The King (on the application of Police Superintendents' Association) v The Police Remuneration Review Body
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 19 July 2023 |
| Neutral Citation | [2023] EWHC 1838 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3846/2022 |
[2023] EWHC 1838 (Admin)
Mr Justice Fordham
Case No: CO/3846/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Andrew Sharland KC and Stephen Kosmin (instructed by Mariel Irvine Solicitors) for the Claimant
Tom Tabori (instructed by GLD) for the First Defendant
Richard O'Brien and Thomas Yarrow (instructed by GLD) for the Second Defendant
Hearing date: 4.7.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This case is about police pay and the public sector equality duty (“PSED”). It also raises issues about a public authority defendant's duty of candid disclosure. One issue is about whether that duty can be now discharged by a practice of communicating the ‘substance’ of undisclosed documents (see §§13–18 below). Another feature of the case is a Permission-Stage Assurance provided by Counsel (see §19 below).
The Claim
The proceedings are a claim for judicial review brought by the Claimant (“the Association”) on 17 October 2022. The named Defendants are the Police Remuneration Review Body (“the Review Body”) and the Home Secretary. There are two ‘targets’ for challenge. The first is found within the Review Body's Eighth Report (the “Report”), published by the Home Secretary by being presented to Parliament on 19 July 2022 (CP712). The Review Body's impugned decision is its recommendation (“the Recommendation”) of a flat-rate pay increase of £1,900 to all police officers at all pay points for all ranks, with effect from 1 September 2022 (Report §5.36). The second ‘target’ is the Home Secretary's decision to accept the Recommendation (“the Acceptance”). That decision was contained within a Written Statement, also published on 19 July 2022. The essence of the claim for judicial review is as follows. There was a breach by the Review Body of the PSED in making the Recommendation, which was in any event unreasonable given that no party making representations supported the course taken. Further, there was a breach by the Home Secretary of the PSED in making the Acceptance, which was in any event unreasonable given that the Recommendation being accepted was unlawful.
The PSED
The PSED is imposed by s.149 of the Equality Act 2010, in these terms:
Public sector equality duty. (1) A public authority must, in the exercise of its functions, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are – age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation. (8) A reference to conduct that is prohibited by or under this Act includes a reference to – (a) a breach of an equality clause or rule; (b) a breach of a non-discrimination rule. (9) Schedule 18 (exceptions) has effect .
Police Ranks and Pay
In England and Wales, as at 31 March 2021, there were 135,301 full-time equivalent police officers (142,526 in headcount terms), across 7 ranks in 43 police forces. These were broken down by rank as follows (Report Table 5.1): Constable (106,790); Sergeant (19,211); Inspector (5,941); Chief Inspector (1,846); Superintendent (970); Chief Superintendent (307); and Chief Police Officer (236). The Association represents the interests of Superintendents and Chief Superintendents. Other bodies represent the interests of other ranks. There are a series of pay points referable to each rank (Report Apx E). These pay points correspond to length of service and progress within the rank. Prior to 1 September 2022, the ranges from lowest pay point to highest were as follows: Constable (lowest £21,654, highest £41,130); Sergeant (lowest £43,965, highest £46,227); Inspector outside London (lowest £52,698, highest £57,162,); Inspector inside London (lowest £55,005 highest £59,490,) Chief Inspector outside London (lowest £58,332, highest £61,725); Chief Inspector inside London (lowest £60,654, highest £64,032); Superintendent promoted to rank on or after 1/4/2014 (lowest £70,173, highest £82,881); Chief Superintendent (lowest £86,970, highest £91,749).
The Pay Increase
The Recommendation and the Acceptance involved an identical flat-rate pay increase of £1,900 for every rank and at every pay point. This meant that every police officer, of whatever rank and at whatever pay point, would receive that same flat-rate pay increase of £1,900. Viewed as cash in the bank, the amounts received by every officer are identical. But viewed as a percentage increase in pay, there is a sharp differentiation. Officers at the lowest pay point for the rank of Constable receive the highest pay rise viewed as a percentage increase. Officers at the highest pay point for Chief Police Officer ranks receive the lowest pay rise viewed as a percentage increase. That picture was set out in the Report (§5.37). The percentage increase for the lowest paid Constable amounted to 8.8% and for the highest paid Constable 4.6%. The percentage increase for the lowest paid Sergeant was 4.3% and for the highest paid Sergeant 4.1%. For Inspectors the lowest paid would be receiving 3.6% and the highest 3.3%. For Chief Inspectors it was 3.3% and 3.1%. For Superintendents it was 2.7% and 2.3%. For Chief Superintendents it was 2.2% and 2.1%. And for Chief Police Officer ranks it was 1.8% and 0.6%.
In order to understand the Review Body's thinking, we can start with what was said in the Foreword to the Report:
This is an extraordinary year in terms of the economic climate. Events in Ukraine and elsewhere have delivered further shocks to the economy as it fights to recover from the effects of the coronavirus ( COVID-19) pandemic. During our visits programme in late 2021, where we heard from almost 400 officers, we were told about reports of lower paid officers in debt and of many struggling to meet basic fuel and food costs. The financial pressures they face have increased since then and energy prices are now at unprecedented levels .
Then, in explaining the reasoning behind the Recommendation (Report §§5.35–5.36):
In our view this is an extraordinary year in terms of the economic climate. We are deeply concerned about the impact on the lowest paid police officers of the substantial increase in the cost of living and the ongoing economic volatility. A rise in the cost of living has a greater impact on the lower paid than those on higher salaries. Therefore, there are very strong arguments in favour of a sharply differentiated approach that provides those at the bottom of the pay scale with some protection against the rising cost of basic necessities and unprecedented increases in energy prices. We are also mindful of the evidence that suggests that recruiting officers will be more challenging in the final year of the Uplift Programme. In these exceptional circumstances, we explored options that delivered a substantial uplift to the lowest paid in the police service. We concluded that a consolidated flat award which has the effect of giving the lowest paid police officers an uplift close to the rising cost of living was most appropriate. We note the Government's announcements on 26 May 2022 regarding a package of support to help the most vulnerable households with the rising cost of living. There is no exact data available, but it is likely that the majority of police officers will only benefit from the universal payments to help with energy bills. While this provision is welcome, we judge from the evidence we have heard that those at the bottom of the police pay scale will still struggle to meet rising household bills. After taking the above factors into account and...
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