QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
| The Police Superintendents Association of England and Wales (1)
Andrew Street (2)
Linda Kelly (3)
Robert Johnston (4)
|The Chief Constable of Bedfordshire Police
The Secretary of State for the Home Department
Mr John Cavanagh QC (instructed by Beds & Herts Legal Services Department) for the Defendant
Miss Deok Joo Rhee, for the Secretary of State for the Home Department
Hearing dates: 25th and 26th February and 18th and 19th March 2013
Crown Copyright ©
Mr Justice King:
'Thank you for your email dated 15 August 2012 in response to the policy consultation on the Compulsory Retirement of Police Officers (Regulation A19).
As you are aware, in addition to the £12m of cuts already made, the Force has to make further cuts of approximately £10.8M over the next three years. Including employer pension contribution the total percentage spend on staff costs is a relatively high proportion of the budget (now 87%). Having made significant cuts in non-staff budgets as well as redundancies during the last financial year, these cuts cannot be achieved without a reduction in the numbers of police officers. Significant cuts from other areas would undoubtedly have a deleterious impact on the efficiency and effectiveness of the Force. The Force Executive met on the 21st June 2012 to consider the business case and options for restructure contained within the Operational Policing Review. These discussions included a detailed discussion on whether or not it is necessary to invoke Regulation A19.
You will recall we met on 5th July when we discussed the introduction of Regulation A19. On 13th July, the Police Authority received an update on the Operational Policing Model and resolved 'That the Chief Constable in consultation with the Chair of the Authority be given delegated Authority to use Regulation A18, A19 and A20 to retire Police Officers as deemed appropriate.'
On 9th August, the Force Executive considered the trajectory for police officer numbers and concluded that the necessary reductions were not likely to be met through natural turnover. The decision to invoke the use of Regulation A19 was confirmed at this meeting. I can assure you that this decision is one which we have taken only after careful consideration of all other options and, further, it is one which we have taken with regret. I have enclosed, for your information, the briefing paper which was presented to the Force Executive at this meeting. This summarises the objective justification for the Force Executive taking this decision.
The Force Executive has taken the decision to invoke only A19 at this stage. What we have not done is decide exactly how the policy will be implemented, nor have we decided the specific date when the policy will be implemented. It is my intention that this process remains open and transparent, and to that end I will be inviting the Staff Associations to be involved in the detailed design of the process. A period of consultation specifically for this purpose has been built in to the policy.
The period for consultation on the proposed policy has now concluded and the submissions received are being considered. …'
'Of particular concern to the Association was the discrepancies between the Briefing Paper considered by FEB and the Policy Document. Chief Constable clarified the Policy took precedent over the Briefing paper … as the policy was built upon the Briefing paper, experience of other Forces and consultation.'
'I acknowledged that I had previously met with members of the superintending ranks and that individuals had set out what their personal plans and intentions might be, but I stressed that such plans, by their very nature were diverse and that as a result allowing such an approach simply would not work financially. It is of course the case that at the time of these personal discussions Regulation A19 was not in prospect and it was, and remains my position, that I would do everything else to avoid the need for it to be used.
Regrettably, having made significant cuts during two phases of Force re-organisation that position is no longer viable for the efficiency of the Force at this time.
I explained that treating the superintending ranks differently to federated officers would be problematic and most likely divisive. Whilst I agreed that it may be lawful to target certain ranks, the reality is that to achieve the necessary efficiencies we will need to invoke its use across all relevant personnel.
We discussed the national scene in terms of the introduction of any voluntary or compulsory severance scheme, that time scales were not clear at this stage and that in any case the need for such a scheme would be inevitable should the next CSR be a difficult one. We exchanged views also on the absolute need for clear succession planning for all ranks, senior officers' willingness and desire to be involved in these processes, as well as promotion boards and the potential to in effect make appointments on a 'designate' basis which the Force has similarly done in the past.
There was also a discussion about the process itself, the ninety-day notification versus notice period, which may be within the overall ninety days, and the shared view that the sooner the various stages, e.g. the representation meeting, decision and any appeal, were progressed the better for the individuals concerned. Both sides reiterated their clear understanding that no decision in any individual case had yet been taken, that notwithstanding the decision to proceed, individuals would be able to make their own representations to influence outcome and that first line managers and others would play their part in appeals.' (emphasis is the emphasis of the court)
The decisions under challenge
The Regulatory Scheme
'A19 – Compulsory retirement on grounds of efficiency of the force.
(1) This Regulation shall apply to a regular policeman, other than a chief officer of police, deputy chief constable, assistant chief constable, specified employee of SOCCA or employed constable of NPIA, who if required to retire would be entitled to receive a pension of an amount not less than 2 thirds of his average pensionable pay or would be entitled to receive a pension of such an amount if it did not fall to be reduced in accordance with Part V111 of schedule B (reduction of pension related to up-rating of widow's pension), or if he had not made an election under regulation G4(1).
(2) If a police pension authority determine that the retention in the force of a regular policeman to whom this Regulation applies would not be in the general interests of efficiency, he may be required to retire on such date as the police pension authority determine.'
'(3) in making a determination under paragraph (2) a police pension
authority shall take account of:-
(a) the desirability of retaining in the force regular policemen who possess the skills or knowledge of particular importance; and
(b) the standard or level to which the regular policeman in question has performed the duties of his rank or role.'
Statutory purpose of Regulation A19
'Regulations to be made by the Secretary of State, with the consent of the Minister for the Civil Service, and after consultation with the Police Negotiating Board for the United Kingdom, shall make provision - …
c) as to the times at which and the circumstances in which members of police forces are or may be required to retire other than on the ground of misconduct.'
This is a broad power enabling regulations to be made conferring a discretionary power to require members of police forces to retire in prescribed circumstances. The only restriction to the power is that retirement on the ground of misconduct is not to be covered by regulations under sections 1 to 8.
'13. If the Chief Constable makes the judgment that it will be in the general interests of efficiency to reduce the number of officers in the force, then A19 is the only legal "tool" he can use to give effect to this decision. This may mean that it is not in the general interests of efficiency to retain any of the officers who qualify under A19 (1).
14. Such a situation may arise, as here, where the cuts imposed upon the Force mean that difficult decisions have to be made about where the cuts should fall in order to maintain and improve the efficient provision of a police service. The Chief Constable has to make efficiency decisions based on the financial and other resources available to him. He has to decide how to do more with less. If the Chief Constable makes the judgment that it would not be in the general interests of efficiency to reduce further the police staff complement or to make further inroads into property and equipment etc, he may determine that it will not be in the general interests of efficiency to retain the police officers who qualify under A19 (1). Put bluntly, it is more efficient, going further, to provide the police service with a smaller number of officers than it is to make further cuts in staffing or in other areas.'
'32. Mr Westgate submits that the Defendant erred in principle in its approach to the interpretation of regulation A19. He submits that the Defendant treated it as authorising redundancies or dismissals for reasons not connected with the officer's personal effectiveness. He concedes that as a matter of language the term "general interests of efficiency" is capable of including matters which are wider than the officer's personal effectiveness but he submits that in the particular context of these Regulations the phrase should be interpreted as being confined to an investigation of the officer's personal effectiveness.
33. Mr Johnston contends that the words "general interests of efficiency" relate to the efficiency of the Force, rather than the efficiency (or effectiveness) of the individual officer. He submits, in short, that that is the natural meaning of this phrase and there is absolutely no reason to give the phrase a more restricted meaning.
34. The words of regulation A19 (2) must be read in the light of the Regulation as a whole and of course, the statutory enabling legislation. Having said that, I am left in no doubt that Mr Johnston's interpretation of Regulation A19 is the one to be preferred. It seems to me to be clear that the phrase "general interests of efficiency" is addressed to the Force as a whole and cannot, sensibly, be confined to a meaning which would require the Defendant simply to consider the efficiency of a particular officer. At paragraph 12 of his Skeleton Argument Mr Johnston advances a number of reasons why the interpretation of A19 which he puts forward should be preferred. In my judgment each of his points are valid. Ultimately, however, I base my conclusion on the straight forward proposition that the natural meaning of the words used in their appropriate context is that which is advanced by Mr Johnston.'
'the fact that A19 (3) has been inserted … to require Chief Constables to take into account the skills and experience of the police officer before taking a decision to require the officer to retire only underscores the fact that A19 was also concerned with wider efficiency considerations (and not the personal inefficiency of the officer). If Reg A19 was only ever concerned with the personal inefficiency of the officer, it would be plainly unnecessary for the decision–maker to be subject to an express requirement to take into account the particular skills and knowledge of the officer before taking a decision. Nor could it be said that it is only following the introduction of Reg A19 (3) that Reg A19 is now concerned with wider efficiency considerations (in the context of which the skills and knowledge of the particular officer must be taken into account (Indeed it is clear from the Windsor report Part One that Reg A19 (3) was intended to make express what was already considered to be implicit in a lawful application of Reg A19)'.
Application of A19 to a cohort of officers: the taking of an 'in principle decision applicable to all': consideration of the individual officer's circumstances; procedure to be adopted.
'… as a matter of law a policy which cannot be operated lawfully cannot itself be lawful; further … a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision making is itself an unlawful policy.'
'13.Following three months of research and staff consultation the Chief Officer Team was presented with a business case which demonstrated how the force could continue to meet its purpose of 'fighting crime, protecting the public' whilst delivering further cuts. This detailed business case, the Operational Policing Review was presented to the Chief Officers of the Force Executive on 21st June 2012. It was clear from the evidence provided that the policing model at that time could only meet the budget trajectory until the end of March 2013, and that the years following could only be achieved by further restructuring and a reduction in the number of police officers. I took the view that this could be done in a way that would maintain (and indeed continue the improvement in) the efficiency of the Force. Under these circumstances I, and my fellow Chief Officers, reluctantly but unanimously agreed that it was likely that the use of Regulation A19 would be needed to achieve this. As a result Superintendent Wilson was allocated the task of drafting policy and procedures for consultation with the Superintendents' Association and the Police Federation.
14. In the discussions which took place in relation to the possible use of Regulation A19 at Force Executive meetings, consideration was given to the potential adverse impact upon the force of losing the services of experienced and able officers.
15. It was always envisaged by me and the Force Executive that, even after the decision in principle to implement Regulation A19 was taken, further consideration would be given to the question whether Regulation A19 would be applied to each individual officer, and that officers would be able to make representations at that stage. There might be reasons why it would not be in the interests of efficiency for a particular officer to be retired under Regulation A19, for example if he or she had special skills which could not be replaced. However, there would have to be good reasons why, in the interests of efficiency, an officer who was under consideration for retirement under Regulation A19 would not be retired. There were, as I have said, pressing reasons why the force had to make use of Regulation A19. As I have said, the force is used to coping with the retirements of officers who are highly competent, skilled and experienced and who perform to a high standard. Indeed, the great majority of officers retire voluntarily when they qualify for a full pension and, of course, all officers retire eventually. Officers can be replaced by other officers.
16. Following this decision a series of meetings took place with the Superintendents' Association, as well as exchanges of letters in order to seek the views of the Association in the consultation relating to the draft Regulation A19 policy and procedures. The meetings are described in Supt Wilson's statement. I took account of the matters raised by the Superintendents' Association (and the other consultees) during the consultation process. On 16th October 2012 following the consultation period, I took the decision in principle to invoke, ie implement the use of, Regulation A19. The process developed for the use of Regulation A19 involved the delegation of responsibility for these procedures to Assistant Chief Constable Govier in relation to the Superintending ranks and to Superintendent Wilson in respect of federated ranks.
17. When I took the decision to implement A19, I took account of the fact that this would result in the loss to the force of a significant number of very able, experienced and high-performing officers. However, I took the view that the force would be able to manage with this and that, nonetheless, the use of Regulation A19 was the most effective way of maintaining and improving the efficiency of the force in the current circumstances. As I have said, the force is constantly used to dealing with the loss of very good officers through retirement. Indeed, the force often has to cope with the loss of good officers through voluntary retirement at very short notice, since officers who retire voluntarily can give as little as 28 days' notice. There might be particular reasons why the retirement under Regulation A19 of individual officers might not be in the general interests of efficiency, for example because their retirement would not result in a saving or because they had skills that could not be replaced, but, in general, I was confident that the force would be able to cope with the retirements, and I was also confident that Assistant Chief Constable Govier and Superintendent Wilson would be able to make the right judgments in individual cases.
18. I should also make clear that I fully appreciated that many of the officers who would be retired under Regulation A19 would be replaced by other officers in the role that they currently occupied, either by transfer or by promotion. Nonetheless, their retirement would produce an efficiency saving for the force because, at the end of the sequence of transfers or promotions, a vacancy would be created that would not be filled. The financial projections which the force was working from, which were as accurate as was possible in the circumstances, took account of this factor.
19. I have a responsibility, along with the Chief Officers, to manage the force's budget and other resources as effectively as possible in order to provide the most efficient police service possible, and, with reluctance, I had come to the view that the use of Regulation A19 would be the most efficient way of conserving the force's financial resources so that they could be used effectively.'
'(a) the desirability of retaining in the force regular policemen who possess the skills or knowledge of particular importance; and
(b) the standard or level to which the regular policeman in question has performed the duties of his rank or role.'
'24. Based on my experience of operational policing and change management, I firmly believe that this restructuring will continue to ensure that crime can be reduced and the public protected, at the same time as the legal imperative of delivering a balanced budget is met. I should stress, therefore, that, in taking a decision in principle to implement Regulation A19, I did not take account of costs alone but I took account of the wider picture, that is I came to the view that there was no other way of providing for as efficient a Police Force as possible, in light of the budget available to me, than to use Regulation A19. In making this judgment, I took account of the lack of options for savings elsewhere, and of the potential impact upon the force from the loss of a group of high-performing, skilled and experienced officers.
25. I should also stress that at all times I was aware of the statutory test that I was required to apply, ie that officers should be required to retire only if it was in the general interests of efficiency for them to do so. During the discussions I had with the Superintendents' Association, their representatives mentioned the proposed amendment to Regulation A19, which became A19 (3). I was aware of this amendment, though, at the time when it was mentioned by the Superintendents Association, in August 2012, it had not yet been laid before Parliament and the date of its implementation was not yet known. I knew that the proposed amendment would make it obligatory for forces to take account of the desirability of retaining officers who possess skills and knowledge of particular importance, and of the standard or level to which the officer in question performed the duties of their rank or role. These were matters that I took into account, in general terms, when I took the decision in principle to use Regulation A19 in October 2012. As I have said, I took the view that the force would be able to manage without the skills and experience of the officers who would leave and I took the view that the use of Regulation A19 was the right decision for the force despite the fact that I knew that the officers who would retire were generally high-performing.'
The Procedure adopted in these cases
'Where practicable the force will seek to begin individual 3 months prior to the date on which an officer attains 30 years pensionable service. In any event consultation will begin no later than 28 days prior to the date.
Bedfordshire police will only invoke Regulation A19 in cases where an officer is approaching the point of accrual of full pension entitlement but has not given notice to retire at that point.
Each officer within the scope of the regulation will be invited in writing to attend a one to one consultation meeting with a senior police officer. Officers are invited and encouraged to make representations about the application of A19.
The force does not wish to be prescriptive about what representations it will and will not consider. As such the following grounds are provided for guidance and illustrative purposes only.
Bedfordshire Police representations;
1. Regulation A19 does not apply to the officer concerned.
2. The decision to compulsorily retire the officer is unreasonable and would not be in the general efficiency of the Force.
3. The loss of the officer would:
- Critically impact on the operational effectiveness of the Force, or
- The officer has specialist skills, knowledge and experience, which despite succession planning are not possible to replace in the short term, or
- The officer has key operational responsibilities which are not adequately covered in the short term.
4. The decision made to compulsory retire the officer is perverse and cannot be justified.
5. Any other reason.
For example, (this list is not exhaustive):-
a. Where an officer who is working on a project, which may be reaching a critical point or conclusion within a short timeframe and the officer is essential to the delivery.
b. Where an investigating officer is instrumental in a case which needs to shortly go to Court and handover could jeopardise successful prosecution.
c. Where specialist skills are unavailable elsewhere within the Force.
d. Where the loss of the officer will have a significant impact on the efficiency of the Force and which cannot be otherwise passed on to other members of the team within the notice period of A19.
It should be remembered that the purpose of invoking A19 is to enable the Force to deliver the required savings. This requirement needs to be balanced against the operational 'risk' of an individual being retired and the following factors may influence this decision:-
- What specialist skills, knowledge or experience do you possess which would be difficult to replace if you were not granted an extension to your 30 year pensionable service. Recognised qualifications, accreditations and or other highly specialised knowledge should be included here.
- If you were not granted an extension to your service what do you consider the impact would be on the overall operational efficiency of the Force?
- Do you possess any recognised specialist skills which you have to pass on to others via formal training or coaching, if so what will happen to this training if you are no longer in Force to deliver it? (e.g. are there others with similar skills?)
- Are there any other relevant points you would wish the Force to consider when reviewing your representations against compulsory retirement? Please consider the guidance when preparing your response.
- How long do you believe the business requirement will exist? (i.e. how long before a suitable candidate could be trained to take on your current role?)'
'Finally I would argue that my breadth of knowledge, specialist skills and experience, cannot be replaced in the short term as the force does not currently have anyone with my skill set. Apart from my experience in the field of crime investigation (SIO, Child Protection, Intelligence), I am also a firearms commander and as such, I supplement the superintendent on call rota. Although the organisation has decided to train Chief Inspectors as tactical commanders, my departure would affect overall resilience.'
'the impact on performance of losing (DS) Johnston was discussed and the risk to performance of losing him too early. What was not agreed was that the period of retention needed to be as long as that proposed by (DS) Johnston of 6-12 months. A decision was taken to extend (his) retirement to 31.03.13.'
'you have not yet achieved your pensionable date. A consequence of the date of implementation of the Regulation A19 process is that you received less notice than a colleague whose retirement date had already been achieved. You submitted that you were being treated less favourably than your colleague and as a result would suffer a financial detriment.
That the performance of the Force would be destabilised due to inadequate succession planning within the CID to fill posts with appropriately skilled officers. You submitted that you would need 6 – 12 months to manage this situation.
That your knowledge, specialist skills and experience cannot be replaced in the short term as the force does not currently have anyone with your skill set.'
The decision made by ACC Govier is said to have been made 'after careful considerations of the representations you have made and having taken into account the advice and comments made by my Chief Officer colleagues'.
'I am satisfied both that the regulation has been applied correctly and that ACC Govier engaged with the representations you made, indeed accepting a number of them and responding to them in her final letter by modifying the originally intended date for your retirement.
In reviewing (her) decision I have also considered any new points put forward in your appeal, these all being financial matters, as I have taken the view that the issue of the Force's performance and effectiveness argument were considered in representations made prior to the decision being made.'
The letter then went on to explain why the financial issues raised had not been successful.
'7. Prior to writing to individual officers it was agreed by the Chief Constable that I would deal with the first stage of the Regulation A19 process for Chief Superintendents and Superintendents and that Superintendent Neil Wilson would deal with all other ranks. The Appeal authority was agreed to be Assistant Chief Officer Vince Hislop. I was clear that I had delegated decision making responsibility to consider whether the use of Regulation A19 in each case was in the interests of the general efficiency of the Force. I was clear that I was not being asked to consider whether the use of Regulation A19 was unreasonable, but that my decision making would be conducted with an open mind against the background principle that the Force had decided to use Regulation A19. I agreed to consult my chief officer colleagues prior to making my final decision in relation to an individual officer, to take into consideration their views in relation to skills retention and succession planning.
50. At all times during this process I had an open mind as to whether or not Regulation A19 would apply to a particular officer at a given stage. During my meetings with both Detective Chief Superintendent Street and Detective Superintendent Johnston the test I applied was in relation to the general interests of the efficiency of the Force. As part of that test I took account of their skills and personal performance. There were no concerns regarding the personal performance and personal efficiency of these two officers. The Force would rather it did not have to lose these officers at all, but had to consider whether and when it could manage without them.
51. I was aware of clause 3.1.4 of the Force's Policy relating to Regulation A19, which stated that the Policy would only be used where the Force was able to demonstrate an objective justification that the use of Regulation A19 in the particular circumstance was both appropriate and necessary, was proportionate and had a legitimate aim. I followed these principles in the consideration which I gave to the use of Regulation A19 in the cases of Detective Chief Superintendent Street and Detective Superintendent Johnston.
52. I should also add that I did not approach the consideration of the cases of Detective Chief Superintendent Street and Detective Superintendent Johnston on the basis that they had the burden of proof or that they had to prove that there was an exceptional case for retaining them. I was aware, however, that the Chief Constable had taken the decision in principle to invoke Regulation A19 and that, in the light of the circumstances, there would have to be a good reason why an officer who qualified for a full pension would not be required to retire under Regulation A19, but I approached the issue with an open mind. I was keen to ensure that I would only authorise the compulsory retirement of an officer if to do so was genuinely in the general interests of efficiency, taking into account all matters, including the matters raised with me in the representations. In keeping with this approach, I decided not to require Detective Chief Superintendent Street to retire under Regulation A19.
53. I approached each case as an individual consideration. …'
The public law challenge in these proceedings
The challenge to the decision making process adopted by the Chief Constable
'1. Policy Aim
1.1. This policy provides guidance and information in relation to the use of regulation A19 of the Police (Pensions) Regulations 1987 within Bedfordshire Police.
2.1.1. This policy is applicable to police officers up to and including the rank of Chief Superintendent who have accrued full pension entitlement (typically upon accruing 30 years service).
3. The Policy
3.1.1. Regulation A19 … provides for the compulsory retirement of a police officer … on the grounds of the efficiency of the force, where the officer has accrued full pension entitlement. This will be typically after 30 years service …
3.1.2. Bedfordshire Police will only invoke regulation A19 in cases where an officer is approaching the point of accrual of full pension entitlement but has not given notice to retire.
3.1.4. The policy will only be used where the Force is able to demonstrate an objective justification that the use of the regulation is both appropriate and necessary with proportionate and legitimate aim.
3.2.1. The flowchart in Appendix 2 details key steps to be followed during the A19 Process
3.3. Consultation with Staff Associations
3.3.1. Consultation will begin:
- at least 30 days before the first compulsory retirements take effect if 99 or less officers are affected within 90 days; or at least 90 days before the first compulsory retirements or …
3.5. Initial Consultation with Affected Police Officers
3.5.1. After the period of collective consultation has been completed, individual consultation with officers will begin.
3.5.2. Where practicable, the Force will seek to begin individual consultations 3 months prior to the date on which the officer attains 30 years pensionable service. In any event, consultation will begin no later than 28 days prior to that date.
3.5.3. Each officer within the scope of the Regulation will be invited … to attend a one to one consultation meeting with a senior police officer.
3.5.4. The letter inviting the officer to the consultation meeting will advise why the action is being considered, why the officer has been selected for potential retirement under Regulation A19, and invite and encourage the officer to make representations about the application of Regulation A19 if they wish.
3.5.5. At the consultation meeting the senior officer will present the proposal to apply Regulation A19 and advise the officer of:
- The business reasons for the proposal
- the proposed retirement date based on the achievement of 30 years pensionable service
- if they have already attained 30 years pensionable service, a future date within the period within which Regulation A19 may be invoked; …
3.5.6. The senior officer will listen to and consider any representations …
3.5.8. The officer will be given the opportunity to put a case for retention if they believe it is not in the general interests of the efficiency of the Force for them to retire or if they believe their selection has been unfair or any other reason.
3.5.9. The senior officer will write to the officer with a summary of the meeting, the decision and details of the appeal process …
3.6. Right of appeal
3.6.1. An officer will have a right of appeal to the Chief Constable against the decision to retire him/her under Regulation A19 (The Chief Constable may delegate to a Chief Officer with HR responsibility)
The grounds of appeal are: …
- that regulation 19 does not apply to the officer concerned;
- the decision to compulsorily retire the officer is unreasonable and would not be in the general interests of the efficiency of the Force …
- any other reason'
As to the flow chart, the point is emphasised that it starts with the box 'the Chief Constable to invoke the use of Regulation A19', after which follows consultation with staff associations followed by consultation with individual officer ('any representations heard') and in the case of 'representations accepted' the only result contemplated is 'retirement deferred'.
'Regulation 19 has to be applied to everyone with 30 years of service or over. However, every individual member to whom it applies will have the opportunity to make representations … as to why they should be retained in order to ensure essential skills are not lost.
Any exceptions where role specific or organisational critical skills cannot be replaced within the invocation timescales will be raised as an exception to the deputy Chief Constable for exception consideration …
Officers will be given the opportunity to make representations of exception circumstances'
And in the attached flow chart the question for 'the Senior Officer' upon receiving the representations is described as 'Senior officer considers it an exceptional case?' and gives as the outcome of the representations being accepted that of 'temporarily retain' with a 'revised retirement date'.
- it failed to separate the 'efficiency' determination from the subsequent discretionary aspect of the decision;
- it did not expressly alert the decision maker to the terms of Regulation A19 and to the question which had to be answered in order to make a 'lawful efficiency determination'; in particular in relation to any decision to be made after 3 December 2012 it did not expressly direct the mind of the decision maker to the specific factors required to be considered as result of Regulation A19(3);
- it provided no guidance to the decision maker concerning the exercise of any discretionary decision; Mr Lock provided the court with a Note giving examples of discretionary factors which might operate in a given case not to retire an officer immediately or at all for the foreseeable future because of personal circumstances or circumstances peculiar to him (the need to give evidence in a sensitive court case or to continue to the end of a particular criminal investigation; redeploying the officer to another post within the force; allowing the officer to go on secondment to an available post funded by an outside body);
- it failed to provide that the decision maker should give reasons for any 'Efficiency Determination and/or Discretionary Decision' since absent such reasons, the individual officer would not know who had made the decision; whether the decision maker had taken his representations into account; whether the decision maker had applied the statutory test or some other (unlawful) test such as whether the officer had made out an exceptional case for his retention; the reasons if any for reaching the decision that retention of the officer would not be in the general interests of efficiency; whether such reasons was a rational reason or not;
- a fair process demanded before any decision was made in the case of any individual officer that a business case be produced (and provided to the officer) tailored to a personal assessment of the individual officer's skills and experience supporting the proposed 'efficiency determination' that his retention would not be in the general efficiency of the force; all that was ever provided was the generic business case for the 'in–principle decision' set out in the Briefing Paper.
- the policy in effect imposed an unlawful burden of proof, contrary to the terms of regulation A19 upon the individual officer requiring him to make out an exceptional case justifying exempting him from the general policy to require all officers to retire when they reached 30 years service; in similar vein, it is complained that the policy introduced an additional test of 'unreasonableness'; which the officer had to satisfy if he was to secure exemption.
- the policy (unlawfully) did not give the decision maker a genuine discretion as regards the retention of the individual officer since the option of retaining the officer on anything other than a temporary basis was not open to the decision maker under the policy;
- the errors set out above were replicated at the appeal stage contemplated by the policy which included the absence of any requirement to give reasons for any appeal decision or the basis upon which any such decision was reached.
Court's conclusions on the challenge to the Policy
'the concept of a burden of proof has no place in Reg A19
39. It is not accepted that the concept of burden of proof … is applicable or particularly helpful in the context of an administrative decision such as this. Reg A19 simply requires a determination that the retention of the officer would not be in the general interests of efficiency. Questions of proof simply do not arise. Rather, in making the determination, the decision maker must take into account and give weight to all relevant considerations. … there would be nothing wrong in the Chief Constable forming the view that the retention of a cohort of officers is not in the general interests of efficiency on financial grounds, and then asking officers for their representations which could be on the validity of that view and/or of its application to the particular officer.'
Caveat: post 3 December 2012
Caveat on this Prematurity conclusion and on the Policy Conclusion
'A further safeguard that was decided upon after the Policy was adopted was that I as the Head of Organisational Development would conduct a final review of each individual case immediately before the officer retired to check if there had been any changes to the planned restructure, establishment, financial position or other material circumstance in the case which would cause the original decision to compulsorily retire the officer to be reassessed. I have delegated authority to amend or rescind the original decision.'
Prematurity by reference to the policy document itself
Other Grounds of Challenge
'the Chief Constable misunderstood the statutory test under A19 by conflating the differing concepts of making cuts in officer numbers to balance the budget with requiring the officers to retire in the interests of 'efficiency' (which is a wholly different concept - thus the discretionary decision making powers under Regulation A19 were being used for a purpose for which they were not intended and/or no proper account was taken of the effect on the Force of the removal of the skills experience and commitment of the individual officer'.
'the complaint that the chief constable did not give sufficient reasons for his decision is misconceived … the reasons must be sufficient to enable those consulted to give intelligent consideration and intelligent response (Coughlin ( R v. North and East Devon HA ex p Coughlin  QB 213, per Lord Woolf) at par. 108). The Superintendents Association and the individual claimants were well aware of the general business and organisational reasons why the Force took the view that it had to reduce the number of officers. Mr Johnston and Mr Street were well aware of the factors they might rely on in relation to their specific cases, because they raised them in their representations. They did not suggest at the time they had insufficient reasons. The reasons why a decision was taken nonetheless to apply A19 to them were communicated to them, and they have been able to bring their claims for judicial review'
The ECHR Challenge: Article 1 of Protocol 1.
'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.'