FDA, PCSU and Prospect, R (On the Application Of) v HM Treasury [2018] EWHC 2746 (Admin)

[2018] EWHC 2746 (Admin)Case No CO/3134/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
24 OCTOBER 2018:
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE
Between
THE QUEEN (on the application ofClaimantFDA, PCSU and PROSPECT)ClaimantTHE MINISTER for the CABINET OFFICEDefendantHM TREASURYInterested Party
Mr Martin Westgate QC and Ms Claire Darwin (instructed by Slater and Gordon) for ClaimantMr Charles Bourne QC and Mr Paul Skinner (instructed by Government Legal Department) for DefendantHearing Hearing dates: 4 October 2018
Judgment ApprovedTHE HONOURABLE MRS JUSTICE SIMLER DBE:IntroductionDate 2018-10-24
[1]Three independent trade unions (together “the Claimants”) who between them represent 200,000 civil servants employed by government departments, agencies and other public bodies seek to challenge the Civil Service pay remit guidance published by the Defendant on 25 June 2018 (referred to below as “the 2018 Guidance”). Their primary contention is the 2018 Guidance was issued in breach of an express promise to them, that there would be proper consultation (applying Gunning principles) following disclosure of the X figure contained in the 2018 Guidance, and before its publication. The X figure is a percentage range by reference to which annual departmental average pay awards to civil servants are limited absent specific authority to exceed the range. X was redacted from the draft guidance disclosed to the Claimants and not revealed to them until the 2018 Guidance was published on 25 June, when it was published as 1-1.5%. The Claimants seek an order quashing the 2018 Guidance on the basis that the Defendant acted unlawfully and in breach of their legitimate expectation of meaningful consultation.[2]The application for permission to pursue this judicial review was issued by the Claimants on 8 August 2018 and expedition was sought. The applications were resisted by the Defendant arguing (among other things) that no express promise of consultation was made and there was no breach of any legitimate expectation in the Defendant’s approach to the 2018 Guidance and its publication. On 21 August 2018 Nicola Davies J ordered expedition of a rolled-up hearing for consideration of permission with the substantive hearing to follow if permission was granted. She set a tight timetable for the Defendant to file Detailed Grounds and serve witness statements.[3]The hearing before me proceeded effectively as a full substantive judicial review. Having heard the detailed arguments advanced on the Claimants’ side by Mr Martin Westgate QC and Ms Claire Darwin, and for the Defendant by Mr Charles Bourne QC and Mr Paul Skinner, I consider that the arguability threshold is met and permission to apply for judicial review is granted. The remainder of this judgment addresses the merits of the judicial review challenge.[4]The Defendant’s Detailed Grounds were served 10 days late on 20 September (an application to extend time having been allowed by me on 26 September 2018). The Defendant also missed the deadline for service of its witness statements, all due by 16.00 on 21 September 2018 (in the case of the main statement, by just under three hours, and for the remaining statements, five served at 18.26 on 25 September, the sixth at 21.27 on 26 September). The main reason for the delay given on the Defendant’s behalf (by Louise Marriott in her evidence in support of the Defendant’s application to extend time for service of its evidence) was the tightness of the expedited timetable in the context of issues requiring cross-departmental attention and the substantial work involved in producing the evidence.[5]The Claimants characterise this (not unjustifiably) as a wholesale failure by the Defendant to comply with the directions made (largely by agreement) in this urgent case. Though the Claimants have sought to respond as best they can, they say late disclosure of documents given by the Defendant with its witness statements is incomplete and there has been insufficient time to pursue lines of inquiry identified by it. They contend that the entirety of the Defendant’s factual evidence should accordingly be excluded as a sanction for the delay. When the question of specific disclosure was explored, it became clear that following late service of the witness statements, the Claimants invited voluntary disclosure by the Defendant of a number of specific additional documents. Some was given, though not to the full extent sought. The Claimants did not then make, nor have they to date made any application for specific disclosure.[6]Although I consider that there was a significant failure by the Defendant, I am satisfied that this was not the result of disregard for court orders or any sinister reason. The Defendant’s legal team sought to comply with the expedited timetable, but I accept the difficulties Ms Marriott describes in meeting it in a complex case involving many witnesses (all with competing demands on their own time) where cross-departmental instructions had to be obtained. The Defendant acted responsibly in seeking extensions and agreeing to consequential extensions for the Claimants; the trial date has not been imperilled; and I do not consider that the delay has prejudiced the Claimants, whether in obtaining disclosure in circumstances where no application has even been made, or in any other identified way. It seems to me moreover that the justice of the case favours admitting the evidence: this is a public interest case in which many of the relevant facts are only in the knowledge of the Defendant’s witnesses and the case turns largely on facts, not law. The Claimants themselves rely on the evidence of some of the Defendant’s witnesses, and it seems to me that without the Defendant’s evidence the court might risk deciding the case on a wrong view of the facts. In all the circumstances of this case, I am satisfied that relief from sanctions should be granted: I give leave to the Defendant to rely on the seven witness statements served late and extend time for their service to regularise them.[7]Separately, the Claimants criticise the Defendant’s witness evidence, inviting me (if it is to be admitted) to treat it with extreme caution because the evidence of all witnesses save for Mervyn Thomas was “prepared after the witness statement of Mervyn Thomas was disclosed to them, and by reference to it … [which] risked encouraging the rehearsal or coaching of those 6 witnesses”. Ms Marriott has responded in detail to this point in her witness statement of 4 October 2018. In short, she explains proofs of each witness’ evidence were taken separately and each gave an independent account. It was only when the six statements were in close to final form that Mr Thomas’ statement was made available to the other witnesses. She states that no changes were made to the account of any of the meetings in any of the statements in light of what the other witnesses had read in Mr Thomas’ statement, save to indicate the extent of their agreement. She also identifies a limited number of specific matters addressed by certain witnesses after reading Mr Thomas’ statement. I am satisfied from her statement that there was no coaching or rehearsal of witnesses, and there is no basis for concluding that anything other than an appropriate process for the preparation of witness statements was adopted in this case. Accordingly, I approach all witness statements (including on the Claimants’ side) on the basis that the writer is endeavouring to provide an accurate and truthful account of what he or she recalls or believes occurred.[8]The Claimants rely on witness statements from Mr Michael Clancy, General Secretary of Prospect, dated 6 August 2018; Mr Garry Graham, Deputy General Secretary of Prospect, dated 6 August 2018; Mr Paul O’Connor, Head of Bargaining and Industrial Strategy at the Public and Commercial Services Union, dated 7 August 2018; Mr David Penman, General Secretary of the FDA, dated 7 August 2018; Ms Lucille Thirlby, Assistant General Secretary of the FDA, dated 7 August 2018; and Mr Mark Serwotka, General Secretary of the Public and Commercial Services Union, dated 8 August 2018. Witness statements in reply (all dated 27 September 2018) have been provided by Mr Penman, Mr O’Connor, and Mr Graham. The reply statements were served late because of the late service of the Defendant’s statements. The application to extend time for their service is (correctly) not opposed and is granted.[9]The Defendant relies on witness statements as follows: Mr Mervyn Thomas, Senior Civil Servant and Executive Director for Employee and Trade Union Relations at the Cabinet Office, dated 21 September 2018; Mr Simon Gush, Deputy Director for the CSEP Pay and Reward team, dated 25 September 2018; Mr Peter Jinks who was at the material time Deputy Director in the Civil Service Workforce team in the Cabinet Office leading the CSEP Pay & Reward team, dated 24 September 2018; Ms Alison Stanley who was at the material time HR Director, CSEP Pay and Reward in the Cabinet Office, dated 25 September 2018; Ms Esther Pilditch who was at the material time a Senior Policy Adviser in the Workforce Policy and Reward team leading on delegated pay, dated 25 September 2018; Ms Alice McCullough, part of the Employee and Trade Union Relations team at the Cabinet Office, reporting to Mervyn Thomas, dated 25 September 2018; and Mr Ignatius de Bidegain, of HM Treasury, dated 26 September 2018.[10]I have also been provided with a bundle of documents containing manuscript and typed-up notes of some meetings, and some correspondence and email exchanges relevant to the issues raised by this judicial review application.[11]Although there is a factual dispute as to whether a promise of ‘consultation’ was made on 4 June and/or afterwards, the Claimants have not sought to cross-examine the Defendant’s witnesses. The basic rule in judicial review is that where there is an evidential dispute, absent cross-examination the facts must be assumed to be those which favour the Defendant, unless there is documentary or other objective evidence that is inconsistent with the Defendant’s evidence and cannot sensibly be explained away. It seems to me that is the proper approach to the resolution of factual disputes in this case and apart from the Claimants’ argument referred to above which I have rejected, neither side sought in oral argument to persuade me otherwise.

The legal framework for the 2018 Guidance

[12]Before April 1996, the pay and terms and conditions of employment for all civil servants were centrally determined by HM Treasury in negotiation with the Trades Unions. Individual departments were not party to nor involved in negotiations and so had no control over the terms and conditions of their own staff. From 1 April 1996, using powers under the Civil Service (Management Functions) Act 1992 the Minister for the Civil Service delegated to all departmental ministers and agencies, most of the functions that had previously been held centrally, including delegated responsibility for pay, terms and conditions. The intention was to increase flexibility and enable departments to tailor their pay, terms and conditions to their own departmental needs within a framework of public expenditure control.[13]The Constitutional Reform and Governance Act 2010 placed the management of most of the Civil Service on a statutory basis. The Minister for the Cabinet Office (currently, the Rt Hon David Lidington CBE MP, “the MCO”) (acting on behalf of the Minister for the Civil Service) was given statutory power to manage the home Civil Service. This included the power to determine the pay and conditions of civil servants. The MCO delegated this statutory power in respect of grades below the Senior Civil Service to departmental ministers and agencies by a number of instruments of delegation, subject to the requirement to abide by the provisions of the Civil Service Management Code (“the Code”) as varied from time to time. Paragraph 7 of the Code provides that departments and agencies have authority to determine the terms and conditions relating to remuneration of their own staff and requires them to develop arrangements for remuneration of their staff “which are appropriate to their business needs, are consistent with the Government’s policies on the Civil Service and public sector pay, and observe public spending controls” (paragraph 7.1.2).[14]As a result of delegation each department (and agency) enters into separate negotiations in relation to pay with relevant trade unions at departmental level. Neither HM Treasury nor the Cabinet Office is involved in these negotiations and the Claimants are recognised for collective bargaining at departmental level.[15]The last comprehensive spending review was in 2015 and covered a five-year period until 2020. It provides funding for each department to increase pay by up to 1% each year. Any increase in pay above 1% must therefore be funded by the department in other ways; for example through improvements in productivity or through the use of “recyclables” (a term used to describe the reuse of funds saved when an employee leaves and is not replaced or is replaced by an employee on a lower rate of pay). Although the public sector pay cap was lifted in September 2017 the funded amount made available to departments for pay increases by HM Treasury has remained at 1% and no more. This means that departments remain restricted in the pay awards that can be made by them above 1%, to what is affordable within the particular department. In addition, as explained above, the Code obliges departments to comply with Government policy on civil service and public sector pay.[16]Each year, departments and agencies undertake their own annual pay review exercise to determine the parameters of the annual departmental pay offer to staff. Given the existing requirement on departments to fund any increase above 1%, affordability must play an obvious and critical part in the decision-making process for determining any higher range above 1%. Once a departmental business case for pay increases is approved by the Minister, the actual pay offer for staff is a matter for negotiation between the individual department and the trade unions at departmental level in accordance with locally agreed collective bargaining machinery.[17]An important means by which Government policy on civil service pay is set is through pay remit guidance issued each year to departments and agencies (although its importance during the pay restraint years was reduced by the 1% cap on public sector pay). Although historically this guidance was owned and published by HM Treasury, the evidence indicates that the 2018 Guidance is jointly owned and published by HM Treasury and the Cabinet Office.[18]The 2018 Guidance provides among other things for a range of average pay awards that may be made by departments without first seeking HM Treasury approval through the submission of a business case. For 2018 departments may make awards based on average increases between 1-1.5% (the X figure) without seeking specific authority or approval from the Defendant or HM Treasury (albeit that any increase above 1% is funded by the department in question). The X figure (the pay remit range) does not dictate the range for any particular civil servant’s pay award, and in that sense does not operate as a cap. However, it generally requires each individual department’s annual average pay award to be maintained within the range. There is some limited flexibility to allocate performance related pay (“PRP”) for retention issues (paragraph 9.2). There is also the ability for a department to obtain specific authority to exceed the pay remit range where a business case is made out to do so (paragraph 9.4). This is an onerous process. Similar provision appeared in remits for previous years and according to the Claimants’ evidence, only three specific approvals were granted in 2017.

The facts

[19]Against that background, I turn to consider the sequence of meetings leading to the publication of the 2018 Guidance on 25 June and what if anything was promised by way of consultation.[20]As already indicated, from 2013 to 2017, the Government imposed a period of pay restraint on the Civil Service limiting annual average pay awards to 1%. That meant during this period there was no need to include a range of average pay awards for departments to consider in the annual pay remit guidance; and no scope for engagement with the unions on a pay increase figure. Nevertheless, in 2016 and 2017, the pay remit guidance was provided to the unions in advance of publication, but only 24-48 hours in advance.[21]The evidence on both sides about the process that operated in the years before 2013 indicates in broad terms that the unions were provided with a copy of the draft remit guidance in full and an opportunity to comment before the guidance was issued (see for example, Penman paragraph 9). Although Mr Penman characterises this as consultation, it does not seem to me to amount to meaningful consultation (in the Gunning sense, as to which see below), and the descriptions of what occurred in previous years (given by Mr Thomas, Ms Stanley and Mr Jinks) are more consistent with information exchange. Key aspects of the guidance would be explained to the unions, and they would share their concerns; but Mr Thomas states that the unions were never asked for or given the opportunity to have any input into the pay remit range figure. The unions were also not involved in determining the pay range sought by departments in terms of the pay remit guidance amount. Once the range was determined, the unions were told the overall figure, and were then directly involved in negotiations with departments about what departmental pay awards would be for different groups of the workforce.[22]Following the announcement in the 2017 Autumn Budget of the move away from the 1% basic public sector pay award policy, the Second Claimant submitted a formal pay claim to the Defendant on 19 January 2018 seeking, among other things a 5% or £1200 (whichever was the greater) increase in pay to be applied across all departments and agencies subject to the pay remit guidance and funded centrally. Both Mr Serwotka and Mr O’Connor explain that this pay claim was submitted with the express intention of influencing and/or being adopted as the pay remit guidance to be issued to departments and agencies for pay increases for 2018/19. Mr Thomas briefed the Minister for Implementation (Mr Oliver Dowden, CBE MP) on 27 February 2018, on this pay claim in advance of a meeting with representatives of the Second Claimant and other unions held subsequently, on 29 March 2018.[23]Mr Bidegain and Mr Thomas describe two initial cross-Whitehall meetings of departmental HR Directors to develop the 2018 Guidance, on 15 and 22 February (the second meeting was of the HR Executive of the Civil Service). Limited notes for 22 February only have been disclosed, but I have been given no cause to doubt the Defendant’s evidence about these meetings. Mr Bidegain says it became clear at the first meeting that affordability of unfunded average pay increases above 1% was a major factor to consider and that it would be necessary to test Heads of Department on the range of pay awards they thought would be affordable, in order to agree a proposal on 2018/19 average pay increases to present to Ministers.[24]The HR Executive of the Civil Service is the most senior governance group within the Civil Service Human Resources function. It sets the strategic direction and has accountability for overall performance of this function. On 22 February 2018 affordability of an average increase in the range of 1-2% was discussed. Mr Thomas says there was resistance from some departments, and a consensus view emerged that a range of 1-1.5% reflected what was affordable for the majority of the departments. (There was a somewhat jocular exchange of emails between Mr Thomas and Naomi Cooke of the FDA between 22 February and 28 February 2018, the product of an error by Mr Thomas. On 28 February 2018 in response to a question from her about how imminent the remit guidance was, he said he would have a better idea “by Monday on the timetable and process to consult on remit”. It seems to me that the tone of the exchange and the email itself makes clear that the word “consult” was not being used in a technical sense; and I do not place any significance on this email exchange.)[25]On 28 February 2018, a meeting took place between Permanent Secretaries and other Heads of Department. The discussion on delegated pay for 2018/19 was led by Rupert McNeil, Peter Jinks and Simon Gush and its purpose was to reach agreement on the headline figure to be put to the MCO and HM Treasury for the Civil Service pay remit for 2018/19. The minutes record Mr Gush acknowledging the need to balance affordability with the perception of staff and the trade unions against the backdrop of the wider public sector pay landscape. They record overall Permanent Secretaries’ agreement with the recommendation for a range of 1-1.5%, recognising the value of a coherent approach across departments. Permanent Secretaries also agreed that “careful messaging was key, as affordability assumption remained at 1%.” That meant the additional flexibility above 1% would have to be drawn from other efficiency savings.[26]Following the 28 February meeting, Mr Thomas states that the pay range figure went into a Ministerial process, requiring “sign off” from the Chief Secretary to the Treasury (“the CST”), the Minister for Implementation and the MCO. Although the words Ministerial process may mean different things to different people, it seems to me that they signify a process leading to final approval before publication.[27]A memo dated 16 March 2018 addressed to the Minister for Implementation and the MCO, headed ‘Approval of Civil Service Delegated Pay Proposal 2018/19’ sets out a recommendation for agreement to the proposal made by Heads of Departments that “High level average pay awards should be in a range from 1% up to 1.5%”. The memo indicates an expectation that the actual remit guidance would be published in mid-April but a decision on the high-level proposal was urgent as HM Treasury officials would be putting advice to the CST imminently. It describes the remit process as a way to set the overall narrative for Civil Service pay and for HM Treasury to control affordability.[28]The memo describes the pay range decision taken by Heads of Department (Civil Service Permanent Secretaries) at the end of February and identifies factors taken into account in reaching that decision, as including affordability of a higher award, comparison with wider public sector, staff expectations and employee relations. As regards employee relations, the memo states that any decision will likely be met with strong opposition from unions, and there is an increased employee relations risk if the award for delegated grades is perceived as lower than the Senior Civil Service or does not show any movement away from 1%. The memo records the fact that unions had signposted their expectations of a significantly higher than 1% pay award against the backdrop of pay awards elsewhere in the public sector expected to range from 2-3%. The memo authors expressed the belief that “the Civil Service Pay deal is likely to be well below all other public sector workforces” and the risk of strike action was regarded as almost inevitable.[29]Under the heading ‘Comms/Engagement’ the memo said:
“It will be difficult to mitigate the industrial relations risks, but clearly the communications and engagement with employees and trade unions will be critical to ensure the messages land in the best possible way – recognising that this will not be seen as a good news story. We are developing a detailed communication and trade unions handling plan. Given the delegated nature of Civil Service Pay, we will also be providing advice on what role you may want to play compared to departments or HMT.”
[30]The CST agreed to the range of 1-1.5% on 26 March 2018; and the Minister for Implementation agreed it around the same time. The MCO did not sign off on the pay guidance as a whole or this range until almost three months later, on 18 June 2018. The delay is not fully explained and the Claimants are critical of it; but there is nothing to suggest any sinister explanation for it. The text of the guidance required drafting and approval, and the evidence suggests this was done during the course of March/April with a finalised draft of the 2018 Guidance produced internally on or about 30 April.[31]The Claimants were not party to the February meetings referred to above, and I accept that they were not told about them or of any agreements reached. Nevertheless, their representatives are all experienced senior national officials of Civil Service Trade Unions. They are well versed in the principles of delegated pay. They can be taken to have understood that there was only budgeted funding for a 1% pay increase, so that anything beyond that would have to be found by departments. In other words, it was inevitable that affordability by departments was the critical factor that would dictate the range above 1%. The Claimants must also have understood the way in which the pay remit guidance operates at a central level in the context of delegation of pay to departments and as a cost control mechanism in the sense of enabling departments to make annual average pay awards but only within the range set without seeking specific approval.[32]Following the February meetings, a series of meetings took place between representatives of the Claimants and officials of the Defendant and HM Treasury between March and June as detailed below. 29 March 2018 meeting[33]On the 22 March 2018, the Defendant contacted the Claimants to arrange a meeting to discuss “overall pay strategy, 2018 Pay Remit Guidance, Forward look, future meetings etc.”[34]The meeting took place on 29 March 2018. Mr Thomas chaired the meeting from the official side and Peter Jinks took the lead. Mr Jinks made a note of the union requests which were many and varied. They included full funding of the removal of the 1% cap and average pay increases above the rate of inflation. Officials responded that funding was likely to remain constrained despite the end of the 1% cap; and that longer term, officials were looking to develop a more coherent pay framework. The Claimants were also told by officials that there were no plans to change the current delegated pay system. Peter Jinks told those present that he had heard the points they were making and would reflect on them and speak to HM Treasury.[35]Ms McCullough did not attend the meeting but in a document created subsequently (as a running record of all the meetings with the Claimants, written on 20 June, and relied on by the Claimants in part at least) she made short bullet point notes of the main points made on each side at that meeting based on what she was told by Mr Thomas, consistent with the above. Her note includes “officials want to engage positively with unions on the … pay remit guidance and will commit to a series of meetings over the coming months to seek views on proposals”. Ms McCullough recorded as the action coming out of the meeting, a “commitment to further meetings as the remit guidance is developed”. 30 May 2018 meeting[36]A second meeting with the Claimants occurred on 30 May 2018. There was an internal pre-meeting of officials, described by Esther Pilditch, to discuss what could and could not be said at the meeting with the Claimants. It was agreed that they should be told internal discussions were taking place, with timing on publication of the guidance remaining unclear. It was also agreed that officials could not talk about discussions that had already taken place or were taking place in relation to the X figure or about where they were in terms of signoff or the exact date of release of the guidance.[37]Mr Thomas describes the meeting as one in which information was conveyed: the unions provided updates on their concerns, but pay issues were not opened up for discussion (or consultation); and officials stated their position, again without any attempt to explore the other side’s position. Ms McCullough was present and her notes (which are broadly consistent with the note made by Geoff Lewtas, albeit hers were only produced on 20 June at the end of the process) record the “key messages from officials” as including:
“At the last meeting, officials committed to a series of meetings to discuss the 2018 pay remit. This is a follow-up meeting to specifically focus on pay. Pay is delegated to departments and there is no appetite to change this arrangement currently. … Officials have made positive recommendations to the Minister for the treatment of National Living Wage funding to be taken outside of the average heading award. Officials have made positive recommendations about the inclusion of scope to recognise capability and development in targeted pay awards. … The pay remit guidance will be published shortly and officials will endeavour to share it with NTUC [the National Trades Union Congress] in advance of publication.”
[38]Mr Lewtas’ note also reflects his understanding from what was said by Mr Thomas at the meeting that the pay remit guidance was still with Ministers and could be issued soon, leaving the possibility of no meetings involving the Treasury at all. He plainly understood from what officials said, that the process had reached a late stage. It is clear from his note that points were made by the unions about pay (in its broader sense than simply the X figure), as also reflected in the McCullough note, but without these points being opened up to discussion. The unions, according to the Lewtas note, urged Mr Thomas to ensure that there was a proper dialogue with Treasury officials and a reasonable opportunity to comment on the draft remit guidance before publication. No response to those requests is recorded; but Mr Lewtas noted that unions “might want to try a direct approach to Treasury officials”; no doubt because the unions were not being involved in meaningful consultation with officials.[39]Lucille Thirlby’s note of the same meeting (like the others, not a verbatim record) records points for herself to consider as well as summarising the meeting. It is difficult to differentiate between the two in some parts of her note. Ms Thirlby’s note records that the meeting was told that the pay remit was still with ministers; that pay remained delegated; and although the 1% pay cap had been lifted, funding for the Civil Service remained static and would not be reopened as part of the remit guidance. Her note records: “Guidance imminent – need to have sight of it”.[40]A later passage records the following:
“1% - CST/NOT A CAP Funding & what depts may pay Generate improvement in productivity efficiency in dept 1) Will be flexibility for Depts above 1% + 2) Extent they have discretion to go above it 3) After that business case to Treasury – number with minister Funding & what depts may pay 1) Will be flexibility for Depts above 1% + 2) Extent they have discretion to go above it 3) After that business case to Treasury – number with minister *Need a fundamental review of reward structure”
Ms Thirlby plainly understood the distinction being made between what was funded and what employers could afford to pay. She understood from the meeting that there would be flexibility in permitting departments to pay more than 1% and the extent to which any department could pay an unfunded amount above 1% would be identified within the pay remit guidance. She also understood that the X figure was with the Minister to determine it.

Funding & what depts may pay

[41]A few lines down Ms Thirlby’s note includes the following:
“Check Remit Guide 2017 – LT *Not consulted on it – number with Minister Mervyn will come back to us with the numbers”
Mervyn will come back to us with the numbers” What was actually said and the meaning of this part of the note are unclear from the note or Ms Thirlby’s evidence. Although she records not being consulted, nonetheless she interpreted an unrecorded statement by Mr Thomas as “a commitment that the Cabinet Office would consult us on the proposed numbers for permitted increases…”. She provides no explanation for her interpretation, which is not supported by her notes, or any of the other notes.[42]Ms Alison Stanley attended this meeting (and made notes which also include her own reflections as the discussion progressed). She records a statement by Mr Thomas that the pay remit was still with ministers and Mr Lewtas’ response:
“[Will there be a] meeting with HMT and Cabinet Office (CO)? Totally inadequate not smidgen of consultation on remit so far. The words [of the guidance] matter.”
Mr Thomas responded to the effect “[We have had a] series of meetings, been as open as we can. Wide variation in pay strategies in departments. [There is] discretion for departments.” Gary Graham is then recorded as saying that it was “deeply disappointing… Fait accompli Problem re consultation on … [numbers]/negotiation”.[43]Later her note records “Gary – 1% cap gone – no additional funding to 1% MT – flexibility to a certain level – still with Minister Commitment [trade unions] be consulted – no example of [trade unions] breeching (sic) confidentiality GL – what’s changed fundamentally in government approach to CS pay? MT – flexibility above 1% - up to limit that [will] be in guidance before [department has to] go to HMT”. In her evidence, Ms Stanley states that the sentence containing the words “commitment trade unions be consulted” should have been attributed to Mr Lewtas rather than Mr Thomas, and that seems to accord with the other evidence. She says it would have been an odd thing for Mr Thomas to say and does not follow the flow of what he was saying, whereas it does follow the flow of what Mr Lewtas was saying. Based on all the evidence, I accept that this was something being requested by Mr Lewtas and not promised by Mr Thomas. MT – flexibility to a certain level – still with Minister Commitment [trade unions] be consulted – no example of [trade unions] breeching (sic) confidentiality GL – what’s changed fundamentally in government approach to CS pay? 31 May 2018 meeting

GL – what’s changed fundamentally in government approach to CS pay?

[44]There was a meeting of the Civil Service Forum on 31 May. This is an established forum that (generally) meets twice yearly to discuss a range of issues of mutual concern. Among other matters discussed on 31 May, the pay remit guidance was discussed along the lines set out below.[45]Ms Thirlby’s note records officials reiterating that the Civil Service would be limited by the 1% funding level for the spending review period and that:
“Additional flexibility – with Ministers”
. Against her initials (LT), the following is recorded:
“- … - Delegations – crisis on Pay & Reward structure - - Lack of process re Remit - Mervyn has shared our message with senior people in CS.”
She also records “Urgent mtg with Treasurey Request + Mtg + process”

She also records “Urgent mtg with Treasurey Request + Mtg + process”

[46]Ms McCullough’s running note (which is broadly consistent with Ms Thirlby’s for this meeting) indicates that among other topics discussed, the commitment made previously “to engage as far as possible with NTUC prior to publication of the 2018 remit guidance” was reiterated at this meeting. Officials also reiterated the fact that budgets for departments were agreed in the 2015 spending review and funding allocated accordingly so that there was an affordability issue in looking to exceed the funded 1% annual increase in civil service pay. Her note also records agreement by officials to “share a draft version of the guidance with NTUC shortly, however this will not include the average headline award and will be strictly in confidence until ministers have had time to review”. Ms McCullough’s note records disappointment from the Claimants about the process and approach taken to the pay remit. Further, the Claimants are recorded as having argued that “meaningful engagement on the pay remit is not possible without HMT officials attending to explain the funding restrictions in detail and respond to suggestions of other sources of funding for pay.” Ms McCullough recorded as an action following the meeting, “further meeting to be arranged with HMT officials” and “draft version of 2018 remit guidance to be shared in advance of the next meeting”.[47]On 1 June 2018, a draft copy of the 2018 Guidance was shared with the Claimants under cover of an email addressed to Geoff Lewtas stating that it was “for discussion with Cabinet Office and HM Treasury officials on Monday afternoon. This draft is not for circulation beyond what was agreed with Mervyn earlier today”. Mr Thomas states that in the earlier discussion, he told Mr Lewtas that the draft was being provided under a strict requirement of confidentiality. The X figure was redacted from the document as officials had said it would be on 31 May 2018. 4 June 2018 meeting[48]The next and final meeting with the Claimants took place on 4 June. Given the importance attached to this meeting in this application, I deal with the evidence on each side separately. The Claimants’ evidence about this meeting is as follows.[49]Mr Penman attended by telephone. He does not appear to have taken notes. He was disappointed that the X figure had not been disclosed and was not disclosed during the meeting. He says “we were demanding a further meeting to discuss X after it had been revealed and before the remit guidance was published, as well as an opportunity to meet with the CST if we remained dissatisfied”. He described the meeting as fractious and says “the Cabinet Office, through Mervyn Thomas, committed to meeting again after we had been provided with the revised draft of the remit guidance including X. This was for the purpose of further consultation.” He states that the Cabinet Office did not commit to agreeing to a meeting with the CST as it was not within their power to do so, but “they agreed to reveal X and meet to consult on that figure.” Although I accept his description of the fractious meeting and the demands made, and even that a further meeting may have been agreed to, Mr Penman does not begin to identify any words used by Mr Thomas to support his interpretation that what was being offered was meaningful consultation (in the Gunning sense). I have concluded (for the reasons that are more fully set out below) that Mr Thomas did not make an offer of meaningful (or any) consultation on the X figure or the 2018 Guidance.[50]Mr Serwotka attended in person, chairing the meeting on behalf of the NTUC. He did not take notes. He says following a few ordinary exchanges, Cabinet Office officials indicated that the process was nearing an end. He told them this was totally unacceptable because unions had not had any talks on the key issue of what X in the guidance would be. He demanded proper consultation on X once it was revealed, and says the Cabinet Office responded that they would reflect on the request for further consultation. Mr Serwotka said this was not acceptable, and after much pressing, “the Cabinet office conceded that further discussions would take place, including on the X figure once its proposed value was revealed and on a range of other issues that we raised.” Mr Serwotka states that the meeting ended with him summarising the position reached and setting out the next steps. These included further meetings to address “the proposed value of X in the remit guidance and consultations on this… and that the remit guidance would not be published until those meetings had taken place”. He states the Cabinet Office agreed with that summary. Again, as is clear, Mr Serwotka does not identify the words used by Mr Thomas to convey either an offer of formal consultation on X and the 2018 Guidance, or his agreement to the summary in the sense of agreement to meaningful consultation on the X figure and/or the 2018 Guidance more generally.[51]Ms Thirlby attended the meeting in person and made a note of the meeting which she says focused on the position of the Cabinet Office. She says Mr Thomas told the meeting that he could not say what the X figure was as it was still with ministers. In response Mr Serwotka demanded:
“no issuing of remit until we have another meeting”
. Notwithstanding her focus on the Cabinet Office, she did not record in her notes or describe the gist of Mr Thomas’ response to that. Instead she states in her evidence that she took his response to mean there would be another meeting and that the X figure would be revealed before then. She states that at the end of the meeting Mr Serwotka summarised the points that had been agreed at the meeting, including that “X would be revealed and that there would be meaningful negotiation (she says she meant consultation) before publication with a further meeting, and an opportunity to meet the Minister if there were no change to the remit document.” She states that she would have expected Mr Thomas to say if he did not agree to this summary, and he did not. She also states that she was clear that there was an agreement to a further meeting, but does not identify the words used by anyone to communicate this.[52]Ms Thirlby’s notes do not attribute statements recorded to any individual present at the meeting. The “summary” recorded at the end of the meeting, is attributed by her in her evidence to Mr Serwotka. There is no record of anything said in response to his summary. The items recorded in the summary are not all consistent with matters of agreement, but are more consistent with demands made on the Claimants’ behalves. Further, it appears that where a matter was agreed, it is specifically recorded by her as such. It is notable that her notes do not record agreement on meaningful negotiations (or consultation) in relation to the X figure.[53]Mr Graham attended the meeting by phone, but did not take notes. He says at the end of the meeting Mr Serwotka summarised the action point “and these included that the Cabinet Office would reveal their proposed average pay award… and that there would be a further meeting and consultation on that. My very clear understanding from the meeting was that this had been agreed by the Cabinet Office and HM Treasury representatives at the meeting.…”. Again, he does not identify the words used by anyone on the Defendant’s side to communicate this.[54]Mr O’Connor attended the meeting in person (but took no notes) and recalls fairly strong words spoken on behalf of the unions about the failure to reveal the figure X. He refers to Mr Thomas stating that they were nearing the end of the process and this drew the response from Mr Serwotka that this was totally unacceptable. He states that Mr Thomas was pressed strongly about being informed of X for the purposes of consultation. Mr O’Connor does not record Mr Thomas’ response, but states that Mr Serwotka summarised at the end of the meeting the exchanges that had gone before, including “that further meetings would take place before which the Cabinet Office would tell us what X was and we would have an opportunity to be consulted on that…” He states that Mr Thomas responded to Mr Serwotka’s summary that “it was a fair reflection of where we were”. That evidence is out of kilter with all the other evidence about this meeting. Mr O’Connor says he “left the meeting with a very clear impression that the Cabinet Office had agreed to reveal X to us and to meet further to allow consultation on that as well as the other issues outstanding from that meeting.…”. He does not identify the words used by Mr Thomas to convey that “clear impression”.[55]Finally on the Claimants’ side, Mr Lewtas attended and made notes which record the following:
“MT. Not saying this will be the last meeting. Reflect – on our bid for further, proper consultation – – must answer or we engage politically. MT. Want to move ahead with coherence – in future years. MS. ? ……. ……. Responses on: • Approach with 2015 GR – is unacceptable and want more • Reveal what X is in these talks – before any publication • Further proper consultation incl. poss. meet Minister – assure us that process is not near the end. …..”
Reflect – on our bid for further, proper consultation – – in future years. • Approach with 2015 GR – is unacceptable and want more • Reveal what X is in these talks – before any publication • Further proper consultation incl. poss. meet Minister – assure us that process is not near the end. …..”

incl. poss. meet Minister

[56]On the Defendant’s side the evidence relating to this meeting can be summarised as follows. Mr Thomas (who took some brief notes of the meeting but these, like others taken in earlier meetings, were disposed of shortly after the meeting and before any indication that the present proceedings might be brought) states that the meeting was fractious and the Claimants did most of the talking. They were unhappy about not being consulted on the X figure and were pushing for meaningful consultation. Mr Thomas says he said that he would reflect on this request. So much is broadly common ground, and consistent with the notes referred to above.[57]He says he then sought to refocus on future matters on which fruitful discussion with the Claimants might properly be had. He says he had no mandate to consult on the X figure, particularly given that pay is delegated. He says he is sure that he made no promise of consultation on the X figure or anything else at any time during that meeting. Mr Thomas further states that the summary provided by Mr Serwotka (as reflected in several sets of notes) at the end of the meeting was a summary of the Claimants’ demands and did not reflect any agreed position. Although there was no promise of consultation given, he says it was expected that there would be a further meeting to discuss the 2018 Guidance, and this was in fact offered either at the meeting or at any rate afterwards by email.[58]Following the meeting, Mr Thomas communicated by email dated 5 June with Mr Bidegain and Ms Jones of HM Treasury. Although the word consultation is used by him, it does not appear to be used to describe ‘meaningful consultation’, appears to be describing what might be done in other contexts, and the whole thrust of this email is in terms I judge to be consistent with his position that he made no offer of formal consultation on 4 June, but simply agreed to share the X figure ahead of publication as part of information exchange and relationship preservation. He said:
“Met with the NTUC yesterday and thank you Ignatius for attending. I need to respond to them on a couple of issues the main one being sharing the average pay award based on affordability etc ahead of publication. It is difficult to track past practice pre-pay freeze and of course sharing the average pay award when it was capped at 1% (although not welcomed) was less contentious year-on-year. Generally speaking in other context you would share and consult on the amount in confidence. We could potentially meet with the NTUC on Thursday or Friday and share the number with a view to publishing, for example on Monday. Alternatively we can share the guidance with the unions on the day of publication and they will no doubt cry foul etc.”
[59]Ms Pilditch responded to Mr Thomas on 5 June. She referred in her email to a promise given to departments of at least 24 hours’ notice before publication. In that regard she said:
“…presentationally the unions may take umbragewith us sharing the products with departments before we meet with them as it could look like we aren’t properly consulting.” (Ms Pilditch explains that she used the word “consulting” as a shorthand for having a further meeting with the unions to inform them of the figure, rather than in its technical legal sense. In context, this appears to be the case.) Mr Thomas responded that he was fine “to share” with departments at the same time as NTUC. However, in a subsequent email Ms Jones agreed that although “in usual times we would want to share in advance… given the sensitivity of the pay debate at the moment, I think Ministers and probably No 10 would want to be aware of the real risk of the number leaking.”
[60]Mr Bidegain took no notes of the 4 June meeting. He describes a short pre-meeting with Mr Thomas before the meeting with the Claimants on 4 June 2018. He says this was not in the nature of a formal briefing but allowed Mr Thomas to highlight points on which there might be challenge. There was no suggestion in the pre-meeting from Mr Thomas that the X figure was being consulted on or was open to ‘consultation’ with the Claimants.[61]The meeting itself is described by Mr Bidegain as uncomfortable. He says he does not recall the exact words used by Mr Thomas but he spoke along the lines of “I can't promise” and “we'll see what the Minister can do” on numerous occasions when he was unable to commit to specific requests made of him. He says Mr Thomas agreed to take away and consider particular issues, such as whether recyclable savings could be used to justify increased pay awards but he made clear that HM Treasury ministers had taken the firm position that any proposals that required more money would be met with a clear “no”. He says the unions were visibly frustrated. Eventually, after repeated requests from union representatives for sharing of the un-redacted guidance in advance of publication, Mr Thomas said he would see what was possible. He says it was clear that this was not the final word on the matter, and that it was not for Mr Thomas to make this decision; but at no point during this meeting was any promise or representation or undertaking made that the unions would be consulted on the X% figure, or told they would be provided with that figure at a specific point in time.[62]The email Mr Bidegain sent to Ms Jones (as a read-out from the meeting) later on 4 June, refers to "recyclables" emerging again with force, and to other matters discussed. Significantly, it makes no reference to a promise of any kind of consultation on the X figure or any other matter.[63]Others present at the meeting were Esther Pilditch and Alice McCullough. Ms Pilditch did not take notes of the meeting. She describes it as awkward and dominated by the unions’ criticism of the engagement process to date. She says Mr Thomas acknowledged the unions’ comments “nodding and saying, for example, ‘we will take it away and reflect on that’. Mervyn said we had shared as much as we could at that stage, and confirmed we would like to share the unredacted Guidance with them ahead of publication. I remember the unions saying they would be very upset if we did not meet again and disclose the X % figure to them before it was announced…”.[64]Ms McCullough made a note of this meeting in her running note produced on 20 June 2018. It lists key messages from officials (with nothing of significance listed) and key responses from the Claimants, including that it was unacceptable that the guidance did not include the headline award. I do not read the points being made on each side as consistent with a consultation process being under way, as the Claimants sought to argue. Rather, each side set out its position on points of importance, and there was no attempt then to explore the other side’s position. The action she records following the meeting is “intention to hold further meeting prior to the publication of remit guidance”. In her evidence she confirms that no promise of consultation was made at any point during the meeting on 4 June.[65]Following the meeting, on 5 June, Ms McCullough sent an email to Cabinet Office colleagues recording her “understanding of what [the Claimants] had specifically asked us to consider” together with her suggestions as to how to address them:
“2) Reveal the x % prior to publication Maybe share this on Friday if we have secured publication on Monday 3) Assurance of meaningful consultation on the x% prior to publication One more meeting before publication 4) If 2 and 3 can’t be accommodated, a meeting with the minister to raise these concerns directly Will advise minister to decline this”
I read this note as her suggestion that there should be agreement to one more meeting before publication and a rejection of the request for an assurance of meaningful consultation. Following the meeting on 4 June 2018 Ms McCullough attempted to arrange another meeting with unions and although a number of meetings were scheduled they were cancelled for various reasons. Her email cancelling the meeting for 12 June makes clear that comments from the Minister on the remit guidance were still awaited. Her email of 19 June to Mr Lewtas says “I’ve just heard that the ministers are likely to publish the remit guidance very shortly and as per our commitment to you and NTUC, we’d like to arrange a further meeting to discuss this. …”. Her email dated 20 June to Geoff Lewtas indicates they would do their best to get copies of the guidance in advance of the final meeting scheduled for 20 June but that approval of special advisers would be required. In the event, this meeting was cancelled at very short notice as officials had not received permission to share the X % figure with the unions. Maybe share this on Friday if we have secured publication on Monday One more meeting before publication Will advise minister to decline this”

One more meeting before publication

[66]During discussions about the remit guidance, Simon Gush explains that one of the issues he was asked by the Permanent Secretary to the Cabinet Office to advise on, was whether a renegotiation process would be feasible and what the next steps would be if this were undertaken together with the risks involved in delaying announcement of the 2018 Guidance. He states that he does not know why these questions were asked with certainty but his understanding was that the renegotiation process referred to was the process undertaken between HR Directors, Permanent Secretaries and HM Treasury. He says he believed the Permanent Secretary wanted to know to what extent the guidance was now final before taking joint ownership of it. Mr Gush describes his advice given on 15 June 2018. He set out the process that had been gone through with the HR Executive Committee and Heads of Department by which the 1-1.5% range had been agreed. He advised that in line with normal HM Treasury approach to pay discussions the content of the pay remit guidance and the level of flexibility available to departments could be reviewed but there was no additional funding available beyond the 1% increase set out in the current spending review plans. He advised that any suggested changes to the pay remit guidance would require a repeat of the process that had been gone through, including agreement by HR Directors and Permanent Secretaries as well as engagement with HM Treasury. He advised that the original discussions had taken place over several weeks and any further debate risked delaying ministerial clearance until after the summer recess which would mean the guidance not being published until September 2018 with payment of awards being made very late in 2018 as a consequence. He also advised that revisiting the content of the pay remit guidance may not result in any substantial difference. His advice was to bring the discussions to a close while acknowledging that this was a complex decision.[67]On 18 June 2018, the MCO approved the 2018 Guidance, and officials began the process of preparing for its publication.[68]On the same day, the Second Claimant formally commenced a ballot for strike action. Although disputed by the Claimants, the evidence indicates that officials were concerned about negative briefings by the Second Claimant that might be directed at convincing their members that they were being treated unfairly to maximise turnout in the ballot. There is evidence of discussions between Cabinet Office officials and special advisers, and it appears the view that ultimately prevailed was that the X figure should not be shared on the Friday before publication because of concerns that it might be leaked over the weekend which would be difficult to manage. The Defendant’s case is this is why no further meeting took place to reveal the X figure before publication.[69]On 22 June 2018, the final decision was taken that the 2018 Guidance would be published on 25 June. On 25 June 2018, Mr Thomas telephoned officials at the First and Third Claimants to notify them off the record and on the basis that they did not share it more widely, that the Guidance would be published that afternoon. 27 June 2018 meeting with Ministers[70]On 27 June 2018, the General Secretaries of the Claimants met with the MCO and the Minister for Implementation. Mr Thomas was present. This meeting was not part of the pay remit process but this was the sole issue addressed at the meeting. The Claimants complained that there had been no consultation on the X figure (and the 2018 Guidance), despite promises to consult and revert on the Claimants’ representations before the 2018 Guidance was published. The Claimants argued that the 2018 Guidance should be withdrawn. In response the MCO agreed to reflect on what had been said and to revert quickly. I accept that the MCO and others attending on behalf of the Defendant, did not contradict the version of events put forward by the Claimants during the course of the meeting, but in light of all the evidence summarised above, I do not regard this as a basis for concluding that a promise of formal consultation was in fact made on 4 June (or after) by words or conduct.[71]By letter dated 5 July 2018 the MCO wrote apologising “regarding the process around the publication of this year's Pay Remit”. Again, he did not contradict the account given by the Claimants. Again, I do not read this apology as an acknowledgement of any promise to consult. It seems to be a simple reference to perceived discourtesy shown in the process. Again, in light of all the evidence, this is not a basis for concluding that there was in fact a promise of consultation made by Mr Thomas on behalf of the Defendant.[72]At 3pm on 25 June 2018, the Guidance was published. The X figure was set, as per the departments’ collectively expressed wishes, at a range of 1-1.5%.

The relevant legal principles

[73]The relevant legal principles are broadly a matter of common ground, and can be summarised relatively shortly.[74]The Claimant’s case is founded primarily on an alleged breach of the promise of consultation in accordance with Gunning principles (see R v Brent LBC ex p. Gunning (1985) 84 LGR 168 (cited with approval in, among other cases, R (Moseley) v Haringey LBC [2014] UKSC 56 at [25]). These require that consultation be undertaken at a time when proposals are still at a formative stage. The consultation must include sufficient reasons for particular proposals in order to allow those consulted to give intelligent consideration to them and an intelligent response. Adequate time must be given for this purpose. The product of consultation must be conscientiously taken into account when the ultimate decision is taken. These requirements are not however to be approached mechanistically and what fairness requires inevitably depends on the context and the particular circumstances.[75]The common law is slow to require a public body to engage in consultation where there has been no assurance either of consultation or that a policy to consult will continue. However, even in a case where there is no legal obligation to consult, if consultation is embarked upon, it must be carried out properly: see R v North and East Devon Health Authority ex p. Coughlan [2000] All ER 850 at [108].[76]It is also well established that a public body may create an enforceable legitimate expectation (procedural or substantive) by making a statement that is clear, unambiguous and devoid of relevant qualification: see R v Inland Revenue Commissioners ex p. MFK Underwriting Agents Ltd [1990] 1 WLR 1545. These requirements have not been watered down as the principle of legitimate expectation has developed: R v General Medical Council ex p. Patel [2013] EWCA Civ 327 (Lloyd Jones LJ at [40]). To the extent that the Claimants contended in writing that this is not necessary in every legitimate expectation case and that it is sufficient if there has simply been unfairness amounting to an abuse of power, Mr Westgate QC accepted in argument that the MFK test remains the benchmark against which a promise relied on as setting up a legitimate expectation must be measured. He was correct to do so in light of the discussion in R v CMA ex p. Gallaher Group Limited [2018] UKSC 25 at [40-41].[77]Whether there is a clear, unambiguous and unqualified statement is an objective and not a subjective test: see Paponette v AG of Trinidad and Tobago [2010] UKPC 32 (Lord Dyson at [30]). The question is how on a fair reading of the statement, it would have been reasonably understood by those to whom it was made. In the present context the question is whether statements made by Mr Thomas during the 4 June meeting would reasonably have been understood by those present as a promise of consultation satisfying the Gunning requirements in relation to the X figure in particular, and the 2018 Guidance more generally.[78]The words relied on as constituting the MFK undertaking must be considered in their proper context: see Patel (above). Contrary to the Claimants’ submission, I do not read Patel as requiring the statement maker to correct any misunderstanding on the part of the listener, where the context shows that the person to whom the statement is made has understood it in a particular way. That was the conclusion reached in the particular context and on the specific facts of Patel. It is not a statement of general principle.[79]Reliance on the statement or promise is not an essential prerequisite to a successful claim. Nevertheless the presence or absence of detrimental reliance is a relevant factor for the court to consider, and the cases have emphasised that it is likely to be the exception rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation. Even where a legitimate expectation is created by an MFK undertaking, it must also be shown that there would be unfairness amounting to an abuse of power for the public authority not to be held to its promise: see Coughlan (Lord Woolf MR at [89]).

Ground 1: Legitimate expectation of Gunning consultation on the X figure

[80]The Claimants’ principal complaint is of a failure to consult (in the Gunning sense) after disclosure of the X figure and before the 2018 Guidance was finalised. The primary way in which the case is put in the grounds for judicial review is that at the meeting on 4 June 2018 the Defendant clearly and unequivocally promised by words and/or conduct to meet the Claimants to meaningfully consult with them about the 2018 Guidance, in particular about the key X figure.[81]According to Mr Westgate, the high water mark of the case is that Mark Serwotka made a request for such a meeting to take place and that was agreed to. The agreement was included in a summary at the end of the meeting to which there was no dissent and that reasonably left the Claimants in no doubt that the request had been agreed. That “impression” was reinforced by the actions of the Defendant in seeking to arrange further meetings in June 2018 to “share comments from the Minister on the remit guidance” or to “fulfil a commitment to meet to discuss the remit guidance”.[82]Mr Westgate points to the absence of contemporaneous notes produced on behalf of the Defendant and to the fact that much of the evidence given by the Defendant’s witnesses is not supported by disclosed documents. He is critical of the fact that while Mr Thomas took notes of various meetings including that of the 4 June, these were discarded. He points to gaps left by the failure to provide full disclosure – for example the actual advice given by Mr Gush has not been produced; nor have the proposals for communications with the trades unions, described as an important factor in the 16 March memo disclosed very late in the day. Given these features he submits that where there is a conflict in the evidence, I should prefer the evidence given on behalf of the Claimants.[83]I have set out my understanding of what was said and done during the period in question and in particular at meetings with the Claimants. Having considered the evidence as a whole, examining it critically and with care, I do not consider that the Claimants have made out their case on the facts under this ground. My reasons follow.[84]First, I am not satisfied that Mr Thomas said anything amounting to a promise of meaningful consultation about the X figure or the 2018 Guidance more generally. I have summarised the evidence about this meeting above. None of the Claimants’ witnesses have been able to point to any statement by Mr Thomas at the 4 June meeting, whether recorded in notes or recalled by any individual amounting to a clear, unambiguous, unqualified promise of such consultation. At best, the Claimants’ witnesses say there was no dissent by Mr Thomas. In the context of a fractious meeting, dominated by the unions making demands, the mere absence of dissent is insufficient to establish a clear, unequivocal promise.[85]A fair reading of the notes made by various attendees at this meeting indicates that meaningful consultation on the X figure was being sought by the Claimants, and a summary was made by Mr Serwotka at the end of the meeting, which included this along with other matters. However what is missing from the notes as a whole is any record of Mr Thomas agreeing expressly to this demand. Mr Westgate submits it is critical that after Mr Thomas said he would reflect on the union requests, Mr Serwotka said that was not good enough. But even if this exchange occurred, there is no evidence of Mr Thomas capitulating and agreeing to meaningful consultation (whatever words were used) on the X figure. Indeed the Lewtas note suggests that after Mr Thomas said he would reflect on the request, and the unions responded “must answer or we engage politically”, Mr Thomas said he wanted to move ahead with coherence in future years. That is not agreement to the demand for consultation on the X figure, or anything like it. It is much more consistent with Mr Thomas’ earlier response (that he would reflect on various requests) that he did not respond to the unions’ demand.[86]Moreover, it is clear on the balance of all the evidence and from the nature of the points being made by Mr Serwotka in his ‘summary’ (some of which even the Claimants accept could not have been agreed) that this was a list of requests for the Defendant to go away and consider, and not a summary of what had already been agreed to by Mr Thomas (or any other officials of the Defendant). For example, the Thirlby list included “2015 [Spending Review] unacceptable”, “CSCS why not link to changes” and these are not matters that could have been agreed to by Mr Thomas, as he explains. The language used in the Thirlby notes is consistent with this being a list of demands; and the Lewtas notes record it as a list on which “Responses” are required. The McCullough email of 5 June lists the same or similar items as those she understood the Claimants had asked officials to consider.[87]The Defendant’s witnesses are clear that no such promise of consultation was made. Mr Thomas is sure that none was made and the other witnesses support his account. This evidence is not inconsistent with the documents on both sides to which I have referred. It seems to me that the Defendant has discharged the duty of candour in this case. The witness evidence gives a full account and I have been given no reason to conclude that appropriate disclosure has not been given. For example, Mr Gush has given a candid account of the advice he provided and I take the view that disclosure of his written advice was not therefore necessary for candour purposes. In all the circumstances, I have no reason to doubt the evidence given on behalf of the Defendant.[88]Secondly, I do not consider that the Defendant’s conduct following the meeting (in arranging further meetings), taken with what was said in the meeting, amounted to the requisite promise of meaningful consultation on the X figure as reasonably understood. It is true that a request for meaningful consultation on the X figure was made on 4 June, but nobody present could reasonably have understood (from what was said or done) that the Defendant agreed to this. It is also true that following the meeting arrangements were made for a meeting to “share comments from the Minister on the remit guidance” (12 June) and “discuss” the 2018 Guidance (19 June). Mr Westgate submits that the offer of such a meeting can only reasonably have been understood as agreement to the consultation requested because the offer of a meeting could have served no other purpose, and the Claimants were not privy to what had occurred in the internal February meetings. I disagree.[89]It seems to me that the offers of a meeting after 4 June in the terms made, are wholly consistent with Mr Thomas’ position that the meetings (up to, including and after 4 June) were principally about information exchange (to keep the unions as informed as was possible in the circumstances and to maintain good industrial relations) and not about consultation meeting the Gunning principles (however expressed). That is consistent with the approach adopted in meetings on 29 March and 30 and 31 May: on 29 March there was a commitment to further meetings as the remit guidance developed but no suggestion that future meetings would involve formal consultation of any kind. The 30 May meeting focussed on wider issues about pay. Officials provided information, and the unions gave their views on a range of pay issues. But it was made clear that, for example, arrangements for pay delegation to departments were not open to question, and the 1% funding limit was confirmed. There was no opening up to debate of each side’s views. By this stage, the Claimants knew there was draft guidance in existence. Indeed they were told the pay remit guidance would be published shortly and officials would endeavour to share it with the Claimants ahead of publication. They knew this was a late stage in the process. On 31 May the Claimants were told the 2018 Guidance was with Ministers; a draft version would be provided shortly, in confidence, but the average headline award would not be included; they asked for engagement on pay remit to be with HM Treasury officials, so that HM Treasury could explain funding restrictions and respond to suggestions of other sources of funding for pay increases.[90]Thirdly, the overall context does not alter this view. I have dealt above with what the Claimants’ officers must have known and understood about the pay remit process irrespective of their lack of knowledge of the February meetings themselves. They were well aware of the importance attached to delegation of pay to departments, and it is difficult to see how they could have thought a promise of formal consultation on the X figure would be consistent with delegation in circumstances where the Claimants accept that negotiation would have undermined delegation. I do not accept that the history of engagement with the Claimants in previous years has, in substance, been one of meaningful consultation. Past practice had involved sharing the remit guidance with unions shortly before publication (in other words, information exchange), but had not involved consultation on the figure set for the range, as both Mr Jinks and Mr Thomas make clear. That was the background for the meetings between March and June 2018. The fact that these meetings were said to be part of a process of “positive engagement” as the 2018 Guidance developed cannot by itself have given rise to any legitimate expectation of consultation. While the Claimants objected to the absence of consultation, they did nothing to make clear to the Defendant that they thought they were in fact engaged in a process of consultation such as to demand contradiction from the Defendant.[91]Further, the offer of a meeting after 4 June at a point when publication was described as imminent and the Claimants were told the Guidance was “with Ministers”, no doubt to be signed off in final form, can only reasonably have been understood as an offer to see the X figure after the decision-making process had taken place, well after a time when proposals were still at a formative stage. While there was a theoretical possibility of the guidance being revisited (as Simon Gush advised), the Claimants were not being offered meaningful consultation. Theoffer at such a late stage, in the limited terms made (to share ministerial comments or discuss the Guidance) could not reasonably have been understood as a promise of meaningful consultation on the X figure in the circumstances, and could not have created a legitimate expectation of Gunning consultation. It seems to me furthermore, that the Claimants’ own demands for a meeting with HM Treasury or Ministers are indicative of their understanding that the officials with whom they were dealing had no mandate to consult on this issue at this time.[92]Ground 1 accordingly fails and it is unnecessary to deal with the alternative arguments advanced by the Defendant.

Ground 2: Duty of sufficient inquiry

[93]Alternatively, the Claimants contend that a duty to consult with the Claimants arose as part of the Defendant’s duty of sufficient inquiry. They rely on the principle that a decision maker’s duty to have regard to relevant considerations may require him to ‘hear the other side’ and thereby take into account the affected person’s views about the subject matter (see R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and others[2015] 3 All ER 261 at [100(6)], approving R on the application of Khatun) v Newham London BC[2005] QB 37at [27]) and submit that the Defendant was under a duty to take such steps as were reasonable to call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case (see R (London Borough of Southwark) v Secretary of State for Education[1995] ELR 308 (Laws LJ at p.321-3). The Claimants contend that (as the formal representatives of the workforce directly affected by the pay remit) their views on the 2018 Guidance and the X figure in particular, were so obviously material that they could not be ignored. They rely on the fact that Budgets had already been fixed in 2015 and the 2018 Guidance is not therefore a cost control document. Even if it is a cost control document, the Defendant plainly thought it worth canvassing the unions’ views at meetings, and thus it was irrational and/or an error of law for the Defendant to ignore them (see R (DSD) v Parole Board[2018] EWHC 694 (Admin) at [141).[94]The test to be applied in relation to this ground is one of rationality. The question is therefore whether no rational decision-maker could have finalised the 2018 Guidance without first obtaining the Claimants’ views in setting the X figure. The authorities just referred to make clear that the obligation on the decision-maker is only to take such steps to inform him or herself as are reasonable, and that it is for the decision-maker to decide on the manner and intensity of inquiry to be undertaken. The mere fact that the court thinks further inquiries would have been sensible is nothing to the point. It is only where no reasonable decision-maker could conclude that the inquiries made were sufficient, that the court can intervene.[95]Although the Claimants assert otherwise, it seems to me that the 2018 Guidance in general, and the X figure in particular, operates as a ‘cost control’ mechanism governing administrative arrangements between HM Treasury and departments/agencies, and setting a limit on annual average pay awards that can be made by each department without putting forward a specific business case. The remit does not set the terms of service of civil servants (including the Claimants’ members) or determine the pay award of any individual civil servant. Nor does the X figure operate as a cap, preventing any department from exceeding an average pay award of 1.5%. Although the process may be onerous, nevertheless a business case can be advanced by any department to support a larger award. The Claimants are also free to enter into negotiations with the relevant department through collective bargaining arrangements to persuade any particular department to make pay awards greater than the annual average remit amount.[96]Moreover, what dictated the figure X in circumstances where there was funding limited to a 1% pay increase, was affordability by departments. Although other factors might also be considered, ultimately the fundamental question was what could realistically be declared affordable by departments.[97]In these circumstances it seems to me in agreement with Mr Bourne QC that it was rational for Ministers to conclude that they could decide this question without seeking the Claimants’ views on the X figure. Further inquiries of the Claimants might have been sensible or desirable in an ideal world, but the Claimants’ views were not relevant considerations that had as a matter of law to be taken into account in setting the X figure.[98]For these reasons, ground 2 also fails.

Ground 3: adequacy of voluntary consultation

[99]The final way in which the Claimants advance their claim is by contending that having embarked upon consultation with the Claimants it had to be carried out properly (see Coughlan at [108]). As Mr Westgate submits, the question whether a public body has embarked on consultation for these purposes is a matter of substance and not form. If, without using the term, a decision-maker embarks on an exercise that is in substance consultation then this principle applies.[100]Mr Westgate submits that the process adopted between March and June was in substance one of consultation about the 2018 Guidance and that included the X figure. The language used is incompatible with the Defendant’s characterisation that it simply involved “the provision of information” with any dialogue being limited to the expression of views but without any commitment to consider those views. The Defendant’s description is also inconsistent with the fact that some changes were made to the 2018 Guidance. He relies on the fact that the Defendant described the process from the start as one of positive engagement, with officials responding throughout to points made by the Claimants. They shared the draft guidance on 1 June 2018, said that they had listened to concerns raised by the Claimants, and altered the text of the guidance to reflect discussions with the Claimants.[101]I do not accept these submissions and prefer the submissions of Mr Bourne. I do not consider that the process on which the parties were embarked was in substance one of consultation in the Gunning/Coughlan sense, whether on the X figure or the substance of the 2018 Guidance more generally.[102]As the 16 March memo anticipated, “communications and engagement with employees and trade unions will be critical to ensure the messages land in the best possible way – recognising that this will not be seen as a good news story”. It would be in the strong interests of both sides to communicate and engage as far as that was possible. However, positive engagement with trades unions is not the same as ‘consultation’. The “ad hoc and informal” meetings were, as Mr Thomas has described them “principally about information exchange” and held in an effort to maintain the relationship with the trade unions and to keep them in the loop as far as that was possible, for obvious reasons. Even on the Claimants’ evidence, it seems to me that what took place was at best an exchange of information on some issues. It did not create a duty to engage in consultation on the 2018 Guidance, still less on the X figure, which would (on the evidence I have accepted) have been unprecedented.[103]That conclusion is not altered by the fact that the Defendant made some alterations to the wording of the draft guidance as a result of the meetings with the Claimants (for example, reversing the sentence order and splitting two sentences between paragraphs). These were minor in context, and did not relate to the substance of the Guidance. The changes made do not lead to the conclusion that formal consultation was occurring. Nor is my conclusion altered by the fact that the word “consultation” was used from time to time. Consultation in the Gunning sense is a term of art. The context of the email exchanges and discussions where the word consultation was used is inconsistent with its use by the Defendant’s officials in that formal sense.[104]Further, all of the meetings between the Defendant and the Claimants (and HM Treasury) took place after both the CST and the Minister for Implementation had approved the X figure on or around 26 March 2018. As such, the discussions were taking place at too late a stage for formal consultation at a time when proposals were still at a formative stage. Both sides knew that meetings were taking place at a late stage in the process, and as a matter of substance, these were not formal consultation meetings.[105]In the circumstances, ground 3 also fails.

Conclusion

[106]For all these reasons, and notwithstanding the forceful case advanced by Mr Westgate for the Claimants, the judicial review application fails and is dismissed. I am most grateful to all counsel for the assistance they provided both in written arguments and compelling oral submissions during the hearing.

Cited in 11 later judgments

and 2 more of the most senior