THE POLICE SUPERINTENDENTS’ ASSOCIATION (R on the application of) v HER MAJESTY’S TREASURY

A consultation is lawful where the decision-maker has a strong preference for a proposal but remains willing to reconsider it in light of consultation responses. However, the decision-maker must conscientiously consider those responses before making the material decision. The public sector equality duty is personal to the decision-maker and must be discharged while the policy remains under consideration. A substantive legitimate expectation is less likely to be enforceable where the representation concerns a very large class and macro-economic policy. A public authority may resile from such an expectation where proportionate reasons justify doing so. A factual error is material only if it played a material part in the decision. Even where consultation and equality-duty breaches are established, relief must be refused under section 31(2A) of the Senior Courts Act 1981 if it is highly likely that the outcome would have been substantially the same.

The Police Superintendents’ Association challenged the consultation on changes to public service pension transitional arrangements and the decision to close legacy public service pension schemes, including the police schemes, from 1 April 2022. It alleged unlawful consultation, breach of the public sector equality duty, breach of substantive legitimate expectation and material error of fact. The Treasury accepted that representations had been made that protected police officers could remain in their legacy schemes until retirement. The court also considered whether relief should be withheld under section 31(2A) of the Senior Courts Act 1981 and whether Parliamentary privilege prevented the relief sought.

1. Consultation. The consultation satisfied Gunning (1) and Gunning (2). The Chief Secretary to the Treasury had a strong preference for closing the legacy schemes, but had not demonstrated a fixed or closed mind. Consultees were given sufficient information to respond intelligently.
2. There was, however, a breach of Gunning (4). The December 2020 ministerial submission indicated that the Chief Secretary had already made the final decision on the prospective policy before receiving a summary of the consultation responses. General statements that responses had been taken into account did not cure that defect. The consultation was therefore clearly unfair and unlawful.
3. Public sector equality duty. The duty under Equality Act 2010, section 149, was personal to the decision-maker. It had to be discharged while the policy remained under consideration. Because the decision preceded consideration of EIA2 and the equality issues arising from the consultation responses, the duty was breached. Had EIA2 been considered before the decision, its contents and the level of inquiry undertaken would have been sufficient.
4. Legitimate expectation. The representations were materially equivalent to representations made across the public service pension schemes and concerned a class of at least 500,000 people. In the macro-economic and political context, they did not create an enforceable substantive legitimate expectation. Further, following Lord Chancellor v McCloud, continuing preferential treatment for protected members risked unjustifiable age discrimination. Alternatively, the public interest, equality, cost and fairness considerations made departure proportionate.
5. Error of fact. Various documents incorrectly indicated that all protected members would have reached their normal pension age by 1 April 2022. The error was established, but immaterial. The closure date was selected principally because it was the earliest practicable date for implementation and ending the costly remedy period, and knowledge that approximately 63 police officers fell outside the usual position would not probably have changed the decision.
6. Relief. Applying section 31(2A) of the Senior Courts Act 1981, it was highly likely that the Chief Secretary would have made the same decision had the consultation responses and EIA2 been considered lawfully. Relief was therefore mandatory to refuse. The claim for judicial review was dismissed. The court also held that the quashing and declaratory relief sought would impermissibly interfere with Parliamentary privilege.

First-instance judicial review proceedings. The High Court dismissed the claim despite finding breaches of the consultation duty and the public sector equality duty.