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Administrative Court dismisses JR challenge to police pensions reform

16 Dec 2021

R (Police Superintendents’ Association) v HM Treasury [2021] EWHC 3389 (Admin)

On Wednesday 15 December, the High Court dismissed a JR brought by the Police Superintendents’ Association (PSA) against HM Treasury. The Secretary of State for the Home Department was the Interested Party.

The PSA sought to challenge HM Treasury’s policy decision to close legacy public service pension schemes, and to move all members to reformed pension schemes from 1 April 2022. The legacy pension schemes tended to be final salary schemes and the reformed schemes based on career average earnings.

The grounds of challenge were: (1) breach of the duty to consult; (2) breach of the public sector equality duty; (3) breach of legitimate expectation that police could remain in their legacy scheme until retirement; and (4) error of fact.

HM Treasury opposed all grounds and also argued that relief fell to be refused pursuant to s.31(2A) of the Senior Courts Act 1981 and/or the grant of relief would infringe Parliamentary privilege.

Mrs Justice Williams dismissed the claim. The court rejected the legitimate expectation and error of fact challenges. On consultation and PSED, the Court held that the decision-maker, the Chief Secretary to the Treasury, took the decision to close the legacy public service pension schemes before he had received a summary of the consultation responses or a draft of the relevant equalities impact assessment.

However, the Court held that relief fell to be refused under s.31(2A), on the basis that it was highly likely the outcome would have been the same if the decision-maker had considered the consultation responses and EIA before making his decision. The closure decision had been his strongly preferred policy position throughout, and the consultation responses and EIA showed no grounds for departing from that preferred policy position.

In relation to Parliamentary privilege, the Admin Court also accepted HM Treasury’s argument that the Court should not do anything, directly or indirectly that would delay the passage of the Public Service Pensions and Judicial Offices Bill currently proceeding through Parliament, which will enact the policy in question. The Court further accepted that a declaration that the consultation was unlawful or that the policy decision was unlawful would have the practical effect of telling Parliament that the procedure leading to the legislation was unlawful or that its chosen form of legislation was unlawful. As the form of primary legislation is a matter for Parliament and not the courts, the relief sought would infringe Parliamentary privilege.

The case is an important judgment in relation to legitimate expectation, Parliamentary privilege and s.31(2A) SCA 1981.

Raymond Hill and Imogen Proud acted for the Secretary of State instructed by the Government Legal Department. They were also instructed by the Interested Party. Imogen and Raymond were led by Catherine Callaghan QC at Blackstone Chambers.

The full judgment can be read here.

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