The Staff Side of the Police Negotiating Board & Anor v Secretary of State for the Home Department [2008] EWHC 1173 (Admin)

[2008] EWHC 1173 (Admin)

Case No CO/688/2008

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 10/06/2008

Before

LORD JUSTICE KEENE

MR JUSTICE TREACY

Between

The Staff Side of the Police Negotiating BoardClaimants

John FrancisClaimant

The Secretary of State for the Home DepartmentDefendant

G Millar QC & M Westgate (instructed by Russell, Jones & Walker) for Claimants

J Sumption QC & M Chamberlain (instructed by Treasury Solicitor) for Defendant

Hearing Hearing dates: Tuesday 15 th April 2008 & Wednesday 16 th April 2008

Judgment

Introduction:

[1]Police officers in this country are probably unique amongst civilian workers in being prohibited by statute from belonging to trade unions or engaging in strikes or other industrial action. These constraints, first introduced by the Police Act 1919, are now embodied in sections 64 and 91 respectively of the Police Act 1996 (“the 1996 Act”). The police are thereby deprived of the most powerful weapon normally available to a group of working people, the ability to withdraw their labour, when it comes to seeking to protect or improve their pay and working conditions.

[2]In consequence, Parliament has established independent negotiating and arbitration machinery to give some measure of protection to police officers in these matters. Although police forces in England and Wales are organised locally, there being some 43 police authorities, police pay has since 1919 been set nationally. By section 50 of the 1996 Act it is the Secretary of State for the Home Department (“the Secretary of State”) who is empowered to make regulations as to the conditions of service of police forces, including pay and allowances of members of those forces. But a Police Negotiating Board (“PNB”) was established by an Act of that name passed in 1980 and the 1996 Act provides for the continuation of that body, on which both sides of the “industry” are represented. In the event that agreement cannot be reached by the PNB, there is provision in the arrangements under which that body operates for a reference to be made to arbitration, that being carried out by the Police Arbitration Tribunal (“PAT”), a body which operates under the auspices of the Advisory, Conciliation and Arbitration Service. Awards by the PAT have the status of a recommendation by the PNB as if it were an agreement by both sides. An award therefore goes as a recommendation to the Secretary of State.

[3]This application for judicial review is brought by the Staff Side of the PNB and by Mr John Francis, who was at the relevant time General Secretary of the Police Federation of England and Wales, which represents all ranks up to and including chief inspectors. He was also the Secretary of the Staff Side of the PNB. The Police Federation is a body sanctioned by the 1996 Act, section 59, as a body to represent members of the police force in England and Wales in all matters affecting their welfare and efficiency, with certain exceptions of no relevance for present purposes. The claimants seek to challenge a decision by the Secretary of State not to implement in full at the recommended date a pay award for the year 2007 – 2008 for police officers. The PAT recommended a pay increase of 2.5 per cent as from 1 September 2007. The Secretary of State announced her decision on 6 December 2007 to stage the pay award by implementing the recommended increase only as from 1 December 2007, an increase equivalent to about 1.9 per cent for the 12 months commencing 1 September 2007.

[4]It is clear that this decision caused widespread dismay and even anger amongst police officers. The Secretary of State’s decision having been announced to Parliament on 6 December 2007, these proceedings were commenced on 22 January 2008 and permission to seek judicial review was granted by Collins J on 4 February 2008. The main thrust of the claim for judicial review is that the police officers had a legitimate expectation in respect of pay increases recommended by the PNB, which expectation has been flouted by the Secretary of State’s decision.

The Statutory and Regulatory Context:

[5]Section 50(1) of the 1996 Act empowers the Secretary of State, “subject to the provisions of this section”, to make regulations as to the government, administration and conditions of service of the police forces. Section 50(2) then provides:

“(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision with respect to – … … (i) the hours of duty, leave, pay and allowances of members of police forces;”

By section 50(8), any statutory instrument containing such regulations may be annulled by resolution of either House of Parliament.

[6]The Police Negotiating Board is dealt with by sections 61 and 62. By section 61(1):

“There shall continue to be a Police Negotiating Board for the United Kingdom for the consideration by persons representing the interests of – (a) the authorities who between them maintain the police forces in Great Britain and the Police Service of Northern Ireland, (b) the persons who are members of those police forces or of the Police Service or are police cadets, (bb) the members of the staff of the National Policing Improvement Agency who are constables, (c) The Commissioner of the Metropolis, … (ca) the Scottish Police Services Authority, (cc) persons seconded to that Authority … (cd) persons appointed as police members of the Scottish Crime and Drug Enforcement Agency … (d) the Secretary of State and (e) the Scottish Ministers, of questions relating to hours of duty, leave, pay and allowances, pensions or the issue, use and return of police clothing, personal equipment and accoutrements.”

Provision is made for the appointment of an independent Chairman of the Board (section 61(2)) and for the Board to continue to be constituted in accordance with such arrangements as appear to the Secretary of State to be satisfactory, after certain consultations (section 61(3)).

[7]Section 62 is important for present purposes. Insofar as material for those purposes, section 62(1) provides:

“Before making- (a) regulations under section 50 or 52; … with respect to any of the matters mentioned in section 61(1) (other than pensions), the Secretary of State shall take into consideration any recommendation made by the Police Negotiating Board for the United Kingdom and shall supply the Board with a draft of the regulations.”

Then section 62(2) states:

“(2) The arrangements referred to in section 61(3) shall regulate the procedure for reaching agreement on a recommendation to be made by the Board for the purposes of subsection (1), (1A), (1D) or (1E) above …and shall include provision for arriving at such a recommendation by arbitration in such circumstances as may be determined by or under the arrangements.”

[8]Under section 50 there have been made the Police Regulations 2003. Regulation 24 deals with pay. The relevant paragraph is paragraph (1):

“(1) Subject to the following provisions of this Part, the pay of members of police forces shall be determined by the Secretary of State, …”

It will be seen that, instead of police pay being directly set by the regulations themselves, as had been the case up until some amendment regulations in 2000, pay is now dealt with by means of a “determination” made by the Secretary of State. That process is dealt with in more detail by regulation 46, which states as follows:

“(1) Before making a determination under any provision of these Regulations relating to the matters mentioned in section 61(1) of the Act, the Secretary of State shall take into consideration any recommendation made by the Police Negotiating Board and shall supply the Board with a draft of the determination; and subsection (2) of section 62 of the Act shall apply in relation to a recommendation to be made for the purposes of this paragraph as it applies in relation to a recommendation to be made for the purposes of subsection (1) of that section. … (3) A determination under any provision of these Regulations for regulating pay and allowances may be made with retrospective effect to any date specified in the determination, but nothing in this paragraph shall be construed as authorising the pay or allowances payable to any person to be reduced retrospectively. (4) A determination under any provision of these Regulations may make different provision for different cases and circumstances.”

[9]A procedure has been established for the production of first a draft determination and then a final determination by the Secretary of State. This takes some time and a protocol has therefore been agreed by the interested parties whereby the Secretary of State’s decision is made and communicated to police authorities and chief police officers by means of a Home Office circular before even a draft determination is issued. Thus police authorities can in practice give effect to pay increases decided upon before the formal determination is made. Once made, the determinations then have retrospective effect.

[10]As envisaged by section 62(2), the arrangements in accordance with which the PNB operates provide for arbitration procedures. The arrangements are to be found in the PNB’s Constitution, which amongst other things sets up three standing committees, one of which is the Federated Ranks Committee, dealing with matters affecting ranks below that of superintendent. Both the Board and its committees require the concurrence of both the Official Side (which includes the Secretary of State and the Association of Police Authorities of England and Wales) and the Staff Side for there to be an agreement. If there is a failure to agree, provision is made for a conciliation process, but by paragraph 35 where conciliation fails either side may initiate a reference to arbitration by the PAT. That tribunal consists of three arbitrators appointed by the Prime Minister. Paragraph 39 then states:

“Any decision of the arbitrators will be treated as though it were an agreement of the two Sides of the Board or the standing committee in question.”

[11]Consequently one ends up in the situation where a decision by the PAT is treated as an agreement by the PNB and by virtue of section 62 (2) of the 1996 Act as having the status of a recommendation by the PNB.

[12]One final aspect of this regime should be noted. Paragraph 41 of the PNB Constitution empowers the relevant Secretary of State, including the Home Secretary, to direct the PNB and its standing committees to “(a) consider and reach agreement on such matters as he/she may specify and/or (b) set deadlines for the Board to complete its consideration of such matters.” Those powers can only be used, however, where the relevant Secretary of State considers their use to be justified “as a mater of serious national importance”: paragraph 42. No such condition attaches to the exercise of any other power, statutory or regulatory, at least in terms of express wording. and/or

The History of Police Pay Claims and their Treatment:

[13]Both sides in these proceedings seek to rely upon past events concerning police pay claims in order to support their arguments as to the existence and extent of any legitimate expectation. It is therefore necessary to set out as objectively and yet as briefly as one can a description of those past events. Although some reference was made in the course of argument to events before the report in July 1978 of the Committee of Inquiry on the police under the chairmanship of Lord Edmund – Davies, so much has happened during the last thirty years that I regard it as unnecessary to deal with such earlier events, though it is right to observe that they understandably influenced that Committee’s deliberations.

[14]That Committee had been set up in August 1977 to review the police negotiating machinery for the United Kingdom, but the continuance of a dispute over police pay led to its terms of reference being extended in December of that year to include the issue of police pay. At that time police pay was dealt with by collective bargaining through a body known as the Police Council, whose recommendations the Secretary of State was bound to take into consideration but was not bound to accept. The same position obtained in respect of arbitration decisions by the PAT, which (as in the current situation) constituted recommendations of the negotiating body, the Police Council.

[15]In its 1978 report, the Committee supported the existing restrictions on police officers joining a trade union or taking strike action and also came out in support of a collective bargaining system for the determination of pay. This was to be achieved by an amended form of negotiating body. The Committee recorded an assurance by the Home Office (and equivalent departments for Scotland and Northern Ireland) that the Secretary of State would never withhold approval of a negotiating body agreement save for reasons of grave national importance, and the Committee expressed its views that any award by the PAT should be set aside “only for reasons of the utmost national importance”.

[16]That was expressed as a “view”. The Committee, however, put it somewhat differently when it came to make its formal recommendation about the power of the Secretaries of State to veto an agreement reached by the negotiating body. Recommendation 28 reads as follows:

“Being satisfied that the Secretaries of State would not exercise lightly their present power of veto over Police Council agreements we recommend that this should remain unchanged.”

[17]The Committee recommended that the negotiating body should be given a new name, which it duly was by the Police Negotiating Board Act 1980. That Act, like the 1996 Act, required the Secretary of State to “take into consideration any recommendation made by the Police Negotiating Board”: section 2(1). The Committee had also recommended that police pay should be linked to average earnings and be updated on 1 September each year: recommendation 43 in Report II.

[18]So far as anyone seems to have been able to discover, pay recommendations made by the PNB, whether by agreement or by way of PAT decisions, seem to have been accepted by successive Home Secretaries after the 1980 Act was passed until about 1988. There then arose a dispute about the pay of chief police officers. The PNB had recommended a pay increase for such officers of 8.5 per cent as from 1 September 1988, together with a further uplift of 2.5 per cent for most of those officers as from 1 January 1989 and some additional adjustments for the most senior officers in the Metropolitan Police. The Secretary of State accepted the basic increase of 8.5 per cent, but refused to accept the other two elements agreed at the PNB. This was announced publicly by a press release dated 2 November 1988. The reason for this decision was expressed in a letter dated 6 October 1988 as being that the 8.5 per cent increase was itself generous by any standards and that it would be wrong to approve the further elements at a time when the government was “seeking to get across the message that high pay awards serve only to fuel inflation”.

[19]The following year the Home Secretary again refused to accept a recommendation about the pay of senior officers in the Metropolitan Police. The relevant PNB committee had recommended a “restructuring” increase of 3.2 per cent. The Home Secretary in a letter dated 24 July 1989 rejected this recommendation because, when combined with the anticipated ordinary annual pay increase later that year, it would be likely to provide increases for those officers well into double figures. The letter said this:

“The Home Secretary takes the view that it would be wrong, at a time when the Government is urging employers generally to moderate pay increases, to approve increases of this order. He has noted that the numbers involved are small. He is not, however, persuaded that this is sufficient reason to justify a departure from the Government’s policy of seeking to moderate pay increases. He is not, therefore, prepared to give effect to this agreement, in so far as it applies to members of the Metropolitan Police.”

[20]Difficulties over chief officers’ pay continued into 1990. It appears from the documents that the relevant committee of the PNB was concerned to avoid another rejection by the Secretary of State of their recommendations, and thus at a meeting on 4 July 1990 they sought some indication from the government about the parameters within which the discussions could take place. The Official Side specifically sought that, while recognising that the final decision was the Home Secretary’s, but the Staff Side also, according to the minutes, took the same view, stating “It would therefore be much better if the Government could indicate the parameters within which Committee A negotiations might take place, and give detailed reasons for refusing to accept the recommendations of the Committee when this was the outcome.”

[21]The Secretary of State indicated that he would see if there was more that he could usefully say to the PNB, but the minutes also record him stating this:

“No Government could, however, ignore the importance of wage settlements to the economy as a whole, and all recommendations would have to be judged against this criterion. Beyond this, he could not comment on the substance of the matters before Committee A since his decision would have to be reserved until final recommendations were received.”

[22]During the same period leading up to 1990, disagreement also arose over rent allowances for police officers. These could not be resolved during the 1989 pay negotiations and the matter was referred to arbitration by the PAT, which in March 1989 made an award. The then Home Secretary, Mr Hurd, wrote to the PNB Chairman on 23 October 1989 setting out his “broad approach” on certain matters of principle. He referred to the view of the Edmund – Davies Committee that awards by the PAT should only be set aside for reasons of the utmost national importance and he noted that such awards had in practice been implemented over the previous ten years. But he then went on to say:

“It continues to be my view, and that of the Secretaries of State for Scotland and for Northern Ireland, that awards of the Police Arbitration Tribunal should not be lightly set aside. However, in present circumstances we do not believe that we can commit ourselves to meeting the recommendations of the Police Negotiating Board on the sole ground that they are supported by an award of the Police Arbitration Tribunal. Of course, awards of the Tribunal will be considered very carefully and will carry great weight, but it must be open to the Secretaries of State to take other factors into account before reaching a decision.”

[23]Subsequently on 4 January 1990 an official in the Home Office wrote to the PNB Secretary to identify a number of elements in the recommendation about rent allowances which the Home Secretary had decided to set aside. This was confirmed by a Circular a few days later. Then on 2 March 1990 the Minister of State at the Home Office, Mr John Patten, wrote to the Chairman of the Superintendents’ Association of England and Wales about this decision to set aside an award by the PAT. In the letter the Minister emphasised the need to put this “in context” and went on to say:

“Awards by the Tribunal are not binding on Ministers: they are binding on both Sides of the Police Negotiating Board, whose duty it is to submit recommendations to Ministers. It is of course the case that Ministers would not wish to set aside lightly recommendations of the Police Negotiating Board, especially where these had been arrived at after recourse to arbitration. But it has always been recognised that it might be necessary, for good reasons, for the Home Secretary and his colleagues, the Secretaries of State for Scotland and Northern Ireland, to take a different view from either the Board or the Tribunal.”

[24]The Minister added that it was true that this was a serious step without precedent in the history of the PNB but said that this showed that Ministers did not exercise their discretion lightly. The decision had been made in the wider public interest. The Minister also stressed that the government’s commitment to the police pay arrangements remained unchanged:

“The Government remains committed to the broad principles on pay laid down in the Edmund – Davies report and has no plans to changes (sic) the arrangements for negotiating police pay.”

[25]When the relevant Regulations for 1990 were laid before the House of Commons, a debate took place on 25 June that year on a motion to revoke them. In the course of that debate the new Home Secretary, Mr Waddington, emphasised that PAT decisions were not legally binding on him and referred to his predecessor’s letter of 23 October 1989, which he described as “… giving notice to the board that all Secretaries of State could not commit themselves to meeting the recommendations of the board solely because they were supported by an award of the police arbitration tribunal.”

[26]At about the same time as that debate, judicial review proceedings were being heard in the Northern Ireland Queen’s Bench Division, where the Police Association for Northern Ireland sought to quash the decision of the Secretary of State for Northern Ireland not to accept the PAT recommendation on rent allowances. The challenge was advanced on the basis that, while the Police Association accepted that the Secretary of State was entitled to depart from a policy of accepting PAT awards, certain procedural steps were required in the interests of fairness before doing so, and that these had not been taken. Carswell J. in his decision in September 1990, reported as Re Police Association for Northern Ireland’s Application [1990] NI 258, accepted that such procedural fairness was required but found that the Association had had an opportunity “to make representations before the final decision was made about this change of policy.”

[27]It is clear from the preceding paragraphs what Carswell J found the “change of policy” to have been. He referred to the assurance given to the Edmund – Davies Committee on behalf of the Secretaries of State that they would not depart from Police Council agreements “save for reasons of grave national importance”, and to the absence of any qualification being expressed by the government when it accepted the report. Thus he held that there had in the past been a legitimate expectation that the Secretaries of State would not reject PAT awards where the requisite degree of national importance was not established without taking steps to avoid unfairness. But he observed that there had been no suggestion “… in the present case that there exist reasons for rejection of part of the award which could be classified as being of grave, let alone utmost, national importance. It was not precisely spelled out why that action was taken, but it is fairly clearly apparent that the reasons were economic. The Secretaries of State may have taken the view that the proposals could not be afforded, or that they set a precedent which could have adverse effects in other fields. No doubt they balanced the importance of such factors against the importance of avoiding discontent among police personnel and of not rejecting Tribunal awards.” I shall come back to this decision when dealing with the parties’ submissions.

[28]It seems that in November 1990 the Staff Side of the PNB must have expressed some concern about the attitude of the Home Secretary towards PAT awards, given the recent history, because the filed documentation includes a short but important statement by the then Home Secretary, Mr Waddington, in a letter dated 15 November 1990 and sent to the Staff Side Secretary. It reads as follows:

“Thank you for your letter of 8 November asking about the future position of the Secretary of State in regard to the possible implementation of PNB recommendations backed by a PAT award. There is little I can add to my predecessor’s letter of 23 October on this question especially since, as you say, it is relevant to the proceedings taken by the Staff Side for judicial review. As that letter said, awards of the Tribunal will be considered very carefully and will carry great weight but it must be open to the Secretaries of State to take other factors into account before reaching a decision. I do not think it is possible to go further than that and specify criteria to be used by me in coming to a decision. I must be free to take all relevant factors into account, whether or not they might be considered matters of the utmost nationalimportance.” (Emphasis added)

The reference to judicial review proceedings seems to be to some proceedings begun in this jurisdiction but not eventually pursued.

[29]Events since 1990 can be taken a little more rapidly. In 1993 there was a report by a committee of inquiry under Sir Patrick Sheehy into the rank structure, remuneration and conditions of service of the police. It recommended a change in the formula used for uprating police pay, so as to base it in future on non-manual pay settlements in the private sector. That formula was then used for a number of years, save in 1993 when agreement was reached at the PNB on a lower percentage increase in order to reflect the government’s policy on public sector pay. During the 1990’s recommendations by the PNB seem to have been accepted by the Secretary of State, both before and after the passing of the 1996 Act (which was a consolidating Act). The same seems to have been the position up until 2006.

[30]In that year there was a failure to reach agreement in the PNB and a consequential reference to the PAT. The context of that reference was a desire by the Official Side on the PNB to move away from a mechanism based on an index of other pay settlements, and a resistance by the Staff Side to any such change. The PAT took the view that any change required a full negotiation and that, pending such a negotiation, the indexation method should be used. In consequence the PAT awarded a 3 per cent pay increase as claimed by the Staff Side. The Secretary of State accepted that, but announced a review into the way police pay was determined. Sir Clive Booth was appointed to conduct it. He reported in February 2007, recommending a new index, one based on a number of public sector pay groups. He also recommended that a basic pay settlement figure for the police should be calculated from this index before any staging or modification, saying that “If staging or modification is applied by government to the police officer settlement, it should happen at the end of the process.” A more flexible approach to the available money was also recommended, rather than necessarily a uniform percentage increase for all ranks.

[31]That brings one to the 2007 pay round, which gave rise to the present proceedings. For that reason, it requires separate treatment.

The 2007 Pay Round:

[32]Sir Clive Booth’s recommendations prompted the Home Secretary to issue a direction to the PNB under paragraph 41 of its constitution on 10 April 2007. The direction was that the PNB and its committees consider and reach agreement on the basis of Sir Clive’s recommendations and complete such consideration by 19 July 2007. The Home Secretary, following one of Sir Clive’s recommendations, formally communicated to the PNB the government’s policy on pay. This was spelt out as follows:

“The Government’s policy on pay is to ensure that pay awards strike the right balance between recruiting, retaining and motivating a workforce which has the skills necessary to deliver the Government’s priorities for public services, whilst being non-inflationary and fiscally sustainable. The Government’s clear objective - articulated by the Chancellor – is that pay awards should be based on the achievement of the CPI inflation target of 2%. This policy applies to the police as to other public sector groups. The government’s pay policy is not to impose the same award on every group, but to apply the same approach and considerations to every group. The police award should be consistent with the Government’s wider economic objectives to secure economic stability and steady growth. It must be affordable and within existing spending limits, and consistent with continuing control of public finances. The pressures on Police Service finances underline the importance of restraint in this area.”

[33]In fact, not only was there then no agreement between the Official Side and the Staff Side of the PNB but there was even disagreement within the Official Side. A majority of the latter, not including the government representatives, made an offer to the Staff Side of a pay increase of 2.325 per cent unstaged. That, however, was rejected by the Staff Side. A formal failure to agree was registered on 27 July 2007 and in due course the matter was referred to the PAT. In its submissions to the PAT, the Official Side made it clear that the offer of 2.325 per cent unstaged was a majority offer and that the government representatives took the view that such an offer should be staged in order to be consistent with the government’s objectives, including its inflation target of 2 percent. It was said that the government had made clear that “pay awards of more than 2 per cent in year value must be based on clear evidence of recruitment and retention difficulties. No such justification exists for police officers” (paragraph 6.43).

[34]The Staff Side based their claim for a 3.94 per cent increase on a new index, which it was said sought to meet some of the Official Side’s wishes. In its submission it contended that the claim met the government’s pay policy and its criteria for affordability. It sought to show that there was no basis for staging an award.

[35]In its decision dated 27 November 2007, the PAT developed its own index based on public sector pay settlements. It found that the arguments advanced by the Official Side about recruitment and retention of police officers carried greater conviction than those of the Staff Side. It made an award of 2.5 per cent with effect from 1 September 2007.

[36]It seems that the Secretary of State gave this award, which of course had the status of a recommendation by the PNB, urgent consideration, since there is evidence in the shape of a letter from her to the Chancellor of the Exchequer dated 30 November 2007 that she had decided to accept the award but to stage its implementation so that the increase was only effective from 1 December 2007, instead of 1 September 2007. This would produce, it was said, a “headline” figure for the year of 1.9 per cent. The formal announcement of that decision was made by the Secretary of State to the House of Commons on 6 December 2007. After referring to Sir Clive Booth’s report and the PAT award, the Secretary of State said this:

“I have considered this recommendation very carefully. In doing so I have taken account of the Tribunal’s findings and reasoning, the need to ensure value for money and the best use of resources, affordability and Government policy on public sector pay. The tribunal’s recommendation for a 2.5% increase is based on a new index expanding that proposed by Sir Clive Booth. Having fully considered the PAT findings I accept the recommendation of the Tribunal for an award of 2.5%. However I have given very serious consideration to the implementation of this award and concluded that in the interests of affordability, and Government policy on public sector pay, the implementation of this award should be staged. This year’s police officer pay award will therefore be 2.5% with effect from 1 December 2007. Staging will mean that around £40m extra will be available in 2007/08 to invest in the provision of policing services to the public.”

[37]A circular was then issued on 2 January 2008 informing police authorities of that decision, so that they could (and should) act on it forthwith, though it was also said that the PNB would be consulted on draft determinations to give effect to the decision. Although the Secretary of State had indicated to Mr Francis at a meeting soon after the Parliamentary announcement that there was no scope to alter the decision, in fact some modifications did subsequently take place in respect of such elements as the London weighting and certain allowances. A draft determination was sent to the PNB on 1 February 2008. A final determination awaits the outcome of the present proceedings.

The Issues:

[38]A number of grounds are now advanced by way of challenge to that decision. The principal one is based upon the concept of legitimate expectation, but that is not logically the first issue with which I must deal. I propose to consider first arguments based upon the interpretation of the statutory provisions; then those relying on

Article 11 of the European Convention on Human Rights

(“ECHR”); I will then deal with the case based upon legitimate expectation, before turning finally to two subsidiary grounds, namely that the Secretary of State gave inadequate reasons for her decision and that she had a closed mind and so did not properly consider the PNB recommendation.

(i) The Interpretation of the Statutory Provisions:

[39]The wording of section 62(1) of the 1996 Act requires the Secretary of State, before making regulations dealing with police pay, to “take into consideration any recommendation made by the Police Negotiating Board.” As indicated earlier, an award by the PAT has the status of such a recommendation. Regulation 46 of the 2003 Regulations uses the same terminology when referring to a determination relating to (inter alia) police pay, i.e. “shall take into consideration”.

[40]However, Mr Millar, Q.C., who appears for the claimants, submits that the context of this legislation indicates that Parliament’s intention was that a recommendation by the PNB should not merely be taken into account by the Secretary of State but should have great weight attached to it. It should only be departed from for cogent reasons and not be regarded as merely one factor in the decision-making process. In support of this argument, reliance is placed on the House of Lords decision in R (Munjaz) v. Mersey Care NHS Trust

[2005] UKHL 58

[2006] 2 AC 148

for the proposition that the meaning of statutory words depends on the legislative context. In that case the Secretary of State for Health was required by the Mental Health Act 1983 to prepare a Code of Practice “for the guidance” of hospital managers and staff and others involved with patients suffering from mental disorder. The Code contained very detailed provisions dealing with the use of seclusion for mental patients, including a specific provision setting out the frequency of reviews of its use. The policy of the Trust which was responsible for Ashworth Hospital did not comply with the provisions of the Code of Practice in this respect.

[41]The House of Lords held that the Code was guidance rather than binding instruction but was more than mere advice. It should not be departed from except for cogent reasons, and the courts would critically scrutinise such reasons. Both Lord Steyn (paragraph 44) and Lord Hope (paragraph 68) emphasised the legislative background or context of the Code. Mr Millar seeks to draw parallels with the situation of police officers, prevented from taking industrial action, and argues that recommendations of the PNB should be seen as having a similar status.

[42]I do not find this argument persuasive for a number of reasons. First, the legislative context is quite different. The Code of Practice in Munjaz had itself been laid before Parliament, as the statute required, and had in effect been approved by Parliament. No such process applies to recommendations of the PNB. Secondly, the statutory wording is quite different. The House of Lords in Munjaz had to consider the status of the “guidance” which the Code represented. In the present case, section 62(2) of the 1996 Act uses the phrase “shall take into consideration any recommendation”, words which classically are used in legislation to denote a discretion resting with the decision-maker and generally quite a wide discretion at that. Mr Sumption, Q.C., for the Secretary of State, points out that in Munjaz Lord Hope contrasted “statutory guidance of this kind” with something which a statute said the decision-maker must “have regard to”: paragraph 68. I agree that the terminology used in section 62(2) of the 1996 Act is similar to the “have regard to” obligation imposed in many statutes.

[43]Furthermore, it is to be noted that in the Police Association for Northern Ireland case (ante) Carswell J explicitly found that the Secretaries of State, in rejecting the PAT award, “were entitled to take such a course, as the wording of the governing statutes … indicates”, subject to questions of legitimate expectation. He had previously observed that it had not been suggested that there were reasons of grave national importance for rejecting the award, and indeed he had noted that the reasons had not been precisely spelt out. The relevant provision in force at the time in the Police Negotiating Board Act 1980 was in identical terms to section 62(1) of the 1996 Act. It is evident that as a matter of statutory interpretation the words “shall take into consideration” were given their conventional meaning. Since the 1996 Act is a consolidating Act and one of the previous statutes being reproduced was that 1980 Act, Carswell J’s decision is of persuasive value.

[44]It is submitted on behalf of the Secretary of State that by enacting the 1996 Act Parliament must be taken to have adopted Carswell J’s interpretation of the same terminology. Mr Sumption cites the principle set out in Barras v. Aberdeen Steam Trawling Company Ltd [1933] A.C. 402. The problem with that argument is that the 1996 Act was passed as a consolidating statute, and in such a case Parliamentary endorsement of earlier judicial interpretation cannot be assumed. As Bennion says in “Statutory Interpretation”, 4th edition, page 517:

“It does not import parliamentary approval of judicial decisions on the earlier Acts, because Parliament has not had those decisions in mind. Not even the drafter will have had them in mind … because the concern is simply to reproduce accurately the statutory wording.”

Nonetheless, even though that particular submission on behalf of the Secretary of State is not soundly based, I conclude that for the other reasons to which I have referred the meaning to be attached to the statutory wording in section 62(1) of the 1996 Act, and the similar wording of regulation 46 of the 2003 Regulations, by themselves require no special weight to be given to a recommendation of the PNB (whether reached by agreement or via a PAT award). (ii).

Article 11 of the ECHR

[45]I take this ground next, because its relevance seems to be principally to the topic of statutory interpretation, it not being suggested that there is any incompatibility between any provisions of the 1996 Act, including sections 64 and 91 which prohibit membership of a trade union and the taking of industrial action, and Convention rights.

Article 11 of the ECHR

provides:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

[46]What is contended on behalf of the claimants is that the Strasbourg jurisprudence establishes the “compensatory principle”, that is to say, where there is no right to strike, the State must make available other means of securing the right to freedom of association. Reliance is placed for that proposition on Schmidt and Dahlstrom v. Sweden

[1976] 1 EHRR 632

. Mr Millar recognises that that was a decision dealing with the right of association under Article 11(1) and not with the provisions of Article 11(2), which deals specifically with restrictions on that right in the case of, amongst others, police officers. Nonetheless, he points to the recent decision in Ministry of Justice v. Prison Officers Association

[2008] EWHC 239

, where Wyn Williams J appears to have accepted the compensatory principle in the case of prison officers. It is submitted that, given the constraints on industrial action by police officers, the compensatory principal requires the Secretary of State to abide by PAT awards, except in exceptional circumstances.

[47]Mr Sumption for the Secretary of State draws attention to the way in which Article 11(2) and in particular its final sentence dealing with certain groups like the police has been interpreted by the European Commission of Human Rights. In Council of Civil Service Unions v. United Kingdom [application no. 11603/85] the Commission found that the staff at GCHQ at Cheltenham fell into the category referred to in that final sentence of Article 11(2) because they were “members … of the administration of the State”. It therefore examined whether the restrictions imposed upon them were “lawful” within the meaning of that provision. It concluded that this required first of all that the restrictions be lawful in terms of national law. It did not go so far as to accept that the restrictions had to be proportionate, saying that at most they must not be arbitrary. That was the test which the Commission then applied to the facts of that case. Mr Sumption emphasises that, once that test had been passed, the Commission expressly found that it was unnecessary to go further and to examine whether the conditions set out in the first sentence of Article 11(2) had been met.

[48]The claimants query whether a test of arbitrariness is enough under the final sentence of Article 11(2), but Mr Millar accepted in oral argument that, if one applied that test, then it was met in the United Kingdom, as is that of lawfulness in terms of domestic law. For my part I am satisfied that the concept of proportionality does not apply to restrictions on the groups referred to in the final sentence of Article 11(2). That sentence would not be required if proportionality were the test.

[49]I am prepared to assume, as did Wyn Williams J in the Prison Officers Association case, that sufficient compensatory measures have to exist when there is a ban on the right to join a trade union and to strike, but like him it seems to me that those exist. Police officers have effective representation through the Police Federation; they are represented on the PNB, with its independent Chairman and with the power of that body to make recommendations to the Secretary of State about pay. I cannot see that the compensatory principle requires the Secretary of State to accept such recommendations save in exceptional circumstances, nor do the events of 2007 constitute any breach of

article 11(2) of the ECHR

. (iii). Legitimate Expectation:

[50]As I have already indicated, this ground is the main one on which the Secretary of State’s decision is challenged. The contention is that the Secretary of State’s actions and words over the years have given rise to a legitimate expectation of the substantive kind. As is well known, it was at one time understood that the concept of legitimate expectation in public law was confined to an expectation that certain procedural steps would be taken, such as consultation, before a public body changed a policy or practice affecting the citizen or a group of citizens. Such was probably the state of the authorities at the time when the Police Association for Northern Ireland case was decided in 1990, and certainly it appears that the applicant in that case was arguing only for a procedural limitation on the power of the Secretaries of State to depart from their declared policy.

[51]However, the concept of legitimate expectation is rooted in the notion of unfairness amounting to an abuse of power by a public body (see R v. Inland Revenue Commissioners, ex parte Unilever plc

[1996] STC 681

) and it is now well-established that there may exist a substantive legitimate expectation, that is to say that the public body will adhere to a promise which it has made as to its future conduct unless there is some sufficiently important public interest which justifies departing from it. One of the clearest and indeed most vivid illustrations of this development in the law is to be found in R v. North and East Devon Health Authority, ex parte Coughlan

[2001] QB 213

. That was a case where it was found that the health authority had given a clear promise that certain disabled patients would be able to occupy a particular facility as a “home for life”.

(c) :

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

[52]It will be seen that such an approach involves the court itself making a judgment about the existence or absence of an overriding public interest. Inevitably, that has the potential to present problems for the courts in cases where matters of more general policy are involved, since the courts are not entitled to usurp the exercise of powers which have been entrusted by Parliament to some other public body. This limitation has been recognised in the decided cases, in particular R v. Secretary of State for Education, ex parte Begbie [2000], 1 WLR 1115, at 1130-1131, where Laws LJ said this:

“The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. The local government finance cases, such as Reg. v. Secretary of State for the Environment, Ex parte Hammersmith and Fulham London Borough Council [1991] 1 A.C. 521, exemplify this. As Wade and Forsyth observe (Administrative Law, 7th ed. (1994), p. 404): “Ministers’ decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political.”

In other cases the act or omission complained of may take place on a much smaller stage with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case [2000] 2 W.L.R. 622 that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.” “Ministers’ decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political.”

[53]What has long been emphasised is the need for the representation or promise relied upon as giving rise to a legitimate expectation to be clear and unequivocal, save in exceptional circumstances: see R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence

[2003] QB 1397

at paragraph 72.

[54]These legal principles are not in dispute between the parties. The claimants submit that they had a legitimate expectation, as a result of the application of these principles and the conduct of and statements by the Secretary of State over the years. What that legitimate expectation was has been formulated in various ways at different stages of these proceedings. According to the grounds for seeking judicial review, the expectation was that the PAT award would not be departed from except where there were compelling and cogent reasons to do so, involving matters of the utmost national importance (paragraph 34(a)). The claimants’ skeleton argument contended that the expectation was that the Secretary of State would depart from a recommendation or award only “for the most weighty reasons”: paragraph 6.

[55]In oral submissions Mr Millar has in essence put the claimants’ case on legitimate expectation in two alternative formulations: first, that a PNB recommendation or PAT award would only be departed from for reasons of serious national importance; alternatively, as a minimum, that they would not be lightly departed from. Their complaint in the latter case is that the Secretary of State has not given proper weight to the PAT award.

[56]The Secretary of State accepts, as indeed she must on the authorities, that there can be a substantive legitimate expectation. But it is submitted that the extent to which one exists and its content depend upon the subject matter, the legal context and all the circumstances. Mr Sumption submits that Parliament has deliberately given the Secretary of State a wider role than the PNB, since she has to take into account such matters as the health of the economy as a whole. It is argued that the Secretary of State is required only to take account of a PNB recommendation or a PAT award and have legally relevant reasons for departing from such a recommendation or award, though the latter are to be seen as important considerations.

[57]Both sides rely upon the history of police pay decisions over the last 30 years. Mr Millar points to the assurance given to the Edmund-Davies Committee in 1978 on behalf of the Secretary of State that he would not withhold approval of a PNB recommendation save for reasons of grave national importance (see paragraph 15 herein) and to the generally consistent pattern of pay recommendations being accepted over the years since then. The practice relates to a clearly defined group of people, and so meets part of the test set out in Coughlan. It is submitted that the practice has been clear. The decision of Carswell J in the Police Association for Northern Ireland case was made at a time when substantive legitimate expectation was not generally recognised in public law in this country and provides no real guidance on this issue.

[58]Counsel for the Secretary of State relies on the events of 1988 to 1990, and in particular on the various statements made by or on behalf of the Secretary of State, as demonstrating that the Secretary of State was expressly reserving the right to depart from PNB recommendations if he regarded them as outweighed by other considerations, especially matters of economic policy. The original policy, described in the Edmund-Davies report, had changed, as Carswell J recognised. In the period since 1988/1990, police pay recommendations have generally been accepted, but that is hardly surprising, since considerable weight is to be attached to such recommendations, but there exists no legitimate expectation that they will always be honoured except where reasons of grave national importance outweigh them.

[59]The claimants’ response is that the decisions and statements of 1988-1990 were specific to the particular topics of chief officers’ pay and rent allowances, and did not betoken a different approach from that outlined to the Edmund-Davies’ committee. Mr Millar relies on such matters as the phrase “in present circumstances” in Mr Hurd’s letter of 23 October 1989 (see paragraph 22 herein) as confining the significance of those decisions to the limited issues being dealt with. Likewise the claimants rely on the sentence in Mr Patten’s letter of 2 March 1990 that the government “remains committed to the broad principles on pay laid down in the Edmund-Davies report” (see paragraph 24 herein) and on similar statements in other documents from that time. Consequently it is submitted that the Secretary of State was only expressing policy in respect of chief officers’ pay and rent allowance and not making a more generally applicable statement. Alternatively it is argued that, if the original legitimate expectation were lost in the period 1988-1990, it has revived since then. Seventeen years of accepting PNB recommendations and PAT awards have had the effect of reinstating the original expectation and the years 1988-1990 can be seen merely as a temporary “blip”.

[60]I cannot accept that argument that the ministerial statements over that period 1988-1990 were confined to the quite narrow matters to which the decisions actually related. If one examines the terms of those various statements, set out earlier in this judgment, it is clear that they were of general application and were intended to be so regarded. For example, the Home Secretary’s statement to the PNB meeting on 4 July 1990, while arising from the dispute over chief officers’ pay, was in much wider terms:

“No Government could, however, ignore the importance of wage settlements to the economy as a whole, and allrecommendations would have to be judged against this criterion.”

(emphasis added).

[61]Mr Millar conceded in argument that Mr Hurd’s statement in his letter of 23 October 1989 was formulated in broad terms of principle. The reference to “in present circumstances” merely indicated that he, like any decision-maker, was paying regard to the relevant considerations then existing and did not indicate that this was a one-off exception. The statement by Mr Patten in his letter of 2 March 1990 that ministers “would not wish to set aside lightly recommendations of the Police Negotiating Board … (b)ut it has always been recognised that it might be necessary, for good reasons, for the Home Secretary … to take a different view” could not really be expressed in more general terms. To my mind it was clearly a statement of general policy towards recommendations of the PNB, whether agreed or derived from a PAT award. There are other examples to similar effect from this period set out earlier in this judgment. I cannot see that references to “the broad principles on pay laid down in the Edmund-Davies report” detract from the force of those specific statements. Such references seem to be directed towards the machinery and methodology of arriving at recommendations, as described in that report.

[62]This interpretation of those events in 1988-1990 is borne out by Carswell J’s judgment in the Northern Ireland Police Association case in September 1990. The significance of that judgment for present purposes does not lie in the doctrine of precedent: I readily accept that the common law principles of legitimate expectation have developed since then with the readier recognition of the concept of substantive legitimate expectation. Its importance lies in the message which it must have conveyed to all those interested in police pay that there had been a change of government policy since the formulation recorded in the Edmond-Davies report. Carswell J expressly refers to what has happened as “this change of policy”, and his judgment spells out the fact that this change consisted in the government no longer adhering to the need for reasons of grave national importance before a PAT award would be rejected. The passage from his judgment which I have quoted earlier at paragraph 27 makes this clear.

[63]The final nail in the coffin for the claimants’ argument on this aspect of this case comes after Carswell J’s decision, in the shape of Mr Waddington’s letter dated 15 November 1990: see paragraph 28 herein. That letter was couched in the widest terms, referring simply to “awards of the Tribunal”, which would be considered “very carefully” and which would “carry great weight”, but which might be outweighed by other relevant factors, “whether or not ones of the utmost national importance”. That statement, like others, cannot be regarded as being of other than general application.

[64]The other argument advanced by Mr Millar, namely that the original “Edmund-Davies” expectation revived subsequently as a result of the government’s acceptance of police pay recommendations and awards after 1990 and up to 2007 is not persuasive. In my view, Mr Sumption is right in saying that such a pattern is readily explicable in terms of the policy approach described by Mr Waddington in 1990 and by his predecessors, that is to say, that such recommendations and awards would not be lightly rejected but would only be departed from for good reason. In such a situation one would expect that they would normally be accepted. That is what has happened. Given the clear and repeated statements as to the Secretary of State’s approach which one finds between 1988 and 1990, it would require some equally clear statements to the contrary or some consistent subsequent practice establishing a different policy approach to revive the earlier expectation. Neither can be identified.

[65]I conclude, therefore, that well before the time of the decision now under challenge, it had become established that the legitimate expectation of police officers as to PNB recommendations/PAT awards on pay was that they would be carefully considered, would not be lightly set aside and would only be departed from for good reasons. Insofar as at times counsel for the Secretary of State seemed to suggest that the minister need merely take account of such recommendations and awards and have “legally relevant” reasons for departing from them, then that imposes too slight a burden on the Secretary of State. But I am quite satisfied that the claimants had no entitlement to an expectation that reasons of grave or serious national importance would be required for such a departure.

[66]It follows that I accept Mr Millar’s alternative formulation of a legitimate expectation, his “fallback” position, that recommendations would not lightly be set aside. But that is of no great assistance to the claimants. Even if the Secretary of State is required to attach considerable weight to such recommendations, there may well exist other factors relevant to his or her decision, countervailing ones, to which the Secretary of State attaches greater weight. So long as they are relevant factors, the judgment as to how much weight should be attached to them is a matter for the Secretary of State in accordance with normal public law principles. As a result, the relative weight to be attached to a PNB recommendation and to such other factors is likewise for the Secretary of State to decide, subject to normal Wednesbury principles. When those other factors involve considerations of macro-economic policy, the courts, as the judgment of Laws LJ in Begbie emphasises, will be very slow to interfere.

[67]The Secretary of State’s decision in December 2007 referred to such factors as the need to ensure value for money and the best use of resources, affordability and government policy on public sector pay. It has not been contended that those were irrelevant considerations. In my judgment, it was open to the Secretary of State to regard those as outweighing the PAT award, were it to run from 1 September 2007, and in so doing she did not breach any legitimate expectation possessed by the claimants. (iv). Adequacy of Reasons:

[68]It is, however, argued that she failed to spell out adequately her reasons for departing from the award and for staging it. The claimants contend that the brief references to “affordability” and “government policy on public sector pay” in her statement of 6 December 2007 are insufficiently clear. They do not convey what is meant by such concepts, so that the Staff Side is unable to understand why the award has been departed from. Moreover, the police authorities did not regard the award as not being affordable, since they had made provision for it in full in their budgets.

[69]The problem with this submission is that the statement of the 6 December 2007 was not some isolated event, coming out of the blue and with no context to it. It was the culmination of months of discussion and debate, during which such matters as pay policy and affordability had been argued about, as the documents put before us demonstrate. Thus the review by Sir Clive Booth, published in February 2007, was able to set out the government’s policy on public sector pay in some detail, as the Staff Side would have been well aware. Sir Clive’s summary covers several paragraphs, but it is relevant to quote two of them:

“In a sentence, the Government’s stated policy is to ensure that pay awards strike the right balance between recruiting, retaining and motivating a workforce which has the skills necessary to deliver the Government’s priorities for public services, and being non-inflationary and fiscally sustainable. … The Government’s policy is therefore not to impose the same award on every group, but rather to apply the same approach and considerations to every group. Each workforce group needs to be considered independently and pay awards should be based on evidence. This involves analysing the recruitment and retention rates, morale and motivation, overall pay levels, workforce reform, operational requirements and affordability constraints for each group.”

[70]This was followed by the letter from the Home Secretary to the Chairman of the PNB dated 10 April 2007, which I have quoted at paragraph 32 of this judgment. Then in submissions to the PAT, the government’s position was reiterated, as can be seen from the Official Side Submission. Paragraph 6.42 of that is relevant:

“The Home Office, Scottish Government and Northern Ireland Office, while supporting the award of a 2.325% uplift to the pay of all officers, believe that implementation should be staged in order to be consistent with the UK government objectives including achievement of the CPI inflation target of 2% and affordable and sustainable pay awards. The government has made clear that pay awards of more than 2% in year value must be based on clear evidence of recruitment and retention difficulties. No such justification exists for police officers.”

The Staff Side seems to have understood that this was the policy. The PAT decision records at paragraph 24 the Staff Side submission:

“Turning to the issue of the Government’s public sector pay policy, the Staff Side said that this was to ensure that the service was able to recruit, retain and motivate the Staff needed whilst being non-inflationary and fiscally sustainable, and argued that its claim met these criteria.”

[71]As for affordability, the claimants have exhibited an internal Home Office memo dated 29 June 2007, which was leaked to them, in which a senior official gave a very clear summary of the government’s position. It stated that “a more generous pay rise is not affordable” and went on to indicate that the money which would be taken up by such a pay rise could be spent by the police to better effect, such as by increasing the number of police officers nationally. The same point appears elsewhere in the documents, perhaps most clearly in the letter sent by the Secretary of State to all MP’s on 10 December 2007, very shortly after her decision, in which she stated that staging the award “… will release some £40 million, which will go towards a better police service and is the equivalent in value of over 800 more officers than would otherwise have been affordable this year. I attach priority to maintaining police officer numbers to ensure that police officers have colleagues alongside them, as well as ensuring fair pay settlements.”

[72]It was agreed in the course of oral argument before us that the bulk of the expenditure on police forces comes from central government, rather than from monies raised by the local police authorities. In those circumstances the willingness of the police authorities to budget for the pay award in full does not appear to cast any doubt on the efficacy of the Secretary of State’s reasoning. For my part, I do not accept that that reasoning was insufficiently clear.

(v) Closed Mind:

[73]In essence, the claimant’s case on this issue is that the Secretary of State did not truly consider the award made by the PAT but had decided beforehand to limit the 2007 pay rise to no more than 2 percent, as required by the Treasury, whatever the strength of the points made in the PAT report. Mr Millar accepts that a decision-maker is entitled to have a pre-disposition towards a particular outcome and indeed to have a policy indicating such a pre-disposition, but he submits that the documentation shows that the eventual decision here was pre-determined, which is quite different. In particular, he relies on correspondence passing between the Treasury and the Home Office in the spring and early summer of 2007 as demonstrating that the Home Secretary had made up her mind in advance. Mr Millar during his reply argued that that correspondence “got close to the Home Office being told what to do by the Treasury”.

[74]To my mind, Mr Sumption makes a valid point when he emphasises that the position is complicated by the fact that the Secretary of State plays a dual role as a result of the structures set up by the legislation. She is a party to the negotiations which take place at the PNB and to the dispute which the PAT is called upon to resolve, but she is also the ultimate decision-maker. I also bear in mind the need, as recommended by Sir Clive Booth, for the government’s policy on public sector pay to be spelt out clearly to the PNB from the start. The Home Secretary is therefore not only entitled to but should take a position as to what the ultimate pay rise should be and should do so in advance of any recommendation of the PNB or award by the PAT.

[75]With that in mind, I turn to consider the correspondence relied on by the claimants. One finds the Chief Secretary of the Treasury, in a letter dated 21 March 2007, urging the Home Secretary to make the government’s position clear, to indicate that she is “firmly minded” to stage an award so as to observe the government’s pay policy and to maintain a “clear and robust” position throughout the forthcoming negotiations. None of that seems to me to be at all surprising, given the Treasury’s responsibility for the economy and for the public finances. The Home Secretary’s response, dated 10 April 2007, refers to the fact that the government’s pay policy had been dealt with in the direction to the PNB given that same day, and then continued “I have made the direction in general terms but with sufficient clarity to ensure that there is proper and timely negotiation in PNB within the context of the Government’s policy on public sector pay. Given the potential impact on industrial relations in the police service, and the need to demonstrate that this is a genuine negotiation (since otherwise we will have a weak position in the Tribunal) it is essential for me to show that I have not predetermined the outcome.” The letter then goes on to refer to what the Official Side’s position in the negotiations should be, including the importance of “constraining in year pay bill growth in line with the CPI target of 2%.”

[76]I do not myself see that last passage as indicating a pre-determination of the eventual outcome of the whole process. Two percent was the well-known target for public sector pay rises at the time, and the emphasis on the need to keep “in line” with that target came in the context of describing what the Official Side’s position should be in the negotiations.

[77]The Chief Secretary to the Treasury replied on 16 May 2007, again emphasising the importance of achieving a pay award for police officers in 2007 which was affordable and consistent with public sector pay policy. He suggested that, if this were not achieved by the PNB, the Home Secretary would need to impose a 2.325 per cent rise, staged so as to achieve such an outcome. The Chief Secretary stated that the Official Side’s position should be that the pay rise should be 1.5 per cent from 1 September 2007 until 1 April 2008.

[78]Following this, the Home Secretary wrote on 12 July 2007 to the Chair of the Official Side of the PNB, referring to such factors as affordability, the absence of problems over police retention and recruitment, and the wider public interest in sustaining the government’s public sector pay policy and inflation target. The letter continued:

“I will of course consider very carefully the recommendations that come in due course from the PNB, whether directly or following the Police Arbitration Tribunal, but in doing so I will also take into account the points made in this letter. I think it important, in the interests of fair negotiation, that the Official and Staff Sides alike understand my position. Subject to that careful consideration, therefore, I wanted to make it clear that I am minded: • Not to determine a headline pay settlement which goes materially beyond the offer discussed yesterday • To stage any such settlement in a way which secures the affordability and wider public sector pay and inflation objectives emphasised in my predecessor’s direction letter and the Official Side paper in April.”

The “offer discussed yesterday” was one of an increase of 2.345 per cent. • Not to determine a headline pay settlement which goes materially beyond the offer discussed yesterday • To stage any such settlement in a way which secures the affordability and wider public sector pay and inflation objectives emphasised in my predecessor’s direction letter and the Official Side paper in April.”

[79]Internal interdepartmental correspondence after the PAT award, as well as her Parliamentary announcement of 6 December 2007, say in terms that the Secretary of State had considered carefully the report of the PAT. Mr Millar submits that those statements should not be taken at face value, in the light of the earlier correspondence. I accept that the Chief Secretary to the Treasury was expressing his views in strong terms in his letter of 16 May 2007, as one might expect. It does not follow that the Home Secretary approached the PAT report with a closed mind. Her letter of 12 July 2007 merely stated that she was “minded” to do certain things, classic terminology for a pre-disposition, not pre-determination. Her eventual decision did reflect the government’s public sector pay policy, as it was entitled to, but it is also to be observed that it did not adopt the Chief Secretary’s suggestion of a 2.325 per cent increase, staged so as to award only 1.5 percent from 1 September 2007 to 1 April 2008. The Home Secretary’s decision was to accept the PAT award of 2.5% but to stage it as from 1 December 2007.

[80]I am not persuaded that the Secretary of State’s statements that she had carefully considered that PAT report should be rejected because of the earlier correspondence. That correspondence does not, in my judgment, demonstrate that she approached the PAT report with a closed mind, and for my part I would reject this part of the claimants’ case.

Overall Conclusion:

[81]One can readily appreciate that police officers are in a difficult position over pay. They are denied the right to strike. In its place is put negotiating and arbitration machinery, but the outcome of those processes is not binding on the eventual decision-maker, the Home Secretary. Whether that is a satisfactory situation is not a matter for this court: it is embodied in the current statutory provisions, and if there is to be any change, it would have to come through legislation. None of the attempts of the claimants to demonstrate that the Home Secretary has acted ultra vires or otherwise unlawfully in making her decision of 6 December 2007 succeeds, for the reasons I have set out. In particular, the only legitimate expectation which the claimants have, namely that the Home Secretary will not lightly set aside a PNB recommendation or PAT award but will only do so for good reasons, has not been frustrated. She had reasons which she was entitled to regard as being of greater weight than the PAT award, and she explained those reasons with sufficient clarity. It follows that I would refuse this application for judicial review.

[82]I agree.