Reckless, R (on the application of) v Kent Police Authority

The statutory power to appoint an independent member of a police authority belongs to the existing members collectively, rather than to the authority as a body corporate, and cannot be delegated. The members may nevertheless ask a smaller group to gather information, interview candidates and recommend an appointment.

The procedure must be fair and reasonably adapted to give the members enough material to make an informed collective decision from the statutory shortlist. The legislation does not invariably require every shortlisted name to be placed formally before the meeting. A recommendation of one candidate may suffice where the members retain authority to reject it, seek further information or defer their decision.

The appellant sought judicial review of the appointment of an independent member to Kent Police Authority. A statutory selection panel shortlisted three candidates, interviewed them and recommended one candidate. The authority's existing members received only the recommended candidate's name and formally approved his appointment.

Collins J refused permission. Laws LJ subsequently granted permission to challenge the appointment and directed that the Court of Appeal hear the judicial review application. The central issues were whether the appointment function could be delegated and whether approval of a single recommendation amounted to a lawful collective appointment from among the shortlisted candidates.

1. By a majority, the appeal was dismissed. Carnwath and Pill LJJ held that the appointment was valid. Rimer LJ dissented and would have quashed it.

2. Carnwath LJ held that the words “the existing members” in Schedule 2 to the Police Act 1996 and regulation 9 of the Police Authority Regulations 2008 referred to the members as a group of individuals. They did not refer to the police authority as a body corporate. The delegation power in section 101 of the Local Government Act 1972 therefore did not permit the authority to delegate the members' statutory appointment function.

3. The inability to delegate the final decision did not prescribe how the members had to investigate the candidates or organise their deliberations. In the absence of prescribed procedural rules, their process had to be fair and reasonably adapted to provide the material needed for an informed collective decision. A smaller group could gather information, conduct interviews and make a recommendation. Those preparatory acts were an exercise of implied procedural power, not a delegation of the appointment function.

4. Carnwath LJ considered it desirable, for transparency and clarity of responsibility, that all shortlisted names and the reasons for a recommendation should be given to the appointing members. He held, however, that this was not an invariable mandatory requirement. The recommended candidate was presented for decision rather than mere ratification. The members could reject the recommendation, request further information or defer the matter. Their approval therefore constituted a valid collective decision.

5. Pill LJ agreed that the statutory scheme assigned the selection panel a major role in assessing suitability and nominating candidates. Regulation 9 did not require the existing members to reassess the entire shortlist. The members appointed a person who was on the shortlist and retained power to reject the nomination or seek further particulars.

6. Rimer LJ dissented. In his view, all shortlisted names and sufficient information about them had to be placed before the existing members. Since only one name was presented, the panel had in practice rejected the other candidates and the members had not themselves chosen from among the shortlist.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal and the judicial review application, holding that the appointment was validly made: [2010] EWCA Civ 1277.

2. Court of Appeal permission stage: Laws LJ granted permission to challenge the 2009 appointment and directed that the Court of Appeal hear the judicial review application. He refused an extension of time concerning the 2008 appointments.

3. Administrative Court: Collins J refused permission for judicial review following an oral hearing.