Simpson & Ors, R (on the application of) v Chief Constable of Greater Manchester Police [2013] EWHC 1858 (Admin)

Case No CO/8398/2012[2013] EWHC 1858 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT at MANCHESTER
Sitting at:
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 June 2013
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
THE QUEENClaimanton the application ofClaimantTONY SIMPSON AND OTHERSClaimantCHIEF CONSTABLE OF GREATER MANCHESTER POLICEDefendant
Michael Mulholland (instructed by Messrs Farleys LLP) for ClaimantCharlotte Ventham (instructed by GMP Legal Services Section) for DefendantHearing Hearing dates: 17 May 2013
JudgmentMr Justice Supperstone :Introduction
[1]The Claimants are all serving police officers within the Greater Manchester Police Force. They are Constables and Sergeants who have(1) passed the necessary tests for promotion to the next rank, and(2) been told that they have passed the “live assessment stage” and that they will be promoted subject to an appropriate vacancy being available and a professional standards check. Notwithstanding that the Claimants were each informed between April and May 2012 that the result achieved at the Assessment Centre during 2009 would no longer stand for immediate promotion (see para 16 below). The Claimants challenge this decision.[2]It is common ground between the parties that this amounted to a change of status for those officers in that, prior to the decision, they represented at the very least the pool from which officers had been chosen and that thereafter they were no longer members of that pool; indeed the pool itself ceased to exist.[3]The central issue in this application is whether the offer made to each of them on passing the live assessment stage gave each of them a legitimate expectation they would be promoted (subject to an appropriate vacancy being available and a professional standards check). The Claimants contend that this was a legitimate expectation of a benefit which is substantive, not simply procedural; alternatively that if there was not such a substantive expectation, there was nevertheless a promise or practice which induces a legitimate expectation of being consulted before a particular decision is taken.[4]The Defendant’s case is that the Claimants did not have a legitimate expectation of a substantive benefit of the kind alleged or at all; alternatively if they did have a legitimate expectation of a substantive benefit, the frustration thereof was justified by overriding public interest considerations. Further the Defendant contends that the decision was not unlawful by reason of procedural unfairness: any procedural benefit in the form of consultation of which the Claimants had a legitimate expectation was amply satisfied.[5]On 5 December 2012 His Honour Judge Wood QC granted permission to apply for judicial review.

Factual background

[6]At the time of the decision the Claimants had all undergone the promotion selection process set out in the Defendant’s “Promotion Selection Policy for Police Officers” (dated 15 April 2005) (“the Policy”). They had all successfully completed the process in 2009 or 2010, having received a “pass” at the final assessment stage. In those circumstances, the Policy provided that each candidate “will (emphasis added) be promoted subject to an appropriate vacancy being available and a professional standards check (for example, discipline and complaints).”[7]On concluding the promotion process Sergeant Smith received a letter which stated:
“We are pleased to inform you that you have passed your interview for promotion to Inspector. Following your success, enquiries will now be made to confirm your compliance with the codes of conduct, prior to any final promotion decision. … Following your success, you will be invited to attend a promotion parade with the Chief Constable a few days before you are due to be promoted. You will be given as much notice as possible about the date, but it will most likely be in the last few days of the calendar month before you are promoted. … Please note that whilst you are awaiting your promotion postit is your responsibility to ensure that all necessary training, e.g. OST, First Aid, is up to date. Your promotion may be delayed if you fail to meet the training requirements for a post.”
[8]“Candidate and Line Manager Guidance” in relation to the Greater Manchester Police (“GMP”) process for promotion from sergeant to inspector (effective from 1 December 2007) includes the statement:
“1. If the candidate is successful [in the interview], he/she will be promoted… … All promotions are subject to a satisfactory professional standards check and a suitable vacancy being available.”
[9]ACC Copley in her supplementary witness statement at paragraph 6 states, in relation to promotion parades that “they could take place at any time between an individual passing the selection process for promotion and their substantive promotion”.[10]The parties are in broad agreement as to how the system operated post final assessment. Successful candidates would enter a pool of persons awaiting a suitable vacancy to arise. Ordinarily such officers would be promoted into divisional (as opposed to “branch”) vacancies. “Branch” posts usually required specialist skills and would ordinarily be filled by an officer already substantive in the rank, although on rare occasions they too would be passed to the Assessment and Career Progression Unit (“the Unit”) to be filled by officers in the pool. The Unit operated a queuing system, substantive promotion to the next rank being achieved in accordance with the individual’s position on the list. Constable Keenaghan in her witness statement states:
“6. As the promotions moved along I waited patiently to be informed of my promotion. In April 2010 I contacted the Human Resources Department to find out where I was up to on the promotion list. A colleague was informed that he was 18th on the ‘waiting list’ and I was informed that I was 23rd. 7. That same colleague was promoted on 1 June 2010 and so at the beginning of June 2010 I again made contact with the Human Resources Department thinking that I would be close to my promotion. I was informed by the Human Resources Department that I was now 25th on the list. When I questioned this I was informed by another member of staff, from that department, that I was now 7th on that list and the next in line on my division for promotion.”
The queuing system was, however, subject to various exceptions, one being that if a vacancy arose that required specialist skills it would be offered to all those officers who had such skills, regardless of their place on the list. The exceptions are not material for present purposes. The Policy did not stipulate how long a candidate was likely or able to remain in the pool before achieving substantive promotion. Part 7 of the Policy headed “Monitoring and Future Review” includes the following:
“This policy will be reviewed every 2 years by the Assessment Centre Manager and, in the event that significant changes are proposed, all the parties potentially affected will be consulted.”
[11]On 26 April 2010 a decision was made by the Defendant’s Chief Officers’ Group to place a freeze on the promotion system. Item 2 (“Halt to promotion applications and assessment”) of the Chief Constable’s Order dated 26 April 2010 states:
“Due to the current position of the Force, all promotion applications and assessment centres for constable to sergeant and sergeant to inspector have been halted. The only exceptions are confirmed detective inspector assessment centres. Given the situation, the Force has decided it will take the opportunity to review the promotion process currently in place for sergeants and inspectors. When the Force is ready to reinstate the promotion process for constable to sergeant and sergeant to inspector, the process may not continue in the same way. The changes may require re-submission of application forms. This will be communicated in due course. Officers who have received a deferred pass at assessment centre If you successfully complete your agreed action plan within the agreed timeframe then you will be placed on a promotion waiting list. Officers who have previously attended an assessment centre and have been unsuccessful You can continue with your action plan, however the process may not continue in the same way. This may require re-submission of an application form. Again, this will be communicated in due course.”
Officers who have received a deferred pass at assessment centre

Officers who have previously attended an assessment centre and have been unsuccessful

[12]Assistant Chief Constable Copley, in her first witness statement dated 18 February 2013, explains the background to the decision:
“3. In 2010 the government outlined a Comprehensive Spending Review (CSR) which led to the requirement for Greater Manchester Police to make £134million of savings between 2011/12 and 2014/15. This equates to 20% of the Force’s overall budget. Within Greater Manchester Police, in the region of 85% of the Force’s expenditure is on its staff and officers and therefore it was evident that there needed to be significant savings made in this area. 4. Over this 4 year period the Force is expected to lose in the region of 1573 police staff posts and 1200 police officer posts. These reductions will affect all ranks and grades. The next CSR settlement for 2015 onwards is also expected to be challenging due to the country’s ongoing financial difficulties.”
[13]The promotion freeze was extended on 9 March 2011 whereupon the same notification was given to staff that the promotion process may not continue as before, as and when the freeze was lifted.[14]In March 2012 the Chief Officers’ Group met to consider a report in respect of succession planning and promotions based on predicted future vacancies. The report included the following:
“There are currently 44 Constables pending promotion to the rank of Sergeant and 7 Sergeants pending promotion to the rank of Inspector. However, the Chief Constable has stated that Assessment Centre passes would only be valid for a period of two years, which has been communicated to the Police Authority and Police Federation.”
The report continued:
“Given the findings in this report it is recommended that the force informs the above mentioned officers that their qualification for promotion to the next rank will no longer be valid, regardless of the two-year implication. When the force is in a position to reinstate any promotion processes these officers would need to re-apply, along with any other eligible officers at that time.”
[15]ACC Copley was present at the meeting of Chief Officers’ Group in March 2012. In her first witness statement she states:
“20. Following lengthy discussions, it was agreed in principle by those Chief Officers present that the freeze on promotions to the ranks of Sergeant and Inspector should continue. This was subject to the agreement of the Chief Constable and consultation with the Federation. Further discussion was required with the Chief Constable in respect of the validity of Promotion Board passes…” 21. In the days after the meeting of the Chief Officers in March 2012, I met with the Deputy Chief Constable and the Chief Constable. The Chief Constable agreed on the basis of the report … that the promotion freeze would continue. This decision was communicated to all officers by e-mail from the Chief Constable on 5 April 2012. … The Chief Constable also indicated that ‘following representations from the Police Federation, we will be writing separately to those officers who have passed the previous selection process to clarify their status in any future promotion process’. 22. Later the same day, following a number of enquiries by officers, a further e-mail was sent out from the Chairman of the Police Federation, Ian Hanson, … confirming that the Federation had been involved in discussions with the force in relation to promotion board passes and had made representations to the Chief Constable that it would be unfair for the officers who had achieved such passes to have to start again from the beginning of the promotion process. Mr Hanson explained in his e-mail that a compromise position had therefore been reached such that, when the promotion process started again, those officers who had previously passed would be given a pass to the Assessment Centre without the necessity of submitting papers. He commented that although the situation was not ideal, it was better than the position originally envisaged.”
[16]On 12 April 2012 Chief Superintendent Ball wrote to Mr Simpson and other constables in a similar position as follows:
“It is with much regret that I have to advise you that the result you received at the Assessment Centre during 2009 will no longer stand for immediate promotion to the rank of Sergeant. As you can appreciate the Force has changed considerably during this time, primarily as a result of the current financial climate and subsequent budget constraints. … I understand that this announcement will be considerably disappointing to you, having worked incredibly hard to achieve the high standard for promotion to sergeant and for continuing to maintain that standard in your present role. It has been a difficult decision trying to balance the needs of those officers who have already qualified; with those who had submitted papers for a Board; and those who have not had a chance to apply for promotion over the last two years. It is felt that what has been decided is the best compromise in the circumstances. Work looking at succession planning within Force and the numbers of necessary supervisory ranks is currently ongoing. It is hoped that by September 2012 there will be a clearer picture as to the way forward for the future and hopefully identify a timescale to commence a new process for promotions. There are no specific plans for a new promotion process at this time, but whatever process is introduced, you will be guaranteed a place in the very final stages of that process; subject to satisfactory performance between now and then; rather than having to start all over again from the beginning.”
[17]A letter in similar terms was written by Chief Superintendent Ball on 9 May 2012 to sergeants who would no longer stand for immediate promotion to the rank of inspector.

Relevant statutory framework

[18]Section 10(1) of the Police Act 1996 provides that the Chief Constable is responsible to ensure the “direction and control” of his police force.[19]The Police (Promotions) Regulations 1996 (“the Regulations”) contains the statutory basis for the promotions process in which the Claimants were engaged. Regulation 3 deals with qualification for promotion. Regulation 4 is headed “Selection for promotion” and merely provides that “Subject to regulation 7 [which has no application in the present case] promotion from one rank to another shall be by selection.”[20]Ms Charlotte Ventham, for the Defendant, submits (at paragraph 13(e) of her skeleton argument) that:
“In accordance with regulation 4, the Defendant had in place at all material times a promotion selection policy which included at Appendix 1 a description of ‘the promotion selection process for PC-sergeant and sergeant-inspector’.”
[21]Paragraph 1 of the Policy headed “Introduction and aims” states:
“The Promotion Selection policy for police officers describes the promotion selection process for police officers applying for promotion up to the rank of chief superintendent. This policy takes effect from 1 April 2005 and puts into effect the recommendations made in the Promotion Process Review, which were agreed by the Command Policy Group in December 2004. As part of the Promotion Process Review, stakeholder consultation took place with representatives of staff organisations, divisions and departments. In addition, focus groups and the GMP intranet site were used to consult officers at all ranks up to and including chief superintendent. The Promotion Selection policy for police officers aims to ensure that: • the promotion selection process is transparent and clear to potential candidates; • all promotion candidates are treated fairly and consistently; • all promotion selection decisions are based on ability, the experience and skills required for the rank; • the promotion selection process complies with other GMP policies and the statutory framework.”
Appendix 1 contains the statement set out at paragraph 6 above that if the candidate is successful at the live assessment stage he/she “will be promoted” subject to an appropriate vacancy being available and a professional standards check.

The Promotion Selection policy for police officers aims to ensure that:

[22]Appendix 2 contains the same provision in relation to the promotion selection process for inspector to chief inspector, chief inspector to superintendent and superintendent to chief superintendent. Preliminary Issues (1). Whether the decision is amenable to judicial review[23]Ms Ventham submits that the decision was a management decision in relation to resourcing and deployment issues which resulted from budgetary cuts imposed by the Government Spending Review. It was necessary, she contends, to introduce a change to the promotion process in the financial circumstances that prevailed in order to operate an efficient and competent police force with the most able officers appointed to leadership positions.[24]In support of this submission Ms Ventham relies on the observations of Scott Baker LJ in R (on the application of Tucker) v Director General of the National Crime Squad [2003] IRLR 439 at para 22:
“While it is true that the NCS performs an important public function, as do police forces generally, that does not mean that every decision personal to an individual officer engages public law remedies. There is a line over which the courts cannot go. It is impermissible to trespass into the management of police forces generally or the NCS in particular.”
At paragraph 35 Scott Baker LJ continues:
“… there is a clear line between disciplinary issues where an officer has the right to public law safeguards such as fairness, and operational or management decisions where the police are entitled to run their own affairs without the intervention of the courts.”
Scott Baker LJ said at para 36:
“It is critical that the NCS should be able to manage the deployment of its officers so as best to achieve its objective of preventing and detecting serious crime.”
[25]It is the Defendant’s case that the impugned decision is very much of the same nature as the decision to end the Appellant’s secondment to the NCS in Tucker, and that it is not amenable to judicial review for very similar reasons.[26]There is no single test or criterion by which the boundary between public law and private law can be precisely defined. When considering whether a public body with statutory powers was exercising a public function amenable to judicial review the criteria to be applied are three-fold:(i) whether the defendant was a public body exercising statutory powers;(ii) whether the function being performed in the exercise of those powers was a public or a private one; and(iii) whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration (see Pitchford J in R on the application of Hopley v Liverpool Health Authority and others (unreported) 30 July 2002 approved in Tucker, by Scott Baker LJ at paras 24 and 25). In Tucker the third criterion was not met. The decision taken in relation to the Appellant was specific to him. Scott Baker LJ stated at para 25:
“It was an operational decision taken because it was decided that he fell short of the particular requirements that were necessary to work in the NCS.”
[27]By contrast in the present case the decision affected all officers who had been selected for promotion in accordance with the policy implemented pursuant to Regulation 4, irrespective of the capabilities or characteristics of individual officers. The decision was taken on “policy” considerations. Further the decision in Tucker did not affect the Appellant’s status as a Detective Inspector (para 22). The decision in the present case did affect the status of the Claimants who had been selected for promotion (see para 2 above). In my judgment this decision which impacts on the selection of the Claimants for promotion made pursuant to the policy (and Regulation 4) raises public law issues which as such are amenable to judicial review. (2). Whether the claim is academic[28]The Defendant contends that the detriment that the Claimants are alleged to have suffered has not yet taken effect. It will only do so (and then only potentially) as and when the new promotion process is implemented. Accordingly Ms Ventham submits that the premature nature of the claim renders it academic and/or unsuitable for the exercise of the court’s discretion to grant the remedy sought.[29]In my judgment the application is not premature as the Claimants have lost the status that they had previously at the very least to be in the pool of candidates for promotion as and when the freeze is lifted (see para 2 above). Further, during the course of Ms Ventham’s oral submissions it emerged that it is the Defendant’s contention that the policy has been revoked (see para 50 below). Such a contention makes it all the more appropriate for the Claimants to have instituted the present challenge.

The parties’ submissions

[30]Mr Michael Mulholland, for the Claimants, submits that the offer made to each of the Claimants on passing the live assessment stage gave each of them a legitimate expectation that they would be promoted subject to an appropriate vacancy being available and a professional standards check. The Claimants’ case is that they should form part of the pool of officers selected for promotion. It is no part of the Claimants’ present challenge that they should be placed in a queue, whether as before or at all at this stage. The reason for this is that there has been a freeze on promotion that continues and therefore it would be premature for the Claimants to complain as to what happens when that process recommences. The decision to impose a promotion freeze is, it is accepted, a managerial one and it is therefore not one subject to review by this court. However the Claimants have been told that they have been removed from the pool and it is that which is the subject matter of the complaint.[31]Ms Ventham submits that the policy qualifies the Claimants’ expectations in two important respects: first, that promotion selection itself remains subject to “an appropriate vacancy being available”. Second, the policy provides that it aims to ensure that “all promotion selection decisions are based on ability, the experience and skills required for the rank”. In those circumstances she submits it cannot legitimately be assumed by an officer that he/she will, forever after, sit in a pool of “promotion ready” candidates if vacancies do not become available or qualifications become stale due to the passage of time. Ms Ventham submits that the second of those factors in particular militates against the existence of a legitimate expectation of a substantive benefit because it would impact on the quality of the policing service available to the public if promotions could not be made based on ability and the experience and skills required for the rank.[32]Alternatively Ms Ventham submits that any such legitimate expectation that the Claimants did enjoy, endured only for a limited period of time, having regard to the principle that promotion should be subject to ability. At the time of the decision the Claimants’ passes were already two to three years’ old and there was no likelihood of vacancies for promotion becoming available in 2012/13. In those circumstances any legitimate expectation the Claimants may have had that they would not lose their eligibility for immediate promotion must, she submits, reasonably have come to an end before the time the decision was made.[33]Further it is the Defendant’s case that even if the Claimants did have the legitimate expectation for which they contend, this was overridden by the public interest in securing an efficient and effective police force for the prevention and detection of crime. Ms Ventham contends that the decision about which complaint is made in these proceedings was taken having regard to the combined effect of a number of matters: inevitable and substantial further budgetary cuts; ongoing uncertainty as to the future “establishment”; the wholly realistic expectation that a reduced number of supervisory posts would be available on a permanent basis in years to come; the ever-increasing age of the Claimants’ passes; and the closure of the promotion selection process for the preceding two years. In those circumstances it is submitted that it was proper to require the Claimants to repeat the final stages of any new process that is introduced with a view to ensuring that the Claimants, and others in the same position as them, continue to display the skills and qualities necessary for promotion to positions of responsibility and leadership; and also so that the competition for those posts available upon the lifting of the freeze is extended to officers behind the Claimants in the promotion process, not only out of fairness to those officers but having regard to the public interest in ensuring that the most able and suitable officers are promoted.[34]Finally it is the Defendant’s case that procedural fairness was amply met by the decision making process adopted in this case.[35]Mr Mulholland submits that the fact the promotion selection itself remains subject to “an appropriate vacancy being available” does not prevent the creation of a legitimate expectation because it is part of the Claimant’s legitimate expectation that they should be promoted into a suitable vacancy if that is how the system operated. Further the Claimants accept that this substantive expectation could not last for life. This was a case where the pool itself was dissolved rather than having persons removed from it for cause. There is nothing to prevent the Defendant re-starting the promotion process before lifting the freeze, and there is nothing that precludes the admission of other suitably qualified candidates into the same pool as the Claimants.[36]Mr Mulholland submits that the evidence does not support the assertion that as and when the freeze on promotions is lifted the skills of the Claimants will be outdated or irrelevant. Indeed the evidence filed on behalf of the Claimants is that many of them have had substantial periods in post, during the promotion freeze, actually carrying out the roles of officers in the ranks for which they have been selected for promotion (see, for example, witness statement of Sergeant Smith at paragraphs 19 and 21-22). There was no justification, he submits, for the change in policy.[37]Finally, Mr Mulholland submits that at the very least the Claimants had the right to be informed as to what the overriding justification was for what was clearly a loss of status. He submits that the Claimants had a legitimate expectation that they would be consulted, having been selected for promotion in accordance with Regulation 4. Only 47 officers had such an immediate and present interest and it would not, he submits, have placed an inordinate burden on the Defendant to consult with them. Further the Defendant he submits, acted in breach of the requirement of procedural fairness.

Discussion

[38]Mr Mulholland contends that the Claimants had a legitimate expectation of a substantive benefit of the kind described as the “third category” of case in R v North and East Devon HA, ex parte Coughlan [2001] QB 213, per Lord Woolf MR at paragraph 57. Ms Ventham contends that there was no representation or promise made that was “clear, unambiguous and devoid of relevant qualification” to the effect that they were guaranteed to retain their “promotion-ready” status (see R v Board of Inland Revenue, ex parte MFK Underwriting Agencies Ltd [1990] 1 All ER 91, per Bingham LJ at 110).[39]In R (on the application of Bhatt Murphy (a firm) and others) v Independent Assessor [2008] EWCA Civ 755 Laws LJ, in a judgment with which Sir Anthony Clarke MR and Sedley LJ (subject to a gloss) agreed, reviewed the doctrine of legitimate expectation. The cases show that put broadly the doctrine encompasses two kinds. There is procedural legitimate expectation, and there is substantive legitimate expectation. In the procedural case there is a promise or practice of notice or consultation in the event of a contemplated change in policy. In a substantive case there is a promise or practice of present and future substantive policy (para 33).[40]In respect of substantive expectation, Laws LJ stated at para 43:
“Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a reflection of the ordinary fact… that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy’s continuance is assured.”
Laws LJ added (at para 46):
“though in theory there may be no limit to the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good.”
The broader the class claiming the expectation’s benefit, the more likely it is that a supervening public interest will be held to justify the change of position complained of.[41]The paradigm case of procedural legitimate expectation, Laws LJ explained (at para 29) “arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy.”[42]There is a secondary case of procedural legitimate expectation where there has been no previous promise or practice of notice or consultation. Laws LJ apprehended that this category of legitimate expectation “would not often be established”. He stated (at para 49):
“… for this secondary case of procedural expectation to run, the impact of the authority’s past conduct on potentially affected persons must, again, be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult.”
[43]Laws LJ added a “Postscript” to his judgment at paragraph 50:
“A very broad summary of the place of legitimate expectations in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.”
[44]In my view the terms of the policy and past practice did amount to a promise that was “clear, unambiguous and devoid of relevant qualification”. It was a promise that having attained a pass in the promotion process the Claimants would be within the pool of officers selected for promotion.[45]In order to achieve a “pass” the officers plainly acted to their detriment. The commitment required to complete the process was personal, emotional and financial (see witness statement of Sergeant Smith at paras 3 and 11, for example).[46]I do not accept the Defendant’s contention that the requirement that there be an appropriate vacancy available prevents the creation of a legitimate expectation. It is part of the Claimants’ legitimate expectation that they will be promoted into a suitable vacancy because that is how the system operated. I also do not consider that because the policy provides that it aims to ensure that “all promotion selection decisions are based on ability, the experience and skills required for the rank” that that too prevents the creation of a legitimate expectation. The policy describes the promotion selection process for police officers applying for promotion up to the rank of chief superintendent. Pursuant to that policy all promotion selection decisions are based on ability, and the experience and skills required for the rank. The Claimants were selected in accordance with that policy and that policy stated that successful candidates “will be promoted subject to an appropriate vacancy being available and a professional standards check”. In my view the Claimants have a legitimate expectation that they will be promoted on that basis.[47]This specific undertaking was directed at a particular group, namely those officers who passed the selection process (see Bhatt Murphy at para 43).[48]In Ex parte Coughlan Miss Coughlan and seven comparably disabled patients had been given a clear promise by the health authority that a particular facility, Mardon House, would be their home for life. But the health authority decided to close Mardon House which had ceased to be financially viable. The Claimants accept that the promise in their case is not for life. Indeed the policy expressly states that it “will be reviewed every two years by the Assessment Centre Manager”. However in my view that does not mean that they did not have a substantive legitimate expectation which was to continue “until rational grounds for its cessation arise” (Laws LJ in Bhatt Murphy at para 43, see para 40 above).[49]The first witness statement of ACC Copley had suggested that the “pass” had a two-year life span. However Sergeant Smith’s evidence is that this “rule” was never documented and “has never been mentioned by either the assessment centre, the Police Federation, or even the Chief Constable to me, or to the best of my knowledge any other affected officer at any time since 2009” (see witness statement at para 17). During oral submissions it became clear that the Defendant is no longer relying upon this suggested limitation for the lifespan of a pass.[50]In my view the critical question in relation to the substantive legitimate expectation is whether the continuing freeze on promotions in the changed financial circumstances justified the change of position complained of. Ms Ventham in her oral argument submitted that the policy had been revoked and that there is no promotion selection process in existence at the present time. I accept Mr Mulholland’s submission that this is not correct. The process contained in the policy may be frozen because there is a freeze on promotions. It does not follow that there has been revocation of the policy. The Chief Constable’s Order of 26 April 2010 (see para 11 above) refers to all promotion applications and assessment centres having been “halted” (with the exception of confirmed detective inspector assessment centres). The Order states:
“When the Force is ready to reinstate the promotion process for constable to sergeant and sergeant to inspector the process may [emphasis added] not continue in the same way.”
The process has been suspended, but there is no suggestion in that 2010 Order that the policy has been revoked.[51]The Claimants accept that the position of individual officers in the pool may be subject to review for good cause. Further Mr Mulholland accepts (whilst of course making no concessions) that the Defendant may have justification for changing the policy in the future which may impact on the position of officers presently in the pool.[52]In Paponette and others v Attorney General of Trinidad and Tobago [2010] UKPC 32 the Privy Council held that unless a public authority provided evidence to explain why it had acted in breach of a representation or promise made to an applicant, it was unlikely to be able to establish any overriding public interest which justified the frustration of the applicant’s legitimate expectation. Lord Dyson observed at paragraph 42:
“The breach of a representation or promise on which an applicant has relied often, though not necessarily, to his detriment is a serious matter. Fairness, as well as the principle of good administration, demands that it needs to be justified. Often, it is only the authority that knows why it has gone on its promise. At the very least, the authority will always be better placed than the applicant to give the reasons for its change of position. If it wishes to justify its act by reference to some overriding public interest, it must provide the material on which it relies.”
[53]The decision letters of 12 April 2012 and 9 May 2012 advising the Claimants that “the result you received at the Assessment Centre during 2009 will no longer stand for immediate promotion to the rank of” sergeant and inspector respectively merely stated that “the Force has changed considerably during this time, primarily as a result of the current financial climate and subsequent budget constraints” which has led to reductions in the establishment for sergeants and inspectors and in expectation that there will be further reductions in these ranks. The letters continue:
“There are no specific plans for a new promotion process at this time, but whatever process is introduced, you will be guaranteed a place in the very final stages of that process; subject to satisfactory performance between now and then; rather than having to start all over again from the beginning.”
The letters do not explain why if there were “no specific plans for a new promotion process” at the time and the policy had not been revoked but promotion applications merely “halted” (see para 11 above) it was necessary to take the decision to empty the pool at this time.[54]The Defendant does not now suggest that the qualifications of officers who were in the pool would not be suitable for promotion. ACC Copley in her second witness statement at paragraph 14 states:
“I understand that there was a decision to fill temporary posts with officers who had passed their Boards by the Strategic Resourcing Group in 2010. I have no recollection that such decision was rescinded. … I can confirm that the Force does all it can to post the most suitable staff into vacancies as they arise and it is likely that those who have passed their Boards will be most suitable in the majority of circumstances.”
[55]I am not satisfied on the evidence that the qualifications and skills of the Claimants had become “stale” at the time the decisions were taken (see para 36 above). Further in my view the appropriate time to consider whether the Claimants continued to display the skills and qualities necessary for promotion is when specific plans for a new promotion process are under active consideration or at a time when it is anticipated the promotion freeze will be lifted and the requirements of the Force can be properly assessed.[56]In my view no proper reasons have been given by the Defendant for its change of position in relation to the Claimants who were in the pool when the decision was made.[57]Further, at the very least the Defendant should have consulted with the Claimants before changing the existing substantive policy. Paragraph 7 of the policy headed “Monitoring and Future Review” states that “in the event that significant changes are proposed” to the policy “all the parties potentially affected will be consulted”. In my view this amounted to an unequivocal assurance by means of an express promise that the Defendant would embark upon consultation before significantly changing the policy. Plainly the Claimants are “parties potentially affected”, and it is not suggested that the changes are not “significant”.[58]The Defendant accepts that there was no consultation with the Claimants individually. Further there is no evidence that any consultation that did take place with the Police Federation was with the Federation acting on behalf of the Claimants.[59]In any event, as appears from the first witness statement of ACC Copley (paras 20-22) and the contemporaneous documentation, the discussions that took place between the Force and the Federation which led to the “compromise” only did so after the Chief Officers’ Group recommended on 26 March 2012 that “the force informs the above mentioned officers [who had successfully passed their assessment centre] that their qualification for promotion to the next rank will no longer be valid, regardless of the two-year timescale. When the force is in a position to re-instate any promotion processes the officers would need to re-apply, along with any other eligible officers at that time”. On 5 April 2012 Mr Hanson wrote:
“We in the Federation considered that this was immensely unfair and have been involved in discussions with the force on this. As a result of this a compromise position has been reached which is that when the process starts again those officers who had obtained a pass will be given a pass to the Assessment Centre without the necessity of submitting papers. We realise that this is not ideal and this will come as a great disappointment to those who have worked so hard, but it is better than the position we were initially going to be in.”
[60]In my view there was no proper consultation on the change of position that led to the decision, even with the Police Federation, when the proposals were still at a formative stage (ex parte Coughlan at 108, per Lord Woolf MR).

Conclusion

[61]In summary in my judgment,(1) the Claimants had a substantive legitimate expectation that on passing the live assessment stage they would be promoted subject to an appropriate vacancy being available and a professional standards check;(2) the Defendant has not justified the frustration of the Claimants’ legitimate expectation;(3) if there was not such a substantive expectation, the Claimants had a legitimate expectation that they would be consulted before the decision;(4) there was no proper consultation with the Claimants; and the Defendant acted in breach of the requirement of procedural fairness.[62]For the reasons I have given the decision of the Defendant is unlawful.[63]In these circumstances, the parties are agreed that the Defendant’s decision that the results achieved by the Claimants in the final assessment of the promotion process should no longer stand for immediate promotion is to be quashed.

Cited in 1 later judgment