The Police Superintendents Association of England and Wales & Ors v The Chief Constable of Bedfordshire Police [2013] EWHC 2173 (Admin)

[2013] EWHC 2173 (Admin)

Case No CO/13428/12

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue MANCHESTER DISTRICT REGISTRY

ADMINISTRATIVE COURT

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

Date 25/07/2013

Before

THE HONOURABLE MR JUSTICE KING

Between

The Police Superintendents Association of England and Wales (1)Claimants

Andrew Street (2)Claimant

Linda Kelly (3)Claimant

Robert Johnston (4)Claimant

The Chief Constable of Bedfordshire PoliceDefendant

The Secretary of State for the Home DepartmentInterested Party

Mr David Lock QC and Rt Hon Mike O’Brien QC (instructed by Lewis Hymanson Small Solicitors LLP) for Claimants

Mr John Cavanagh QC (instructed by Beds & Herts Legal Services Department) for Defendant

Miss Deok Joo Rhee for Secretary of State for the Home Department

Hearing Hearing dates: 25 th and 26 th February and 18 th and 19 th March 2013

Judgment

[1]These proceedings concern the power of a Chief Constable under Regulation A19 of the Police Pensions Regulations 1987 compulsorily to retire a serving police officer with accumulated lengthy pensionable service as defined in the regulation ‘in the general interests of efficiency’. The Secretary of State as the Interested Party has not appeared before me but has submitted written submissions.

[2]The Chief Constable in question is that of the Bedfordshire Police. The background to the claim is the decision made by the defendant on 16th October 2012 in principle to invoke the A19 power in respect of all serving officers falling within the ranks included within it, who would be reaching the required pensionable service within the next four years. By this date the Chief Constable had identified a cohort totalling some 98 officers who would fall into this category.

[3]The defendant is quite candid about what had provoked this decision. It is accepted that the Chief Constable had a statutory duty to maintain an efficient police service in his area. This statutory duty was and is unaffected by any budget cuts which the Force faced. The starting point however was the need to find budget cuts as a result of the Comprehensive Spending Review which meant that the Bedfordshire force had been required to manage with a budget for a four year period from 2011/12 to 2015/16 that was 20% less than its previous budget. His case is that there was accordingly a need to find a way of accommodating those cuts which did not affect the performance of that duty, that although some £12m of savings had been made which did not involve the reduction of in numbers of police officers, this still left a significant shortfall of over £10m and that following an Operational Policing Review it was decided that the only way to maintain the efficiency of the force was to reduce police numbers. Given the limited tools available to the Chief Constable to achieve that end, the decision in principle was taken to invoke the use of Regulation A19 compulsorily to retire officers who fell within its scope, although only on the basis that that there would be further consideration of the position of any individual officer before any decision was made in his or her case. Mr Hitchcock, the Chief Constable, in his evidence to the court however makes clear, as is demonstrated in the contemporaneous documents, his approach was there would have to be ‘good reasons why in the interests of efficiency’ an officer who was under consideration for retirement under Regulation A19 would not be retired (witness statement at paragraph 15).

[4]Mr Hitchcock also makes clear, as again is demonstrated in the contemporaneous documents, that although the Force Executive had made an earlier in principle decision to invoke Regulation A19 in early August 2012, there was, before the decision of 16th October was made, extensive consultation with the Superintendents’ Association (as well as the Police Federation) through a series of meetings and exchange of correspondence as to when and how the policy to invoke Regulation A19 would be implemented. It is clear that the Association was seeking to exclude Superintendents from the policy altogether with it being confined to ‘federated ranks’, but in the event the Chief Constable rejected this proposal as being divisive for the Force.

[5]The letter sent out to the Superintendents Association by the Chief Constable dated 22nd August, which initiated this consultation on how the decision to invoke A19 would be implemented, is relied on by both sides to this claim. The defendant relies upon it as demonstrating that it was always a decision which had in mind considerations of ‘the efficiency and effectiveness of the force’. The claimants rely upon it as demonstrating that in truth it was a decision made simply to save money (‘making cuts to balance the budget’) which it is said is outwith the purpose to which Regulation A19 can lawfully be put and was not made on efficiency grounds peculiar to the individual officer within the meaning of the Regulation (or indeed Mr Lock would say not based on efficiency grounds even in the context of the Force as a whole). Regulation A19 it is said cannot be used as a tool to support ‘mass redundancies’. That letter reads as follows in its material parts for these purposes:

‘Thank you for your email dated 15 August 2012 in response to the policy consultation on the Compulsory Retirement of Police Officers (Regulation A19). As you are aware, in addition to the £12m of cuts already made, the Force has to make further cuts of approximately £10.8M over the next three years. Including employer pension contribution the total percentage spend on staff costs is a relatively high proportion of the budget (now 87%). Having made significant cuts in non-staff budgets as well as redundancies during the last financial year, these cuts cannot be achieved without a reduction in the numbers of police officers. Significant cuts from other areas would undoubtedly have a deleterious impact on the efficiency and effectiveness of the Force. The Force Executive met on the 21st June 2012 to consider the business case and options for restructure contained within the Operational Policing Review. These discussions included a detailed discussion on whether or not it is necessary to invoke Regulation A19. You will recall we met on 5th July when we discussed the introduction of Regulation A19. On 13th July, the Police Authority received an update on the Operational Policing Model and resolved ‘That the Chief Constable in consultation with the Chair of the Authority be given delegated Authority to use Regulation A18, A19 and A20 to retire Police Officers as deemed appropriate.’

On 9th August, the Force Executive considered the trajectory for police officer numbers and concluded that the necessary reductions were not likely to be met through natural turnover. The decision to invoke the use of Regulation A19 was confirmed at this meeting. I can assure you that this decision is one which we have taken only after careful consideration of all other options and, further, it is one which we have taken with regret. I have enclosed, for your information, the briefing paper which was presented to the Force Executive at this meeting. This summarises the objective justification for the Force Executive taking this decision. The Force Executive has taken the decision to invoke only A19 at this stage. What we have not done is decide exactly how the policy will be implemented, nor have we decided the specific date when the policy will be implemented. It is my intention that this process remains open and transparent, and to that end I will be inviting the Staff Associations to be involved in the detailed design of the process. A period of consultation specifically for this purpose has been built in to the policy. The period for consultation on the proposed policy has now concluded and the submissions received are being considered. …’

[6]The Policy ultimately adopted by the Chief Constable in October 2012 was set out in a document headed; ‘H107 Compulsory retirement of Police Officers Policy (Regulation A19)’ (‘The Policy Document’). There had earlier been before the Force Executive Board at its meeting in August 2012 another document headed ‘Decision Point Paper to Police Authority’. This ‘Briefing Paper’, as it is called elsewhere, set out according to the defendant, ‘the objective justification’ for the ‘in principle’ decision ultimately taken in October 2012. This paper also had a section on ‘process’, much relied upon by the claimants before me, to demonstrate that the policy of the Chief Constable was that any individual officer had to make out ‘an exceptional case’ if he was not to be retired and that even if such a case were made out, the only outcome was to be a revision of the proposed retirement date, rather than no retirement at all. However I accept that it is the Policy Document which contains the process ultimately adopted by the Chief Constable. The minutes of a meeting between the Superintendents Association and the Force Executive, attended by amongst others the Chief Constable and the second claimant (Chief Superintendent Andrew Street) as Branch Executive of the Association on 25th September 2012, records the following:

‘Of particular concern to the Association was the discrepancies between the Briefing Paper considered by FEB and the Policy Document. Chief Constable clarified the Policy took precedent over the Briefing paper … as the policy was built upon the Briefing paper, experience of other Forces and consultation.’

[7]I shall return in due course to more detail of the process adopted by the defendant in October 2012 and purportedly applied in the cases of both Mr Johnston and Mr Street but in essence it involved what is termed an ‘individual consultation’ carried out by a senior police officer with the individual officer concerned which was to begin no less than 28 days prior to the date the officer attained 30 years pensionable service, but where practicable three months before. In the case of Superintending ranks that consultation on behalf of the Chief Constable was to be carried out by ACC Govier who would invite the officer to make representations at a meeting. Paragraph 3.5.8 of the Policy expressly states that ‘the officer will be given the opportunity to put a case if they believe it is not in the general interests of the efficiency of the Force for them to retire or if they believe their selection has been unfair or any other reason’. The senior officer, for present purposes ACC Govier, would then make the decision – in effect on behalf of the Chief Constable – whether to require the officer to be compulsorily retired under A19 and when but with a right of appeal to an Assistant Chief Constable, for present purposes ACC Hislop.

[8]There was much debate before me as to the status of the ‘in principle’ decision of 16th October in the context of the ultimate decision taken, for example, in the case of Mr Johnston, to retire him under Regulation A19: Was it part of the decision and if it was, was it a lawful one, given at that stage no consideration had been given to the circumstances of the particular officer and the effect his retirement would have on the general interests of the efficiency of the force? This is a matter to which I shall have to returnbut I record the following from the letter of the Chief Constable of 17th October 2012 to Mr Street on behalf of the Superintendents Association in which the Chief Constable confirmed that which he had informed them at a meeting that day, namely ‘that the Force executive had met yesterday and reluctantly taken the formal decision that Regulation A19 would be invoked and that its invocation would apply to all ranks’. In the course of that letter the Chief Constable rehearsed that which had been discussed at the meeting with the Association in these terms:

‘I acknowledged that I had previously met with members of the superintending ranks and that individuals had set out what their personal plans and intentions might be, but I stressed that such plans, by their very nature were diverse and that as a result allowing such an approach simply would not work financially. It is of course the case that at the time of these personal discussions Regulation A19 was not in prospect and it was, and remains my position, that I would do everything else to avoid the need for it to be used. Regrettably, having made significant cuts during two phases of Force re-organisation that position is no longer viable for the efficiency of the Force at this time. I explained that treating the superintending ranks differently to federated officers would be problematic and most likely divisive. Whilst I agreed that it may be lawful to target certain ranks, the reality is that to achieve the necessary efficiencies we will need to invoke its use across all relevant personnel. We discussed the national scene in terms of the introduction of any voluntary or compulsory severance scheme, that time scales were not clear at this stage and that in any case the need for such a scheme would be inevitable should the next CSR be a difficult one. We exchanged views also on the absolute need for clear succession planning for all ranks, senior officers’ willingness and desire to be involved in these processes, as well as promotion boards and the potential to in effect make appointments on a ‘designate’ basis which the Force has similarly done in the past. There was also a discussion about the process itself, the ninety-day notification versus notice period, which may be within the overall ninety days, and the shared view that the sooner the various stages, e.g. the representation meeting, decision and any appeal, were progressed the better for the individuals concerned. Both sides reiterated their clear understanding that no decision in any individual case had yet been taken, that notwithstanding the decision to proceed, individuals would be able to make their own representations to influence outcome and that first line managers and others would play their part in appeals.’

(emphasis is the emphasis of the court) Prematurity

[9]On any view however whether or not the 16th October decision is to be regarded as part of the decision making process in Mr Johnston’s case, it is clear that all stages of that process in his case were completed (subject to a final review recently introduced) before he had reached the date when he would accumulate the necessary pensionable service required in order to be retired under Regulation A19, and indeed it is not in dispute that the Policy on its face anticipated that the decision making process might be complete before the Officer reached the required 30 year point. Mr Johnston was written to by letter of 19th October (a letter in standard form) by ACC Govier, had a meeting with ACC Govier on 30th October; was then informed by letter of 9th November 2012 of the decision made by ACC Govier that he should be retired on the 31st March 2013 and his appeal to ACC Hislop was dismissed by letter of 18th December 2012. Mr Johnston did not reach, in his case, the necessary 30 year service date until 28th December 2012. This timetable has given rise to a particular issue as to the lawfulness of the decision made in his case under Regulation A19 by reason of an alleged prematurity that is to say the taking of a decision before (it is said) the power to make any decision under A19 had arisen. The decisions under challenge

[10]As finally formulated before me by Mr Lock QC on behalf of the claimants, the challenge is not to the ‘in principle’ decision to invoke A19 itself (save so far as it is to be construed as part of the specific A19 decision applicable to individual claimants). Rather the challenge is directed at the Policy adopted by the defendant at this time (or the decision to adopt such Policy) for the taking of individual decisions under Regulation A19 (‘the decision making process policy’) which is said to be unlawful.

[11]The second, third and fourth claimants were at the time of the issue of the claim all serving officers who fell within the identified cohort. The challenge is then made to individual decisions said to have been made under this process compulsorily to retire the individual claimants. In fact of these 3 claimants, only one, namely Detective Superintendent Johnston, has been made the subject of a decision by the Chief Constable that he be compulsorily retired on 31 March 2013 (although even that is said by the defendant to be subject to a final review process and further the date has been extended to allow for these proceedings) and it is only that particular decision which is now under challenge. Although the process was also initiated in respect of Detective Chief Superintendent Andrew Street, that process has been terminated originally because he indicated his intention voluntarily to retire, and subsequently because it was recognised by the defendant that his exceptional status as an officer whose position is in part funded on a collaborative basis by two other forces, that of Cambridgeshire and Hertfordshire, meant that it was ‘not in the general interests of the efficiency’ of the Bedfordshire Force that he be required to retire. The process has not been initiated as yet against Superintendent Linda Kelly since the date when she will have completed the required pensionable service does not arise until August 2013, although it is said on her behalf that she has been informed privately that she is going to be retired under the Regulation. I might also add that evidence was produced on the last day of the hearing to suggest that DS Johnston had now decided to retire voluntarily but I was informed that he has since withdrawn this decision. Hence I proceed on the basis that there is still an effective challenge to the decision in his case.

[12]There has been produced before me on behalf of the defendant a vast amount of documentation contemporaneous with the decisions under challenge. I have already referred to part. In addition there are witness statements amplifying how the decisions under challenge were made from the defendant Chief Constable, Mr Alfred Hitchcock, Assistant Chief Constable Kath Govier, who it will be recalled was involved on behalf of the defendant in the decision making process in respect of individual officers of superintending ranks, and from Superintendent Neil Wilson who provided a chronological and detailed account of how the decisions came to be made, in particular the ‘in principle decision’ of 16th October. On behalf of the claimants, the principal witness statement has been that of DCS Street on behalf of himself and all the other claimants. There is no witness statement from Mr Johnston himself challenging, for example, what is set out by ACC Govier in relation to her dealings with him. I accept of course the need to approach with caution evidence which seeks to amplify reasons given for a decision at the time (see R v City of Westminster ex parte Ermakov [1995] EWCA Civ 42, 28 HLR 819 at 829) and should be ‘circumspect about allowing material gaps to be filled by affidavit evidence or otherwise’ but I am bound to say given the wide ranging nature of the way in the statement of grounds and facts were originally formulated with detailed criticisms of the defendant’s process, with an overriding complaint that decisions here were made in order to ‘balance the budget’ without regard to the statutory test directed at the ‘general interests of efficiency’, that this court cannot ignore the explanations given in the witness statements of the decision making process. Certainly the claimant has not filed any evidence which challenges the truthfulness of this witness evidence.

[13]Before turning further to consider the grounds of challenge, it is convenient to set out the statutory scheme under which the Chief Constable was operating. The Regulatory Scheme

[14]Police officers are not employees of a police force but persons who are appointed to the office of constable under sections 29 and 30 of the Police Act 1986. There is no general ‘redundancy’ provision in statute or regulation by which police officers can be compelled to leave the police force. There are a series of regulatory provisions made pursuant to statute under which an officer can be compelled to leave but only in defined specific circumstances. Apart from those in Regulation A19 of the Police Pensions Regulations 1987 (‘the 1987 Regulations’) with which this appeal is concerned, these are those allowing compulsory retirement on the grounds of age and of disablement (see respectively regulations A18 and A20 in the 1987 Regulations sitting either side of Regulation A19) and those allowing dismissal on grounds of misconduct and compulsory retirement on grounds of unsatisfactory performance, (currently provided for respectively under the Police (Conduct) Regulations 2012 and the Police (Performance) Regulations 2012 (themselves a successor to regulations which were once titled Police (Efficiency) Regulations) (see for example those of 1999).

[15]I should record that following on recommendations in the Independent Review of Police Officers and Staff Remuneration Conditions: Part 1 Report (Cm 8024)(March 2011) (‘the Windsor Report’), there have, since 16th January 2013 been in place provisions for police forces to operate voluntary exit and severance arrangements (under the Police Pensions (Amendment No 3) Regulations 2012), although such voluntary severance is not to be available to officers eligible to retire with a full pension. I understand that as yet no such arrangements have been adopted by the defendant’s Force. Further and again following on the Windsor report, there are, I understand, currently in existence proposals for the introduction of general compulsory severance arrangements, but these, which in any event would require primary legislation, have yet to come to fruition. Regulation A19

[16]Regulation A19 of the 1987 Regulations is contained within part A of those regulations headed ‘General Provisions and Retirement’. This particular regulation is headed ‘Compulsory retirement on grounds of efficiency of the force’. The 1987 regulations came into force on 1st April 1987 and were themselves a replacement for 1973 regulations which themselves contained in Regulation 87 an equivalent of Regulation A19 in very similar terms. Regulation A19 has been subject to various amendments over the years but until very recently with no amendment for present purposes of any substance. Like, although not identical, provisions for officers appointed after 6th April 2006 are contained in the Police Pension Regulations 2006.

[17]The form of this regulation in force between January 10th 2012 to December 2nd 2012 provided as follows:

‘A19 – Compulsory retirement on grounds of efficiency of the force. (1) This Regulation shall apply to a regular policeman, other than a chief officer of police, deputy chief constable, assistant chief constable, specified employee of SOCCA or employed constable of NPIA, who if required to retire would be entitled to receive a pension of an amount not less than 2 thirds of his average pensionable pay or would be entitled to receive a pension of such an amount if it did not fall to be reduced in accordance with Part V111 of schedule B (reduction of pension related to up-rating of widow’s pension), or if he had not made an election under regulation G4(1). (2) If a police pension authority determine that the retention in the force of a regular policeman to whom this Regulation applies would not be in the general interests of efficiency, he may be required to retire on such date as the police pension authority determine.’

[18]It can be readily seen that A19 uses the concept of accumulated pensionable service to identify the officers who may be compulsorily retired. The provision that A19 applies to a serving police officer who if required to retire would be entitled to receive not less than 2/3 rds of his average pensionable pay (or would have been so entitled if he had not opted out under the identified regulation) means (by virtue of the application of other material provisions of pension regulations) that to be retired under this regulation an officer has to have completed at least 30 years pensionable service.

[19]This version of the regulation had been promulgated by the Police Pensions (Amendment) Regulations 2011. Its principal amendment was to vest the power under the Regulation A19 in the ‘police pension authority’, (see A19 (2)) which for the purposes of the Bedfordshire Police Force is the Chief Constable. Previously the power had been vested in the ‘police authority’. In this case the Bedfordshire Police Authority on 13th July 2012 made a decision that:

‘The Chief Constable in connection with the Chair of the Authority be given delegated authority to use regulations A18, A19, and A20 to retire Police Officers as thought appropriate’

. Self evidently that decision was made in ignorance of the amendment to A19 (and the other cited regulations) which already vested the power in the Chief Constable as police pension authority.

[20]A further amendment to A19 was introduced by the Police Pensions (Amendment No 2) Regulations 2012 which came into force on 3rd December 2012. This inserted a subparagraph (3) in these terms:

‘(3) in making a determination under paragraph (2) a police pension authority shall take account of:- (a) the desirability of retaining in the force regular policemen who possess the skills or knowledge of particular importance; and (b) the standard or level to which the regular policeman in question has performed the duties of his rank or role.’

[21]This amendment was itself introduced to implement recommendations in the Windsor Report. I consider the implications of this amendment to any interpretation of A19 and its statutory purpose below. Statutory purpose of Regulation A19

[22]The 1987 Regulations were made under sections 1 to 8 of the Police Pensions Act 1976.

(c) of section 1 of the Act which provides as follows:

‘Regulations to be made by the Secretary of State, with the consent of the Minister for the Civil Service, and after consultation with the Police Negotiating Board for the United Kingdom, shall make provision - … c) as to the times at which and the circumstances in which members of police forces are or may be required to retire other than on the ground of misconduct.’

This is a broad power enabling regulations to be made conferring a discretionary power to require members of police forces to retire in prescribed circumstances. The only restriction to the power is that retirement on the ground of misconduct is not to be covered by regulations under sections 1 to 8.

[23]I would accept the submissions of the Secretary of State that on any overview of the statutory regulatory scheme, Regulation A19 is not directed at concerns for the inefficiency of a police officer and is not there in order to enable a Chief Constable to retire a police officer on grounds of personal inefficiency since that is catered for in the Performance Regulations. Rather it is concerned with the wider efficiency of the force as a whole. In principle it confers a general discretionary power on Chief Constables to require officers who fall within its scope to retire on wider efficiency grounds. I would accept that its statutory purpose must be as contended for by the defendant, namely to facilitate the general interests of the efficiency of the force by the compulsory retirement of police officers but with the legislative intent that it should be used only in respect of officers who have the financial ‘cushion’ (of a healthy 2/3rds pension) to cope with the loss of post. It is in fact the only legal ‘tool’ currently available to a Chief Constable to reduce the numbers of officers in his force in the general interests of efficiency. I accept that any such reduction must be ‘in the general interests of efficiency’ and not simply to achieve budget cuts or to ‘balance the budget’. However ‘general interests of efficiency’ must in principle be capable of extending to the question of how to accommodate the need for a police force to live within its means. I say this while taking on board, as urged by Mr Lock, the definition of ‘efficiency’ in the Oxford English Dictionary (‘a system or machine achieving maximum productivity with minimum wasted effort or expense’). I would accept the submission of Mr Cavanagh QC on behalf of the defendant that the words ‘general interests of efficiency’ mean what they say and it would be wrong in law to give them a narrower meaning than the ordinary meaning of the words. To quote his written Speaking Note at paras 13 and 14: ’13. If the Chief Constable makes the judgment that it will be in the general interests of efficiency to reduce the number of officers in the force, then A19 is the only legal “tool” he can use to give effect to this decision. This may mean that it is not in the general interests of efficiency to retain any of the officers who qualify under A19 (1). 14. Such a situation may arise, as here, where the cuts imposed upon the Force mean that difficult decisions have to be made about where the cuts should fall in order to maintain and improve the efficient provision of a police service. The Chief Constable has to make efficiency decisions based on the financial and other resources available to him. He has to decide how to do more with less. If the Chief Constable makes the judgment that it would not be in the general interests of efficiency to reduce further the police staff complement or to make further inroads into property and equipment etc, he may determine that it will not be in the general interests of efficiency to retain the police officers who qualify under A19 (1). Put bluntly, it is more efficient, going further, to provide the police service with a smaller number of officers than it is to make further cuts in staffing or in other areas.’

[24]Support for this interpretation is to be found in the judgment of Wynn Williams J in R (ona Hodgson) v South Wales Police Authority

[2008] EWHC 1183

(Admin) at paras 32-34: ’32. Mr Westgate submits that the Defendant erred in principle in its approach to the interpretation of regulation A19. He submits that the Defendant treated it as authorising redundancies or dismissals for reasons not connected with the officer’s personal effectiveness. He concedes that as a matter of language the term “general interests of efficiency” is capable of including matters which are wider than the officer’s personal effectiveness but he submits that in the particular context of these Regulations the phrase should be interpreted as being confined to an investigation of the officer’s personal effectiveness.33. Mr Johnston contends that the words “general interests of efficiency” relate to the efficiency of the Force, rather than the efficiency (or effectiveness) of the individual officer. He submits, in short, that that is the natural meaning of this phrase and there is absolutely no reason to give the phrase a more restricted meaning.

34. The words of regulation A19 (2) must be read in the light of the Regulation as a whole and of course, the statutory enabling legislation. Having said that, I am left in no doubt that Mr Johnston’s interpretation of Regulation A19 is the one to be preferred. It seems to me to be clear that the phrase “general interests of efficiency” is addressed to the Force as a whole and cannot, sensibly, be confined to a meaning which would require the Defendant simply to consider the efficiency of a particular officer. At paragraph 12 of his Skeleton Argument Mr Johnston advances a number of reasons why the interpretation of A19 which he puts forward should be preferred. In my judgment each of his points are valid. Ultimately, however, I base my conclusion on the straight forward proposition that the natural meaning of the words used in their appropriate context is that which is advanced by Mr Johnston.’

[25]That is not to say that considerations of the personal efficiency, the skills and the abilities of the officer are irrelevant to any decision made under A19. They clearly are relevant since it may not be in the general interests of the efficiency of the force as a whole to retire a particular officer given his particular accumulated skills which may be difficult to replace, but the emphasis must always be in my judgment when applying A19 upon the impact these considerations have on the general efficiency of the force.

[26]The insertion, on the recommendation of the Windsor Report, of Reg A19 (3) (with effect from 3 December 2012) only in my judgment makes explicit what was and is implicit in the lawful application of Reg A 19, namely that these considerations are relevant but not necessarily decisive, and certainly the inserted wording does not prescribe the weight to be given to these factors by the decision maker, only that they should be taken account of. In this regard I would accept the analysis of the Secretary of State at paragraph 28 (3) of her written submissions: ‘the fact that A19 (3) has been inserted … to require Chief Constables to take into account the skills and experience of the police officer before taking a decision to require the officer to retire only underscores the fact that A19 was also concerned with wider efficiency considerations (and not the personal inefficiency of the officer). If Reg A19 was only ever concerned with the personal inefficiency of the officer, it would be plainly unnecessary for the decision–maker to be subject to an express requirement to take into account the particular skills and knowledge of the officer before taking a decision. Nor could it be said that it is only following the introduction of Reg A19 (3) that Reg A19 is now concerned with wider efficiency considerations (in the context of which the skills and knowledge of the particular officer must be taken into account (Indeed it is clear from the Windsor report Part One that Reg A19 (3) was intended to make express what was already considered to be implicit in a lawful application of Reg A19)’.

[27]In reaching these conclusions on the statutory interpretation and statutory purpose of the regulation, I should make clear that I have found no assistance in the opinion expressed in a letter of 27th April 1998 by a Home Office civil servant responsible for police pensions (Mr John Gilbert), sent to the General Secretary of ACPO, in which he suggests that the determination under the regulation should be by reference to a specific justification personal to the particular officer (‘the specific justification for compulsory retirement would have to be personal’) and ‘we would strongly caution against the use of Regulation A19 in the furtherance of a redundancy programme for the general efficiency of a police force unrelated to the individuals themselves’. The context in which this opinion was expressed is not clear but in any event I do not consider that a letter such as this from a government official, written not at the time the regulation was made, can be a proper aid to the construction of a statutory instrument.

[28]It is clear that Reg A19 confers a power upon the Chief Constable to compulsorily retire a police officer who falls within the scope of the power as defined in A19 (1) (in effect one who has acquired 30 years pensionable service) and does not mandate it. To this extent there is a discretion conferred upon the Chief Constable whether to exercise the power, which goes beyond simply deciding the date of retirement, and any exercise of such power must be challengeable on the ordinary public law grounds of irrationality/Wednesbury unreasonableness. Further the power arises only where it has been already determined that the retention of the particular officer is not in the general interests of the efficiency of the force, and again any such determination must be challengeable on like grounds. To this extent there is a ‘two stage process’ involved in any decision to retire an office under A19 (has the power arisen? should the power be exercised and if so when?). However it is important not to be over analytical of the terms of what is on its face a straightforward provision which does mandate any particular decision making process. In other words I would accept that there is no reason why that which Mr Lock has described as first the ‘efficiency determination’ and secondly the ‘discretionary decision’ should not be all rolled up into a single decision making process.

[29]Further there is no requirement in law for a Chief Constable to adopt and publish a policy directed at the application of Reg A19. This said, I would also accept that if - as here according to the claimants - a Chief Constable has chosen to adopt and publish a policy, then the lawfulness of such policy is open to challenge if it carries ‘an unacceptable risk of unlawful decision making’. I would adopt the observations of Wyn Williams J. in Suppiah v SSHD

2011 EWHC 2

para 137; ‘… as a matter of law a policy which cannot be operated lawfully cannot itself be lawful; further … a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision making is itself an unlawful policy.’

[30]Further I accept that the power under A19 is in terms directed to the compulsory retirement of a particular police officer whose retention is determined not to be in the general interests of efficiency of the force. However subject always to the need before making any final determination and decision based thereon, to consider the circumstances of the individual officer, as now mandated by A19 (3), (and which would in any event form part of any rational application of the regulation), I see nothing unlawful in principle in a Chief Constable determining that, subject to consideration of an individual officer’s circumstances and the impact his removal would have on the force’s efficiency, removing a whole cohort of officers who had acquired the required pensionable service, would ‘in principle’ be in the general interests of the efficiency of the force having regard to the need to make budget savings and the undesirability of making further cuts elsewhere. I accept that to reach such a conclusion rationally the Chief Constable would have had to have regard to the need for succession planning and to take account of which posts would be likely to disappear and which would be retained. In this case, for example, it is clear from the evidence of Superintendent Wilson that what was being proposed was not the abolition of senior ranks which any retired officer may have held but rather there would be promotion from lower ranks to fill these senior posts with the savings coming from not filling the resultant vacancies in the lower ranks (in particular sergeant and constable posts).

[31]The taking of an ‘in principle decision’ in this way before looking to the individual circumstances of any particular officer who fell within the cohort is what in effect happened in this case. I say this is what happened in this case not merely by reference to the contemporaneous documentation but by reference to the witness statement of for example the Chief Constable himself, Mr Hitchcock.

[32]Thus at paras 13 – 19 of Mr Hitchcock’s witness statement the following appears:

‘13.Following three months of research and staff consultation the Chief Officer Team was presented with a business case which demonstrated how the force could continue to meet its purpose of ‘fighting crime, protecting the public’ whilst delivering further cuts. This detailed business case, the Operational Policing Review was presented to the Chief Officers of the Force Executive on 21st June 2012. It was clear from the evidence provided that the policing model at that time could only meet the budget trajectory until the end of March 2013, and that the years following could only be achieved by further restructuring and a reduction in the number of police officers. I took the view that this could be done in a way that would maintain (and indeed continue the improvement in) the efficiency of the Force. Under these circumstances I, and my fellow Chief Officers, reluctantly but unanimously agreed that it was likely that the use of Regulation A19 would be needed to achieve this. As a result Superintendent Wilson was allocated the task of drafting policy and procedures for consultation with the Superintendents’

Association and the Police Federation. 14. In the discussions which took place in relation to the possible use of Regulation A19 at Force Executive meetings, consideration was given to the potential adverse impact upon the force of losing the services of experienced and able officers. 15. It was always envisaged by me and the Force Executive that, even after the decision in principle to implement Regulation A19 was taken, further consideration would be given to the question whether Regulation A19 would be applied to each individual officer, and that officers would be able to make representations at that stage. There might be reasons why it would not be in the interests of efficiency for a particular officer to be retired under Regulation A19, for example if he or she had special skills which could not be replaced. However, there would have to be good reasons why, in the interests of efficiency, an officer who was under consideration for retirement under Regulation A19 would not be retired. There were, as I have said, pressing reasons why the force had to make use of Regulation A19. As I have said, the force is used to coping with the retirements of officers who are highly competent, skilled and experienced and who perform to a high standard. Indeed, the great majority of officers retire voluntarily when they qualify for a full pension and, of course, all officers retire eventually. Officers can be replaced by other officers. 16. Following this decision a series of meetings took place with the Superintendents’ Association, as well as exchanges of letters in order to seek the views of the Association in the consultation relating to the draft Regulation A19 policy and procedures. The meetings are described in Supt Wilson’s statement. I took account of the matters raised by the Superintendents’ Association (and the other consultees) during the consultation process. On 16th October 2012 following the consultation period, I took the decision in principle to invoke, ie implement the use of, Regulation A19. The process developed for the use of Regulation A19 involved the delegation of responsibility for these procedures to Assistant Chief Constable Govier in relation to the Superintending ranks and to Superintendent Wilson in respect of federated ranks. 17. When I took the decision to implement A19, I took account of the fact that this would result in the loss to the force of a significant number of very able, experienced and high-performing officers. However, I took the view that the force would be able to manage with this and that, nonetheless, the use of Regulation A19 was the most effective way of maintaining and improving the efficiency of the force in the current circumstances. As I have said, the force is constantly used to dealing with the loss of very good officers through retirement. Indeed, the force often has to cope with the loss of good officers through voluntary retirement at very short notice, since officers who retire voluntarily can give as little as 28 days’ notice. There might be particular reasons why the retirement under Regulation A19 of individual officers might not be in the general interests of efficiency, for example because their retirement would not result in a saving or because they had skills that could not be replaced, but, in general, I was confident that the force would be able to cope with the retirements, and I was also confident that Assistant Chief Constable Govier and Superintendent Wilson would be able to make the right judgments in individual cases. 18. I should also make clear that I fully appreciated that many of the officers who would be retired under Regulation A19 would be replaced by other officers in the role that they currently occupied, either by transfer or by promotion. Nonetheless, their retirement would produce an efficiency saving for the force because, at the end of the sequence of transfers or promotions, a vacancy would be created that would not be filled. The financial projections which the force was working from, which were as accurate as was possible in the circumstances, took account of this factor. 19. I have a responsibility, along with the Chief Officers, to manage the force’s budget and other resources as effectively as possible in order to provide the most efficient police service possible, and, with reluctance, I had come to the view that the use of Regulation A19 would be the most efficient way of conserving the force’s financial resources so that they could be used effectively.’

[33]I see nothing unlawful or irrational in the defendant’s taking of the ‘in principle’ decision in this way with a view to using this as a ‘stepping stone’ in reaching any ultimate decision by which it was determined that the retention of a particular officer would not be in the general interests of efficiency and then deciding that he should be retired on a given date. I do not consider that such ‘in principle decision’ itself, to be lawful, has to be justified by reference to the circumstances of each individual officer within the affected cohort.

[34]My only caveat would be that to be lawful, any particular decision to retire a particular officer under the regulation would have to have been based upon a determination in the terms of A19 (2) applicable to the individual officer which has used the ‘in principle decision’ as a stepping stone only, and which has been reached with an open mind taking into account any representations of the individual officer (a principle of general fairness reflected in the decision in Hodgson itself) and which after 3rd December 2012 expressly took into account:

‘(a) the desirability of retaining in the force regular policemen who possess the skills or knowledge of particular importance; and (b) the standard or level to which the regular policeman in question has performed the duties of his rank or role.’

[35]I note in this latter context that Mr Hitchcock does say at paragraph 24 that in taking the ‘in principle decision’ he did take into account ‘the potential impact upon the force from loss of a group of high performing skilled and experienced officers’ and moreover (in paragraph 25) that he took into account both what he describes as ‘the statutory test that I was required to apply’ (‘i.e. that officers should be required to retire only if it was in the general interests of the efficiency for them to do so’) and ‘in general terms’ the matters in anticipated amendment to the regulation which was to become 19(3) (‘I knew that the proposed amendment would make it obligatory for forces to take account of the desirability of retaining officers who possess skills and knowledge of particular importance and of the standard or level to which the officer in question performed the duties of their rank and role’). I have no reason to doubt the truth of what he here says although it does emphasise how the ‘in principle decision’ was contemplated as an integral part of the decision making process leading to any Reg A19 decision in any particular case. Thus paragraph 24 and 25 reads in full:

‘24. Based on my experience of operational policing and change management, I firmly believe that this restructuring will continue to ensure that crime can be reduced and the public protected, at the same time as the legal imperative of delivering a balanced budget is met. I should stress, therefore, that, in taking a decision in principle to implement Regulation A19, I did not take account of costs alone but I took account of the wider picture, that is I came to the view that there was no other way of providing for as efficient a Police Force as possible, in light of the budget available to me, than to use Regulation A19. In making this judgment, I took account of the lack of options for savings elsewhere, and of the potential impact upon the force from the loss of a group of high-performing, skilled and experienced officers. 25. I should also stress that at all times I was aware of the statutory test that I was required to apply, ie that officers should be required to retire only if it was in the general interests of efficiency for them to do so. During the discussions I had with the Superintendents’

Association, their representatives mentioned the proposed amendment to Regulation A19, which became A19 (3). I was aware of this amendment, though, at the time when it was mentioned by the Superintendents Association, in August 2012, it had not yet been laid before Parliament and the date of its implementation was not yet known. I knew that the proposed amendment would make it obligatory for forces to take account of the desirability of retaining officers who possess skills and knowledge of particular importance, and of the standard or level to which the officer in question performed the duties of their rank or role. These were matters that I took into account, in general terms, when I took the decision in principle to use Regulation A19 in October 2012. As I have said, I took the view that the force would be able to manage without the skills and experience of the officers who would leave and I took the view that the use of Regulation A19 was the right decision for the force despite the fact that I knew that the officers who would retire were generally high-performing.’

[36]In principle, however, the weight which the Chief Constable gives to the representations of the officer or, after 3rd December 2012, to the prescribed factors, must be a matter for him as decision maker. Contrary to Mr Lock’s submissions, I do not consider it to be unlawful in itself - subject always to principles of rationality - for a Chief Constable to come to the view that the removal of a cohort of officers would improve efficiency without compromising the performance of the force and with such potential financial savings to enable the force to live within its budget, that the circumstances of the individual could carry little weight. This is not in fact the position of the Chief Constable in this case although as I have indicated he concedes that he had, by the time of the in principle decision of 16th October, decided that it would require ‘good reasons’ why in the interests of efficiency ‘an officer under consideration for retirement under A19 would not be retired’. I reject however that this necessarily meant that the Chief Constable when he – or his delegate – came to consider whether to make a determination and decide to retire an officer under Regulation A19 approached this exercise without an open mind simply because the ‘stepping stone’ ‘in principle’ decision had already been made. As Mr Cavanagh submitted, an ‘open mind’ is not an ‘empty mind’. An analogy may be drawn from the authorities dealing with the process of consultation before finally reaching a particular discretionary decision potentially affecting a large class of persons: the consultation has to be taken at a formative stage of the process but a decision is still at a formative stage even where the decision maker has identified a preferred option or reached a provisional view upon which he wishes to consult or has a legitimate disposition to a particular point of view (See Nichols and Others v GatesheadMBC

(1998) LGR 435

; Sardar v Watford BC

[2006] EWHC 1590

(Admin ); R (Newsom) v Welsh Assembly (No 2) [2006] Env L.R; Bovis Homes v New Forest DC

[2002] EWHC 483

[37]The defendant is further entitled to draw support for the lawfulness of the approach taken by him to the use of A19 in any individual officer’s case from that line of authority establishing that a public authority is entitled to have a policy about the way it intends to approach the exercise of a particular discretion or power provided it does not close its mind to individual cases and is prepared to listen to that which the individual has to say. See in particular R v Warwickshire County Council ex parte Williams

[1995] ELR 326

(concerning the discretionary power of a local authority under the Education Act to make awards of financial assistance to students, and the adoption of a policy that no award would be made save in exceptional circumstances to be determined in any individual case against criteria identified in the policy).

[38]I might add that that Mr Lock expressly disavowed any challenge to the legitimacy of the consultation process which took place (for example with the Superintendents’ Association) before the making of the ‘in principle’ decision to invoke Regulation A19. The Procedure adopted in these cases

[39]I have to say – subject to the point on prematurity - that on reflection I could find nothing unlawful in the procedure actually adopted in these particular cases. I take the case of Mr Johnston since he is the only one in which a final decision to compulsorily retire him was made. As I have indicated he was written to by standard form letter dated 19th October 2012 in which he was invited to a meeting with ACC Govier who had delegated authority to act on behalf of the Chief Constable in which he was to be given ‘an opportunity to put the case for your retention if you believe it is not in the general efficiency of the Force to retire you or if you believe your selection has been unfair, or for any other reason’. The letter enclosed, amongst other things, a detailed ‘Regulation A19 Compulsorily Retirement Frequently Asked Questions’ form as well as a ‘Regulation A19 Representation Form’ which gave non exclusive guidance on the sort of representations which might be made. The form is headed ‘Regulation A19 Retirement Representations for Retention following Notification of Retirement … to be completed personally by the Officer at risk of Regulation A19 Compulsory retirement’ (emphasis is the emphasis of the court). The guidance on representations was in the following terms:

‘Where practicable the force will seek to begin individual 3 months prior to the date on which an officer attains 30 years pensionable service. In any event consultation will begin no later than 28 days prior to the date. Bedfordshire police will only invoke Regulation A19 in cases where an officer is approaching the point of accrual of full pension entitlement but has not given notice to retire at that point. Each officer within the scope of the regulation will be invited in writing to attend a one to one consultation meeting with a senior police officer. Officers are invited and encouraged to make representations about the application of A19. The force does not wish to be prescriptive about what representations it will and will not consider. As such the following grounds are provided for guidance and illustrative purposes only. Bedfordshire Police representations; 1. Regulation A19 does not apply to the officer concerned. 2. The decision to compulsorily retire the officer is unreasonable and would not be in the general efficiency of the Force. 3. The loss of the officer would: - Critically impact on the operational effectiveness of the Force, or - The officer has specialist skills, knowledge and experience, which despite succession planning are not possible to replace in the short term, or - The officer has key operational responsibilities which are not adequately covered in the short term. 4. The decision made to compulsory retire the officer is perverse and cannot be justified. 5. Any other reason. For example, (this list is not exhaustive):- a. Where an officer who is working on a project, which may be reaching a critical point or conclusion within a short timeframe and the officer is essential to the delivery. b. Where an investigating officer is instrumental in a case which needs to shortly go to Court and handover could jeopardise successful prosecution. c. Where specialist skills are unavailable elsewhere within the Force. d. Where the loss of the officer will have a significant impact on the efficiency of the Force and which cannot be otherwise passed on to other members of the team within the notice period of A19. It should be remembered that the purpose of invoking A19 is to enable the Force to deliver the required savings. This requirement needs to be balanced against the operational ‘risk’ of an individual being retired and the following factors may influence this decision:- - What specialist skills, knowledge or experience do you possess which would be difficult to replace if you were not granted an extension to your 30 year pensionable service. Recognised qualifications, accreditations and or other highly specialised knowledge should be included here. - If you were not granted an extension to your service what do you consider the impact would be on the overall operational efficiency of the Force? - Do you possess any recognised specialist skills which you have to pass on to others via formal training or coaching, if so what will happen to this training if you are no longer in Force to deliver it? (e.g. are there others with similar skills?) - Are there any other relevant points you would wish the Force to consider when reviewing your representations against compulsory retirement? Please consider the guidance when preparing your response. - How long do you believe the business requirement will exist? (i.e. how long before a suitable candidate could be trained to take on your current role?)’

[40]The letter also enclosed amongst other things a copy of the Briefing Paper presented to the Force Executive on 9th August 2012, to which I have already referred, which the letter said, ‘summarises the objective justification’ for the force taking the position of invoking Regulation A19 and describes that position as being that ‘the use of regulation A19 will now be considered for all officers to whom this regulation applies regardless of their location, role or rank. It is anticipated that this action will be necessary up to and including 2015/16’. It also attached a copy of the Policy Document H107.

[41]In the event Mr Johnston did both put in written representations and attended a meeting with ACC Govier on the 30th October 2012. Those written representations were detailed. It complained amongst other matters of a lack of any succession planning, and gave detailed reasons why to enforce his retirement could destabilise the investigation of crime overall. Its final paragraph was in these terms:

‘Finally I would argue that my breadth of knowledge, specialist skills and experience, cannot be replaced in the short term as the force does not currently have anyone with my skill set. Apart from my experience in the field of crime investigation (SIO, Child Protection, Intelligence), I am also a firearms commander and as such, I supplement the superintendent on call rota. Although the organisation has decided to train Chief Inspectors as tactical commanders, my departure would affect overall resilience.’

[42]What happened at the meeting with ACC Govier and in the days thereafter is attested to not only in the contemporaneous documented account of the meeting within the court bundle (699-73) (A19 notes at 696) but in ACC’s Govier’s evidence to this court (w/s of 7th Feb 2013 para 49). As I have said there has been no attempt by Mr Johnston to seek to gainsay this account.

[43]It is clear that by the end of the meeting there were two principal live issues. One, in the context of a general representation that ‘if he was forced to retire such action had the potential to critically impact on the operational effectiveness of the force’ (Govier para 37), was whether there had been sufficient adequate succession planning, with Mr Johnston contending that an extension of 6 to 12 months was required. The second related to the lack of 3 months notice, and a consequential financial detriment in pension benefits in the proposed retirement date in his case on the anniversary of his 30 years’ service, (28th December 2012), it being before the anniversary of his promotion to superintendent on the 3rd January 2013. Hence ‘if he was to retire at 30 years service he would have accrued less than a full years’ service as a superintendent’ (Govier at para 36).

[44]On the unfairness issue, it is clear that ACC Govier, having discussed matters with the Chief Constable, accepted the point being made. On the succession planning issue she consulted with the Force Executive Team on the 7th November 2012. To quote Govier at para 47:

‘the impact on performance of losing (DS) Johnston was discussed and the risk to performance of losing him too early. What was not agreed was that the period of retention needed to be as long as that proposed by (DS) Johnston of 6-12 months. A decision was taken to extend (his) retirement to 31.03.13.’

[45]The decision to retire Mr Johnston on the 31st March 2013 was communicated to him orally that same day and by written letter from ACC Govier dated 9th November 2012. This letter in terms rehearsed the written and verbal representations which had been made by him in the following way:

‘you have not yet achieved your pensionable date. A consequence of the date of implementation of the Regulation A19 process is that you received less notice than a colleague whose retirement date had already been achieved. You submitted that you were being treated less favourably than your colleague and as a result would suffer a financial detriment. That the performance of the Force would be destabilised due to inadequate succession planning within the CID to fill posts with appropriately skilled officers. You submitted that you would need 6 – 12 months to manage this situation. That your knowledge, specialist skills and experience cannot be replaced in the short term as the force does not currently have anyone with your skill set.’

The decision made by ACC Govier is said to have been made ‘after careful considerations of the representations you have made and having taken into account the advice and comments made by my Chief Officer colleagues’.

[46]Mr Johnston exercised his internal right of appeal against this decision to ACC Hislop but his appeal was rejected by letter dated 18 December 2012. The letter said in part:

‘I am satisfied both that the regulation has been applied correctly and that ACC Govier engaged with the representations you made, indeed accepting a number of them and responding to them in her final letter by modifying the originally intended date for your retirement. In reviewing (her) decision I have also considered any new points put forward in your appeal, these all being financial matters, as I have taken the view that the issue of the Force’s performance and effectiveness argument were considered in representations made prior to the decision being made.’

The letter then went on to explain why the financial issues raised had not been successful.

[47]As a matter of fact given what I have seen of the contemporaneous documentation as well as the witness statement of ACC Govier, I have no reason to think other than that ACC Govier approached her task with knowledge of the test which had to be applied under A19 (a copy of which was in any event attached to the both the H107 policy and the letter she sent to Mr Johnston) and with an open mind without applying any burden of proof. In this context it is helpful to record what is said at paragraphs 7, 50, 51, 52, and 53:

‘7. Prior to writing to individual officers it was agreed by the Chief Constable that I would deal with the first stage of the Regulation A19 process for Chief Superintendents and Superintendents and that Superintendent Neil Wilson would deal with all other ranks. The Appeal authority was agreed to be Assistant Chief Officer Vince Hislop. I was clear that I had delegated decision making responsibility to consider whether the use of Regulation A19 in each case was in the interests of the general efficiency of the Force. I was clear that I was not being asked to consider whether the use of Regulation A19 was unreasonable, but that my decision making would be conducted with an open mind against the background principle that the Force had decided to use Regulation A19. I agreed to consult my chief officer colleagues prior to making my final decision in relation to an individual officer, to take into consideration their views in relation to skills retention and succession planning. … 50. At all times during this process I had an open mind as to whether or not Regulation A19 would apply to a particular officer at a given stage. During my meetings with both Detective Chief Superintendent Street and Detective Superintendent Johnston the test I applied was in relation to the general interests of the efficiency of the Force. As part of that test I took account of their skills and personal performance. There were no concerns regarding the personal performance and personal efficiency of these two officers. The Force would rather it did not have to lose these officers at all, but had to consider whether and when it could manage without them. 51. I was aware of clause 3.1.4 of the Force’s Policy relating to Regulation A19, which stated that the Policy would only be used where the Force was able to demonstrate an objective justification that the use of Regulation A19 in the particular circumstance was both appropriate and necessary, was proportionate and had a legitimate aim. I followed these principles in the consideration which I gave to the use of Regulation A19 in the cases of Detective Chief Superintendent Street and Detective Superintendent Johnston. 52. I should also add that I did not approach the consideration of the cases of Detective Chief Superintendent Street and Detective Superintendent Johnston on the basis that they had the burden of proof or that they had to prove that there was an exceptional case for retaining them. I was aware, however, that the Chief Constable had taken the decision in principle to invoke Regulation A19 and that, in the light of the circumstances, there would have to be a good reason why an officer who qualified for a full pension would not be required to retire under Regulation A19, but I approached the issue with an open mind. I was keen to ensure that I would only authorise the compulsory retirement of an officer if to do so was genuinely in the general interests of efficiency, taking into account all matters, including the matters raised with me in the representations. In keeping with this approach, I decided not to require Detective Chief Superintendent Street to retire under Regulation A19. 53. I approached each case as an individual consideration. …’

The public law challenge in these proceedings The challenge to the decision making process adopted by the Chief Constable

[48]Although the basis of challenge being mounted in this case has been something of a moveable feast, (those grounds being finally formulated in a Re-re-Amended Statement of Facts and Grounds presented to the court during the course of the hearing), as finally crystallised, as I have indicated, it amounted principally to a challenge to the lawfulness of the policy adopted by the Chief Constable for the making of decisions under A19, rather than any express rationality challenge to the decisions made in the case of any individual officer.

[49]Critical to the challenge has been a close analysis of the wording in the H107 Policy document and the flow chart attached both to it and to the earlier Briefing Paper. Particular paragraphs relied on (any emphasis is the emphasis of the court) from H107:

‘1. Policy Aim 1.1. This policy provides guidance and information in relation to the use of regulation A19 of the Police (Pensions) Regulations 1987 within Bedfordshire Police. 2. Applicability 2.1.1. This policy is applicable to police officers up to and including the rank of Chief Superintendent who have accrued full pension entitlement (typically upon accruing 30 years service). 3. The Policy 3.1. Scope 3.1.1. Regulation A19 … provides for the compulsory retirement of a police officer … on the grounds of the efficiency of the force, where the officer has accrued full pension entitlement. This will be typically after 30 years service … 3.1.2. Bedfordshire Police will only invoke regulation A19 in cases where an officer is approaching the point of accrual of full pension entitlement but has not given notice to retire. 3.1.4. The policy will only be used where the Force is able to demonstrate an objective justification that the use of the regulation is both appropriate and necessary with proportionate and legitimate aim. 3.2. Process 3.2.1. The flowchart in Appendix 2 details key steps to be followed during the A19 Process 3.3. Consultation with Staff Associations 3.3.1. Consultation will begin: - at least 30 days before the first compulsory retirements take effect if 99 or less officers are affected within 90 days; or at least 90 days before the first compulsory retirements or … 3.5. Initial Consultation with Affected Police Officers 3.5.1. After the period of collective consultation has been completed, individual consultation with officers will begin. 3.5.2. Where practicable, the Force will seek to begin individual consultations 3 months prior to the date on which the officer attains 30 years pensionable service. In any event, consultation will begin no later than 28 days prior to that date. 3.5.3. Each officer within the scope of the Regulation will be invited… to attend a one to one consultation meeting with a senior police officer. 3.5.4. The letter inviting the officer to the consultation meeting will advise why the action is being considered, why the officer has been selected for potential retirement under Regulation A19, and invite and encourage the officer to make representations about the application of Regulation A19 if they wish. 3.5.5. At the consultation meeting the senior officer will present the proposal to apply Regulation A19 and advise the officer of: - The business reasons for the proposal - the proposed retirement date based on the achievement of 30 years pensionable service - if they have already attained 30 years pensionable service, a future date within the period within which Regulation A19 may be invoked; … … 3.5.6. The senior officer will listen to and consider any representations … 3.5.8. The officer will be given the opportunity to put a case for retention if they believe it is not in the general interests of the efficiency of the Force for them to retire or if they believe their selection has been unfair or any other reason. 3.5.9. The senior officer will write to the officer with a summary of the meeting, the decision and details of the appeal process … 3.6. Right of appeal 3.6.1. An officer will have a right of appeal to the Chief Constable against the decision to retire him/her under Regulation A19 (The Chief Constable may delegate to a Chief Officer with HR responsibility) The grounds of appeal are: … - that regulation 19 does not apply to the officer concerned; - the decision to compulsorily retire the officer is unreasonable and would not be in the general interests of the efficiency of the Force … - any other reason’

As to the flow chart, the point is emphasised that it starts with the box ‘the Chief Constable to invoke the use of Regulation A19’, after which follows consultation with staff associations followed by consultation with individual officer (‘any representations heard’) and in the case of ‘representations accepted’ the only result contemplated is ‘retirement deferred’.

[50]All of the above is to be contrasted with the proposals in the original Briefing Paper where the approach is explicitly put on the basis that the representations of the individual officer are to be directed at identifying ‘exceptional circumstances’. Thus in section 4 headed ‘Invocation Process’ the following, amongst other things, appears:

‘Regulation 19 has to be applied to everyone with 30 years of service or over. However, every individual member to whom it applies will have the opportunity to make representations … as to why they should be retained in order to ensure essential skills are not lost. Any exceptions where role specific or organisational critical skills cannot be replaced within the invocation timescales will be raised as an exception to the deputy Chief Constable for exception consideration … Officers will be given the opportunity to make representations of exception circumstances’

And in the attached flow chart the question for ‘the Senior Officer’ upon receiving the representations is described as ‘Senior officer considers it an exceptional case?’ and gives as the outcome of the representations being accepted that of ‘temporarily retain’ with a ‘revised retirement date’.

[51]The challenge to the lawfulness of the ‘decision making process’ said to have been adopted by the Chief Constable through adoption of this published Policy can be summarised as follows: - it failed to separate the ‘efficiency’ determination from the subsequent discretionary aspect of the decision; - it did not expressly alert the decision maker to the terms of Regulation A19 and to the question which had to be answered in order to make a ‘lawful efficiency determination’; in particular in relation to any decision to be made after 3 December 2012 it did not expressly direct the mind of the decision maker to the specific factors required to be considered as result of Regulation A19(3); - it provided no guidance to the decision maker concerning the exercise of any discretionary decision; Mr Lock provided the court with a Note giving examples of discretionary factors which might operate in a given case not to retire an officer immediately or at all for the foreseeable future because of personal circumstances or circumstances peculiar to him (the need to give evidence in a sensitive court case or to continue to the end of a particular criminal investigation; redeploying the officer to another post within the force; allowing the officer to go on secondment to an available post funded by an outside body); - it failed to provide that the decision maker should give reasons for any ‘Efficiency Determination and/or Discretionary Decision’ since absent such reasons, the individual officer would notknow who had made the decision; whether the decision maker had taken his representations into account; whether the decision maker had applied the statutory test or some other (unlawful) test such as whether the officer had made out an exceptional case for his retention; the reasons if any for reaching the decision that retention of the officer would not be in the general interests of efficiency; whether such reasons was a rational reason or not; - a fair process demanded before any decision was made in the case of any individual officer that a business case be produced (and provided to the officer) tailored to a personal assessment of the individual officer’s skills and experience supporting the proposed ‘efficiency determination’ that his retention would not be in the general efficiency of the force; all that was ever provided was the generic business case for the ‘in–principle decision’ set out in the Briefing Paper. - the policy in effect imposed an unlawful burden of proof, contrary to the terms of regulation A19 upon the individual officer requiring him to make out an exceptional case justifying exempting him from the general policy to require all officers to retire when they reached 30 years service; in similar vein, it is complained that the policy introduced an additional test of ‘unreasonableness’; which the officer had to satisfy if he was to secure exemption. - the policy (unlawfully) did not give the decision maker a genuine discretion as regards the retention of the individual officer since the option of retaining the officer on anything other than a temporary basis was not open to the decision maker under the policy; - the errors set out above were replicated at the appeal stage contemplated by the policy which included the absence of any requirement to give reasons for any appeal decision or the basis upon which any such decision was reached.

[52]Embedded within these objections is a general objection to the use of the ‘in–principle’ decision as part of the decision making process, in any particular case, on the ground that it effectively prevented the decision maker from applying the statutory test in A19 to any particular officer, unfettered by that ‘in principle’ decision.

[53]In addition to the above, objection is taken to the policy by reference to ‘Prematurity’: the decision making process permitted and encouraged final A19 decisions to be made in respect of police officers at a time when they had not yet reached the required number of years of pensionable service to qualify under Regulation A19 and when therefore, on the statutory construction urged upon the court by Mr Lock there was no power to make such a decision. Court’s conclusions on the challenge to the Policy

[54]Subject to the prematurity point which I consider below, and one caveat as to the position after the 3rd December 2012, I can find no substance in these challenges to ‘the policy adopted on decision making process’ in the particular circumstances of this case.

[55]First I agree with Mr Cavanagh that the document relied on by the claimants (the H107 Policy document) cannot be interpreted as a purposefully designed all embracing ‘rule book for decision makers slavishly to follow when making decisions under A19’, and that is has been subject to too narrow a textual analysis which it does not deserve and without regard to all the other documentation which was produced as part of the decision making process actually carried out (in for example the case of Mr Johnston) pursuant to that policy, as well as the unchallenged witness evidence to which I have referred. As I have already stated, there can be no obligation as a matter of law for the Chief Constable to provide in advance a policy statement setting out the criteria to be applied or the method of the consultations to be followed or the way in which a decision is delivered under A19. What matters ultimately is the way in which any decision was made in any given case and it is that resulting decision to require an officer to retire under A19 which must be capable of justification on standard public law principles, which include general considerations of fairness and natural justice. Based on that which I have set out and analysed in the case of Mr Johnston I can find nothing unlawful in which the decision was reached in his case. Mr Johnston for example has not suggested that the account given by ACC Govier of the way in which she reached the decision she did in his case was not correct, or that he had not had a fair opportunity to put what were detailed representations on why it would not be in the general interest of the efficiency of the force for him to be compulsorily retired and as to the particular unfairness in requiring him to retire before he had completed a full year at his present rank, or that ACC Govier had come to an irrational decision in accepting some but not all of his representations or that he had not understood the basis for the decision made either by her or by ACC Hislop on the appeal. Again there is nothing to suggest to me as a matter of fact that ACC Govier was not fully aware of the terms of Regulation A19 (as it then stood) for the reasons I have already set out or as a matter of fact that she did not take into account Mr Johnston’s individual skills, experience and or performance as required by Regulation A19 (3) (albeit it did not come it came into force until the 3rd December 2012).

[56]Of course any policy statement which is put out, to be lawful, must not give rise to an unacceptable risk of an unlawful decision being made as for example if the policy did not provide for any prior consultation with an affected officer before any final decision in his case, but this is not the same as requiring that such policy statement cover every aspect of the decision making process and I can identify no such acceptable risk of unlawful decision making in the terms of this particular Policy Document. In particular in the context of this case I can see no justification for ruling that as a matter of law it was incumbent upon the Chief Constable to spell out in terms the difference between the ‘efficiency determination’ and the ‘available discretion aspect’ of the decision under Regulation A19, and to make express and give guidance upon that discretion whether or not to retire the officer even if it was determined that his retention was not in the general interests of the efficiency of the force. As a matter of fact the Policy did refer to representations in support of the officer being retained, going not only to general interests of efficiency but to ‘any other reason’ (see 3.5.8 and the Guidance on Representations with which the officer was supplied) and there is nothing in what I have seen to suggest that ACC Govier was not well aware that she had a residual discretion (which she in fact exercised when she gave effect to the unfairness in financial terms in requiring Mr Johnston to retire before the anniversary of his promotion to his current rank). Equally the suggestion that the policy did not make clear the criterion upon which Regulation A19 operated cannot stand with the express terms of paragraph 3.1.19 and the fact the terms of the regulation (as it then stood) was attached to the policy document.

[57]As to the giving of Reasons, the need to give and the adequacy of any reasons given to any particular officer for the decision made in his case, must inevitably depend on the circumstances of the individual case, set against the background that the officer will be well aware of the representations he has made and the issues which have become crystallised in his particular case in the course of the consultation in his case, and no hard and fast rule can be determined in advance of the individual case (see further Wyn Williams J in Hodgson at paragraph 59 and the general statements of principle in R v Westminster Council, ex parte Ermakov

[1996] 2 All ER 302

to which I was referred by Mr Lock). The important question must be whether the decision maker has made clear that he has engaged with the representations which have been made and that the individual officer should understand the basis upon which the ultimate decision has bee made so as to be in a position to assess whether that decision is open to a public law or other challenge. Again it is noteworthy that there has been no express ‘reasons’ challenge to the decision made in Mr Johnson’s case, emanating from Mr Johnson himself in any witness statement and an explicit ‘reasons’ ground of challenge has been pleaded only in the re-re-amended grounds produced late into the hearings.

[58]Further, as I have already emphasised, the governing statutory provision does not prescribe any particular procedure to be adopted before a Chief Constable can determine that the retention of a given officer would not be in the general interests of the efficiency of the Force or decide, consequent upon that determination, that the officer should be retired on a particular date.

[59]I accordingly reject as a matter of principle that this court should interpret Regulation A19 as requiring as matter of law that a formal writtenbusiness case for a proposed compulsory retirement under A19 should first be produced (and provided to the officer) tailored to a personal assessment of the individual officer’s skills and experience before embarking upon any consultation with the officer concerned or even further that such a case should be produced before even an ‘in principle decision’ can be taken of the type taken in this particular case. I repeat: what is required is that the ultimate decision to retire an office on the grounds of the general interests of efficiency can be justified in any particular case by reference to ordinary public law principles. These include of course that the Chief Constable decision maker take into account all relevant considerations, and that a fair consultation should take place prior to any final decision but the Regulation does not mandate what weight should be given to any particular consideration (not even those mandated under Regulation A19 (3)) or the order in which they be taken account or how the consultation be carried out. The Chief Constable must be acknowledged as having a wide discretion as to how to go about consultation and how to structure his decision making.

[60]I would agree with Mr Cavanagh that submissions being made about the need for a formal business case peculiar to the particular officer is derived from the mistaken belief that A19 can only be used for issues going to the individual efficiency of the particular officer rather than in the general interests of efficiency.

[61]Equally I agree with Mr Cavanagh that the concept of ‘burden of proof’ has been ‘a distraction in this case’ which ignores well recognised principles of public law which have already been rehearsed. As Mr Cavanagh submitted, when the claimants complain about ‘burden of proof’ what they are really complaining about is again that the Chief Constable had a preliminary view (his ‘in principle decision’) that it would be in the general interests of efficiency based on matters in the round (referred to throughout the hearing as the ‘big picture’) to require the officer (as a member of an identified cohort) to retire, before considering, through consultation with the individual officer, whether there were any special circumstances, factors specifically relevant to the officer, (Mr Hitchcock’s ‘good reasons’) which meant it was in the general interests of efficiency to retain the officer. For the reasons I have already given, I see nothing unlawful in the way the ‘in principle’ decision was taken in this case and nothing wrong it being used as a stepping stone in the decision making in any particular case, subject always to the caveat I have set out in paragraph 34 above. Similarly I agree with the submission of the Secretary of State in her written submissions at paragraph 39:

‘the concept of a burden of proof has no place in Reg A19 39. It is not accepted that the concept of burden of proof … is applicable or particularly helpful in the context of an administrative decision such as this. Reg A19 simply requires a determination that the retention of the officer would not be in the general interests of efficiency. Questions of proof simply do not arise. Rather, in making the determination, the decision maker must take into account and give weight to all relevant considerations. … there would be nothing wrong in the Chief Constable forming the view that the retention of a cohort of officers is not in the general interests of efficiency on financial grounds, and then asking officers for their representations which could be on the validity of that view and/or of its application to the particular officer.’

[62]This ‘preferred option’ approach was not in my judgment unlawful as already explained and I reject the submission that under the Policy the Chief Constable was in effect unlawfully fettering the discretion of the decision maker in the way contended. The same response is to be given to the complaint that under the policy the officer had to make out an exceptional case. Such reference to ‘exception’ in fact only appears in the Briefing Paper superseded by the H107 document. Equally I am unable to construe the reference in the policy document, in listing as potential grounds of appeal, that ‘the decision is unreasonable’ as introducing an additional ‘hurdle’ or ‘test’ for the application of A19. ‘Reasonableness’ or rationality is of course a relevant principle to be applied when considering the lawfulness of any particular A19 decision on public law grounds.

[63]Nor can I find any substance in the suggestion that the ‘Policy’ mandated the decision maker to only at best ‘temporarily’ retain the officer. The Policy document in terms does not say this although it does in its flow chart refer to ‘retirement deferred’. ACC Govier did not regard her powers as so restricted (Govier para 8). At most it was indicating that the Chief Constable could not rule out the application of A19 to the officer at a future time but there could be nothing unlawful in that. It could never be known whether at some time in the future it might not be in the general interests of efficiency to retain an officer. Caveat: post 3 December 2012

[64]My one caveat to my consideration of the Policy document H107 is that this was a document which was signed off in October 2012 (on the evidence by ACC Govier on the 18th October) and hence predated the coming into effect on 3rd December of the amendment to A19 which introduced the provisions of A19(3). Any decisions made under A19 or after that date to be lawful will have to have taken express account of the matters set out in 19(3) (viz.(a) the desirability of retaining in the force regular policemen who possess the skills or knowledge of particular importance and

(b) the standard or level to which the regular policeman in question has performed the duties of his rank and role). It must follow that on any view the policy document needs to be updated to include reference to A19 (3) and to attach the material Regulation A19 in its current form.

[65]I should observe that in his letter of the 22nd August 2012 to the Superintendents Association (and to D/C/S Street in particular) to which I referred at the outset of this judgment, the Chief Constable does say that ‘reference to Regulation A19 procedure’ in the policy under consultation ‘includes amendments in that Regulation’ and ‘this will be made explicit in the policy’. He then goes on to record that ‘our information from the Home Office Pensions Team is that there has been a delay in producing the Statutory Instrument which refers to the … (Amendment) Regulations 2012’ but that ‘notwithstanding the delay in issuing the amendment the Force will recognise that this amendment is intended’.

[66]I do not however regard the absence of reference to Regulation A19 (3) in H107 a reason to declare it unlawful as at the date it was made. And given the speed with which these proceedings were issued (12 December 2012) I do not regard it as open to the claimants to seek to impugn this particular version of the policy for absence of reference to Regulation A19(3) within it or the failure to produce an amended policy to accommodate it.

[67]Moreover, I have already accepted as a matter of fact that the decisions made in Supt Johnston’s case were made with the factors set out in Regulation A19 (3) in mind, albeit only one part of the process in his case – the appeal process – post dated 3rd December 2012. Prematurity:

[68]Mr Lock contends that as a matter of statutory construction, the statutory power under Regulation A19 to make a determination in respect of any given officer that his retention would not be in the general interests of the force and then to decide that he should retire on a given date, cannot arise until the officer has already accrued a right to a two thirds pension, in other words, in the context of the officers affected by the decisions in this case, until the officer in question has already accumulated the requisite 30 years pensionable service. Prior to that date of qualifying for a full pension - so the submission runs - the officer is not a person to whom the Regulation applies (see the words of Regulation A19 (1)) and hence, argues Mr Lock, any determination and decision taken prior to that date is without vires. In the context of this case this would render the decision in the case of Mr Johnston, made as it was before he acquired the requisite pension rights on the 28th December 2012, ultra vires and in so far as the ‘in–principle’ decision of the 16th October 2012 was an integral part of the decision making process and part of the determination in any particular officer’s case, this too was ultra vires.

[69]Mr Lock prays in aid of this statutory construction, that circumstances may change prior to the officer reaching his anticipated ‘qualifying date’ which may materially affect the legitimacy of any decision made under A19 prior to that date. Thus for example the officer may die or his right to a pension might be forfeit under other regulations (regulation K5). Further, even if that did not happen so that the officer’s pension rights did crystallise as anticipated, circumstances may change to undermine the justification originally adopted for retiring the officer on the basis that his retention was not in the general interest of the efficiency of the force, for example, the acquisition by the officer in question of ‘new skills in the period between the date of the decision and the 30 year point which would change the framework of the efficiency determination’ or the availability of skills from other officers to replace those of the officer may radically change, for example, if the police officer who the Force proposes to rely upon to fill a skills gap resigns (‘police officers only need to give 28 days notice’) due to securing a promotion in another force, or there may become available wider options to the Chief Constable to secure money saving retirements other than through Regulation A19 (for example the newly acquired power to offer voluntary retirements although not yet utilised by the Chief Constable in this case) or if and when Regulations are made allowing compulsory retirement of a wider pool of officers.

[70]Further it is said these potential changes, in circumstances prior to the date the officer gains his entitlement to a two thirds pension, include the risk that the Secretary of State may amend (or even withdraw) the Regulation which, if it occurs (as happened in this case by the introduction of Regulation 19(3) from 3rd December 2012 after decisions taken in Mr Johnston’s case but before his qualifying date), would mean ‘that decisions were made to require him to retire under a set of Regulations which were changed before the Regulation applied to him’.

[71]After careful reflection, I cannot accept the statutory construction put upon Regulation A19 by Mr Lock.

[72]A distinction it seems to me has to be drawn between the date when the determination and decision is made under Regulation A19 (2) that the officer should retire on a given date, and that given date of retirement. In my judgment on any sensible reading of Regulation A19(1) and

(2) taken together, the only precondition for the making of a intra vires determination/decision under (2) is that the officer in question on the date he is to be retired under such decision, falls within the definition of officers to whom the regulation applies under (1), that is to say is an officer who would on that date of enforced retirement qualify for a full pension. As Mr Cavanagh submitted, A19 (2) clearly permits a Chief Constable to require an officer to retire at a date in the future (and contemplates that this will occur). The first sub clause of A19 (2) provides that the determination is to be made in relation to an officer ‘to whom this regulation applies’ which A19 (1) tells us is an officer who ‘if required to retire’ would qualify for a full pension. I agree with Mr Cavanagh that ‘if required to retire’ must mean ‘if required to retire under A19 (2)’ which necessarily embraces retirement on a particular date. A19 (2) does not contemplate a general unspecific requirement to retire. The power under 19(2) is to require the officer to ‘retire on such date as the police pension authority determine’.

[73]Put simply in my judgment so long as at the date on which the officer would be required to retire, he will qualify for a 2/3rds pension then he comes within the scope of A19(1) and hence A19(2). He will be an officer ‘to whom this regulation applies’. It must follow that there is nothing unlawful in the decision making process itself preceding either the determined date of retirement or the ‘qualifying date’ of 2/3rds pension itself (if it be different).

[74]This interpretation is not only the correct one in my judgment on a literal approach to the words of the regulation but is equally the outcome of any purposive interpretation giving effect to the statutory purpose of the regulation obvious from its face, namely that if it is in the general interests of efficiency of the Force, an officer may be required to retire, but only if he or she has the substantial cushion of a 2/3rds pension. That statutory purpose does not require that the decision to retire the officer is not made or even considered until after the officer has already qualified for a full pension. What is crucial to give effect to that purpose is rather the date upon which under that decision the officer is to be retired.

[75]For the most part the arguments which Mr Lock seeks to employ in support of his interpretation do not so much support an interpretation that the decision date under A19 must not precede the ‘pension qualifying date’ but rather an interpretation, which cannot be correct – see above - , that because circumstances may change arguably to affect the ‘efficiency determination’, the decision date and the retirement date must be one and the same. Insofar as he sought to produce arguments going to the absurdity of situations which might potentially arise if the defendant’s construction of A19 were upheld, such as the Chief Constable being able to make decisions compulsorily to retire an officer or a cohort of officers many years ahead of their ‘potentially qualifying pensionable service date’ it has to be remembered that any such decisions have to be able to withstand any rationality challenge, which might be difficult in such circumstances. In this case however the Chief Constable has always declared that he is intending to invoke A19 in respect of any officer only when the officer in question is approachingsuch date.

[76]It follows from these conclusions that I reject the submission that the Policy under challenge is unlawful because of it encouraging the making of unlawful premature decisions. Caveat on this Prematurity conclusion and on the Policy Conclusion Final review

[77]The further caveat I would make to the above is that any Chief Constable would be well advised if he is not to be subject to a challenge based on ordinary public law principles of fairness, to have in place a process for a final review of each individual decision immediately before the date upon which the officer is due to retire to take account of any changes in circumstances, of the sort contemplated by Mr Lock, which might affect the propriety of that decision. I do not however regard the absence of any mention of such a process in the Policy Document H107 as a reason for declaring that Policy unlawful, given the view I have taken of the necessary limitations which should be put on this document: it was not in my judgment intended to be an all embracing exposition of how decisions were to be made in these cases.

[78]As a matter of fact I record that the evidence before me is that the defendant Chief Constable in this has in fact adopted a ‘final review process’ of the kind contemplated above and which would have been applicable to what was at the date of the hearings before me the only ‘live’ decision under challenge in any individual case, namely that relating to Mr Johnston.

[79]Such final review process is described by Superintendent Wilson in these term (witness statement at para. 69):

‘A further safeguard that was decided upon after the Policy was adopted was that I as the Head of Organisational Development would conduct a final review of each individual case immediately before the officer retired to check if there had been any changes to the planned restructure, establishment, financial position or other material circumstance in the case which would cause the original decision to compulsorily retire the officer to be reassessed. I have delegated authority to amend or rescind the original decision.’

Prematurity by reference to the policy document itself

[80]I must finally under this head deal with the submission that whether or not as a matter of law, the Chief Constable was not entitled to make decisions under A19 prior to the particular officer reaching his ‘pension qualifying date’, this was the effect of the policy in fact adopted and in making decisions prior to that date the Chief Constable was not following and acting inconsistently with his own Policy. This argument flows from concentration on the terms of 2.1.1 of the policy ‘This policy is applicable to police officers up to and including the rank of Chief Superintendent who have accrued full pension entitlement (typically upon accruing 30 years service)’. However I regard this as an unsustainable argument; 2.1.1 cannot be viewed in isolation. Para 3.1.2 (‘Bedfordshire Police will only invoke regulation A19 in cases where an officer is approaching the point of accrual of full pension entitlement but has not given notice to retire.’); 3.5.2 (‘Where practicable, the Force will seek to begin individual consultations 3 months prior to the date on which the officer attains 30 years pensionable service. In any event, consultation will begin no later than 28 days prior to that date.’); and second bullet point 3.5.5 (‘the proposed retirement date based on the achievement of 30 years pensionable service’), all make clear that the decision making process may apply to officers who have not yet attained the requisite pensionable service although the proposed retirement date would be based upon their achievement of that service. In the letter and the accompanying enclosures (in particular the Frequently Asked Questions document) sent to affected officers such as Mr Johnston (in his case the letter of 19th October 2012) made expressly clear that consideration was being given to using A19 for officers who were close to achieving the qualifying pensionable service on the basis that the retirement, if it took place, would take place after they had achieved that service, indeed with it being contemplated that the retirement date would coincide with the qualifying date (see paragraph 3 of last page of letter with its reference to ‘your compulsory retirement on your pensionable service date’ and the FAQ Questions 20: Why don’t you give notice after 30 years rather than before your pensionable service date?). Other Grounds of Challenge

[81]Four heads of challenge are pleaded in the Re-re-amended grounds. What I have described as the principal challenge, namely the challenge to the lawfulness of the policy adopted by the Chief Constable is encapsulated in what is pleaded as Ground 2. I have already rejected that challenge for the reasons I have already set out. I should however record that in this final amendment an express challenge is sought to be made on the basis that the Chief Constable was using the powers under A19 for a purpose for which they were not intended, the point being expressly made that the Chief Constable was using the powers solely to accommodate budget cuts and ignoring the statutory test directed to the general interests of efficiency said to be different concepts. The particular amendment reads as follows: ‘the Chief Constable misunderstood the statutory test under A19 by conflating the differing concepts of making cuts in officer numbers to balance the budget with requiring the officers to retire in the interests of ‘efficiency’ (which is a wholly different concept - thus the discretionary decision making powers under Regulation A19 were being used for a purpose for which they were not intended and/or no proper account was taken of the effect on the Force of the removal of the skills experience and commitment of the individual officer’.

[82]I have in the course of this judgement already rejected this particular challenge (see in particular paragraphs 23 – 33 above). I do not consider the Chief Constable here misunderstood the statutory test. He had well in mind the touchstone of ‘the general interests of efficiency’ of the Force when considering the need to accommodate the budget cuts which the Force was facing. As I have said, the ‘general interests of efficiency’ of a Force must in principle be capable of embracing the question of how to accommodate the need for a police force to live within its means, bearing in mind always the statutory duty upon the Chief Constable to maintain an efficient police force in his area, and there is nothing unlawful in my judgment in the use of Regulation A19 to effect reductions in the numbers of serving police officers in the interests of the general efficiency of the particular Force (put another way in order to make ‘general efficiency savings’), subject always to the need to consider the circumstances of any individual officer subject to a proposed retirement, and since 3rd December 2102, the particular factors set out in Regulation 19(3). For the reasons I have given, I do not consider the defendant Chief Constable has offended any of these principles in this particular case.

[83]Ground 3 (‘the consequences of the failure of the Chief Constable to adopt a lawful policy for the making of decisions’) under Regulation A19 is no more than an extension of ground 2 which once rejected must lead equally in my judgment to the rejection of this particular ground. For the most part it is a repeat of contentions made elsewhere, and rejected by this court, that the Chief Constable did not take the ‘right’ considerations into account. However I ought to deal with one specific matter here raised, namely ‘the Chief Constable did not at any stage have proper information before him to enable him/her to undertake any form of ‘comparative exercise’related to an eligible cohort (as required by Wyn Williams J. in Hodgson at paragraph 65)’.

[84]This amounts in effect to a submission that there is an obligation as matter of law for the Chief Constable to undergo a comparative exercise relative to an eligible cohort comparing the relative skills and performances of individual officers in order to ascertain the least suitable to be retained. However there is nothing in Regulation A19 which requires such an exercise to be performed every time a Chief Constable considers whether to use A19. Any decision under A19 will of course be open to challenge on grounds of rationality but whether a failure of such an exercise would render a particular decision irrational must depend on the circumstances of the individual case. The obiter observations of Wyn Williams J in Hodgson at para 65 cannot be read as being anymore than appropriate to the facts and circumstances of the case before him. In the present case on the evidence before me I would accept that there could be no scope for a comparative exercise in the present circumstances of Bedfordshire Police where the ‘in principle’ decision had been made, subject to the particular circumstances of any individual officer, that it was in the in the general interests of the efficiency of the force for the entirety of the identified cohort to be compulsorily retired. This was not a case in which the Force was seeking to select certain officers from a wider pool.

[85]Ground 4 is entitled ‘failure to follow the Chief Constables own policy’. I have already rejected the submission that the policy did not permit a decision to be taken in respect of any given officer before the officer reached his date of qualifying pensionable service. The argument is then raised that the Chief Constable has failed in the present case to follow 3.1.4 of the policy (‘the policy will only be used where the force is able to demonstrate an objective justification that the use of the regulation is both appropriate and necessary with proportionate and legitimate aim’). At best this could apply to the decision taken in the case of the fourth claimant, Mr Johnston his being the only claimant to have gone through the decision making process and been the subject of an A19 decision. However what then follows in support of this assertion is no more than a repeat of the alleged defects in the policy, and an alleged failure to ensure that relevant considerations were taken into account, which I have already identified and rejected as defects or a legitimate head of challenge, in particular the need for a ‘proper business case setting out the benefits and detriments to the force of requiring the particular officer to retire’. The suggestion in the re-re-amendments that in Mr Johnston’s case the Chief Constable failed to consider ‘the effects on the efficiency of the Force this particular officer to retire’ or the ‘financial position of the force at the date that the decision fell to be made’ or ‘the financial savings likely to be made from requiring the officer to retire’ is not borne out by the evidence to which I have already referred.

[86]The additional complaint raised for the first time in March 2012 of a failure to consider ‘the other options for making financial savings including a voluntary retirement process for police officers’, can have no effect on the decisions made in Mr Johnston’s case since the power to introduce such a scheme (introduced in January 2013) did not exist at the time. In any event it would be unwise for this court to make any observations on the relevance of such power to decisions made under A19 absent any detailed submissions on this newly introduced power, although I observe in passing that Mr Cavanagh informed me that such a scheme is extremely costly and depends upon there being volunteers willing to forfeit the ‘extremely generous pension that accrues after 30 years service’.

[87]Finally under this head a reasons challenge is mounted by the re-re-amendments for the first time in the case of Mr Johnston, it being alleged that ‘no proper reasons’ were given to him for the determination or decision in his case; in particular no proper reasons were given ‘which engaged with the issues raised by the Fourth claimant’. I reject this challenge given my analysis of the process in Mr Johnston’s case and the contemporaneous documentation, such challenge being in effect an unfounded (in my view) complaint against the consultation exercise undertaken in this case first over the ‘in principle’ decision and then in relation to the individual officer. I agree in this context with Mr Cavanagh’s written analysis:

‘the complaint that the chief constable did not give sufficient reasons for his decision is misconceived … the reasons must be sufficient to enable those consulted to give intelligent consideration and intelligent response (Coughlin ( R v. North and East Devon HA ex p Coughlin [2001] QB 213, per Lord Woolf) at par. 108). The Superintendents Association and the individual claimants were well aware of the general business and organisational reasons why the Force took the view that it had to reduce the number of officers. Mr Johnston and Mr Street were well aware of the factors they might rely on in relation to their specific cases, because they raised them in their representations. They did not suggest at the time they had insufficient reasons. The reasons why a decision was taken nonetheless to apply A19 to them were communicated to them, and they have been able to bring their claims for judicial review’

I should add that it is impossible in my judgment on the evidence to sustain the submission that ACC Govier did not engage with Mr Johnston’s representations. In part she was persuaded by them. The ECHR Challenge: Article 1 of Protocol 1.

[88]Finally, I deal shortly with the first pleaded ground which seeks to pursue a challenge based upon an alleged breach of Article 1 of Protocol 1 of the European Convention on Human Rights (A1P1).

[89]A1P1 provides :

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’

[90]I deal with this ground shortly since I am quite unable to understand how A1P1 is engaged by the decisions under challenge in this case, namely decisions to compulsorily require an officer to retire under the provisions of regulation A19. The argument has to be that the application of regulation A19 is unlawful in this case because it would constitute the unlawful deprivation of a ‘possession’ under A1P1. However I can identify no ‘possession’ for the purposes of A1P1 of which any decision under A19 deprives a police officer.

[91]It is well established that A1P1 is concerned with the protection of substantive (as distinct from procedural) rights and it is concerned only with that to which the person is already entitled. The use of A19 has not been demonstrated to me to have had the effect of depriving an officer of something he previously had. Although there is good authority for the proposition that acquired pension rights (including acquired contingent rights) are capable of being a ‘possession’ qualifying for protection under A1P1 (see PCSU v Minister for Civil Service

[2011] EWHC 2041

at paragraphs 9-11; 36 and 37) a decision under A19 to retire an officer does not interfere with such accrued rights or any other accrued rights be it income, benefits or otherwise. A1P1. Any individual officer had no accruedabsolute right in domestic law terms to remain in post as an officer. Such right as he had was always subject to the equivalent of Regulation A19 and there is good authority for the proposition that ‘there is no Convention right to retain one’s job beyond the ‘right to a job’ which is recognised by domestic law.’ (see Baroness Hale in R Countryside Alliance v AG

[2007] UKHL 52

;

[2008] 1AC 729

; at paragraph 128). Despite Mr Lock’s protestation (based in my judgment on misreading of the decision on PCSU) that what is being interfered with is an existing package of, or ‘current right’ to a salary and benefits arising from being a police officer, in truth at most what the A19 decision deprives an officer of, is the future expectation of future income from his office as a police officer which is not a ‘possession’ for the purposes of A1P1 (see further R (Malik) v Waltham Forest NHS Primary Care Trust

[2007] EWCA Civ 265

;

[2007] 1 WLR 2092

[92]It is on this basis that I conclude the challenge under A1P1 must fail. However I am bound to observe that even if A1P1 were engaged, the arguments advanced by Mr Lock in support of breach, add little to the other grounds advanced, concentrating as they have on the alleged inadequacy of the A19 procedures adopted in this case. Final Observation

[93]For all these reasons the claim by all claimants in these proceedings must in my judgment fail. Postscript

[94]Since the hearings in these proceedings were concluded and after the bulk of the judgment was completed, the court was informed that both the fourth claimant (Mr Johnston) and the second claimant (Mr Street) have decided to retire from the Force on a voluntary basis, each to further new opportunities outside the Force, Mr Johnston as from 18th May 2103; Mr Street as from 1st July 2013. I accept however that these retirements do not render the issues I have been called upon to decide to be moot, given the claims involved a wholesale challenge to the way the defendant has invoked regulation A19 purportedly in the general interests of the efficiency of the Bedfordshire Force as a whole and has raised issues of wider application beyond their particular cases. Indeed had I considered that the decision compulsorily to retire Mr Johnston was an unlawful one, I would have been prepared to grant a declaration to this effect.

The Police Superintendents Association of England and Wales & Ors v The Chief Constable of Bedfordshire Police [2013] EWHC 2173 (Admin)

(c) of section 1 of the Act which provides as follows:

Cited in 2 later judgments