High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"Provided the peace process does not collapse and the security situation does not deteriorate significantly from the situation pertaining at present, the approximate size of the police service over the next ten years should be 7,500 full time officers [Recommendation 105].

The early retirement or severance package offered to regular officers and full time reservists aged fifty or more should include a generous lump sum payment according to length of service, pension enhancement of up to five years, early pay of pension commutation entitlement and payment in lieu of pension until pensionable age is reached [Recommendation 106].

Regular officers with more than five years' service and all full time reservists, leaving the police service before the age of fifty, should receive a substantial lump sum payment [Recommendation 107]."

"The Government has always recognised that the developments to the police service in Northern Ireland recommend in the Report of the Independent Commission on Policing will entail considerable challenges and uncertainty for the men and women of the Royal Ulster Constabulary who have served the community with such courage and resilience over the last thirty years. Understandably, officers will have concerns for the future. That is why the Prime Minister and I have undertaken that officers who decide to take voluntary early retirement/severance will receive sympathetic and generous treatment befitting the distinguished service they have given."

"4. The Patten Report recommended that – provided the security situation did not deteriorate significantly – the RUC should be reduced in size from 8500 to 7500 regular officers and that the Full Time Reserve should be phased out. (This net reduction of 1000 in the size of the regular service is planned to be achieved through the voluntary severance/early retirement of a larger number of officers, to be balanced by an inflow of new recruits.)

5. The number of officers leaving the service in any one year will be determined by several factors, but at this stage it is estimated that around 600 officers will leave during Year 1 ie up to 31 March 2001, 750 during Year 2 ie between 1 April 2001 and 31 March 2002, and 600 in Year 3 ie between 1 April 2002 and 31 March 2003. These figures are subject to review. Officers will be informed in due course of estimated reductions in subsequent years."

[8] Under the heading Eligibility Paragraph 6 of the VSS Booklet stated –

"6. Current RUC officers who joined the RUC on a date prior to 1 July 1995 will in principle be eligible to apply for acceptance into the early retirement/severance scheme. However, as indicated above there will be a limit on the number of officers who can take early severance in each year, and criteria will be set to implement this. Thus, during Year 1 ( ie the period up to 31 March 2001 ), the Chief Constable has decided that the scheme will be available only to officers whose combined total of age and RUC service ( completed years only ) equals or exceeds 81 points as at 31 March 2001."

"I am aware that some members of the PSNI have raised issues concerning the voluntary severance scheme and Section 75 of the Northern Ireland Act 1998. This department has already addressed those issues in previous correspondence and I am uncertain from you letter which particular aspect of this you wish to discuss. However I would point out that the department has considered it responsibilities under Section 75 of the Act. This is set out in detail in the department's equality scheme, recently approved by the Equality Commission and due to be published soon. the outcome of the review on policies concerning the police early retirement scheme, which is entirely voluntary in nature, was that an adverse impact on younger officer is recognised and "is a foreseen consequence of the policy for restructuring the RUC in the light of the Patten Report recommendations". Since this is apart of the actions necessary to achieve the overall benign effects of the Good Friday Agreement, it was concluded that no further impact assessment was required nor remedy sought.

In all the circumstances it is unlikely that a meeting would be beneficial."

"5.4 Age

Evidence was produced that sought to demonstrate the existence of a discriminatory impact arising from the VSS policy in respect of persons of different age. It was suggested that the policy of providing pension enhancements for officers over the age of 45 impacted differentially on younger officers.

The 'Age Discrimination Group' focused on the position of officers that joined PSNI aged 18. The provision of pension enhancements as part of the benefits to officers over the age of 45 means that a 49 year old officer who had joined PSNI at the age of 23 could have their pension enhanced to a full pension, while an officer that hard joined at the same time aged 18 would have to work until they were aged 46 to qualify for a full pension under the VSS. The effect of this is that an officer joining at age 18 compared with an officer joining at age 23 would have to work up to an extra 30 months to qualify for a full pension under the VSS.

Other consultees agreed that the VSS impacted differently on people of different ages although only one group felt that the scheme should be changed as a result of this. Consultation with the Police Federation. Superintendents Association and Chief Officers Association indicated that, while they felt that the scheme should have been more generous, that it offered the best overall deal for the majority of PSNI officers. This constituency would not like to see the scheme changed to determine benefits on service rather than age."

Under the heading Findings it reported –

"6.4 Persons of Different Ages

The benefits of the scheme differentiate between the age of officers on the last day of service. Officers below the age of 45 are not entitled to any pension enhancements, officers between the ages of 45 and 49 receive pension enhancements which increase with their age and officers over the age of 50 receive pension enhancements of up to five years service capped at 30 years pensionable service.

There is a different impact on younger officers, to the extent that age is used as the basis for conferring an additional benefit on older offences ie. pension enhancements. To the extent that younger officers with comparable service are not in as advantageous position as older colleagues this could be construed to be a differential impact within the meaning of Section 75 of the Northern Ireland Act.

Consideration will be given in Section 7 to whether this differential impact on younger officers is justifiable in the context of the policy objectives."

The report concluded under the heading "Consideration of Impact" -

"7. CONSIDERATION OF IMPACT

This section considers whether the differential impact of the VSS on younger people is justified, considering the policy context and objectives of the VSS.

7.1 Policy Context

The VSS came out of the recommendations of the Independent Commission on Policing in Northern Ireland, established as a result of the Belfast Agreement which made a number of recommendations on the future of policing in Northern Ireland. The VSS is part of an overall package of reforms which aim to achieve a smaller overall policing complement in Northern Ireland which is effective and representative of the community it serves, commanding the widespread confidence and support it needs.

The Patten report provided the baseline for developing the benefits payable under the VSS and it was envisaged that:

'the early retirement or severance package offered to regular officers and full time reservists aged 50 or above should include a generous lump sum payment according to the length of service, pension enhancement of up to five years, early pension commutation and payment in lieu of pension until pensionable age is reached. The normal retirement age for regular police officers will be 50 years.'

The terms of the benefits payable under the VSS were determined by the NIO following discussion with the three established bodies for representing PSNI officers: the Police Federation, Chief Police Officers, Staff Association and Superintendents Association. While the consultation for this assessment indicated that there are levels of dissatisfaction with elements of the VSS among these bodies, none have ever advocated that VSS benefits should be payable on length of service instead of age.

The age at which pension enhancements would be payable to officers leaving under the VSS was extended to 45, beyond that envisaged by Patten due to concerns that insufficient officers over the age of 50 would leave to meet the targets for reducing the size of PSNI. However, the principle of encouraging older officers to leave under the VSS through the provision of preferential benefits clearly emanates form the Patten report.

7.2 Policy Objectives

The defined primary policy objectives of the VSS are:

to achieve a significant and measurable change, in the relatively short term, to the composition of PSNI;

to achieve a concomitant change to the culture and ethos of policing; and

to achieve a smaller overall policing complement in Northern Ireland.

The ancillary objectives o the VSS policy are:

that the package should meet Governments declared intention of treating RUC officers generously and with sympathy;

packages should represent the best possible value for money consistent with policy objectives; and

the scheme should be implemented in a way which achieves value for money.

The ancillary objectives of the scheme provided the key parameters for the development of the benefits of the VSS as the primary scheme objective of reducing the size of PSNI could have been achieved in a number of ways.

In determining the payment of benefits under the VSS, consideration was given to ensuring that the scheme offered the best value for money consistent with the policy objectives of the scheme.

It has been suggested that length of service and not age should be the determinant for providing pension enhancements under the VSS. If this were the case, officers from the age of 43 would be eligible for immediate payment of full pension. Within the current scheme, the youngest age that an officer can leave with a full pension is 46. The net result of changing the scheme would be an increase in the maximum benefits payable to officers over their life of 42 months of full pension. Changing the VSS to pay pension enhancements on length of service and not age would therefore significantly increase the overall cost of the scheme without enhancing its capacity to meet its primary objectives.

7.3 Early Retirement/Severance Schemes

The issues raised through this equality assessment impact on the legitimacy of public authorities offering early retirement to older officers by enhancing pension entitlements.

The rationale behind encouraging older officers to retire early (instead of younger officers) is usually based on a combination of operational and cost reasons. Operationally it is recognised that an older employee will reach normal retirement age in a short period of time than a younger colleague and that facilitating early retirement by offering pension enhancements accelerates the normal retirement process. Encouraging younger officers to leave/retire increases the potential number of years lost to the organisation as they would have had longer to work before normal retirement age.

It is also the case that an older employee will require less financial incentive to apply for severance/early retirement as the scope for earning benefits through their working life is reduced by the shorter time they have to work before normal retirement age. Given the difference in typical life expectancy between older and younger employees it is more cost effective to pay pension benefits to an older employee than a younger one.

It seems clear that the VSS, while applying to a younger age group of officers (over 45) than is typical of other early retirement schemes, has been developed in line with the general principles of early retirement schemes of encouraging older employees to leave.

7.4 Summary of consideration of whether the differential impact on persons of different ages is justifiable.

The benefits payable under the VSS:

are in line with the principles set down in the Patten Report of encouraging older officers to leave;

are more effective in meeting the objectives of the VSS than a scheme which paid benefits based on length of service would be; and

are in line with the principle of early retirement schemes in encouraging older officers to leave.

Therefore the differential impact on officers of different ages is a justifiable one in line with Section 75."

"I think it is fairly clear to all that the criteria have the potential to impact adversely on people of a younger age and I assume it is for this reason that an early decision was made to carry out a full equality impact assessment".

"5.2 Age

1. The points system used for determining eligibility clearly differentiates among officers of different ages, resulting in fewer younger officers being eligible for the scheme. Evidence reviewed shows that the differential impact on people of different ages was noted when the criteria was being determined. The specific issue of officers that joined at a young age was raised and it has been noted that in some cases older officers with less service have been eligible for severance where younger officers with longer service have not.

2. While the criteria clearly identifies officers that are eligible for voluntary severance, not al eligible officers have accepted severance. It is clear from data provided that officers have not accepted voluntary severance unless they were in a position to maximise their benefits, ie when they achieve, including pension enhancement, the pension that they would have achieved if they had worked until retirement age.

3. It has been suggested during the course of our assessment that the criteria should be changed to a points system based solely on RUC/PSNI service. Based on data provided by PSNI, this course would not change substantially the profile of officers leaving as there is a clear financial deterrent to officers leaving before the date of which they have maximised their pension benefits. If, for example an officer leaves at age 46½ with sufficient pension enhancements to achieve a thirty year pension they will receive immediate payment of pension. Leaving at age 45, the officer would receive three years salary as a lump sum and up to 12 months pension enhancement, giving almost 29 years pensionable service, payable at age 50. By working for a further year and a half and accepting severance aged 46½ their pension entitlement with enhancements rises to a full 30 year pension payable immediately.

4. While there may be a small number of officers of all ages throughout PSNI that would like to benefit from the VSS, it is recognised that the operational capacity of the organisation both in relation to policing and the administration of the voluntary severance scheme was a key consideration. Changing the criteria from age and service would have the effect of increasing the pool of officers eligible for severance and is unlikely to have a major impact on the number of officers that will apply for severance. Changing the criteria to a system based solely on service would significantly increase the burden of administrating the VSS and create greater uncertainty within the organisation reducing the organisations ability to priories applications in a controlled and efficient manner in terms of providing support and advice.

5. Other options for amending the scheme have been considered by the Consultative group including a quota system based on rank and a system based on age bands and service bands. It is our view that a system based on bands of service or of age profiles potentially increase inequalities between officers of different ages by allowing a younger officer at the top of a service band to apply for severance while denying the opportunity to an older officer with more service at the bottom of a higher age or service band.

6. A system using quotas of different ranks would also increase the scope for inequalities between people of different religion, gender and age. For example, the proportion of women in differing ranks range from 3 per cent at Superintendent to 17 per cent at Constable. The proportion of Roman Catholic Officers range from 8 per cent at Chief Inspector to 13 per cent at Constable level.

7. The current criteria based on age and service ensures that those officers most likely to leave the service because of their benefit entitlement have the opportunity to do so while allowing the organisation to control to a large extent the numbers of officers leaving the service. It also ensure that resources in relation to administrating the scheme are targeted at those officers most likely to accept severance.

8. As a result it is suggested that the current criteria of age and service is justified both in terms of policy objectives and the absence of other options that would allow the scheme to be administered without differential impacts."

The Deloitte and Touche assessment concluded –

"7. CONCLUSIONS

This equality assessment suggests that no evidence exists to demonstrate a differential impact arising from the benefits of the VSS between:

persons of different religious belief or political opinion racial group marital status or sexual orientation;

persons with a disability and persons without; or

between persons with dependents and persons without.

This assessment has found that there is evidence to support the existence of a differential impact in respect of officers of different ages as older officers receive more eligibility points than younger officers. It is suggested that this differential is justifiable as:

other options for determining the criteria were considered at the VSS inception and it was felt that age and service best met the needs of the organisation and officers, by allowing officers to plan for severance by releasing the eligibility criteria in advance and thus allowing the organisation, to a large extent to determine those likely to apply for severance;

the criteria was determined in line with the VSS benefits which give pension enhancements based on age;

data form PSNI shows that more that 98 per cent of severance leavers wait until they can achieve the maximum benefits before they leave, suggesting that the benefits and not the criteria have the greatest influence on when an officer leaves;

leaving without maximising benefits is less attractive to a PSNI officer as they would forfeit pension enhancements and pension payment for up to three and a half years.

it is standard industry and public sector practice to base voluntary severance/early retirement schemes on age and service; and

the Patten reforms, including VSS and 50.50 recruitment aim to promote equality of opportunity and good relations between people of different religions and political opinions.

This assessment has also found that there is a potential indirect differential impact between men and women, as women within PSNI are generally younger and have less service on average than men within the force. It is not possible to determine whether the low numbers of woman leaving under severance represents a differential impact to women as it is now known whether larger proportions of women would choose to leave if eligible. It is hoped that the formal consultation process will inform consideration of this issue.

The assessment has also considered the existence of a potential differential impact on people of different racial backgrounds in so far as non PSNI/RUC police service is excluded form the criteria. It is suggested that while this applies to officers transferring from careers elsewhere in the UK, it also applies equally to Northern Ireland Officers with previous careers and therefore is not a differential impact on people of different racial backgrounds.

It is therefore suggested that the current policy in so far as it continues to achieve sufficient numbers of officers leaving under VSS, does not need to be amended and complies with Section 75."

"We recently discussed the timing of the announcement of year five and the need in advance of that announcement to have come to a decision concerning whether as a result of the ongoing impact assessment into the terms of the voluntary severance scheme, those terms may change.

As you will know, the Department's EQIA is at the stage of public consultation with responses requested by the 25 August, at which time we will be obliged to consider fully the results of the consultation process before coming to a decision on the policy.

In the event that a policy change is required, the Department is required by virtue of Article 3 of the PSNI and PSNI Reserve (Full Time) Regulations 2003 to consult the Chief Constable, Policing Board and Police Association before altering the provisions or length of the scheme. The consent of the Treasury is also required.

In light of the need first to fully consider the findings of the ongoing consultation process combined with the legislative requirements, it would not be possible to announce any alterations to the current terms of the scheme ( should that be decided) in advance of the launch of year five in September. The alternative would be to delay the timing of the announcement but I appreciate to do so would not permit officers eligible to leave from April 2004 sufficient time to make informed decisions over their futures.

For the practical reasons I have alluded to above, I can confirm that he Department are content that the planned announcement in September should proceed on the basis that the terms of the scheme in year five will remain unchanged.

I trust this allows you to progress your arrangements for the year five launch.

"The Northern Ireland Office recently commissioned the preparation of an equality impact assessment of the terms of the police voluntary early retirement/severance scheme in line with the requirements of Section 75 of the Northern Ireland Act. The impact assessment has now been completed and is attached.

The Northern Ireland Office wish to conduct a formal consultation process on the findings contained within the report. The Police Service of Northern Ireland recently issued for consultation an equality impact assessment concerning the criteria for entry into the scheme. The report attached is concerned only with the terms of the scheme and not the entry criteria.

You are invited to take time to consider the contents of report and respond with any comments you may have by Monday 25 August.

In light of the need first to fully consider the findings of the ongoing consultation process combined with the legislative requirements, it would not be possible to announce any alterations to the current terms of the scheme, (should that be decided), in advance of the launch of year five in September. The alternative would be to delay the timing of the announcement but I appreciate to do so would not permit officers eligible to leave from April 2004 sufficient time to make informed decisions over their futures.

"We are currently involved in preliminary proceedings against the Chief Constable of the PSNI in relation to the procedurally improper and unreasonable handling of the Early Retirement and Voluntary Severance Scheme.

Having sought further advises from Senior Counsel and upon closer inspection of the details of the case for Leave Hearing we anticipated that joining the NI in the present application may become a natural corollary in the case we seek to make.

We would refer you to the Equality Assessment of the Benefits Payable to PSNI Officers under the Voluntary Severance Scheme dated December 2001, an EQIA commissioned by NIO.

Particularly we refer to page 17 which states:-

'This assessment has found that there is evidence to support the existence of a differential impact in respect of officers of different ages as older officers receive greater financial benefits under the scheme than younger officers. This assessment has also found that the benefits payment under the VSS:

are in line with the principles set down in the Patten Report of encouraging older officers to leave;

are more effective in meeting the objectives of the VSS than a scheme which paid benefits based on length of service would be; and

are in line with the principle of early retirement schemes which by their nature encourage older officers to leave.

This assessment therefore concludes that under Section 75, the differential impact on younger people is justifiable one and that there is no requirement to amend the policy for paying benefits under the Voluntary Support Scheme.'

Therefore we are hereby putting you on notice that unless you are prepared to withdraw your approval for such submissions and put in motion the implementation of a fairer and less discriminative package for severance arrangements you will be joined in the action as Second Respondent, on breach of your duty as a public authority to be both transparent and fair."

"Thank you for your letter of 8 December in relation to the above. You seek an assurance that the Department will withdraw its acceptance of the findings in the Equality Assessment document dated December 2002 (not December 2001 as you have stated); and advise that unless a 'less discriminative package' is implemented, the NIO will be joined in the judicial review proceedings with the Chief Constable.

Firstly, I would remind you that the December 2002 document to which you refer was merely an initial equality review, and was intended to form the basis for carrying out a full Equality Impact Assessment (EQIA). This was fully explained to you in the covering letter, dated 9 January 2003. This document was not circulated widely for formal consultation, as required under the terms of the Equality Scheme, but was instead issued only to those – including yourselves – who had contributed to the initial data gathering process.

Our draft Equality Impact Assessment document was then issued for formal public consultation on 23 July 2003, with responses being sought by 25 August. At your request the consultation period was later extended until 8 September 2003. Your office provided extensive feedback as part of that consultation process and indeed colleagues met with you and your clients during the consultation period to listen to your views at first hand.

We are now engaged in refining our EQIA document, seeking to address the issues raised in the course of the consultation process. It is our intention to issue this revised EQIA for full consultation in due course. It will only be following completion of this fresh consultation process that we will move to the decision-making stage of the EQIA procedure. The result of the EQIA and our subsequent policy decision in respect of the future terms of the voluntary severance scheme will be publicised thereafter.

We contend therefore that there is no final determination which can be challenged at the present time by any of your clients. The process which will culminate in a final determination is uncompleted. Accordingly, there is no basis for seeking to include the NIO in the current judicial review proceedings. Any attempt to do so will be strenuously resisted, and we shall rely on this letter in support of an application to recover all costs incurred in connection with any such attempt."

"I refer to the above application for leave to join the Northern Ireland Office ("the NIO") to the above application for judicial review. Leave is sought in relation to an alleged decision of the NIO 'made on or about or following 22^nd September 2003 whereby the said Northern Ireland Office decided to continue a structure for the Police Service of Northern Ireland Early Retirement and Voluntary Severance Scheme on the basis of pension enhancements accord on the basis of age and service.'

There are two separate elements to the voluntary severance scheme, namely the scheme benefits determined by the NIO, and the eligibility criteria, determined by the Chief Constable. The benefits determine what package an officer will receive when exiting the Police Service under severance. The criteria determine whether an officer is allowed to apply for severance, and, if so, whether or not he is permitted to leave according to the numbers targeted to leave in a particular year.

The NIO played no part in the decision of 22^nd September 2003 to the effect that the scheme eligibility criteria would continue to be based on a combination of age and service. This was the decision of the Chief Constable alone.

As Mr Lindsay stated in his letter to you on 18^th December 2003 the NIO is engaged in refining its EQIA document. The revised EQIA will be issued for full consultation in due course. No decision will be made by the NIO about the future benefits of the scheme until that consultation process has been completed.

The NIO, therefore, strenuously objects to your client's application to include the NIO in the judicial review proceedings and will rely on this letter to fix your client with the costs of that application."

"2. The relief sought as against the Chief Constable is:

(a) An order of certiorari to bring up into this Honourable Court and quash a decision of the Chief Constable of the Police Service of Northern Ireland made on or about 22^nd September 2003 whereby the said Chief Constable implemented the Police Service of Northern Ireland Early Retirement and Voluntary Severance Scheme on the basis of an Eligibility Criteria based on a combination of age and service.

(b) A declaration that the said decision is unlawful, ultra vires and of no force or effect.

(c) An order of mandamus directing the Chief Constable to reconsider the implementation of the Early Retirement and Voluntary Severance Scheme on the basis of the said criteria, and to determine same fairly, in accordance with law and in accordance with any judgment or direction of this Honourable Court.

(d) Such further or other relief as this Honourable Court shall deem meet.

(e) Costs.

3. The relief sought as against the Northern Ireland Office is:

(a) The declaration that the Northern Ireland Office has made a decision to structure the benefits and entitlements available under Year Five of the Police Service of Northern Ireland Voluntary Severance Scheme on a basis of Age and Service.

(b) An order of certiorari to bring into this Honourable Court and quash the decision of the Northern Ireland Office to structure the benefits and entitlements available under the Police Service of Northern Ireland Retirement and Voluntary Severance Scheme on a basis of age and service.

(c) A declaration that the said decision is unlawful, ultra vires and of no force or effect.

(d) An order of mandamus directing the Northern Ireland Office to reconsider the structuring of the benefits and entitlements of the Early Retirement and Voluntary Severance Scheme and to determine same fairly, in accordance with law and in accordance with any judgment or direction of this Honourable Court.

(e) Such further or other relief as this Honourable Court shall deem meet.

(f) Costs.

4. The grounds on which the said relief is sought as against the Chief Constable are:

(a) The Chief Constable took into account irrelevant considerations or gave manifestly excessive weight to certain considerations and, in particular, gave manifestly excessive weight to:

(i) The administrative burden of administering a Voluntary Severance Scheme based on criteria other than a criteria based on a combination of age and service.

(ii) The level of uncertainty that would exist within the Police Service of Northern Ireland were a Voluntary Severance Scheme other than one based on a combination of age and service adopted.

(b) The Chief Constable failed to take into account relevant considerations or gave manifestly insufficient weight to certain considerations and, in particular, gave manifestly insufficient weight to:

(i) The duty on him under s. 75 of the Northern Ireland Act 1998 to promote equality of opportunity between persons of different age.

(c) The Chief Constable has acted in a procedurally improper manner and, in particular, has done so by:

(i) Failing to provide or disclose to the Applicants adequately or at all with information or documents and data relating to the decision, in particular:

- the Preliminary Equality Impact Assessment of the Voluntary Early Retirement and Severance Scheme carried out by Chief Inspector Rita Rucker and dated 5^th July 2002.

(ii) giving inaccurate and misleading reasons t the Applicants for the withholding of information or documents relating the Equality Impact Assessment carried out of the Eligibility Criteria of the Voluntary Severance Scheme.

(iii) Failing to consult adequately or at all the Applicants pursuant to the Equality Impact Assessment carried out of the Eligibility Criteria of the Voluntary Severance Scheme.

(d) The Applicants had a procedural legitimate expectation to disclosure of the above document.

(e) The Chief Constable's decision was disproportionate in all of the circumstances.

(f) The Chief Constable misinterpreted the law that regulates his decision-making power, and misinterpreted Section 75 of the Northern Ireland Act 1998 and acted ultra vires Section 75 of the said Act.

(g) The Chief Constable has failed to give any or adequate reasons for his decision and, in particular but without prejudice to the generality of the foregoing, has failed to give adequate reasons as to why he adopted an Eligibility Criteria based on a combination of age and service.

(h) The Chief Constable's decision is unreasonable in the Wednesbury sense and irrational.

(i) The Chief Constable's decision is incompatible with the Applicant's rights under the European Convention of Human Rights, in particular Article One of the First Protocol to that Convention, and Article 14 of that Convention.

5. The grounds on which the said relief is sought as against the Northern Ireland Office are:

(a) The Northern Ireland Office took into account irrelevant considerations or gave manifestly excessive weight to certain considerations and, in particular, gave manifestly excessive weight to:

(i) The views of various bodies representing the views of a certain portion of officers within the PSNI.

(ii) The claim that the principle of permitting preferential treatment of older officers emanates with the Patten Report.

(iii) The claimed or actual costs of a scheme utilising an alternative structure.

(iv) Claimed or actual past practice generally with early retirement schemes.

(b) The Northern Ireland Office failed to take into account relevant considerations or gave manifestly insufficient weight to certain considerations and, in particular, gave manifestly insufficient weight to:

(i) The duty on it under s. 75 of the Northern Ireland Act 1998 to promote equality of opportunity between persons of different age.

(c) The Northern Ireland Office has acted in a procedurally improper manner and, in particular, has done so by:

(i) Failing to carry out and complete an Equality Impact Assessment.

(ii) In so far as the Northern Ireland Office attempted to carry out or part carried out or otherwise an Equality Impact Assessment, carrying out such process in an unfair and procedurally flawed matter, in particular:

Carrying out such a process whilst the applicant as consultee was denied access to information or documents and data relating to the process and any consequent decision, in particular, the Preliminary Equality Impact Assessment of the Voluntary Early Retirement and Severance Scheme carried out by Chief Inspector Rita Tucker and dated 5^th July 2002.

Failing to disclose to the Applicant the Equality Impact Assessment of Chief Inspector Tucker.

(d) The Applicant's had a legitimate expectation to the disclosure of the Chief Inspector Tucker Impact Assessment.

(e) The Northern Ireland Office's decision was disproportionate in all of the circumstances.

(f) The Northern Ireland Office misinterpreted the law that regulates its decision-making power, and misinterpreted Section 75 of the Northern Ireland Act 1998 and acted ultra vires Section 75 of the said Act.

(g) The Northern Ireland Office has failed to give any or adequate reasons for its decision and, in particular but without prejudice to the generality of the foregoing, has failed to give any or adequate reasons as to why it has adopted a benefits structure based on a combination of age and service.

(h) The Northern Ireland Office's decision is unreasonable in the Wednesday sense and irrational.

(i) The Northern Ireland Office's decision is incompatible with the Applicant's rights under the European Convention of Human Rights, in particular Article One of the First Protocol to that Convention and Article 14 of that Convention."

"75. - (1) A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity-

(a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;

(b) between men and women generally;

(c) between persons with a disability and persons without; and

(d) between persons with dependants and persons without.

(2) Without prejudice to its obligations under subsection (1), a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.

(3) In this section "public authority" means-

(a) any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;

(b) any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);

(c) any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation);

(d) any other person designated for the purposes of this section by order made by the Secretary of State.

(4) Schedule 9 (which makes provision for the enforcement of the duties under this section) shall have effect.

(5) In this section-

'disability' has the same meaning as in the Disability Discrimination Act 1995; and

'racial group' has the same meaning as in the Race Relations (Northern Ireland) Order 1997."

1. The Equality Commission for Northern Ireland shall-

(a) keep under review the effectiveness of the duties imposed by section 75;

(b) offer advice to public authorities and others in connection with those duties; and

(c) carry out the functions conferred on it by the following provisions of this Schedule.

2. - (1) A public authority to which this sub-paragraph applies shall, before the end of the period of six months beginning with the commencement of this Schedule or, if later, the establishment of the authority, submit a scheme to the Commission.

(2) Sub-paragraph (1) applies to any public authority except one which is notified in writing by the Commission that that sub-paragraph does not apply to it.  

 3. - (1) Where it thinks appropriate, the Commission may-

(a) request a public authority to which paragraph 2(1) does not apply to make a scheme;

(b) request any public authority to make a revised scheme.

(2) A public authority shall respond to a request under this paragraph by submitting a scheme to the Commission before the end of the period of six months beginning with the date of the request.

4. - (1) A scheme shall show how the public authority proposes to fulfil the duties imposed by section 75 in relation to the relevant functions.

 (2) A scheme shall state, in particular, the authority's arrangements-

(a) for assessing its compliance with the duties under section 75 and for consulting on matters to which a duty under that section is likely to be relevant (including details of the persons to be consulted);

(b) for assessing and consulting on the likely impact of policies adopted or proposed to be adopted by the authority on the promotion of equality of opportunity;

(c) for monitoring any adverse impact of policies adopted by the authority on the promotion of equality of opportunity;

(d) for publishing the results of such assessments as are mentioned in paragraph (b) and such monitoring as is mentioned in paragraph (c);

(e) for training staff;

(f) for ensuring, and assessing, public access to information and to services provided by the authority.

(3) A scheme shall-

(a) conform to any guidelines as to form or content which are issued by the Commission with the approval of the Secretary of State;

(b) specify a timetable for measures proposed in the scheme; and

(c) include details of how it will be published.

(4) In this paragraph-

"equality of opportunity" means such equality of opportunity as is mentioned in section 75(1);

"the relevant functions" means the functions of the public authority or, in the case of a scheme submitted in response to a request which specifies particular functions of the public authority, those functions.

5. Before submitting a scheme a public authority shall consult, in accordance with any directions given by the Commission-

(a) representatives of persons likely to be affected by the scheme; and

(b) such other persons as may be specified in the directions.

6. - (1) On receipt of a scheme the Commission shall-

(a) approve it; or

(b) refer it to the Secretary of State.

(2) Where the Commission refers a scheme to the Secretary of State under sub-paragraph (1)(b), it shall notify the Assembly in writing that it has done so and send the Assembly a copy of the scheme.

7. - (1) Where a scheme is referred to the Secretary of State he shall-

(a) approve it;

(b) request the public authority to make a revised scheme; or

(c) make a scheme for the public authority.

(2) A request under sub-paragraph (1)(b) shall be treated in the same way as a request under paragraph 3(1)(b).

(3) Where the Secretary of State-

(a) requests a revised scheme under sub-paragraph (1)(b); or

(b) makes a scheme under sub-paragraph (1)(c),

he shall notify the Assembly in writing that he has done so and, in a case falling within paragraph (b), send the Assembly a copy of the scheme.

8. - (1) If a public authority wishes to revise a scheme it may submit a revised scheme to the Commission.

(2) A revised scheme shall be treated as if it were submitted in response to a request under paragraph 3(1)(b).

(3) A public authority shall, before the end of the period of five years beginning with the submission of its current scheme, or the latest review of that scheme under this sub-paragraph, whichever is the later, review that scheme and inform the Commission of the outcome of the review.

9. - (1) In publishing the results of such an assessment as is mentioned in     paragraph 4(2)(b), a public authority shall state the aims of the policy to which the assessment relates and give details of any consideration given by the authority to-

(a) measures which might mitigate any adverse impact of that policy on the promotion of equality of opportunity; and

(b) alternative policies which might better achieve the promotion of equality of opportunity.
(2) In making any decision with respect to a policy adopted or proposed to be adopted by it, a public authority shall take into account any such assessment and consultation as is mentioned in paragraph 4(2)(b) carried out in relation to the policy.

(3) In this paragraph "equality of opportunity" has the same meaning as in paragraph 4.

10. - (1) If the Commission receives a complaint made in accordance with this paragraph of failure by a public authority to comply with a scheme approved or made under paragraph 6 or 7, it shall-

(a) investigate the complaint; or

(b) give the complainant reasons for not investigating.

(2) A complaint must be made in writing by a person who claims to have been directly affected by the failure.

(3) A complaint must be sent to the Commission during the period of 12 months starting with the day on which the complainant first knew of the matters alleged.

(4) Before making a complaint the complainant must-

(a) bring the complaint to the notice of the public authority; and

(b) give the public authority a reasonable opportunity to respond

11. - (1) This paragraph applies to-

(a) investigations required by paragraph 10; and

(b) any other investigation carried out by the Commission where it believes that a public authority may have failed to comply with a scheme approved or made under paragraph 6 or 7.

(2) The Commission shall send a report of the investigation to-

(a) the public authority concerned;

(b) the Secretary of State; and

(c) the complainant (if any).

(3) If a report recommends action by the public authority concerned and the Commission considers that the action is not taken within a reasonable time-

(a) the Commission may refer the matter to the Secretary of State; and

(b) the Secretary of State may give directions to the public authority in respect of any matter referred to him.

(4) Where the Commission-

(a) sends a report to the Secretary of State under sub-paragraph (2)(b); or

(b) refers a matter to the Secretary of State under sub-paragraph (3)(a),

it shall notify the Assembly in writing that it has done so and, in a case falling within paragraph (a), send the Assembly a copy of the report.

(5) Where the Secretary of State gives directions to a public authority under sub-paragraph (3)(b), he shall notify the Assembly in writing that he has done so.

12. - (1) Paragraphs 6, 7 and 11(2)(b) and (3) do not apply to a government department which is such a public authority as is mentioned in section 75(3)(a).

(2) On receipt of a scheme submitted by such a government department under paragraph 2 or 3 the Commission shall-

(a) approve it; or

(b) request the department to make a revised scheme.

(3) A request under sub-paragraph (2)(b) shall be treated in the same way as a request under paragraph 3(1)(b).

(4) Where a request is made under sub-paragraph (2)(b), the government department shall, if it does not submit a revised scheme to the Commission before the end of the period of six months beginning with the date of the request, send to the Commission a written statement of the reasons for not doing so.

(5) The Commission may lay before Parliament and the Assembly a report of any investigation such as is mentioned in paragraph 11(1) relating to a government department such as is mentioned in sub-paragraph (1)."

"Please find attached the Preliminary Equality Impact Assessment (EQIA) of the RUC/PSNI Early Retirement and Voluntary Severance Scheme (VSS). The PEQIA has been drafted in the style recommended by the Equality Commission and is ready for consultation.

I have been in contact with the Police Division of the NIO and have ascertained that they have yet to conduct an EQIA or to make a decision as to whether the scheme will proceed in Year 4. It is their intention to 'contract out' the review and EQIA which will take approximately six months to complete.

The force legal advice is that there is little we can do until these decisions are taken.

It is clear that the scheme in its current form discriminated in relation to age. If we were simply to remove age and apply a length of service/rank criteria then the 690 officers who currently are eligible to avail of severance would be disadvantaged. Personnel Branch has already informed them that they will retain their eligibility in subsequent years. It may be possible to run a 'hybrid' year with dual eligibility as outlined at Para 6 of the PEQIA to mitigate against this.

We need to proceed in a manner that is in the best interests of all stakeholders it that is possible."

"Under current Police Regulations an officer who completes 30 years service is entitled to receive a police pension. This means an officer who joins the Police Service at 18 years of age can obtain his/her pension at 48 years of age. However, no index linking can take place below 55 except on medical discharge.

Pension regulations include compulsory retirement ages depending on date of joining the police and the rank held –

if the officer is the Chief Constable, Deputy Chief Constable or an Assistant Chief Constable the expiry of a fixed term agreement;

if the officer is a Superintendent, Chief Inspector or Inspector on attaining 60 years;

if the officer is a Sergeant or regular Constable, on attaining 55 years;

if the officer holds a rank not higher than that of Inspector, and was serving on the 5 of July 1972, and has not otherwise elected by notice in writing to the Police Authority, on attaining 57 years;

if the officer is a member of the Full Time Reserve, on attaining 57 years or on attaining 55 years if date of joining is after 1 October 1994.

Under certain conditions Constables and Sergeants can apply for extensions of service. This is common where officers had joined the service when they were in their late twenties or over thirty years of age and would not under normal circumstances be able to achieve a thirty-year pension. Extensions of service are granted on individual application for a period of one year at a time.

The research team within the RUC Personnel Branch examined a number of criteria to utilise as a controlling mechanism that could be used to progress severance. These include attendance records, discipline records, rank, role, post, skills, performance, budget, security, service and age.

The Chief Constable, in consultation with the NIO, decided to use age and service as the combined criteria. The reason for using these criteria is that it allows more control over the number of offices exiting the service. This control is necessary to maintain efficiency and the following targets were set on this basis –

Year 1 - 700;

Year 2 - 750;

Year 3 - 600.

It is important to retain younger staff or the positive action being taken to correct gender and religious imbalances could be reversed.

Consultations took place with the staff associations who, following legal advice, agreed with these criteria.

The legal advice given to the PFNI was that to use Age as criteria was not unlawful under UK Domestic Employment Law. The PFNI's Legal Advisor had considered Section 75 of the Northern Ireland Act 1998.

The RUC commenced implementation of the Severance Scheme prior to PSNI designation under Section 75.

Under the RUC Voluntary Early Retirement/Severance Scheme benefits are payable depending on Age.

A full table of benefits payable is outlined in "A Northern Ireland Office Booklet on the Voluntary Early Retirement and Severance Scheme for the RUC" attached at appendix A.

Age is also used as a final arbitrator if the scheme is oversubscribed in any one year –

'Where there is an over subscription in any year and a group of officers have the same number of points, then acceptance for voluntary severance will be based on age, the oldest officers being processed first.'

Officers felt particularly hurt by the above condition. It has been interpreted as devaluing service given at times when policing was most difficult. It does not reward "Career Police Officers", those who choose policing as their first career. These officers are watching colleagues who had taken redundancy from industries such as Harland and Wolff (the shipyard), Shorts, Courtaulds, etc, joined the police in their late twenties and after relatively short service obtain the optimum reward. This has had a devastating effect on morale and service relations, resulting in a substantial number of officers (500 approx) feeling unrepresented by the PFNI and seeking legal advice and representation outside the normal channels.

In the Northern Ireland Office Equality Scheme Annex F, the Royal Ulster Constabulary Severance arrangements are acknowledged as having an adverse differential impact on some police officers on the basis of their age –

'The adverse impact of this policy on younger officers with less service than their older colleagues is recognised and is a foreseen consequence of the policy.'

One of the consequences of the policy that this PEQIA has raised is that policy has an adverse impact on younger offices with equal of more service than their older colleagues.

Whilst the policy was initially screened out for impact assessment, on the basis that 'the adverse impact is recognised as part of the actions necessary to achieve the overall benign effects of the Good Friday Agreement'. The NIO has reviewed that decision.

6. Consideration of Measures to Mitigate any Adverse Impact

The Early Retirement and Voluntary Severance Scheme closed to applicants on the 31 January 2002. The eligible applicants will exit the Police Service of Northern Ireland on dates relative to their date of birth or date of joining, up to and including 31 March 2003. However, it should be noted that the 690 officers who currently are eligible have been informed that they will retain their eligibility for future years should they choose not to leave on their appointed date.

It is preferable that the criteria for future years should be job related as opposed to person related. For example, by rank, service or a combination of both rather than age. However, if we are not to disadvantage the already eligible officers we will have to consider running a 'Hybrid' year with dual eligibility.

The PEQIA is retrospective as the Northern Ireland Office has yet to announce if a Year 4 scheme will take place. If it is to proceed, a scooping exercise will need to be undertaken to decide on a criteria, which is Section 75 compliant.

It is also recommended that Police Pension Regulations should be amended to allow an officer/pensioner to nominate a person(s) who they wish to inherit/benefit from their pension savings. This will allow same sex and common law partners equal status with married persons."