British Medical Association (BMA), R (On the Application Of) v Secretary of State for Health And Social Care [2020] EWHC 64 (Admin)

[2020] EWHC 64 (Admin)Case No CO/2123/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 January 2020
Before
THE HONOURABLE MRS JUSTICE ANDREWS DBE
Between
THE QUEEN (on the application of BRITISH MEDICAL ASSOCIATION)ClaimantSECRETARY OF STATE FOR HEALTH AND SOCIAL CAREDefendant
Fenella Morris QC and Jennifer Thelen (instructed by Capital Law Ltd) for ClaimantTim Buley QC (instructed by Government Legal Department) for DefendantHearing Hearing date: 21 November 2019
Judgment Approved

INTRODUCTION

[1]This claim challenges the lawfulness of certain provisions of the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (“the 2019 Regulations”) by which amendments were made to the terms of the NHS Pension Scheme.[2]Prior to the relevant amendments, the Defendant (“the Secretary of State”) had the power to forfeit a pension after a member or beneficiary of the pension scheme had been convicted of a prescribed criminal offence which was committed before the benefit became payable. Most, if not all, public sector pension schemes contain similar provisions. The amendments confer upon the Secretary of State an additional power to suspend payment of pension benefits not only after conviction and prior to a decision being taken on forfeiture, but also where a person is charged with certain very serious offences (“the suspension power”).[3]There is nothing in the 2019 Regulations or the amendments to the underlying pensions regulations effected by them that entitles a person affected by a suspension order to appeal. Suspension does not terminate automatically upon acquittal or in other circumstances in which forfeiture could no longer take place, and there is no limit in terms of time or amount, save that in most cases the guaranteed minimum pension cannot be forfeited (and thus, by necessary implication, payment of that element cannot be suspended).[4]The 2019 Regulations were made by the Secretary of State on 28 February, laid before Parliament on 4 March, and came into force on 1 April 2019. As at the date of the hearing of the claim for judicial review, the suspension power had not been exercised.[5]The claimant, the British Medical Association (“the BMA”), represented by Ms Morris QC and Ms Thelen, is a trade union and professional body for doctors in the UK, with a membership of more than 150,000. Most of its members belong to the NHS Pension Scheme. The BMA has serious concerns about the potential impact on its members of the introduction of the suspension power. It is particularly concerned that the changes will disproportionately impact on those who are already receiving their pensions, who are more likely to be suffering from ill health or a disability than those who have not yet retired from practice, either by reason of their age or because those factors led the individual concerned to take early retirement.[6]The judge who considered the application for permission on the papers directed a “rolled-up” hearing of the adjourned application for permission, with the substantive claim to follow if permission were granted. At the start of the hearing, I indicated to counsel that I considered that the threshold for granting permission had been met, and accordingly the hearing was to be treated as the hearing of the substantive claim.[7]For the reasons set out in this judgment, the BMA has established that the power to suspend pension benefits prior to conviction in the form in which it was introduced by the 2019 Regulations is a breach of Article 14 read together with Article 1 Protocol 1 (“A1P1”) of the European Convention on Human Rights (“ECHR”). This is compounded by an absence of appropriate procedural safeguards as required by Article 6(1) ECHR and/or the common law principles of natural justice. Although the Article 6 deficiencies might have been capable of cure had they stood alone, regrettably, I am unable to use the wide powers given to the Court under s.3(1) of the Human Rights Act 1998 to interpret the legislation in a manner which would render it compatible with the ECHR. The Secretary of State also failed to comply with the Public Sector Equality Duty (“PSED”) under s.149 of the Equality Act when making the 2019 Regulations, which is an entirely independent ground upon which the decision to introduce this power was unlawful.[8]The claim for judicial review is therefore allowed and the BMA is entitled to the relief that it seeks.

THE NHS PENSION SCHEME

[9]The NHS Pension Scheme is a contributory pension scheme. It is defined by three sets of regulations under which entitlement to pension and other benefits is calculated.[10]In common with other public sector pension schemes, the NHS Pension Scheme has undergone major reform in recent years. Since 1 April 2015, those joining the NHS have been enrolled into the pension scheme defined by regulations made in 2015, (“the 2015 Regulations”) with employees who joined prior to that date transferring into the new scheme from one of the older pension schemes regulated by regulations made in 1995 and 2008. Although the three sets of regulations are not identically worded, it is common ground that there is no material difference between them for the purposes of this claim. Therefore, I need only refer to the relevant provisions of the 2015 Regulations.

The forfeiture provisions

[11]In the 2015 Regulations the forfeiture provisions are found in paragraph 12 of Schedule 3. The main provisions are sub-paragraphs (1) – (3):(1) the Secretary of State may direct that all or part of any rights to benefits or other amounts payable to or in respect of a member under these Regulations be forfeited if – (a) the member is convicted of any of the offences specified in sub-paragraph 2; and (b) the offence was committed before the benefit or other amount becomes payable.(2) the offences are – (a) an offence in connection with employment that qualifies the member to belong to this scheme, in respect of which the Secretary of State has issued a forfeiture certificate; (b) one or more offences under the Official Secrets Acts 1911 to 1989 for which the member has been sentenced on the same occasion to – (i) a term of imprisonment of at least 10 years; or (ii) two or more consecutive terms amounting in the aggregate to at least 10 years.(3) in sub-paragraph 2(a) ‘forfeiture certificate’ means a certificate stating that the Secretary of State is satisfied that the offence – (a) has been gravely injurious to the State; or (b) is liable to lead to serious loss of confidence in the public service.[12]By sub-paragraph (4), the Secretary of State is given the power to direct that all or part of any rights to benefits or other amounts payable in respect of the member be forfeited where the benefits or amounts payable to a person falling under sub-paragraph (5) who has been convicted of the murder or manslaughter of that member, or of any other offence of which unlawful killing of that member is an element. Those persons include the deceased member’s surviving spouse or civil partner, another dependant, or a beneficiary to whom the pension benefits or amounts are payable under the deceased member’s will or on his or her intestacy. This reflects the long-established forfeiture rule on inheritance, by which someone who is criminally responsible for the death of another person is precluded from inheriting under that person’s estate unless (in a case other than murder) the Court exercises its discretion under the Forfeiture Act 1982 to disapply the rule in the interests of justice.[13]Sub-paragraph (6) precludes the Secretary of State from forfeiting any part of a guaranteed minimum pension (except in circumstances where paragraphs 12(1) and 12(2)(b) or 12(4) are invoked).[14]Although there is nothing on the face of the 2015 Regulations requiring the Secretary of State to seek representations from the person liable to be affected before making a decision under paragraph 12(1) to direct the forfeiture of pension benefits, it is the practice of the Secretary of State to do so. This was confirmed in paragraph 6.4 of the Secretary of State’s response to the public consultation carried out prior to the making of the 2019 Regulations.

The suspension provisions

[15]The suspension power introduced by the 2019 Regulations is found in the new paragraph 12(8) to (15) of Schedule 3 of the 2015 Regulations. A suspension decision is defined in sub-paragraph (10) as follows: (10) A suspension decision is a decision of the Secretary of State suspending the right to, and the payment of, all or part of any benefit or other amounts payable –(a) which the member is in receipt of, or becomes entitled to,(b) in respect of a member, under these Regulations.[16]The power to make a suspension decision derives from sub-paragraph 8: (8) If, on or after 1 April 2019, a member is –(a) charged with an offence; or(b) convicted of an offence, which, in the opinion of the Secretary of State, may lead to all or part of the member’s benefits being forfeited under paragraph (1), the Secretary of State may make a suspension decision in accordance with paragraphs 10 to 15 of this regulation.[17]By sub-paragraph (11) a suspension decision will have effect until either the Secretary of State directs otherwise, or the Secretary of State decides not to direct forfeiture. Although designed as an interim measure, theoretically, the amendments make it possible for the benefits to be suspended indefinitely – obviating the necessity to make a forfeiture decision following conviction, or even to provide a forfeiture certificate in a case that would require one. There is no provision for periodic review and, as already noted, no right of appeal.[18]Apart from the restrictions in paragraph 12(6) preserving the minimum guaranteed pension, there is no limitation in amount. Nor does any suspension automatically terminate upon acquittal, or upon an earlier decision by the prosecuting authority not to pursue the charges, or to downgrade them to a lesser offence which would not fall within the ambit of the forfeiture provisions. On behalf of the Secretary of State, Mr Buley QC accepted that in such circumstances, the Secretary of State would be obliged to reconsider the position, and indeed to bring the suspension to an end, but the member concerned would have to take proactive steps to inform him of the changes and then wait until a new decision was made.[19]Mr Buley acknowledged that this would cause some delay, but he pointed out that in practical terms even in a case of automatic reinstatement it might take some time to implement the resumption of payments. In my judgment, the fact that there may be some hiatus in resumption of payments even on automatic termination does not justify(a) maintaining a suspension for even a short period in circumstances where there can no longer be any prospect of forfeiture and(b) placing the onus on the affected party to obtain a further, favourable decision from the Secretary of State to terminate the suspension (especially as there is no constraint of time on him to make that decision). This comes uncomfortably close to requiring someone to prove their innocence before allowing them to receive money to which they are lawfully entitled.[20]The termination of the period of suspension will lead to any benefits which should have been paid to an innocent member during the period of the suspension being paid to him or her in full, with interest (sub-paragraphs (12) and (13)) but no other compensation. In the case of a convicted member, if forfeiture is directed for less than the amount that would have been payable during the period of suspension, the difference will be repaid (sub-paragraphs (14) and (15)).[21]Until the amendments brought about by the 2019 Regulations, the power of forfeiture under the 2015 Regulations could not be used to deprive an individual of any part of their pension to which they became entitled in the period before conviction (save possibly where they had not yet claimed it). That remains the position in the case of police officers, firefighters and other public servants whose pension schemes include a similar power of forfeiture. The effect of the introduction of the power of suspension in the terms set out in the 2019 Regulations is to change that position for NHS professionals.[22]If a suspension order is made after a member is charged with a relevant offence, it will continue to have effect up to and following his conviction until such time as any forfeiture order is made. The combined effect of sub-paragraphs (11) and (12) is that the forfeiture order, once made, would operate both prospectively and retrospectively to forfeit the payments that were suspended both before and after conviction. By this means, the power to forfeit, though still only exercisable after conviction, has been extended to pension payments that have been suspended during the period between charge and conviction (not just in the period after conviction). In practice, the temporary deprivation would automatically become permanent on the making of a forfeiture order, and the permanent forfeiture of those amounts would date back to the time of the suspension.

BACKGROUND TO THE INTRODUCTION OF THE SUSPENSION POWER

[23]The factual background is described in the witness statement of Ms Sue Palfree, one of the civil servants within the Department of Health and Social Care with day-to-day conduct of the proposal to amend the pension scheme regulations.[24]In the late summer of 2018 the then Minister of State for Health, Steve Barclay MP, was consulted about a case in which a former NHS general practitioner who had received a 12 year prison sentence for sexual assault on four patients, but who had not yet been the subject of a forfeiture decision, sought payment of a significant lump sum to which he was then entitled. The question which arose for consideration was whether there was an obligation to make the payment straight away. The Minister accepted advice that he had no power to freeze the doctor’s pension payments before a forfeiture decision was taken. He understandably expressed concern about the possibility that in such circumstances substantial pension benefits might be claimed before a forfeiture decision could be made. He therefore instigated an investigation into whether a power to freeze payment pending a forfeiture decision could be introduced by statutory instrument.[25]As Ms Morris observed, there was no apparent explanation for the delay of some five months after conviction in making a forfeiture decision in that specific case and the problem that arose in that case could have been avoided if the Secretary of State had acted more swiftly. The time taken between conviction of a qualifying offence, and a decision to forfeit being made, is a matter over which the Secretary of State has a significant degree of control. Subject only to the (presumably rare) case in which the right to draw down a lump sum just so happens to accrue in the window between conviction and forfeiture, the strain on the public purse caused by any delay in that period is unlikely to be great if the Secretary of State deals with forfeiture with due expedition.[26]Nevertheless, and however swiftly the Secretary of State might react to a conviction, the proper exercise of the discretion to forfeit is likely to take a little time, especially in the light of the fair and proper practice of seeking representations from the convicted person before making the decision. The hiatus between the conviction and the certification and forfeiture decisions, however short it may be, does give rise to the risk of the individual concerned using an accrued entitlement to a lump sum drawdown as a means of circumventing the effects (or full effects) of forfeiture. Since members of the NHS pension schemes all have the right to commute up to 25% of the capital value of their pension into a lump sum (or to increase their automatic lump sum entitlement by a similar amount) there would be an obvious incentive to exercise that right if it would avoid losing one’s pension altogether.[27]When considering the introduction of an interim power of suspension, Ms Palfree and her colleagues also had regard to another case in which, before a forfeiture decision was made, the entirety of the convicted doctor’s pension was transferred to his former wife in their divorce proceedings by way of a pension sharing order. However, all three pension schemes already included regulations allowing the Secretary of State to defer making a transfer value payment in circumstances where it was his opinion that disciplinary or court proceedings may lead to all or part of that member’s benefits being forfeited. The existence of that specific power meant there was less cause for concern over transfers being used as a means of evading or frustrating a forfeiture decision than there was about drawdown of a lump sum.[28]It is plain from Ms Palfree’s evidence that the prospective changes were prompted by the realisation that steps that might be taken between conviction and forfeiture that would deprive a forfeiture decision of its efficacy. In her statement, Ms Palfree identified the purpose of the suspension power in these terms:
“The suspension is only thereto ensure the effectiveness of the forfeiture power, should it fall to be exercised.” [Emphasis added].
Given that there was (and is) no power to recover payments that had already been made, the articulated concern was about the adverse impact that a drawdown (or transfer) might have on the amount of pension that could be forfeited in future.[29]Ms Palfree has given no explanation as to how the scope of the power to suspend (and, indirectly, the power to forfeit) came to be expanded to cover the period between charge and conviction, or what the thinking was behind it, other than what appears in the ministerial submissions referred to below. However, the internal minute of the discussion with the Minister which gave rise to the investigation of the possibility of introducing a power to freeze pension payments indicates that he had asked what the earliest was legally that they could apply such a freeze. The suggestion was even floated that legislation should require regulators and other bodies to inform the Department of any investigations that could lead to convictions. It is unclear whether this inquiry was motivated by a desire to save money, concern about the potential impact of lump sum drawdowns, both of these, or something else entirely.[30]There is no evidence that any concerns were expressed at that stage about the scope of the existing power of forfeiture, let alone about the fairness or otherwise of members who had been charged with serious criminal offences receiving benefits to which they were already entitled under the pension scheme (including regular pension income) before they were convicted, even if it were possible to infer from the Minister’s questions about timing that he was concerned that drawdown in the period before conviction might impact on the amount of future benefits that would be susceptible to forfeiture when the time came.[31]In due course, lawyers in the Government Legal Department were instructed to draft proposed amendments to the three sets of NHS pension regulations which included the introduction of the suspension power. It was intended to carry out a public consultation on the draft regulations before they were implemented. In late November 2018 a ministerial submission was made to the newly appointed Minister of State for Health, Stephen Hammond MP, recommending that he should agree to consult on the proposed changes to scheme rules and approve publication of the consultation document and draft regulations, which he did on 11 December 2018.[32]The ministerial submission noted that currently members and other beneficiaries were able to claim and receive significant benefit payments before the outcome of court proceedings was known. It referred to the provisions enabling transfers to be deferred and then stated that:
“the proposed amendments would take further steps necessary to protect the public purse by extending those existing provisions to enable the Secretary of State to make a decision suspending the right to, or the payment of benefit, pending a forfeiture decision.” [Emphasis added].
Strictly speaking, a forfeiture decision could only be described as “pending” if the circumstances had arisen in which such a decision could be made – i.e. the member had already been convicted; but it was plain that the proposals would enable a suspension decision to be taken far earlier than that.[33]The ministerial submission addressed the PSED by summarising the duty and the relevant protected characteristics in two paragraphs. It informed the Minister that after a decision to suspend been taken, the member would be invited to make representations as to why the suspension should be lifted and that:
“In reaching any suspension or forfeiture decision, and in considering representations made by a member, public sector equality duties in relation to the individual protected characteristics of a member, in so far as these are identifiable, are a consideration.”
There is nothing in the ministerial submission that addresses any possible impact on those with protected characteristics of the introduction of the power to suspend their pension payments, as opposed to its implementation in an individual case on some future occasion.[34]The consultation paper and the draft statutory instrument were published on 18 December 2018 and the consultation period ran from then until 28 January 2019. The consultation paper itself says very little about the perceived need for the suspension power, and nothing at all about any perceived need to exercise it before the affected member has been afforded an opportunity to object. It refers to the fact that the forfeiture power only applies where a member or beneficiary is convicted of a relevant offence and the Secretary of State has directed forfeiture. It continues:
“Before this happens, the practice is for the Secretary of State to seek representations from the member or beneficiary. This takes time and means that a member may claim benefits before the outcome of court proceedings is known or before the Secretary of State directs forfeiture. As a consequence, a member or beneficiary may then receive substantial pension and lump sum payments from the public purse, notwithstanding the fact that the member has been charged with, or convicted of, serious relevant offences.” (Emphasis added).
[35]This has all the appearance of a document into which phrases have been inserted without checking it afterwards to see if it makes any sense. For example, the words “before the outcome of court proceedings is known” make nonsense of the second sentence, which made perfect sense without them. The time it takes to make representations post-conviction has nothing to do with a person claiming accrued benefits prior to the outcome of criminal proceedings.[36]On the face of it, both the ministerial submission and consultation paper suggest that the justification for suspension and the need for protection of the public purse lies in the fact that a member has been charged with a relevant offence and may receive substantial payments out of public funds before the outcome of the criminal proceedings is known. The passage quoted above suggests that there is something inherently objectionable about a person who has been charged with a serious criminal offence (and presumed to be innocent) receiving a public sector pension payment to which they are otherwise entitled, merely because it may take some time for the criminal proceedings to reach a conclusion and, thereafter, for the Secretary of State to make a forfeiture decision in the event they are convicted. That goes well beyond the rationale of seeking to prevent the use of lump sum accruals and transfers to put sums beyond the reach of a likely future forfeiture order.[37]Thus, in the articulated reasons for introducing this power, no distinction is drawn between someone who is charged with an offence and someone who is convicted of it. They are treated as being equally unjustified in the receipt of accrued benefits in the period leading up to and including the criminal trial. It is a fundamental principle that every defendant to a criminal charge, however serious, and however compelling the evidence against him may appear, is presumed innocent until proved guilty to the criminal standard. The obvious objection to the removal of benefits at the threshold of charge, rather than conviction, even on a temporary basis, is that it is contrary to the presumption of innocence. The deprivation of the benefits may not become permanent until much later, (or at all) but as I have already pointed out, in practical terms any forfeiture will relate back to the date of suspension, which may be on or shortly after the date of charge.[38]There is no evidence that anyone, from the Minister himself downwards, turned their mind to the presumption of innocence and how this new power might impact upon it, at any stage before the 2019 Regulations were implemented. I regard that as a serious cause for concern.[39]The BMA was among those who put in a written response to the consultation. Like other consultees, it opposed the proposal to give the Secretary of State the power to suspend a person’s pension benefits before they were proved guilty of committing a crime. It said that this risked unfairly subjecting innocent members to hardship, and that it believed that the proposed new power was neither necessary nor proportionate and should be abandoned. Alternatively, if such a power were to be introduced, it should be limited either by reference to the length of time of the suspension (having regard to the potential length of the criminal proceedings) or by reference to the amount of benefits that may be suspended (having regard to the risk of hardship).[40]After the consultation period had closed, departmental officials considered the responses and decided to proceed with the implementation of the proposed amendments, subject to Ministerial approval. The ministerial submission at that stage repeated the explanation of the rationale for the introduction of the suspension power that was in the previous ministerial submission. It was accompanied by a check list with a tick next to the entry for “Public Sector Equality Duty” under the heading “Duties, Tests and Appraisals: The following tests apply and have been considered.”[41]Consideration of that duty in context of the proposed suspension power was addressed in a single paragraph:
“12. The forfeiture and suspension provisions apply equally to all members of the NHS Pension Scheme irrespective of protected characteristics…. In response to any decision made to suspend the payment of all or part of any rights to pension benefits or other amounts payable to or in respect of a member, the member will be invited to make representations as to why the suspension should be lifted. In reaching any suspension or forfeiture decision, and in considering representations made by a member, Public Sector Equality Duties in relation to the individual protected characteristics of a member, insofar as these are identifiable, are a consideration.”
Once again there was no attempt to consider, let alone address the impact that the introduction of the power to suspend, in the proposed terms, might have upon people with protected characteristics; the focus was entirely on the effect on individuals at a later stage, which (as then envisaged) was not even going to be at the time of exercise of the new power, but at the time of considering representations made by an affected person after the suspension had taken effect.[42]In March 2019 the Secretary of State published the consultation response. It summarised the objections raised by the BMA and others fairly, but it did not go on to specifically address each of the articulated concerns about introducing such a power in relation to those who had not yet been convicted of any crime. Instead, it emphasised the discretionary nature of the suspension power, and pointed out that the Secretary of State was required to act in accordance with obligations arising under the Human Rights Act and to have regard to the PSED and the impact on families under the “family test”. The consultation response also referred to the fact that in exercising the discretion the Secretary of State was obliged to act in accordance with general public law principles, and stated that all representations, including those relating to financial hardship, would be considered.[43]In summary, the background history indicates that the aim of introducing the power of suspension was to try to ensure that a person liable to forfeiture did not take steps which rendered any subsequent forfeiture order ineffective or less effective. However, as already explained, the terms in which it was introduced had the indirect consequence of extending the ambit of the existing power of forfeiture, not merely of ensuring that it was effective.

THE IMPACT OF THE POWER TO SUSPEND PAYMENT UPON CHARGE RATHER THAN UPON CONVICTION

[44]In her witness statement, Ms Palfree states that: “the suspension power will ensure that a member who is in due course convicted of a relevant offence and has his or her pension forfeited does not receive public money before forfeiture can be considered, simply because the criminal process or the subsequent decision-making process takes some time…. It is not entirely clear whether that was intended to be a description of the effect of the power or a description of what she and her colleagues set out to achieve by introducing it, but whichever it is, there are deficiencies in that reasoning. The length of time it takes to get to trial and secure a conviction has nothing to do with the stage in the process at which forfeiture can be considered or the time at which the right to receipt of a pension accrues. Forfeiture can only be considered after someone has been convicted, but that is because the 2015 Regulations so provide. That is true whether the process takes one year or four. The risk that some members of the NHS pension scheme might receive some pension payment between charge and conviction again has nothing to do with the length of time taken by the criminal process. It depends on the age (or sometimes the health) of the individual concerned. If they are already retired, that risk will have materialised at the time of charge. If they reach the qualifying age whilst awaiting trial, that is a concomitant of their date of birth and not attributable to any delays in the criminal process, save to the limited extent that the time taken may result in a landmark birthday arising before that process is complete, whereas a more expeditious prosecution might have avoided it.[45]There is no doubt that the period between charge and conviction (or acquittal) can be long, but in a criminal case that is rarely the fault of the defendant. Whilst that time lag does mean that a person of pensionable age (or other beneficiary) may receive substantial pension payments and/or be entitled to draw down a lump sum over or during that period, which, once paid, cannot be forfeited, the converse is that if payment is suspended they will be deprived of a large amount of money for an unknown period, which could cause substantial financial hardship not only to them but to their dependents.[46]Whilst suspension (temporary) is intended to be an interim measure, and is different from forfeiture (permanent) in terms of its interference with the peaceful enjoyment of possessions, the harm that can be caused by removing a person’s income, even if only in the interim and subject to full reinstatement with interest, is real and can be significant and irreversible. Suspension could be operative for several years. In order to subsist, a person who is reliant on a pension income (or their dependants) may have to make irreversible decisions to generate income by other means, such as selling assets or incurring debt.[47]Deprivation of the pension income may also result in an inability to meet mortgage or hire-purchase payments, which could lead to the permanent loss of a house or vehicle. The person affected may be unable to afford a holiday or pay school fees. Someone who is entitled to a lump sum may miss the opportunity to grow the capital or earn a higher level of income by investing it, which will not be compensated upon repayment even with interest. There is a real risk of reputational damage too, if it becomes known that pension is being withheld, because the inference could be drawn that the defendant’s employer or former employer considers him to be guilty (or, to put it another way, is unwilling to give him the benefit of any reasonable doubt).[48]As Ms Morris pointed out, the harm is magnified by the fact that a criminal charge is likely to involve the incurring of significant additional expenditure on lawyers’ fees. The suspension of benefits following charge could therefore give rise to a significant rise in expenditure at the same time as a significant decrease in income, with the real risk of adverse impact on the individual’s ability to defend themselves against the charge due to financial constraints, additional stress and anxiety arising out of the financial situation, or both. Moreover, in order to challenge any suspension decision in court, the affected individual would have to incur yet further expenditure and pursue those legal proceedings at the same time as defending himself in the criminal courts. These adverse effects would impact on innocent and guilty alike.[49]All these harmful impacts were fairly acknowledged by Mr Buley, but he submitted that the wide discretion enabled the Secretary of State to take them into consideration on a case by case basis and to make appropriate allowances for them. The possibility of unjustified hardship could not automatically override the countervailing considerations; and such hardship, however likely, was not inevitable. The potential to cause hardship in individual cases was therefore no reason for impugning the lawfulness of the power to suspend. I accept that argument in principle, but the position is very different if there is something about the power itself that makes it incapable of being exercised fairly or without causing hardship to those liable to be adversely affected by it.

The PUBLIC policy underlying the power of forfeiture

[50]Mr Buley contended that the suspension power was consistent with the policy underlying the forfeiture power, to which it is ancillary. It is therefore necessary to say something about the justification for the power of forfeiture (which, of course, was not the subject of challenge).[51]In Whitchelo v Secretary of State for the Home Department [1997] EWCA Civ 1213, (“Whitchelo”) Lord Bingham (then the Lord Chief Justice) addressed the policy underlying the almost identical power of forfeiture that arises in respect of police pensions. The regulation in question empowered the police authority responsible for payment of the pension to determine that some or all of it be forfeited:
“if the grantee has been convicted of an offence committed in connection with his service as a member of a police force which is certified by the Secretary of State either to have been gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service.”
[52]Lord Bingham first enumerated the three conditions under the relevant regulation that needed to be satisfied before a police officer may be deprived of any part of the pension to which he would otherwise be entitled, namely, conviction of an offence committed in connection with his service as a member of a police force (the equivalent of para 12(2)(a) of the 2015 Regulations); certification by the Secretary of State that the conviction was gravely injurious to the interests of the State or liable to lead to serious loss of confidence in the public service (mirroring paragraph 12(3)); and the exercise of the discretion to determine that the whole or some part of the pension be forfeited either temporarily or permanently so far as the regulations permit (the equivalent of the discretion arising under paragraph 12(1)). He then said this of the power of forfeiture: “its overall purpose is to avoid the public scandal that would be likely to arise if a police officer, or former police officer, who had committed, and been convicted of serious criminal offences of the nature and types described in the regulations, were to receive potentially large payments out of public funds by way of pension”.[53]Those observations were made in the context of a substantive appeal based on the construction of the regulation, rather than in the context of a public law or human rights challenge to the power of forfeiture itself. However, that is no good reason to question their validity; the reason for the existence of the power was critical to the Court of Appeal’s determination of the scope and meaning of the regulations, and whether the offence of which the appellant had been convicted fell within them. Moreover, this was an analysis by one of the greatest public law jurists of that, or any other generation, and should be afforded an appropriate degree of respect. In my judgment, the overall purpose of the forfeiture power, as explained by Lord Bingham, and the considerations to which he referred in Whitchelo, apply with equal force to doctors or other employees of the NHS who are found by a jury to have abused their position by committing serious criminal offences, as they do to police officers.[54]In Paul Banfield v United Kingdom, (application no. 6223/04) (“Banfield”), a decision I shall consider more closely in the context of the Article 14 arguments, the Fourth Chamber of the European Court of Human Rights (“ECtHR”) held that the three preconditions to forfeiture enumerated by Lord Bingham provided adequate procedural protection for those who are going to be deprived of a pension to which they would otherwise be entitled by reason of their public service, and to which they had contributed from their salary.[55]Mr Buley stressed the very serious nature of the criminal offences with which the forfeiture power is concerned. This is reflected in the fact that since 2009 that power has only been exercised by the Secretary of State in 18 cases, of which 7 involved cases where pension was already being paid. Bearing that in mind, he submitted that the “scandal” to which Lord Bingham referred attached to the receipt of public money by someone who had abused their position to commit such a serious crime, and that it was the commission of the crime itself rather than the conviction (which was merely the means by which commission of the crime was established) that triggered the sense of public outrage. Any measure which facilitated the forfeiture of potentially large sums payable out of public funds over a period closer in time to the commission of the offence than the date of conviction accorded with the policy underlying the power to forfeit. Therefore, the Court should not read too much into Lord Bingham’s reference to the public scandal arising if a person who had “committed, and been convicted of,” a relevant serious offence was to receive large sums of money out of public funds.[56]Despite their superficial plausibility, I cannot accept those submissions. The starting point of any analysis is the fundamental principle that a person facing such criminal charges is presumed innocent until the prosecution has made a jury sure of their guilt. That is an onerous burden. That principle cannot be displaced or watered down. The classic dictionary definition of “forfeit” is “deprivation of property as a penalty for wrongdoing”. A penalty cannot be imposed unless and until the wrongdoing has been proved. Whilst it is true that conviction is the means by which it is established that the person concerned did commit that offence, it is also the primary safeguard against unjust deprivation of property, as the ECtHR confirmed in Banfield.[57]In Whitchelo Lord Bingham plainly regarded conviction as the key factor conditioning the public attitude to the individual receiving or continuing to receive potentially large payments out of public funds. Earlier in the same passage, when describing the second of the three conditions, he referred to certification that the convictionwas gravely injurious to the interests of the State or liable to lead to serious loss of confidence in the public service, even though the language of the regulations concerned (as in the present case) appears to suggest that the offence of which the person has been convicted is the subject of the certification. It is highly unlikely that this was a mistake. Lord Bingham was not given to linguistic imprecision, and in Banfield the ECtHR adopted an identical approach to the interpretation of those regulations.[58]Read as a whole, that passage in Lord Bingham’s judgment clearly indicates that conviction of the serious crime is the justification for the existence, and not just the exercise, of the power to forfeit. What engenders righteous condemnation is the idea that someone who has been proved to have abused their position to commit a serious criminal offence should continue to be paid a pension by the State. They no longer have a right to be paid a pension from public funds, because they have been convicted of the crime. Conviction and commission go hand in hand.[59]It is difficult to see why the public would be scandalised by the idea that someone who was merely charged with such an offence (and presumed to be innocent of it) should continue to receive a pension to which he was otherwise entitled in the period whilst he was awaiting trial, however long it took for the criminal proceedings to run their course, even if a jury subsequently found him guilty. No evidence to support the suggestion that continuing to pay that pension until guilt was established would outrage the public was considered by the Secretary of State at the time the suspension power was considered, consulted upon, or implemented: and no such evidence was adduced in these proceedings.[60]The 2015 Regulations, as they appeared prior to the amendments, are consistent with Lord Bingham’s rationale. The reference to the timing of commission of the offence in paragraph 12(1)(b) comes after the requirement of conviction in paragraph 12(1)(a) and imposes a limitation on what benefits can be forfeited. Those two sub-paragraphs are expressly and inextricably linked. One cannot segregate sub-paragraph (1)(b) and use it as the sole justification for the power to forfeit, as Mr Buley sought to do. Properly construed, they envisage that upon conviction of a qualifying offence the individual concerned may be deprived of receiving any pension benefits out of public funds that he would otherwise be entitled to receive on or after conviction, provided that the offence of which he was convicted was committed before his entitlement to receive the pension arose. That interpretation is supported by the references in paragraph 12(1) and 12(4) to benefits that are “payable” to the member, which is not the same thing as amounts that have already been paid to him.

Is the suspension power consistent with that rationale?

[61]The introduction of a power to suspend after conviction is uncontroversial; it addresses the mischief that arose in the case that was referred to the Minister, as well as transfers to the convicted member’s former spouse on divorce, and enables a forfeiture order to cover payments otherwise falling due in the period between conviction and the making of such an order. That fully accords with the public policy rationale for the forfeiture power articulated by Lord Bingham in Whitchelo: a person convicted of abusing his position as a public servant to commit serious criminal offences should not receive or continue to receive a public pension after his conviction. A power to suspend pension payments after conviction, thereby enabling the Secretary of State to prevent the convicted person from being able to frustrate or render less effective the power to forfeit his pension, could be regarded as a necessary and desirable ancillary measure. It is undoubtedly proportionate.[62]The introduction of a power to suspend after charge and before the member becomes liable to forfeiture, at least in the form of the unrestricted power under challenge, is an altogether different matter. Whilst the Secretary of State might have wished to do something to prevent earlier steps being taken to frustrate the power of forfeiture by drawdown or transfer, (for example, in a case in which the individual concerned knew or feared that conviction was only a matter of time) the power of suspension is so widely drawn that a risk of that type does not have to be demonstrated or even considered in order for it to be exercised. It is unnecessary for me to consider how, if at all, it would have been possible to reconcile such a tailored power with the presumption of innocence, because that measured approach to the perceived risk was never taken.[63]There is nothing in the rationale underlying the power of forfeiture as it existed prior to amendment which would justify introducing a power to suspend upon charge alone. Indeed, such a power might well be regarded as contrary to that underlying rationale as reflected in the language of the existing regulations, which is forward looking, depends upon conviction, and does not envisage any form of retrospective deprivation of pension rights or benefits. Whilst it would have been open to the Secretary of State to formulate a new policy, that was not his defence to this claim, and in the absence of any evidence, very properly Mr Buley did not contend that that was what had happened. No dissatisfaction was ever expressed with the ambit or operation of the existing power of forfeiture that would call for it to be extended. THE GROUNDS OF CHALLENGE GROUND 1: ARTICLE 14 ECHR READ WITH A1P1 GROUND 3: ARTICLE 6 ECHR

THE GROUNDS OF CHALLENGE

[64]In the course of the hearing, it became clear that these two grounds were so closely interlinked that it would be very difficult to address them separately. Before considering them, I must deal with an issue of principle which was raised by Mr Buley, namely, how the Court should approach a challenge to the legality of a measure of general application which permits, but does not compel, a breach of the common law or the ECHR. Mr Buley submitted that such a measure, especially if it involves the use of discretionary powers, will only be unlawful if it is incapable of being operated lawfully.[65]In support of that proposition he cited R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin) [2018]4 WLR 49 and R(MM) (Lebanon) v Secretary of State for the Home Department [2015] 1 WLR 1073. The former was a challenge to the system of council tax enforcement as operated by magistrates’ courts, and thus subject to the specific legal principles that apply to systemic challenges. Hickinbottom LJ, having cited numerous cases in which those principles were discussed, summarised them at [68]. They include the following: (iii) An administrative scheme will be open to a systemic challenge if there is something inherent in the scheme that gives rise to an unacceptable risk of procedural unfairness; (iv) … there is a conceptual difference between something inherent in a system that gives rise to an unacceptable risk of procedural unfairness, and even a large number of decisions that are simply individually aberrant. The former requires, at some stage, consideration and analysis of the scheme itself and the identification of what, within the scheme, gives rise to the unacceptable risk…. (ix) the threshold of showing unfairness is high, but that is tempered by the fact that the common law demands the highest standards of procedural fairness when the life or liberty of the subject is involved. (x) where the system has an element may lead to a risk of procedural unfairness (e.g. restricted procedural time limits), then an important question may be whether the system has inherent within it the capability of reacting appropriately to ensure that the irreducible minimum standard of procedural fairness is maintained (e.g. there being sufficient flexibility within the system to avoid unfairness occurring). That capability must be assessed, not hypothetically, but by reference to what happens in the real world.[66]In a systemic challenge case, the Court is called upon to consider both the system in place, and the way in which individual cases are handled by that system. Neither of those elements arise here. No procedure for the operation of the suspension power has yet been decided; indeed, that is one of the problems with it. It is the power itself and the circumstances in which it may be exercised that are the subject of this challenge. Whilst I would not disagree with them, I can find nothing in Woolcock to suggest that the principles adumbrated by Hickinbottom LJ have or were intended to have wider application.[67]MM concerned the minimum income threshold which was introduced into the immigration rules for persons who wished to sponsor their spouses’ applications to enter the UK from outside the EEA. The claimants challenged the new rule as an unjustified and disproportionate interference with the right to family life guaranteed by article 8 ECHR. Given the nature of the challenge, the Court of Appeal unsurprisingly identified the test as being whether the rule in question and its application to particular cases would be inherently disproportionate or unfair. In that context, they said that another way of putting it was whether the immigration rule was incapable of being proportionate and so inherently unjustified. I do not regard that paraphrase as a statement of general principle. In general terms, it is safer for this Court to apply an established legal test in preference to its reformulation, especially when dealing with a different human rights challenge to a different type of measure.[68]I fully accept that the Court is obliged to interpret legislation compatibly with the ECHR insofar as that is possible, and that it must be mindful of the distinction between a challenge to a rule or regulation itself and a challenge to the way in which it may operate in individual cases. I also accept that when a measure or rule is challenged as incompatible with the ECHR, the Court must focus on whether there is something inherent in that measure or rule that makes it incompatible with a fundamental right.[69]If it appears to be incompatible, there are limits to how far the Court will be able to use its powers to read into legislation provisions that would make it compatible. A classic illustration of those limitations is R(Wright) v Secretary of State for Health [2009] UKHL3, [2009] 1 AC 789. That was a case in which it was impossible to operate the challenged legislation in a manner that was compatible with Article 6(1). It concerned interim measures under the Care Standards Act 2000 which enabled the Secretary of State to provisionally include the name of an individual in a list of people considered unsuitable to work with vulnerable adults. This gave rise to an obvious risk of irreversible reputational damage. The Court of Appeal tried to read the relevant legislative provision in such a way as to make it compatible with Article 6(1), by affording the affected person an opportunity to make representations before the relevant action was taken, unless giving such an opportunity would expose vulnerable adults to the risk of harm. However, the Supreme Court decided that the solution devised by the Court of Appeal was insufficient to solve the problem, and that no other solution could properly be adopted by way of the interpretive obligation in s.3(1) of the Human Rights Act.[70]Article 14 prohibits discrimination (in the sense of unjustifiable difference in treatment) on grounds of “status”, including certain listed matters, such as race, religion and gender, but also including “any other status”, where the treatment complained of comes within the subject matter or ambit of another Convention right.[71]In deciding complaints under Article 14, four questions arise:(1) does the subject matter of the complaint fall within the ambit of a Convention right?(2) does the ground upon which the complainant alleges he or she has been treated differently constitute a “status”?(3) has the complainant been treated differently from those not sharing that status who are in an analogous situation?(4) does that difference in treatment have an objective and reasonable justification? See R (DA and others) v Secretary of State for Work and Pensions [2019] UKSC 21, [2019] 1 WLR 3289 (“DA”) at [136].[72]It is common ground between the parties that the A1P1 rights of those entitled to payments under the pension scheme (the right to peaceful enjoyment of possessions) are engaged in the circumstances of these changes. Article 14 guarantees freedom from discrimination in the enjoyment of such rights.[73]A difference in treatment is discriminatory (in the sense in which that concept arises under Article 14) if it has no objective and reasonable justification:
“In other words, if it does not pursue a legitimate aim or there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.”
Stec v United Kingdom (2006) EHRR 1017 at [51], cited with approval by Baroness Hale in AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434 at [22].

What is the appropriate standard of review in this case?

[74]Where the measure complained of is one of social or economic policy, the margin of appreciation afforded to the State is wide. In cases involving decisions about the entitlement of a person or class of persons to welfare benefits or similar, the Court will only strike down a discriminatory rule or measure which is “manifestly without reasonable foundation”: see DA (above) per Lord Wilson (with whom the majority agreed) at [59] and [66].[75]Lord Wilson referred at [55] to the two different paths down which the Supreme Court had previously proceeded in searching for the proper test by which to assess the justification under Article 14 for an economic measure introduced by the democratically empowered arms of the State. He preferred the “manifestly without reasonable foundation” test in a case of entitlement to welfare benefits, on the basis of the rationale given in earlier cases, namely, that certain matters are by their nature more suitable for determination by Government or Parliament than by the courts.[76]Nevertheless, Lord Wilson said nothing to disapprove the approach of Lord Mance in In Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] AC 1016 which, as he pointed out, concerned deprivation of property, rather than welfare benefits. In that case, in an attempt perhaps to reconcile the two strands of authority, Lord Mance observed that the first 3 of the 4 stages of the conventional enquiry into justification, namely the establishment of a legitimate aim of the measure, a rational connection of the measure to the aim, and an ability to achieve it less intrusively, could be addressed by asking whether the contentions in support of the measure were manifestly without reasonable foundation; but that the 4th stage (which requires the establishment of a fair balance between all the interests in play) fell for decision by the Court, although it might pay significant respect to the balance favoured by those responsible for the measure. That approach was espoused by Baroness Hale in her dissenting judgment in DA.[77]Although the BMA maintained that the decision taken here was manifestly without reasonable foundation, Ms Morris submitted that the facts of the case made the question of the appropriate standard of review more complex. This is not a case where the Secretary of State is making complex socio-economic decisions as part of his role in administering the welfare state. It is a case of property deprivation. Although the “manifestly without reasonable foundation” test was applied in the case of In re Brewster [2017] 1 WLR 519, which predates DA, the argument that it should not be applied because the case concerned a right to a pension, rather than a welfare benefit, does not appear to have been advanced. In any event, the context of that case, which was about the recognition to be given by the State to cohabiting partners, was a socio-economic one. Moreover, having considered the “manifestly without reasonable foundation” test, the Supreme Court in that case went on to consider the 4-stage test of proportionality at [67].[78]Ms Morris also pointed out that the First Chamber of the ECtHR recently disagreed with the Supreme Court’s adoption of the “manifestly without reasonable foundation” test, finding instead that justification of discrimination required very weighty reasons: JD and A v United Kingdom, Cases 32949/17 and 34614/17 (24 October 2019). Given the context of the present case, which involves engagement in the “doing of justice” (in the sense in which that phrase was used by Laws LJ in R (Public Law Project) v Lord Chancellor [2016] 2 WLR 995 at [37]) she submitted that the level of judicial scrutiny should be more intense.[79]I agree that this is not a case which clearly falls on the state benefits side of the bright line which is said to determine whether the “manifestly without reasonable foundation” test applies. This is not the classic example of a matter of socio-economic policy in which the State must weigh up complex considerations in determining who should receive money out of public funds. This was not a conscious decision taken about the distribution of finite resources. The suspension power deprives someone of receiving a pension to which they are already entitled, and to which they have contributed by percentage deductions from their salary. A decision as to whether that person should receive a pension out of public funds has already been taken by the State. So has the decision as to the age at which they are entitled to draw down a lump sum: 50 or 55, depending on which of the schemes they have joined.[80]Yet there is also some element of social policy involved, at least as regards the ultimate decision to forfeit the pension once the individual has been convicted of a qualifying criminal offence. It is possible to characterise the forfeiture power itself as the product of a policy decision that a certain class of persons, namely, those convicted of qualifying criminal offences, should not receive a public pension (or that they should not receive more than the guaranteed minimum pension) following their conviction. However, that policy is not under challenge. Nor is the aim of the Secretary of State to enact proportionate measures to make that policy more effective. The problem lies in the fact that the suspension power is not commensurate with the existing policy but goes beyond it, and to that extent requires its own justification.[81]It is unnecessary for the resolution of this case to decide what the correct test for assessment of justification should be, because whichever of the tests is applied, and however wide the margin of appreciation afforded to the State, the result is the same. This measure is manifestly without reasonable foundation. It is not simply capable of causing hardship in individual cases; it is inherently unfair. In its present form, it offends against the presumption of innocence and that is something that cannot be put right. It infringes the basic rules of natural justice by permitting the discretion to be exercised by a person with a vested interest, in circumstances in which the decision maker cannot take all material factors into consideration when exercising it, because he will not have the necessary information to enable that to happen. It goes much further than is necessary to achieve the articulated legitimate aim, namely, to ensure the effectiveness of the power to forfeit, should it fall to be exercised, and the flaws in it are incapable of being cured under s.3(1) of the Human Rights Act or otherwise. There is no objective rational justification for it, and such justification as has been advanced by the Secretary of State is woefully inadequate.

THE PROPOSED COMPARATORS

[82]Ms Morris submitted that the status of being retired rather than employed, and having been an NHS employee rather than working in another form of public service (such as the police force) both fall within the phrase “any other status” within the meaning of Article 14. That phrase is to be interpreted broadly, see R (Stott) v Secretary of State for Justice [2018] 3 WLR 1831. (1). nhs employees of non-pensionable age[83]In Gregg v North West Anglia Foundation Trust [2019] EWCA Civ 387, [2019] 1 CR 1279, the Court of Appeal was concerned with the question whether it was lawful for an NHS Foundation Trust, as the employer of a consultant anaesthetist facing disciplinary charges arising from the death of a patient in his care, to withhold his salary during a period of interim suspension from practice. They held that it was not. Coulson LJ (who gave the leading judgment, with which Peter Jackson and Lewison LJJ agreed) referred to the principle that an inability to work due to lawful suspension imposed by way of sanction will permit the lawful deduction of pay, whereas by contrast an inability to work through “unavoidable impediment” or in circumstances that are “involuntary” will not.[84]In discussing the narrow interpretation of “unavoidable” or “involuntary” adopted in earlier cases, he said this at [53]:
“In some of the cases it seems to have led to the conclusion that, if the employee’s actions have led to a suspension from work or the bringing of criminal charges, then the suspension or the consequences of the criminal charges are automatically “avoidable” or “voluntary”
. This is uncomfortably close to an assumption of guilt and seems to me to be wrong in principle.” His conclusion, at [69], was that in the absence of express contractual provision, the default position should be that in the ordinary case, an interim non-terminatory suspension should not attract the deduction of pay. He said that there may be exceptional circumstances (such as an admission of guilt) which might justify such a deduction, but they would not ordinarily arise.[85]Thus an NHS employee who has not yet retired, but who is facing the same type of serious criminal charge, and who is likely to be the subject of interim suspension pending disciplinary proceedings or the outcome of the criminal proceedings, in principle cannot be deprived of his pay during the period of such suspension as a matter of his employer’s discretion, simply on the basis that he has been charged with that offence. A decision to withhold payment of his salary in a period before conviction or disciplinary findings could not be justified on the grounds that the employee had behaved in a way which led to the charges being brought against him (and thereby brought about his inability to work) because that would contradict the presumption of innocence, which is wrong in principle.[86]Mr Buley pointed out that Gregg was not concerned with the suspension or deferral of payment of salary, carrying with it the right to reimbursement with interest if the employee were acquitted in due course. It was a case where the employer wished to stop paying the employee altogether whilst he was suspended from work. However, that does not affect the principle underlying the decision; a criminal charge would not justify temporary deprivation of salary any more than it would justify permanent deprivation, for precisely the same reasons, and the prospect of repayment on acquittal makes no difference.[87]Mr Buley accepted that someone employed in the NHS had a “status” falling within Article 14 but took issue with whether their situation was sufficiently analogous for comparison purposes. Although he accepted that an employer who suspends an employee who is facing similar serious criminal charges would probably have to continue paying him a salary during the period of suspension, Mr Buley pointed out that he has the ability to stop the continued depletion of public resources by either terminating that person’s employment or by permanent suspension at the end of a disciplinary process, both of which could occur before the criminal proceedings have concluded. The employee could be sacked for less serious offences, and proof of misconduct in disciplinary proceedings is to the lower, civil standard. There is no question of an employee being able to draw down a lump sum, or transfer money which would have the effect of frustrating the employer’s ability to stop paying him out of public funds in future.[88]In my judgment there is a sufficient analogy between the position of an NHS employee and the position of a retired NHS employee for a comparison to be made between them for the purposes of Article 14 read with A1P1. The suspension power, which can have a permanent effect for reasons already explained, does subject the latter to an immediate detriment which is not (and cannot lawfully be) imposed on those who are still employed and who face similar criminal charges. The subject of the challenge is an unfettered discretion to deprive a person of pensionable age (and his dependents) of what is likely to be their main source of income, for a potentially indefinite period, without right of appeal, on the basis that he has been charged with a serious criminal offence which “may” lead to a forfeiture decision, when there is no such power in the case of a person who is still working in the NHS and who faces equivalent criminal charges, even if that person has been suspended from work pending the outcome of the criminal charges or disciplinary proceedings. In both situations there is a possibility that the individual concerned will be found guilty and that finding may lead in due course to a lawful permanent deprivation of income. In the case of a pensioner, a forfeiture order can only be made if he is found guilty. Yet at the time of charge there is a presumption of innocence, and it is that presumption which precludes the withholding of pay in the case of the employee.[89]The fact that in some cases it may be possible for the employer to prevent continued payment out of public resources by terminating that employee’s employment, or by imposing suspension as a disciplinary sanction, does not affect the validity of the analogy. The employer cannot simply exercise a discretion to stop paying him his salary until after he is acquitted of the criminal charges and applies to the employer to reinstate it. The employee can, of course, be deprived of his future salary if and when his contract of employment is terminated or he is suspended from practice as part of a disciplinary sanction, either of which events may arise prior to the conclusion of the criminal proceedings; but in either scenario, unlike the NHS pensioner under the changes made by the 2019 Regulations, he has an unfettered right of appeal on the merits. The decision to deprive him of his salary will also be taken after consideration of the evidence against him, and of his defence, and normally there will have been a disciplinary hearing at which he will be entitled to be represented and make submissions.[90]Moreover, the power to suspend payment in conjunction with suspension of employment as a disciplinary sanction cannot be used to deprive an employee of money he has already earned; and the liability to pay a salary only ceases with prospective effect on termination of employment. Thus, there is a material difference in treatment between an NHS employee and a retired NHS employee under the 2019 Regulations which requires justification. The fact that a retired person may receive a lump sum is not a sufficient ground of distinction between the two types of status to make the analogy inapposite, although it is relevant in the context of assessing justification. (2). Other public servants whose pensions are liable to forfeiture upon conviction[91]Mr Buley did not accept that persons working in another form of public service such as police officers or firefighters had a “status” for the purposes of comparison under Article 14. He contended that the differences arose purely from the fact of membership of different pension schemes, and that there is no identifiable personal characteristic pertaining to the receipt of an NHS pension which would give rise to a right to complain about a difference in treatment in comparison with another public sector pensioner.[92]In response, Ms Morris relied upon Niemietz v Germany (1993) 16 EHRR 97 at [29] – [31] in support of the proposition that one’s choice of profession falls within the concept of private life under Article 8, and therefore is capable of being treated as a “status” under Article 14. She agreed that the Whitchelo justification for the forfeiture power applied across the board to all public servants who, irrespective of the rules of their specific pension schemes, faced the risk of loss of their pension in those circumstances. Yet of these public servants, only medical professionals were subject to a power to suspend pension payments that could be exercised at any time after they were charged with a serious criminal offence. Therefore, she argued, there was a sufficient basis for making the comparison.[93]Whilst I accept Ms Morris’s submission that a choice of profession can amount to a “status” for these purposes, it seems to me that the proposed comparison between NHS employees and other public service employees of pensionable age must be approached with a greater degree of caution than the comparison between current NHS employees and retired NHS employees. I accept that the public policy behind the power to forfeit a pension articulated by Lord Bingham in Whitchelo applies equally to all public servants and not just to medical professionals. It is therefore arguable that there is a need to establish some objective justification for treating the latter more harshly than another public servant in terms of the scope and operation of that power. It has not been suggested that there is anything special about doctors that would single them out for special treatment. On the other hand, there is no obligation on the State to apply identical pension rules across the board to all public sector employees.[94]An expansion of the rules governing one type of public servant which is nevertheless in accordance with the overarching public policy governing the circumstances in which public servants generally should lose the right to receive a pension out of public funds would probably not be incompatible with Article 14 and A1P1 ECHR. If a measure is fair and proportionate and is designed to make the existing forfeiture provisions more effective, the justification for introducing it would surely apply equally to all public sector employees whose pension scheme rules included such a power of forfeiture. In those circumstances, the fact that one public sector pension scheme happened to be the first to introduce that measure could not be challenged on the basis that it amounted to unjustifiable differential treatment between members of that profession and members of other professions. This is illustrated by the fact that no issue is taken with the introduction of a power to suspend payment after conviction, even though the introduction of that power by the 2019 Regulations puts doctors on a different footing from police officers and firefighters. Therefore, a difference in treatment between retired medical professionals and other public servants in a similar position on the basis of their professional status might be easier to justify in the present context than a difference in treatment between retired and active NHS employees.[95]What this demonstrates is that ultimately the issue at the heart of this case is one of justification. The speech of Baroness Hale in AL (Serbia) (above) at [24]-[25] provides useful guidance. She pointed out that Strasbourg jurisprudence is less concerned with the identification of an exact comparator than with the question whether differences in otherwise similar situations justify a different treatment, and endorsed a passage in the speech of Lord Nicholls in R(Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 at [3] which identified the essential question for the Court as being: “whether the difference in treatment of which complaint is made can withstand scrutiny…whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

the relationship between Article 6(1) and justification

[96]In determining whether the discriminatory effect of the suspension power is justified, the Court must consider the challenged measure as it has been enacted, making a holistic evaluation. The presence or absence of procedural safeguards is an important part of that evaluation. This is illustrated by the approach taken by the ECtHR in the case of Banfield (above). In that case the court declared inadmissible and certified as manifestly ill-founded a complaint by a police officer who had been convicted of serious sexual assaults that the forfeiture provisions under the relevant Police Pensions Regulations (the equivalent of paragraph 12(2)(a) and 12(3) of the 2015 Regulations, and the same provisions as were considered in Whitchelo) infringed A1P1 read alone or in conjunction with Article 14. It held that whilst the forfeiture of the publicly funded element of the pension operated as an interference with the peaceful enjoyment of possessions, engaging the first sentence of A1P1, a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. Forfeiture can constitute a necessary part of measures to ensure confidence in a properly functioning police force, arising from the position of trust which police officers enjoy.[97]The two significant factors in the court’s reasoning were(1) that the forfeiture measure was discretionary, rather than automatic, and(2) that extensive procedural protection was available to the police officer. The forfeiture procedure could only be commenced once the criminal proceedings had terminated, and involved a three-stage process, namely, (1) conviction of a relevant offence; (2) certification by the Home Secretary that the conviction was gravely injurious to the interests of the State or liable to lead to a serious loss of confidence in the public service; and(3) a determination by the relevant police authority of how much of the pension should be forfeited and whether the forfeiture should be temporary or permanent. Guidance on how the discretion at stage (3) was to be exercised was provided in a Home Office circular. There was a right of appeal on the merits to the Crown Court at stage (3), and the decisions at stages (2) and (3) were also susceptible to challenge by way of judicial review.[98]The approach taken by the ECtHR in Banfield supports Ms Morris’s submission that an assessment of procedural safeguards (including the significance of their absence) may form part and parcel of the assessment of the lawfulness of the power challenged under Article 14 – here, the suspension power exercisable on charge. The panoply of safeguards attaching to the police pension forfeiture procedure go further than those available under the NHS forfeiture procedures, but none of those safeguards exists in the case of the suspension power. If the power to suspend is exercised upon charge, there will not have been a conviction, nor any relevant certification relating to the impact of that conviction on the interests of the State or public confidence in the NHS, nor a determination of whether there is to be forfeiture and if so, how much. Those matters are for the future, and may never arise.[99]It is no answer to that objection that the deprivation of property is temporary in nature and that the aggrieved party will get it back with interest in due course once he establishes his innocence. Those fundamental procedural safeguards do not exist at the time when he is deprived of the right to receive payment. Whilst someone who is convicted will still have the two remaining safeguards in respect of future payments, the suspension decision may adversely affect such protection as they afford him. The decision maker will already have made his mind up, in principle, that this is a case in which forfeiture may be appropriate, and, at least in terms of objective perception, there is a real risk this may influence his position if a discretion to certify or forfeit is exercised after conviction. He has an obvious motive to try and keep hold of the public funds that have already been “saved”.[100]Article 6 rights attach to decisions on interim measures where, as here, they are capable of having a permanent impact and if the interim measure could cause irreversible prejudice that is incapable of remedy in later substantive proceedings: see Micallef v Malta (2010) 50 EHRR 37 and R(Wright) v Secretary of State for Health (above) at [22] and [28]. Where a discretionary power is conferred on a decision maker, the Court will assume that he will act in accordance with the rules of natural justice/Article 6 ECHR (unless the measure in question actively prevents him from doing so). If he does not, either in an individual case, or by adopting a procedure that infringes those rules, the aggrieved party has a remedy by way of judicial review.[101]In the present case, at the time of the consultation (and indeed when these proceedings began) it was apparent that the Secretary of State was proposing to adopt a procedure that was plainly incompatible with Article 6. Paragraph 6.6 of the consultation document indicated that (by contrast with forfeiture) it was not intended that the member should be able to make representations before invoking the new suspension power. Instead, it was proposed to inform the member or beneficiary concerned after the decision to suspend payment had been made, at which point they would be invited to make representations as to why the suspension should be lifted in whole or in part.[102]It appears that matters have moved on since the enactment of the 2019 Regulations and indeed, since service of the Detailed Grounds of Defence. A letter from the Government Legal Department to the BMA’s solicitors dated 19 November 2019 states that it was considered at the time of the consultation response that it might be necessary to exercise the power before allowing a member to make representations, to prevent an immediate drawdown or transfer of the pension as a result of the notification that suspension was being considered. However:
“since then, officials have satisfied themselves that this should not be necessary, being of the view that allowing representations would be reasonable though recognising the very limited time scales to which both the Department and any member would have to work.”
[103]Mr Buley rightly accepted at the hearing that if the perceived justification for making a decision without prior representations has fallen away, which is the position that his client now adopts, it would be an improper exercise of the suspension power (and a breach of the rules of natural justice and Article 6(1)) to make the decision without giving the affected person an opportunity to make representations beforehand. However, he contended that this was a matter of procedure which was all going to be addressed by way of a separate policy (somewhat surprisingly, yet to be formulated) and did not affect the legality of the suspension power itself.[104]I agree that if the only problem with this legislation had been the absence of a provision enabling the person facing the criminal charge to make representations before being deprived of some or all of their pension for a potentially unlimited time, the Court would not strike the legislation down, but instead give a clear indication that such a provision would be needed to make its operation compatible with Article 6, or else use its powers under s.3(1) of the Human Rights Act to read such a requirement into the 2019 Regulations. There is no provision for prior representations to be made in the case of forfeiture, but no-one has suggested that those aspects of Paragraph 12 of the 2015 Regulations are incompatible with the ECHR. There was no suggestion that they are being operated in a manner that is procedurally unfair. However, the changes effected by the 2019 Regulations suffer from a number of other inherent failings which are not so easily addressed.[105]Article 6(1) guarantees a right to an impartial tribunal. Here the decision maker is not impartial, and that lack of impartiality is not of a technical or formal nature. It is no answer to that objection to say that the decision may be challenged by way of judicial review or that the aggrieved party has a right to make a complaint to the Pensions Ombudsman (who has a power to investigate the facts). The question is whether, in the words of Lord Hoffmann in R(Alconbury Developments Ltd) v Secretary of State for the Environment [2002] 2 AC 297 at [87] there is “full jurisdiction to deal with the case as the nature of the decision requires.”[106]The decision to suspend payment is not a decision that involves specialist administrative expertise. It has potentially serious consequences; it involves the deprivation of a valuable property right for an indefinite and potentially lengthy period in the context of unproven allegations of serious criminality, in circumstances where an innocent person will probably not be fully compensated by the subsequent repayment of the money with interest. The decision-maker is not equipped to evaluate the strengths or weaknesses of the criminal case and cannot apply the presumption of innocence because if he does, he would have to assume that the pension could not be forfeited. All he can do is assess the likely impact of suspension on the pensioner and their dependents, which is essentially a fact-finding inquiry. The power to suspend following charge is expressed in extremely broad terms, and although that affords flexibility, which is desirable, the downside is that any decision will be difficult to challenge by way of judicial review. Any challenge to the decision to exercise it will inevitably take time, during which the member will continue to be deprived of his pension benefits, as there is no power in the 2019 Regulations to stay the suspension decision.[107]I can well understand why the right to seek judicial review of a discretion to suspend exercised after conviction might be regarded as an adequate procedural safeguard even in the absence of a right of appeal, because by then the facts and the culpability of the offender will have been determined in the criminal proceedings, which are wholly independent. That situation is very different from the one in which a discretion to suspend is exercised when a person has merely been charged with a qualifying offence. Whilst a decision to forfeit can only be taken after conviction, the practical effect of introducing a power to suspend upon the laying of charges is to bring forward the time at which the process of forfeiture commences to a time long before a criminal court has considered the evidence against the individual concerned. That is enough to take the matter outside the protection that the ECtHR acknowledged to be adequate in Banfield.[108]In such circumstances I take the view that nothing less than a full right of appeal to a court on the merits would suffice to satisfy the requirements of Article 6(1) and the principles of natural justice. However, even if section 3(1) of the Human Rights Act or a declaration that the relevant provisions of the 2019 Regulations would be incompatible with Article 6(1) and/or the principles of natural justice without affording the member or his dependents such a right of appeal could be deployed so as to provide for such essential procedural safeguards, in addition to the (now conceded) right to make prior representations, their introduction would be insufficient to cure the breach of Article 14 read with A1P1. The breaches of Article 6(1) just make an inherently unfair measure even more unfair.

JUSTIFICATION

[109]Mr Buley submitted that the aim of introducing the suspension power was to ensure that a person who is in due course convicted of one of the serious criminal offences with which this legislation is concerned will not have received significant amounts of money from public funds after the offence was committed and prior to conviction. This was a classic example of an attempt to provide rationalisation after the event. The aim articulated by Mr Buley formed no part of the justification for the measure given at the time when it was introduced. Moreover, it is based on a misinterpretation of the rationale for the forfeiture power expressed by Lord Bingham in Whitchelo, for reasons I have already explained. That power was designed and intended to operate prospectively in respect of entitlements that had not yet accrued at the date of conviction. The 2019 Regulations create a device by which it is possible to deprive someone of money he was entitled to receive during a period when he is presumed to be innocent.[110]There was no systemic analysis of the need to introduce the power of suspension, let alone identification of a concern that the scope of the existing power of forfeiture was insufficient and a desire to expand it. There was no intimation that it had become desirable that a convicted doctor should be deprived of pension earned between commission of the offence and conviction (and that in order to secure this, it would be proportionate to deprive innocent NHS pensioners and their dependents of such pension for an indefinite period without any right of appeal or periodic review, and with limited compensation in the form of interest when the capital was eventually repaid). Tellingly, there is no mention of any such matters in the consultation. No consideration was given to the contrast between the position of a pensioner and a salaried employee facing similar charges; and there was no suggestion that there were any special reasons why the receipt of pension by doctors during the period when they were not yet proved to have done anything wrong, would lead to public condemnation after they were convicted.[111]The only potentially defensible articulated reason for introducing the suspension power was to meet concerns that before a forfeiture decision could be taken, a member of the pension scheme might take otherwise lawful steps, such as drawing down a large lump sum or transferring the pension, which would frustrate or severely mitigate the impact of a forfeiture decision once it was made. The suggestion made in the ministerial submissions and the consultation document that it was appropriate to suspend payments after charge to protect the public purse just because someone charged with a serious offence might otherwise receive large amounts of public money over the lengthy period it might take for the case to come to trial, does not withstand scrutiny, and I need say no more about that save to reiterate that the vested interest of the Secretary of State in seeking to avoid payment of such sums makes him inappropriate to be the sole arbiter of whether the factors favouring suspension, such as savings to the public purse, outweigh any hardship in an individual case.[112]The fact that the suspension power has the practical effect of enabling forfeiture to be implemented retrospectively in respect of pension otherwise payable in the period between charge and conviction does not mean that this was the objective of the measure, or the reason for its enactment. It was simply a consequence of it.[113]Ensuring the effectiveness of the existing forfeiture power was of course capable of being a legitimate aim, but it does not follow that there is an objectively reasonable foundation for introducing a discretionary power to suspend payment of a pension following criminal charges which treats NHS pensioners differently from NHS employees in a way that is manifestly wrong in principle and is far wider than is necessary to achieve that aim.[114]The primary objection to this discretionary power to suspend payment following charge, rather than conviction, is that it offends against the presumption of innocence just as much as an interim suspension of the payment of salary in those circumstances would do. Ms Morris submitted that, since the justification of the power of suspension is to give effect to the power of forfeiture, a power that can only be exercised when guilt has been established, the power to suspend on the basis of a charge alone necessarily operates on an assumption that the member is guilty. Otherwise there would be no reason for the existence of the power or its exercise at that stage – if the person concerned were innocent, keeping them from a payment to which they were otherwise entitled could have no impact on the effectiveness of a forfeiture order, as such an order could never be made against them.[115]Mr Buley took issue with that analysis. He contended that, like any interim measure, suspension takes effect in a state of uncertainty where it is not yet known whether the individual will be convicted or acquitted. It is put in place to address the risk that he will be convicted. In my judgment that does not answer the principled objection: if the member concerned is presumed to be innocent, there would be no rational basis for concluding that just because he has been charged, his pension “may” be forfeited. It can only be forfeited if he is guilty; one cannot take a view that it may be forfeited on the basis of a charge alone, without disapplying the presumption that he is innocent.[116]In any event, the power does not exist to address a risk of conviction (a risk which the decision maker is unable and/or ill-equipped to assess, for reasons explored below). According to the reasons given at the time of the consultation and introduction of the power, it exists to address a risk that delay in the criminal process may result in a forfeiture order being rendered ineffective or less effective than it might otherwise have been, and specifically the risk that a lump sum could be put beyond reach by steps taken by the (guilty) member prior to conviction. However, that perceived risk does not form a necessary precondition to the exercise of the discretion.[117]Mr Buley referred to the fact that the Court has power both in the civil and criminal context to impose interim orders freezing assets and preventing individuals dealing with their own property before any determination of civil or criminal liability, but those powers are not analogous. In those cases, the interim measures are designed to preserve the existing state of affairs, whereas the suspension power is designed to create a situation in which existing obligations to make payments are modified or deferred, so that a pension which was payable to a member prior to conviction does not become payable until after conviction, and by that means becomes susceptible to forfeiture.[118]In the criminal context, the powers of the Court relate solely to assets that are alleged to be the proceeds of crime or the product of such proceeds. The powers exist to address a risk that exists irrespective of guilt or innocence, namely, a risk that such assets might be sold or otherwise disposed of or destroyed or damaged. The power to make orders preserving such assets have been conferred on judges by primary legislation which has been subject to the scrutiny of both Houses of Parliament. There is an established procedure, which includes the right of the defendant and any affected party to make representations, and a full right of appeal. The decision is not made by a party with a vested interest in making the order, and the discretion is not an unfettered one, exercisable merely on the basis that a person has been charged with a serious criminal offence which may lead in due course to forfeiture of the assets in the event of conviction.[119]Interim property preservation orders can only be made on proof by the prosecutor that the statutory conditions for granting them have been established. That requires careful consideration of the evidence (which is often complex and may include expert forensic accounting evidence) by judges who have the requisite legal expertise to be able to carry out such an evaluation. Any order which is made will be limited in time and amount and may be varied or set aside if circumstances change.[120]This is a very different situation from one in which a prosecutor lays evidence before an impartial tribunal so that it may decide whether there is a risk that requires the imposition of an interim measure. The discretion is not exercisable on the basis of proof of a risk that steps will be taken to frustrate forfeiture but rather, on the basis that the individual may receive significant amounts of money during the period it takes to bring him to trial which could not be recovered once they had been paid. That is true of any NHS employee.[121]Likewise, in the civil context, the power to grant a freezing order or an asset preservation order can only be exercised on proof that certain criteria have been met. There must be evidence which satisfies the Court that there is a real risk that the person concerned will take steps to remove, conceal or transfer assets or otherwise deal with them in a way which is designed to frustrate the execution of any adverse judgment. Spending the money on living expenses or paying the mortgage or other legitimate outgoings would not qualify. The court must also be satisfied on the evidence adduced by the applicant that the merits of the claim against that person are sufficiently strong. Any third party who is responsible for making a payment to the person concerned or holding money or assets on their behalf remains neutral in the process, save that their legitimate fees and expenses will be catered for.[122]There are several inbuilt safeguards against the order causing hardship, including the fact that it cannot be used to stop somebody from making payments in the ordinary course of business or which would otherwise be legitimate, and provision must be made for the payment of that person’s reasonable legal fees and living expenses (unless they have sufficient means of payment from funds that will not be caught by the order). There will be monetary limits, computed by reference to the likely amount of any judgment, costs and interest, and the order will be of limited duration.[123]If the order is sought without notice, there is a very heavy obligation on the party applying for it to make full and frank disclosure of all material information to the Court, and the order will initially be granted for a very limited time to give the affected party the opportunity to make representations as to whether it should continue. Finally, the affected party has the right to apply to set aside the order or to vary it, which is exercisable at any time if circumstances change, and a right of appeal.[124]The next fundamental objection to the suspension power is that the discretion cannot be exercised fairly, rationally, and in accordance with the rules of natural justice because it is impossible for the decision maker to take all material considerations into account, which he is legally obliged to do.[125]The discretion to suspend payment after charge under regulation 12(8)(a) is exercisable on the basis of a view taken by the Secretary of State about the possibility (not the likelihood) that he would make a forfeiture order if the person concerned were convicted of the offence with which they are charged. All he needs to consider is whether the individual has been charged with an offence which “may lead” to a forfeiture order being made under section 12(1) – which in the case of most qualifying offences necessarily includes a value judgment being made about whether a forfeiture certificate would or might be issued following conviction.[126]In contrast to the situation after conviction, in a case falling under paragraph 12(8)(a), at the time of formulating that opinion, the Secretary of State would not have all the facts available on which to assess the prospects of forfeiture, which would depend on the future exercise of at least one discretion, in circumstances that will not have arisen at the time of suspension (including, but not limited to, conviction). In fact, he is unlikely to have access to any relevant evidence.[127]The terms in which the regulation is formulated do not appear on their face to require the Secretary of State, in forming a view about the possibility of forfeiture, to evaluate the prospects of the member being convicted of the offence. Even if such a requirement were to be inferred (because the charge cannot lead to a forfeiture order without the member first being convicted of the offence) at the time of charge the Secretary of State will not have the evidence available to enable him (or lawyers advising him) to weigh up the strengths and weaknesses of the prosecution case, and he will know nothing about the defence (unless the member tells him in due course, and there may be all kinds of good reasons why they might not wish to do so). Indeed, he is unlikely to have much more information than the fact that the member has been charged with a relevant offence. All he can infer from that is that the CPS will have been satisfied that the case has passed the threshold for bringing a prosecution. Even if he were to obtain a copy of the indictment, which will briefly summarise what the defendant is alleged to have done, that would not greatly add to the sum of his knowledge.[128]It follows that the only logical way in which the decision maker can approach the exercise of the discretion is to assume that the charge “may lead to all or part of the member’s benefits being forfeited under paragraph (1)” on the basis that the prosecuting authority has made the decision to charge, which requires an assessment that there is a real prospect of securing a conviction. However, even if that were a legitimate approach, that does not cure all the problems caused by the evidential deficiencies.[129]In cases of offences that would require the exercise of a discretion to issue a forfeiture certificate before the forfeiture decision was made, without knowing or having some idea of the facts (which may well be hotly contested by the defendant), the Secretary of State will be in no position to make a value judgment about the impact of a conviction on public perceptions of the profession, let alone about the likely quantum of any forfeiture order. In all cases, if the offence is of the relevant type and seriousness, a charge “may” lead to a conviction which “may” lead to a forfeiture certificate which “may” lead to forfeiture in due course.[130]In reality, the requirement for the Secretary of State to form an opinion about whether the charge “may” lead to forfeiture, at a time when he has neither the evidence nor any other information to enable him to assess the prospects of conviction nor any other facts (such as mitigating factors) that might influence any future decision about the effect of the conviction on public confidence in the NHS, and the exercise of the discretion to forfeit some or all of the pension (and if some, how much) adds nothing to the requirement that the member be charged with a qualifying offence. Were that not the case, a decision to suspend taken upon charge would always be susceptible to challenge (and liable to be overturned) on the basis that the Secretary of State had not obtained and, realistically, could never obtain sufficient material information to enable him to properly exercise his discretion by taking into account the true prospects of conviction and any other information which would have a bearing on the prospects of his issuing a forfeiture certificate and/or making a forfeiture order in due course.[131]If the Secretary of State can simply rely on the fact of the charge as a basis for the view this “may” lead to forfeiture, which is an inexorable conclusion if the power is ever to be capable of exercise, then the member charged with an offence falling within the ambit of the forfeiture provisions would have little choice but to put forward other reasons why the Secretary of State should not exercise the discretion to suspend, the onus to all intents and purposes being on him, because he alone will be in a position to supply the Secretary of State with relevant information about his personal situation and about the impact that suspension would have on him and his family. That in itself creates an unfair burden on someone who is presumed innocent and should have nothing to prove.[132]Whilst Mr Buley very properly conceded that the Secretary of State could not suspend benefits where there was no or no real prospect of forfeiture of those benefits, the Secretary of State will be in no position to make his own assessment of the prospects of conviction, let alone of the prospects of forfeiture, because he will not have the evidence available to enable him to make that assessment – save in cases where forfeiture becomes impossible, e.g. if the prosecution drops the charges. By contrast, after conviction, the evidence will have been heard and he will have enough information on which to base his assessment of the prospects of forfeiture. The same would be true if an employee had faced a disciplinary process which led to a decision to suspend him without pay.[133]Those are the key features which make this measure wrong in principle and inherently unfair in a way which no amount of procedural safeguarding could ameliorate. Even an appellate tribunal before whom there was a right of re-hearing on the merits would be in no better position than the Secretary of State to form a proper value judgment about the true prospects of forfeiture. A right of appeal would not reinstate the presumption of innocence. If innocence is presumed, there is no basis for exercising the discretion to suspend. If it is not presumed, and the decision maker operates on an assumption that there is a risk that the member may be convicted, there is no means of making a fair assessment either of the prospects of conviction or of the prospects that forfeiture would follow conviction because the all the facts relevant to those assessments are unavailable.[134]Apart from the express inhibition on using the power of suspension to take away guaranteed minimum pension payments, the only safeguard for the individual concerned is that the decision maker must act rationally and in accordance with public law principles; but that affords very little comfort in this context. Whilst hardship is a factor to be taken into consideration, provided that the decision maker considers it, the weight to be given to it is a matter for him, and there is a world of difference between a substantive right of appeal and a right to judicial review, where rationality is the measure against which any decision will be appraised.[135]It is conceivable that a rational decision could be taken to deprive a wholly innocent individual of his sole source of income in retirement for several years on the basis that he could live off his savings, for example. By contrast, an employee who ceases to be paid a salary following a full disciplinary process has a right of appeal both against any findings of misconduct and any sanction imposed. As I have already indicated, the absence of any limitations on amount or duration, the need for a further decision to be taken before the suspension terminates even following acquittal and the absence of any appeal on the merits just add to the catalogue of features of this power that make it unfair. Some of those features can be cured but others, such as the inability to evaluate the prospects of forfeiture, are impossible to redress.[136]Are there objective and reasonable grounds to justify a measure which offends against the presumption of innocence in the case of an NHS pensioner and which (for that very reason) does not apply to an NHS employee in a comparative situation? Perhaps in recognition of the fact that measures already existed to prevent the perceived secondary mischief of pension transfer, Mr Buley laid particular emphasis on the ability of the pensioner to draw down a lump sum; but the suspension power is not confined to lump sums. It enables the Secretary of State to prevent the receipt of pension as income. The ability of a pensioner to use the right to draw down lump sum payments in a manner which could make a future forfeiture order less effective does not justify a wider power to restrict such regular payments.[137]There is no indication that the Minister or those advising him ever turned their minds to the possibility of introducing more proportionate tailored provisions designed to meet the specific problem of pension drawdown, for example by amending the rules of the pension scheme to restrict the circumstances in which someone would be entitled to seek drawdown or a lump sum payment, or providing for the deferral of such a payment, just as had been done in the case of pension transfers.[138]If it were desired to address the situation in which someone who apprehended they were likely to be convicted decided to draw down a sizeable lump sum in advance, it may be possible to draft provisions which would not offend the presumption of innocence and which would stop that from happening. It is unlikely that such provisions would be struck down as incompatible with Article 14 read with A1P1 solely on the basis that similar provisions do not exist in the pension regulations which apply to other public servants. They should be as easy to justify in that context as the provisions of the 2019 Regulations that provide for suspension of pension payments after conviction pending a decision on forfeiture. However, that is not the type of power with which I am concerned.[139]For all these reasons, the power to suspend upon charge alone is manifestly without reasonable foundation and inherently unlawful. If the classic 4-stage test is applied, the result is the same. In the light of this conclusion I can deal with the remaining grounds of challenge more succinctly.

Ground 2 – breach of the Public Sector Equality Duty

[140]The material provisions of section 149 of the Equality Act 2010 are as follows: (1) A public authority must, in the exercise of its functions, have due regard to the need to… (a) Eliminate discrimination… and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it… (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: - (a). remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it…” Age and disability are among the relevant protected characteristics referred to in sub-paragraph (7).[141]The relevant principles relating to the exercise of the PSED were adumbrated by McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at [25]-[26] and endorsed by Lord Neuberger in Hotak v Southwark LBC [2016] UKSC 30 [2016] AC 811 at [73]. The duty is personal to the decision maker, in this case the Secretary of State, who must consciously direct his or her mind to the obligations; the exercise is a matter of substance which must be undertaken with rigour, so that there is a proper and conscious focus on the statutory criteria and proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them. Whilst there is no obligation to carry out an Equality Impact Assessment (“EIA”), if such an assessment is not carried out it may be more difficult to demonstrate compliance with the duty. In this case there was no EIA.[142]Elias LJ in R(Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin) at [78] elegantly summarised the approach that the Court should take in these terms:
“the concept of “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria… the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognize the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”
That passage was expressly approved in Bracking.[143]In the present case there was no assessment carried out of the potential effect on elderly and disabled members of the NHS pension scheme of the introduction of a power to suspend pension payments upon being charged with a relevant criminal offence. There appears to have been an assumption by those advising the Minister that there could be no effect (adverse or otherwise) on persons with such protected characteristics unless and until a decision was made in a specific case to exercise the power of suspension. The reasoning behind this approach, articulated in paragraph 12 of the second ministerial submission (quoted in paragraph 41 above) was fundamentally flawed. Whilst it is true that the forfeiture and suspension provisions apply equally to all members of the NHS Pension Scheme irrespective of protected characteristics, it does not follow that the impact on them will be the same. As Ms Morris pointed out, there is an obvious inference that the elderly and those who took early retirement through ill health will be in receipt of pension benefits and therefore that they are far more likely to be affected by the suspension powers than individuals without those protected characteristics.[144]The fact that retired individuals are to be made subject to a regime by which they can be deprived of their pension income and will have to engage in a legal process if they wish to get it back is something that could well have a disproportionate impact on those with protected characteristics, and that ought to have been properly investigated and conscientiously considered before the decision was taken to implement the 2019 Regulations. In the event, the Minister did not turn his mind to the equality implications of introducing the suspension power because he was wrongly advised that this was something that could be postponed to a later stage. He could not have been clear about the equality implications of introducing the power, because he was told there were none at that juncture.[145]Although in his grounds of defence the Secretary of State sought to assert that there was no differential impact on the elderly as opposed to other persons by reason of the introduction of the suspension power, he was unable to provide any evidence in support of that assertion - because no relevant enquiries had been carried out. As to the question whether the financial impact of the suspension power on those already retired or on those of working age who qualify for drawdown of lump sums is likely to be greater, this is a matter of pure speculation. Whilst those who are still working may not have drawn down a lump sum before a suspension decision is taken, they will still be likely to receive their normal income whilst criminal/disciplinary proceedings are ongoing. By contrast, a pensioner whose pension payments are suspended may not receive more in the way of income than (at best) the guaranteed minimum pension.[146]In the present case the Secretary of State has come nowhere near fulfilling his duties under the PSED. That is an independent justification for granting the BMA judicial review.

GROUND 4 – IRRATIONALITY AND BREACH OF THE TAMESIDE DUTY OF INQUIRY

[147]This Ground, as articulated in the Amended Statement of Facts and Grounds, substantially overlaps with the other Grounds and adds little or nothing to them. The PSED carries with it a duty to make relevant inquiries. Ms Morris relied on the wider common law duty on a decision maker to obtain and consider information relevant to his decision (commonly referred to as the Tameside duty, see R(Tameside) v Secretary of State for Education and Science [1977] AC 1014). She criticised the failure to investigate: i) the characteristics of those entitled to payments under the Pension Scheme insofar as the concern age, illness and disability and the potential impact of the proposed changes to the Pension Scheme on them as distinct from persons without those characteristics; ii) the potential adverse impacts of depriving those facing criminal proceedings – which may be lengthy and costly – of their income and/or lump sums under the Pension Scheme; iii) the process which would operate in order to enable representations to be made to the Secretary of State and considered by him, and how it may be operated in order to ensure fair access, fair procedure and freedom from discrimination; and iv) whether there were lesser measures which might secure some or all of his aims.[148]So far as (i) is concerned, the criticism is well-founded, as there was an obligation to make such inquiries as part of the PSED. As for (ii), the Secretary of State was sufficiently on notice of the likely hardship that deprivation of pension income might cause, not least by reason of the responses to the consultation. He took the rational view that individual hardship could be addressed on a case by case basis when the discretion came to be exercised. I do not consider there was an obligation to make further inquiries in that respect before the decision to enact the 2019 Regulations was taken, over and above the obligation arising under the PSED.[149]So far as (iii) is concerned, it is highly unsatisfactory that the 2019 Regulations were enacted without any thought having been given to the process by which suspension decisions would be made and without any policy guidance having been formulated. That remained the position over six months later. Yet, if it was possible for the new regime to be operated in a manner that was procedurally fair, there was no legal obligation on the Secretary of State to work out that procedure in advance of enacting the substantive regulations so long as it was in place before the discretion was exercised. His failure to do so was not a breach of the Tameside duty, it just left the 2019 Regulations as enacted open to challenge because of the absence of the procedural safeguards required by Article 6(1). In any event, for reasons explored earlier, any number of procedural safeguards would not have sufficed to cure the inherent flaws in the relevant aspects of the 2019 Regulations.[150]There is some force in the point that consideration should have been given to the question whether lesser measures could have been adopted in order to secure the aims that the Secretary of State had in mind at the time, but at the end of the day the question for the Court is whether the measure under challenge was justified. However desirable it might have been for the Secretary of State to have applied his mind to the question of more proportionate measures, the fact is that he did not, and the upshot was that he adopted a measure which, despite the wide margin of appreciation afforded to him, is manifestly without reasonable foundation. It is possible that a more rigorous approach would lead in future to fair and proportionate measures being introduced which would achieve the desired objective, but this was not the right way to go about it.

CONCLUSION

[151]For the reasons stated above, the BMA is entitled to the declaratory relief that it seeks and to a quashing order in respect of the provisions of the 2019 Regulation which enable the Secretary of State to make a suspension decision after charge and prior to conviction.