R (PSA) v PRRB

This judicial review permission-stage judgment addresses two principal legal themes: the public sector equality duty (PSED) under section 149 of the Equality Act 2010 and a public authority's duty of candid disclosure in judicial review proceedings. The claimant challenged the Police Remuneration Review Body's Recommendation of a flat £1,900 pay increase and the Home Secretary's Acceptance of that Recommendation on the ground that there had not been "due regard" to age as a protected characteristic under the PSED and that the Recommendation and Acceptance were unreasonable.

The court set out and applied established principles about candid disclosure, emphasising the "best evidence" principle and that documents which are material should normally be produced rather than their "substance" being summarised. The court concluded that the defendants had misapplied earlier authorities (in good faith) by seeking to rely on summaries and quotations rather than disclosing ministerial submissions in full, but that the Review Body's Report and the material before the Home Secretary plainly identified and analysed the age-related effects. A Permission-Stage Assurance from counsel for the Home Secretary that no undisclosed material would assist the claimant, together with the published Report and a later equality impact assessment, left the judge satisfied there was no arguable PSED breach or unreasonable decision-making. The applications for permission to judicially review and for specific disclosure were dismissed.

Background and parties: The Police Superintendents' Association brought judicial review proceedings against the Police Remuneration Review Body (the Review Body) and the Home Secretary. The claimant challenged (1) the Review Body's Recommendation of a consolidated flat-rate pay increase of £1,900 for all officers from 1 September 2022 and (2) the Home Secretary's Acceptance of that Recommendation, on PSED and irrationality grounds. The Recommendation had the effect that lower-paid officers received a larger percentage increase than higher-paid officers.

Relief sought: Permission to apply for judicial review of the Recommendation and the Acceptance, and specific disclosure of ministerial submissions relied upon by the Home Secretary.

Issues before the court:

• Whether the Review Body and the Home Secretary failed to have "due regard" under section 149 Equality Act 2010 to age-related impacts of the flat-rate award (the PSED issue);
• whether the defendants unreasonably reached the Recommendation or the Acceptance;
• whether the Review Body was exercising a public function to which the PSED could apply;
• whether the defendants complied with the duty of candid disclosure and, in particular, whether the ministerial submissions should be specifically disclosed rather than summarised; and
• whether the claim was time-barred by delay.

Court's reasoning and findings:

• The court reviewed principles governing candid disclosure in judicial review, emphasising that standard CPR31 disclosure is not routine in JR but that the duty of candour requires production of relevant material and that the "best evidence" (the document itself) should normally be provided where a document is material. Redaction is possible for legitimate grounds but summaries or gists are not an adequate substitute for material documents.
• The court accepted that the defendants' practice of communicating the "substance" of undisclosed ministerial submissions had been adopted in good faith in light of earlier authorities, but concluded that Gardner and JM had been misappreciated and did not authorise routinely replacing documents with their summaries. The correct position is that documents should be produced when they are material, subject to redaction where justified.
• Despite the disclosure error, the Review Body's published Report set out detailed evidence and reasoned analysis including an appendix showing the correlation between rank, pay point and age and tables of percentage effects. That analysis openly identified the sharply differentiated percentage effects the flat award would produce and the rationale for choosing a flat cash award to assist lower-paid officers facing cost-of-living pressures. The Home Secretary had received ministerial submissions specifically advising that the PSED must be considered and that the recommendation targeted lower pay points correlated with a younger age profile. A full equality impact assessment (EqIA) accompanied the later Determination and reiterated the same reasoning. The substance of what mattered for the PSED was therefore patent and had been considered.
• The court accepted a Permission-Stage Assurance from counsel for the Home Secretary that the undisclosed materials did not contain anything which would assist the claimant or give rise to additional grounds. Taking the totality of material and the assurance into account, the court concluded there was no realistic prospect of establishing a PSED breach or irrationality.
• Delay and public-function arguments raised by defendants were considered but were not decisive; the judge found the claimant's conduct was timely in context and the suggestion that the Review Body's Recommendation was not a public function was arguable but not fatal.

Conclusion: Permission to judicially review and the order for specific disclosure were refused because, on the available material and the assurance given, there was no viable claim. The court nevertheless recorded that the ministerial submissions should have been disclosed and clarified the correct approach to candid disclosure going forward.

The court dismissed the applications for permission for judicial review and for specific disclosure. Although the defendants had erred in seeking to discharge the duty of candid disclosure by providing the ‘‘substance’’ of material rather than producing material documents, the Review Body's Report and the Home Secretary's materials (and a Permission-Stage Assurance about undisclosed material) meant there was no arguable breach of the public sector equality duty nor any realistic irrationality challenge. For those reasons, permission and specific disclosure were refused.