The Staff Side of the Police Negotiating Board & Anor v Secretary of State for the Home Department

The statutory duty to take a Police Negotiating Board recommendation into consideration does not require the Secretary of State to give it special or decisive weight. The recommendation must be carefully considered and should not be set aside lightly, but it may be outweighed by other relevant factors.

A substantive legitimate expectation may arise from a clear promise or settled practice. Here, the expectation was limited to careful consideration and departure only for good reasons. It did not require reasons of grave or serious national importance. Where the decision involves macro-economic policy, the court applies particularly restrained review. A decision-maker may be predisposed towards an outcome, provided the final decision is not predetermined.

The claimants, representing police officers, sought judicial review of the Secretary of State’s decision to implement a Police Arbitration Tribunal pay award in stages. The Tribunal had recommended a 2.5 per cent increase from 1 September 2007. The Secretary of State accepted the amount but made it effective from 1 December 2007.

The claimants argued that the statutory scheme required the recommendation to receive special weight; that Article 11 of the European Convention on Human Rights required stronger compensatory machinery; and that past statements and practice created a substantive legitimate expectation. They also challenged the adequacy of the reasons and alleged predetermination.

1. The application for judicial review was refused. The Secretary of State had lawfully staged the 2.5 per cent pay award.

2. Sections 62(1) and 62(2) of the Police Act 1996, together with regulation 46 of the Police Regulations 2003, required the Secretary of State to take the recommendation into consideration. The words did not require any special weight to be given to it. The statutory context differed from that considered in R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58.

3. The machinery available to police officers, including representation through the Police Federation, participation in the Police Negotiating Board and arbitration, constituted sufficient compensation for the restrictions imposed by Article 11(2) of the Convention. Article 11 did not require the Secretary of State to accept a recommendation except in exceptional circumstances.

4. The claimants had a substantive legitimate expectation that recommendations and awards would be carefully considered, would not be set aside lightly and would be departed from only for good reasons. Earlier statements concerning reasons of grave or utmost national importance had been superseded by the general policy statements made between 1988 and 1990. Subsequent acceptance of awards did not revive the earlier, more extensive expectation.

5. The weight to be given to the award and to countervailing considerations was for the Secretary of State, subject to ordinary public law principles. Affordability, value for money, the best use of resources and government policy on public-sector pay were relevant considerations. The court would be slow to interfere with judgments involving macro-economic policy.

6. The reasons given were sufficient in context. The parties had been aware for months of the government’s approach to affordability and public-sector pay. The Secretary of State had not approached the Tribunal’s report with a closed mind. Being minded towards a particular outcome was a permissible predisposition, not predetermination.