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The High Court has handed down an important judgment addressing the scope of the doctrine of substantive legitimate expectation, parliamentary privilege, and the circumstances in which the statutory prohibition on granting relief, set out in section 31(2A) SCA 1981, will apply.

On Wednesday 15 December, the High Court dismissed a judicial review claim brought by the Police Superintendents’ Association against HM Treasury and the Home Office. The PSA sought to challenge Treasury’s decision to close legacy public sector pension schemes (mostly final salary schemes) and move all current members to reformed pension schemes (based on career average earnings) from 1 April 2022, and the consultation process leading up to that decision. Treasury had taken this decision in response to the Court of Appeal’s judgment in Lord Chancellor v McCloud [2018] EWCA Civ 2844, which had found that transitional provisions in the 2015 pension reforms which benefitted those closest to retirement amounted to unlawful direct age discrimination.

The PSA alleged that the closure decision breached a substantive legitimate expectation that police could remain in their final salary pension schemes until retirement. The PSA also alleged that the consultation process was unlawful, that the consultation breached the public sector equality duty, and that the closure decision was based on a material error of fact. HM Treasury opposed all grounds but also argued that, given that the closure of legacy public sector pension schemes is being implemented by clause 76 of the Public Service Pensions and Judicial Offices Bill currently proceeding through Parliament, the court should refuse relief pursuant to s.31(2A) of the Senior Courts Act 1981 and/or because it would infringe Parliamentary privilege.

Mrs Justice Heather Williams dismissed the claim. On legitimate expectation, the Judge accepted Treasury’s argument that although clear and unambiguous representations had been made to the police in 2012 that they could remain in their final salary pension schemes until retirement, those representations did not give rise to an enforceable legitimate expectation because first, the same promises were made to over 500,000 members of public sector pension schemes in the macro-economic and political context, and therefore the class of recipients was too broad to generate a legally enforceable representation; and second, because the representations were incapable of forming a legitimate expectation after McCloud because enforcing the representation for some groups would involve perpetuating unjustifiable discrimination. The Court also held that Treasury was entitled to resile from any legitimate expectation in these circumstances. The Court rejected the error of fact challenge.

On consultation and the PSED, the Court held that the decision-maker (the Chief Secretary to the Treasury) made the decision to close the legacy public sector pension schemes before he had received a summary of the consultation responses or a draft of the updated equality impact assessment. This was a breach of the requirement to give conscientious consideration to the consultation responses (although the consultation response document adequately addressed consultees’ concerns), and a breach of the PSED (although the EIA itself adequately addressed equality concerns raised by consultees). However, Mrs Justice Heather Williams held that relief should be refused under s.31(2A) on the basis that it was highly likely the outcome would have been the same if the decision-maker had considered the consultation responses and EIA before making his decision because the closure decision was the strongly preferred policy position throughout, the consultation response document and EIA showed no grounds for departing from that preferred policy position, and the Chief Secretary personally approved the consultation response and EIA when laying it before Parliament. 

On parliamentary privilege, the High Court accepted Treasury’s argument that, following the Wheeler and UNISON line of cases, the court should not do anything, directly or indirectly, that would delay the passage of a Bill through Parliament or which would tell Parliament what the form or content of a Bill should be. The Judge accepted that granting an order quashing the consultation would inevitably result in disruption to the Parliamentary timetable given the current passage of the Bill, and would therefore infringe Parliamentary privilege. The Judge also accepted that granting a declaration that the consultation preceding the Bill was unlawful or that the closure decision itself was unlawful would have the practical effect of telling Parliament that the procedure leading to legislation being enacted was unlawful or that its chosen form of legislation was unlawful. As the form of primary legislation is a matter for Parliament and not the courts, the relief sought would infringe Parliamentary privilege. This judgment usefully demonstrates that courts will be anxious to avoid granting any form of relief, including declaratory relief, that seeks to influence the course of a Bill through Parliament.

Catherine Callaghan QC represented HM Treasury and the Home Office (leading Raymond Hill and Imogen Proud of Monckton Chambers).

The full judgment can be viewed here

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