Public And Commercial Services Union & Ors v Minister for the Cabinet Office

A statutory duty to consult trade unions with a view to reaching agreement requires good-faith consultation on the particular terms ultimately proposed. A minister cannot consult on one proposal, make material revisions and exclude a representative union from consultation on the revised terms because it refuses to give a pre-commitment exceeding the statutory conditions.

Clear compensation entitlements, invariably honoured in administrative practice, may constitute legitimate expectations and possessions protected by Article 1 of Protocol 1. Their proportionate alteration in pursuit of deficit reduction may nevertheless be justified. Relief for unlawful consultation cannot be refused under section 31(2A) merely on an interested official’s insufficiently evidenced prediction that proper consultation would have made no substantial difference.

The claimants sought judicial review of amendments made by the Minister under the Superannuation Act 1972. The amendments reduced civil service compensation benefits for redundancy, voluntary exit, early retirement and inefficiency.

The claimants alleged that the Minister had unlawfully excluded the principal claimant union from discussions about the revised terms ultimately adopted. They also relied on Article 11, Article 1 of Protocol 1 and the public sector equality duty under the Equality Act 2010. The Minister contended that any unlawfulness should attract no relief because the outcome would highly likely have been substantially the same.

Permission was granted at the outset of a rolled-up hearing. The central issues were the content of the statutory consultation duty, the status and permissible alteration of compensation entitlements, compliance with the equality duty, and the application of the statutory no-difference test.

1. The claim succeeded on the consultation ground. Sections 1(3) and 2(3D) of the Superannuation Act 1972 imposed an unusual and strong obligation to consult representative unions with a view to reaching agreement. This was not an obligation to achieve agreement. It required good-faith consideration of counter-proposals and consultation on the particular terms ultimately proposed. The reporting requirements in sections 2(11A) and 2(11B) reinforced that construction.

   The Minister consulted the union on initial proposals but excluded it from the second round, during which materially revised terms were developed. He could not impose a pre-condition requiring the union to accept that those terms would form the basis of a package it might recommend to its members. If proposals were modified, the Minister had to return to all qualifying unions, seek agreement on the modifications and consider any further contributions before finalising the scheme.

2. The court did not determine the Article 11 ground. The statutory construction ground provided complete ordinary-law grounds for finding the exclusion unlawful, and examination of the Convention issue was unnecessary.

3. The Article 1 of Protocol 1 challenge failed. Compensation entitlements under the scheme were clear, specific and invariably honoured. The longstanding administrative practice created protected domestic legitimate expectations akin to contractual employment rights. In any event, the entitlements fell within the autonomous Convention concept of legitimate expectation and were possessions.

   The interference was nevertheless justified. Deficit reduction was a legitimate economic and social objective, and the Minister enjoyed a wide margin of appreciation. The amendments were not manifestly without reasonable foundation, maintained a fair balance and did not impose a disproportionate or excessive burden. The 2010 statements did not constitute clear, unequivocal and unqualified assurances preventing later amendment.

4. The public sector equality duty challenge failed. The Minister had due regard to the effect of revised inefficiency payments on disabled civil servants, drawing upon the 2014 Equality Analysis. Section 149 did not require that consideration to be recorded in a single document. The absence of a cross-reference in the 2016 analysis was, at most, a failure of best practice.

5. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of relief. The highly-likely threshold remained high and required evaluation of the lawful counterfactual. The official evidence was speculative, the Minister had withheld the detailed record of negotiations, and the excluded union might have influenced both the Minister and other unions. The court could not conclude that lawful consultation highly likely would have produced no substantially different outcome. The parties were invited to agree the form of relief.

This was a first-instance judicial review heard on a rolled-up basis. The court granted permission at the outset and proceeded to determine the substantive claim. Earlier proceedings concerning separate amendments to the compensation scheme were described as background, but were not stages of this claim.