceedings the Police Superintendents' Association (“ PSA”) challenges the legality of the consultation on “ Public service pension schemes: changes to the transitional arrangements to the 2015 schemes” (“ the consultation”) and the decision announced on 4 February 2021 to close legacy public service pension schemes, including the police schemes, and move all active members to reformed pension schemes from 1 April 2022 (“ the closure decision”). As I will come on to address in more detail, the relevant decision-maker was the Chief Secretary to the Treasury (“ CST”). The Interested Party supports the Defendant's responses in these proceedings and has not advanced separate submissions.
The PSA is concerned about the impact of the closure decision on officers in the Police Pension Scheme 1987 (“ the 1987 Scheme”) and the New Police Pension Scheme 2006 (“ the 2006 Scheme”), both of which would be closed from 1 April 2022, with active members transferred to the reformed police scheme established by the Police Pension Regulations 2015 SI 2015/445 (“ the 2015 Regulations” and “the 2015 Scheme”). Under transitional arrangements contained in Schedule 4 of the 2015 Regulations, certain members of the 1987 Scheme and the 2006 Scheme (collectively, “ the police legacy schemes”) were able to remain in those schemes for what was then an unlimited period. The PSA rely on representations made that members with this transitional protection (“ TP”) could remain in their police legacy schemes until they retired, even if this was after 1 April 2022 (“ the representations to police”). In the Detailed Grounds of Resistance (“ DGR”), the Defendant accepted that these representations were made.
Permission to apply for judicial review was granted on the papers by Cheema-Grubb J. on 9 August 2021. At that stage five grounds of challenge were relied upon. In summary, the four grounds now pursued are that: the consultation undertaken was unlawful (“ Ground 1”); there was a failure to comply with the public sector equality duty contained in s.149, Equality Act 2010 (“ PSED”) (“ Ground 2”); the representations to police gave rise to a substantive legitimate expectation that has been unlawfully breached by the closure decision (“ Ground 3”); and the closure decision was flawed by material error of fact, in that it was premised on the basis that all members of the public service pension schemes who had received TP would have reached their Normal Pension Age in their respective legacy schemes by 1 April 2022 (“ Ground 4”). The Claimant no longer relies upon the fifth ground, namely that there was a failure to take into account the substantive legitimate expectation. By way of relief, the Claimant seeks an order quashing the consultation and the consultation response and/or declarations that the consultation was unlawful and that the decision to close the police legacy schemes from 1 April 2022 was unlawful.
The Defendant takes issue with each of the grounds and asserts that in any event the court should refuse to grant relief, by reason of s.31(2A), Senior Courts Act 1981 (“ SCA 1981”) and/or infringement of Parliamentary privilege. The latter contention arises from the fact that closure of the public service pension legacy schemes is being implemented by Clause 76 of the Public Service Pensions and Judicial Offices Bill (“ the Bill”) that is currently proceeding through Parliament 1. It is common ground that these proceedings will be academic if they are not determined before the enactment of this provision. For the avoidance of doubt, the Defendant accepts that following the grant of permission, the claim is justiciable and that the court should determine the Claimant's grounds of challenge.
The bundles of documents before the court comprised nearly 1,600 pages. The Claimant relies upon three witness statements from Chief Superintendent Daniel Murphy, the National Secretary of the PSA, made on 11 May 2021 (“ Murphy 1”), 13 October 2021 (“ Murphy 2”) and 15 November 2021 (“ Murphy 3”); and a statement from Superintendent Emma Richards made on 11 May 2021 (“ Richards 1”). The Defendant relies upon three witness statements from Eleanor Tack, the Deputy Director, Workforce Pay and Pensions in HM Treasury (“ HMT”), made on 1 October 2021 (“ Tack 1”), 1 November 2021 (“ Tack 2”) and 5 November 2021 (“ Tack 3”).
It is apparent from the parties' respective submissions that the substantive issues for the court's determination are as follows:
Ground 1: unlawful consultation:
i) was the consultation undertaken at a time when the relevant proposal was still at a formative stage;
ii) was adequate information provided to consultees to enable them to properly respond to the consultation exercise;
iii) did the decision-maker give conscientious consideration to the consultees' responses;
Ground 2: breach of PSED:
iv) was there a breach of the PSED in relation to the closure decision;
Ground 3: breach of substantive legitimate expectation:
v) did the representations to the police give rise to an enforceable legitimate expectation;
vi) if so, was the Defendant entitled to depart from it in making the closure decision;
Ground 4: error of fact:
vii) in making the closure decision did the Defendant wrongly believe that all members of the affected public service pension schemes who had received TP would have reached their Normal Pension Age in their respective legacy schemes by 1 April 2022;
viii) if so, was this a material error 2;
Relief:
if one or more of the Grounds succeeds:
ix) should the court refuse relief pursuant to s.31(2A) SCA 1981 on the basis that it is highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred;
x) would granting the relief sought impermissibly interfere with Parliamentary privilege; and
xi) if the grant of relief is not otherwise precluded, what relief, if any, should the court grant in its discretion?
Procedural history and rulings
The proceedings were filed on 4 May 2021. When permission was granted the Claimant's request for expedition was refused and directions were made for the Defendant to file its DGR and any written evidence relied on within 35 days of service of the Order. By Order of 13 September 2021, the timetable was extended by Swift J, permitting the Defendant to file its DGR and evidence by 1 October 2021, with any application by the Claimant to rely on evidence in reply to be filed by 13 October 2021. It was accepted that the substantive hearing should take place this term (given the proceedings would become academic after the Bill was enacted) and a hearing in the week commencing 15 November 2021 was directed. Directions were also given for the Claimant's Skeleton to be filed and served by 1 November 2021 and the Defendant's by 8 November 2021. The DGR and Tack 1...
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