England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		CO/2239/2009 Royal Courts of Justice Strand London WC2A 2LL
		3rd July 2009

1. MR JUSTICE COLLINS: This is an application seeking judicial review of the decision of the Kent Police Authority relating to the appointment of independent members.
2. There are two separate exercises which are under attack, the first being appointments of three independent members in September 2008 and the other being the appointment of one member, which has occurred very recently, in 2009. Mr Reckless himself is a member of the Police Authority and is concerned that the appointments have not been carried out in accordance with the statutory provisions.
3. The concern relates to the delegation by the Authority of the appointment to a committee of three members of the Authority. It is Mr Reckless' contention that the relevant regulation requires that the appointment be made by the existing members of the Authority. That, he says, means, and must mean, that there is no power to delegate to a small number of those members the process of appointment.
4. I use the wording "process of appointment" advisedly, because, albeit the appointment was in form by the full membership, that was, to put it in the way I think Mr Reckless would, merely the endorsement of what the members of the panel had put forward, and was dealt with in a very short space of time, with no information provided to the members as to the process which had been gone through and the members were not able to form a proper view of the relevant appointees.
5. Relevant provisions with which we are concerned specifically are contained in the Police Act 1996 (as amended by the 2006 Act). Section 3 of the Act deals with the establishment of police authorities. One of the areas is the Authority of Kent. The numbers of members of an Authority will normally be 17, 9 of whom are taken from councillors for the various councils in the relevant Police Authority area, and 8 of whom are what are called "independent members". Of the independent members now, following the 2006 Act, at least one must be a local lay magistrate.
6. The relevant regulations are the Police Authority Regulations 2008. These deal, among other things, with the appointment of members. I am not concerned, in this case, with the appointment of members from the relevant councils. The provision which is particularly in point is regulation 9.
7. Regulation 9 follows wording which is required by Schedule 2 of the 1996 Act (as amended), paragraph 3 of which provides as follows:

"(1) Regulations under paragraph 1 shall provide that the members falling within paragraph 1(2)(b) [the independent members] are to be appointed—

(a) by the existing members of the authority,

(b) from among persons on a shortlist prepared by a selection panel."

8. There is thus a two-stage process. The selection panel will consist of three members of the Authority, together with a Home Office representative and a lay associate. That happened in these cases.
9. There was a selection panel. Mr Reckless does not contend that there was anything amiss in the selection panel. They put forward, as they had to, at least twice as many candidates for the second selection stage than there were places vacant. I think seven shortlisted candidates were put forward. As it happened, some of those were existing members who were up for re-appointment. There is nothing that is impermissible in that, but obviously — and regulation 9(2) provides for the obvious — those who are up for appointment, who are existing members, must not take any part in the selection process.
10. The point made by Mr Reckless really boils down to a contention that there is no power to delegate under section 101, read with section 107, of the Local Government Act in relation to the appointment under regulation 9. There is a general power to delegate to members of the Authority any function which is not otherwise excluded from the power to delegate by virtue of sections 101 and 107 of the Local Government Act, section 107 having been, to an extent, amended by the 2006 Act. I do not think it is necessary for the purposes of this short judgment to refer to the specific provisions.
11. The point made by Mr Reckless — and, on the face of it, as it seems to me, it is an apparently good point — is that the actual appointment cannot be delegated to members short of the full membership, ie the appointment must be made by the existing members of the Police Authority. That means all the existing members of the Police Authority. That, at least, is, as it seems to me, arguable.
12. What happened here was that the decision was to appoint a panel to carry out the interviewing and then to make recommendations. It is plain from the documentation that that is what they were required to do. Mr Reckless submits that the documents make it plain that, albeit in form it may have been a recommendation, in reality it was a decision which was then rubber stamped by the full Authority, because the full Authority, that is to say the members coming together, did not have any of the necessary information to enable them to reach a balanced view on the appointments.
13. As it seems to me, the provisions of regulation 9 were complied with. The method by which the process is carried out, that is to say what leads to the recommended candidates, is a matter for the Authority to decide for itself. It did delegate to the committee the carrying out of the exercise of recommendation. That was a proper delegation. There is no reason why that process, that is to say the decision to recommend, should not have been delegated in accordance with sections 101 and 107.
14. What could not be delegated was the final decision in relation to appointment, and that was not delegated. That was left to the Authority. Mr Reckless points to authorities which suggest that in other situations, in dealing with matters, it is not necessarily appropriate for the ultimate decision to be left to the full membership, if that full membership is not able to reach a decision based on proper knowledge. It is always open to the membership to raise issues, to ask for information, to suggest that the process is, in particular circumstances, such that they do not have the necessary information. That is something which any individual member can ask to be raised at a full meeting. That did not happen in the circumstances of this case.
15. As I say, it seems to me that it is, in the circumstances, unarguable that the law was not complied with.
16. It is to be noted, in this regard, that the Home Office has issued guidance in relation to making selections. That guidance, in paragraph 7.1 of the relevant document, which is headed "Selection and appointment of independent members of police authorities" — joint guidance from the Association of Police Authorities and the Home Office — reads as follows:

"Having received the shortlist from the selection panel, the police authority should then make the final appointments. The selection procedure can be carried out either by all the members or be a small committee of the members, but should not, of course, include any existing members who are candidates. If a committee is formed to carry out the final selection process, members may or may not include those police authority members who were on the selection panel, but will wish to consider both the merits and disadvantages of this approach."

It goes on to indicate there should be a re-interview by the panel.

17. That, on the face of it, supports the approach that was adopted by Kent in the circumstances of this case. The Home Office guidance, of course, does not constitute a construction of the relevant law. If they have not got the law right, then the matter can be challenged.
18. For my part, I can see the force of the concern, particularly where one is dealing with re-appointments, that the same members who were concerned with what I can call the sift, that is the first stage, should not necessarily be concerned with the second stage. As it happens, in, I think, the 2008 process, one of the members who dealt with the first stage was not the same as one who dealt with the second stage. That was by chance rather than by design, as I understand it. It seems to me that, as a matter of overall fairness and overall concern that a truly independent approach is adopted, it may be desirable to vary the membership at each stage to some extent. That is not, as the Home Office guidance indicates, essential, but it may do something to allay concerns of the matter being dealt with too much by a small number of members who can decide at each stage.
19. In those circumstances, I am persuaded that the matter is not arguable. I should add that if I had considered the point to be arguable, I would not have permitted the claim to proceed in relation to the 2008 appointments, because there has been delay, which is not delay which should be excused, in the sense that I should not exercise my discretion to allow it to go ahead. The main reasons for that are, first, that the concerns about whether the whole process was lawful were concerns which could have been raised earlier. True it is that Mr Reckless says he was not aware that there were any breaches. It was up to him, if he was concerned about the whole process, to investigate. He had access to the relevant statutory provisions and he should have checked the matter out. Secondly, of course, there would be prejudice to those who were in fact appointed back in 2008.
20. As I say, I would not have permitted the claim, in any event, to go ahead. As it is, I am satisfied that the claim is not arguable and this application, therefore, is refused.
21. MR MACLEAN: My Lord, I have no further application.
22. THE CLAIMANT: My Lord, may I address you -- ask whether it's appropriate to address you in respect of costs? May I also address you --
23. MR JUSTICE COLLINS: They are not applying for costs.
24. THE CLAIMANT: I was unaware of that. I didn't appreciate that.
25. MR JUSTICE COLLINS: Do not worry. You do not need to say anything.
26. THE CLAIMANT: Your Honour, may I ask for permission to appeal?
27. MR JUSTICE COLLINS: You can ask for it, but I am not going to grant it. You will have to apply to the Court of Appeal if you want to take it further.