Police Superintendents' Association, R (on the application of) v The Police Remuneration Review Body & Anor

The duty of candour in judicial review is distinct from standard disclosure. Where a material primary document should be before the court, its gist, summary or selected quotations cannot substitute for the document itself, subject to proper redaction. A permission-stage assurance may safeguard the duty concerning unpleaded grounds. Under the Equality Act 2010, public sector equality duty compliance is judged by substance, not form. A reasoned analysis can supply due regard if it identifies differential impacts, assesses the chosen response and considers whether those impacts should be eliminated or mitigated. An equality impact assessment may follow at implementation.

The Association sought judicial review of a recommendation by the Police Remuneration Review Body for a uniform £1,900 pay increase for all police officers and of the Home Secretary’s decision to accept it. It alleged breaches of the public sector equality duty under the Equality Act 2010 and unreasonableness. It also sought specific disclosure of ministerial submissions withheld by the Home Secretary. The court considered the duty of candour, permission-stage assurances, delay, the Review Body’s public-function status, and whether the recommendation and acceptance had adequately addressed the age-related differential impact of the pay award.

The single judgment dismissed the applications for permission for judicial review and for specific disclosure. The Association was ordered to pay £8,000 of the Review Body’s costs.

1. Candour and disclosure. Judicial review does not generally require standard disclosure. However, the duty of candour requires full and fair disclosure of relevant material. Where a significant primary document is material, the best evidence is the document itself. A gist, summary, description or selected quotation cannot replace it, subject to lawful redaction. R (Gardner) v SSHSC [2021] EWHC 2422 (Admin) and R (JM) v SSHD [2021] EWHC 2514 (Admin) did not provide general guidance endorsing secondary evidence. The approach in National Association of Health Stores v Secretary of State for Health [2005] EWCA Civ 154 and Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 was followed.
2. Permission stage. Where permission is resisted, counsel may give a Permission-Stage Assurance after reviewing undisclosed material, confirming that nothing assists the claim or gives rise to another ground. That is an appropriate safeguard for the unpleaded-grounds aspect of candour.
3. PSED. Compliance with the public sector equality duty is a matter of substance, not form. An express reference to the duty is not essential. The decision-maker must recognise relevant equality impacts, grapple with whether the proposed course is appropriate despite them, and consider alternatives that might eliminate or mitigate them. The Report’s evidence and analysis made the percentage and age-related effects of the flat award patent and well understood. The Ministerial Submissions also showed that the Home Secretary had been directed to consider the duty and the age-related impact. The later equality impact assessment reinforced, but was not a prerequisite to, compliance. The duty was therefore complied with.
4. Other objections. The absence of representations supporting the recommendation did not make it unreasonable. The delay objection and the Review Body’s public-function objections would not have prevented permission, although the public-function issue was addressed only at the arguability threshold. The court did not resolve the separate question concerning when time began to run for the report.
5. Specific disclosure. Despite the error in the Home Secretary’s disclosure approach, disclosure was declined because the court was left in no doubt that the claim had no viable prospect, the quoted material had not been taken out of context, and the Permission-Stage Assurance addressed wider grounds. That refusal did not vindicate the disclosure approach.