R (Police Superintendents' Association) v HM Treasury

The claimant challenged the lawfulness of the consultation on changes to transitional arrangements in public service pension schemes and the decision (the "closure decision") to close legacy schemes from 1 April 2022 so that active members move to the 2015 reformed schemes. Key legal principles applied were the common-law consultation requirements (the Gunning requirements), the public sector equality duty (section 149, Equality Act 2010), the law on substantive legitimate expectation, and the test for material error of fact (the E v SSHD criteria).

The court found: (i) the consultation met the requirements of Gunning(1) and Gunning(2) (it was at a formative stage and identified a preferred prospective policy), but it breached Gunning(4) because the Chief Secretary to the Treasury (CST) had effectively decided the prospective policy before being shown a summary of consultation responses and the post‑consultation equality analysis; (ii) the PSED was breached because the CST made the closure decision before he had properly been furnished with and considered the (draft) Equality Impact Assessment updating the consultation findings (EIA2); (iii) the representations relied on as creating substantive legitimate expectations (that those with transitional protection could remain in legacy schemes until retirement) were either not enforceable because they were made to very large classes across public service schemes and/or ran counter to the legal implications of McCloud; and alternatively, even if an expectation existed, resiling from it was proportionate for public interest reasons; (iv) there were factual errors in some consultation and EIA documents about all protected members reaching normal pension age by 1 April 2022, but those errors were not material to the closure decision.

Although aspects of Grounds 1 and 2 succeeded, the court concluded that mandatory relief must be refused under section 31(2A) Senior Courts Act 1981 because it was highly likely the outcome would not have been substantially different had the defects not occurred. The court also held that granting the relief sought would risk infringing Parliamentary privilege. The claim is dismissed.

This is a first‑instance judicial review brought by the Police Superintendents’ Association challenging the consultation on, and the Ministerial decision to implement, closure of legacy public service pension schemes (including the police 1987 and 2006 schemes) so that active members enter the 2015 reformed schemes from 1 April 2022. The claimant relied on four principal grounds: unlawful consultation (failure to consult properly under the Gunning requirements), breach of the public sector equality duty (PSED) under s.149 Equality Act 2010, breach of a substantive legitimate expectation based on government representations that transitional protection (TP) would allow members to remain in legacy schemes until retirement, and material error of fact in the consultation and equality material.

Background and facts:

• The McCloud litigation determined that the transitional protection arrangements were prima facie age discriminatory. The government decided to address retrospective and prospective discrimination and consulted (the "McCloud consultation").
• Police legacy schemes (1987 and 2006) had differing rules: the 1987 Scheme had no normal pension age and relied on service‑based triggers for unreduced pension.
• Government materials and communications showed a longstanding official preference for moving all active members into 2015 schemes; consultation documents stated that 1 April 2022 was the earliest feasible implementation date.

Procedural posture: Permission for judicial review was granted on paper. The hearing focused on whether the CST was the decision‑maker and on late disclosure of ministerial documents. The court ruled the CST was the decision‑maker and admitted some late material but excluded other very late documents.

Issues framed:

1. Whether the consultation was lawful (Gunning(1),(2),(4)).
2. Whether the PSED was breached in relation to the closure decision.
3. Whether the representations to police gave rise to an enforceable substantive legitimate expectation and, if so, whether departing from it was lawful.
4. Whether material error of fact existed and was material to the decision.
5. If any ground succeeded, whether relief should be refused under s.31(2A) SCA 1981 or by reference to Parliamentary privilege, and what discretionary relief, if any, should be granted.

Court’s reasoning and conclusions:

• Gunning(1) and (2): The consultation was held at a formative stage and gave consultees the reasons for the preferred prospective policy; it was therefore compliant on those limbs.
• Gunning(4): The CST had effectively taken the closure decision before being provided with the consultation responses summary/draft consultation response (the December 2020 Ministerial Submission indicated "final policy decisions that you have taken"). Because the Minister did not conscientiously consider the consultation responses before deciding the prospective policy, the consultation process was unlawfully unfair.
• PSED: The PSED is personal to the Minister and must be discharged while the policy is under consideration. The CST decided the prospective policy before seeing the draft post‑consultation equality analysis (EIA2), so the statutory duty to have due regard was breached. However, the court found that EIA2 (and EIA1) were adequate in substance and that no further reasonable inquiries were required at the cross‑scheme consultation stage.
• Legitimate expectation: Representations that protected members could remain in legacy schemes until retirement were made across many public service schemes. Given the large class involved, the macro‑political and fiscal context (and the discriminatory problems identified in McCloud), the court concluded no enforceable legitimate expectation arose; alternatively, the government had proportionate and weighty reasons to resile from any such expectation.
• Error of fact: Certain documents inaccurately stated that all protected members would have reached normal pension age by 1 April 2022; that was incorrect in respect of some 1987 Scheme members. The error existed but was not material to the decision because the closure date was chosen for implementational and fiscal reasons and the policy was judged proportionate.
• Relief: Although the court found illegality on aspects of consultation and PSED, on the counterfactual assessment required by s.31(2A) SCA 1981 it was highly likely the CST would have made the same closure decision if the identified defects had not occurred. The court therefore must refuse relief. The court also held that granting the quashing order or declarations sought would risk impermissibly interfering with Parliamentary proceedings (Parliamentary privilege), reinforcing refusal of relief.

This was a first‑instance judicial review. The court found that aspects of the consultation process were unlawful (the Minister decided the prospective policy before conscientiously considering the consultation responses) and that the public sector equality duty was breached for the same reason. However, the court concluded that the representations relied on did not give rise to an enforceable substantive legitimate expectation (and/or resiling from any expectation was proportionate), and any factual error identified was not material. Applying section 31(2A) Senior Courts Act 1981, the court held it was highly likely the outcome would not have been substantially different absent the defects; further, granting the relief sought risked infringing Parliamentary privilege. Accordingly the court refused relief and dismissed the claim.