Mr Justice COLLINS :
- The claimant joined the Surrey Police on 5 June 2006. Pursuant to the Police Regulations 2003 ('the Regulations'), he was to be a probationary constable for 2 years. Unfortunately, in April 2007 he suffered very severe injuries in a road accident which rendered him unfit for any duties until March 2008. As a result, on 13 February 2008 the Assistant Chief Constable wrote to him informing him that his probationary period was to be extended until 6 June 2009. If it is considered that a probationer is not likely to become an efficient or well conducted constable, his services may be dispensed with before his period of probation comes to an end. On 3 June 2009, a temporary assistant chief constable, who was under the system operated in the Surrey Police Force responsible for making such a decision, decided that the claimant's services should be dispensed with and by letter of 4 June 2009 he was informed that his employment with Surrey Police would cease on Saturday 6 June 2009.
- Although the 2003 Regulations do not provide for any appeal, the Surrey system enables a probationer who is subject to dismissal to appeal to the Chief Constable. The claimant decided to exercise this right and a meeting was held on 26 June 2009, attended by the claimant and a representative from the Police Federation. The Chief Constable was due to go on leave between 4 and 20 July and so, recognising that the claimant wanted to submit detailed grounds to challenge the decision that he should leave the force, he gave him three options. He could submit his written appeal by the end of the week so that it would be dealt with before the Chief Constable went on leave or he could wait until the Chief Constable's return or it could be dealt with by the Deputy Chief Constable. The claimant chose to take the second option and wait until the Chief Constable's return from leave. In due course, he submitted a lengthy statement supported by a number of documents arguing that he was properly motivated, had demonstrated satisfactory performance and was physically fit to undertake all duties. The Chief Constable considered all the material but on 30 July 2009 decided that his appeal should fail and that the decision to terminate his employment should stand. He set out his reasons in some detail in a letter to the claimant informing him of the decision. The letter concludes:-
"Having considered all of the information available to me, including the representations that you have made to me in person and in writing, I am of the opinion that if your fitness was the sole factor upon which the decision was to be made then it would be appropriate to extend your probation to allow you to address the issue. However, given the issues discussed above with regard to performance, commitment and attitude to colleagues I do not believe that an extension to your probation would have been appropriate. I am of the opinion that you are not likely to become an efficient or well conducted constable, and so your appeal against the decision to terminate your employment under Regulation 13 of Police Regulations 2003 is denied."
As will be apparent, the claimant was asking the Chief Constable to extend his probationary period to enable him to demonstrate that he was likely to become an efficient and well conducted constable.
- By this claim the claimant seeks to quash each of the decisions. Temporary Assistant Chief Constable (TACC) Price is said to have had no power to make the decision of 3 June 2009 since the decision to dispense with the services of a constable under the relevant regulation must be made by the Chief Constable himself. Further, it is said that the effect of the Regulations is that if a probationary period comes to an end and no lawful decision has been made to dispense with the constable's services, he automatically is confirmed as a full constable. Thus the Chief Constable could not confirm the earlier decision. And, even if TACC Price had the necessary power, since his decision was under appeal, it could not have any effect and the probationary period had not been extended. Thus, since the claimant must have been regarded as still a constable until 30 July 2009, he could only be such on the basis that his unextended probationary period had come to an end and so he was a full constable. If he was not still a constable, the Chief Constable could not have given effect to a decision to allow his appeal.
- As will be apparent, this claim turns on the construction of the 2003 Regulations. The most important matter and one which is of great concern to Chief Constables of all forces in England and Wales is whether they must personally make the decision whether to dispense with the services of a probationer. Mark Rowley, the defendant, has submitted a statement. In Paragraphs 4 to 8 of that statement, he states:-
"4. My primary duty as Chief Constable of Surrey police is the "direction and control" of the Police Force. This responsibility is placed on me by virtue of section 10 of the Police Act 1996. I have wide ranging duties with overall responsibility for strategy and operational co-ordination across the force. This is a 24/7 responsibility. I am able to fulfil my duties because of the ability to delegate certain functions to other senior officers who are part of my ACPO ("Association of Chief Police Officers") team. These delegated responsibilities are identified in accordance with the prevailing conventions in police forces nationally and pragmatic considerations. The demands on my time are so great that I would be unable to effectively deliver the strategic direction of the force without such support.
Jeremy Austin's Claim
5. I understand that Jeremy Austin's ("Mr Austin's") case is based on the erroneous premise that the decision to dispense with his duties in the first instance should have been taken by me personally and not by one of my senior officers. I do not agree with this contention. As Chief Constable I delegate duties to my subordinate officers where practical considerations, such as the administrative convenience of allowing a subordinate to act as an agent outweigh the administrative desirability of me performing the duties personally. There are strategic decisions and leadership responsibilities that cannot be delegated and I take care in exercising my discretion in accordance with established practice.
6. As a result of enquiries carried out on my behalf I am confident in asserting that this is the norm in neighbouring constabularies, and reflects the approach taken by forces in England and Wales. In my view there are a number of factors that have led to the practice of delegating the decision to dispense with the services of a probationary constable to other ACPO officers.
7. The demands on a Chief Constable are often so great that delegation is the only practical solution. In addition, a Chief officer is not the most appropriate person to make termination decisions. In practice an Assistant Chief Constable often has more involvement in personnel issues, with junior officers, and significantly more day to day contact as well as a better understanding of the issues relevant to a probationary constable's performance.
8. I recognise and accept that the decision to discharge a probationary constable is a very important decision. The role of Chief Constable, given the demands of the position, is to ensure that a fair process is used and that there are safeguards in place to facilitate a full objective consideration of all the issues. There are compelling practical restraints on the ability of a Chief Constable to carry out an in depth examination of all relevant issues in every case of discharge. There are comprehensive safeguards to ensure that an officer is given an opportunity to demonstrate their competence, ability and attitude to perform the role of constable. Discharging an officer is never a decision taken lightly and the administrative process involved in documenting the steps to support and assist an officer are time consuming. Recording in detail their performance development takes an average of between 30 to 40 hours to deal with the administration of these cases when it is proposed to instigate Regulation 13 proceedings, and necessitates a number of different processes including attending meetings with a variety of line managers, going to performance meetings, agreeing and developing action plans, conducting reviews, completion of papers and consultation with legal departments."
- The desirability of a power to delegate as a Chief Constable thinks fit is, I think, obvious. There must, of course, be safeguards to ensure that only those who are sufficiently senior and clearly competent to take any relevant decisions are permitted to deal with particular matters. There can be no doubt that the system in operation in the Surrey force does ensure that, if delegation is lawful, the decision maker has the necessary seniority and expertise.
- The claimant was informed by his Superintendent on 14 April 2009 that his performance was not up to standard and he was to be placed on an action plan. He was warned that if he did not improve Regulation 13 might be considered. On 22 May he was given advance warning by the Superintendent that his services were to be dispensed with because he had not shown the necessary improvement.
- The Regulations do not provide for any appeal against the decision to dispense with a constable's services under Regulation 13. But the Surrey force permits a discharged person to appeal to the Chief Constable who will personally reconsider the case in the light of all relevant information including such material as the appellant puts forward having seen the documents relied on against him. The evidence before me is that, in round figures, Surrey is a comparatively small force comprising as at March 2009 1827 officers. In the year ending April 2009 it attracted 103 recruits. While there is no direct ratio between the size of a force and the numbers of recruits each year, it is obvious that larger forces are likely to attract greater numbers. Thus the figures for 2008/2009 show, for example, that West Midlands with 8637 officers attracted 697 recruits and Greater Manchester with 8232 officers attracted 568 recruits. A considerable number of forces attracted over 100 recruits. The burden on individual chief constables if they had personally to consider those cases whenever the question arose whether a recruit should be able to progress beyond his or her probationary period is all too clear, particularly in the light of what the defendant says in Paragraph 8 of his statement.
- Since the probationary period is normally 2 years, there will be in Surrey in excess of 200 probationers in respect of whom Regulation 13 may have to be considered. As will be seen when I set out the Regulation, the power to dispense with a probationer's services can be exercised at any time during the probationary period and is not always considered towards the end of that period. The evidence before me shows that in the year 2009 there were in Surrey 10 recruits in respect of whom Regulation 13 dismissal was a possibility. Of these, 8 decided to resign and only 2 decided to appeal. Experience has shown that that is the sort of level to be expected so that the Chief constable is personally concerned with a very few cases and the administrative burden is tolerable. It also shows that in the great majority of cases the probationer appears to appreciate that he or she will be unable to overturn the decision.
- The Regulations are made pursuant to s.50 of the Police Act 1996. This section confers a general power on the Secretary of State to make regulations 'as to the government, administration and conditions of service of police forces' (s.50(1)). There then follow a number of particular provisions that can be made with respect to various different matters. The particular provisions do not refer to powers to delegate functions. The Act itself by s.12A, which was inserted by s.124(2) of the Criminal Justice and Police Act 2001, contains a specific power for the or the most senior deputy chief constable of a force "to exercise or perform any or all of the powers or duties of a chief constable of that force –
(a) during any absence, incapacity or suspension from duty of the chief constable,
(b) during any vacancy in the office of the chief constable, or
(c) at any other time, with the consent of the Chief Constable." (s.12A(1)).
The need for the powers in s.12A(1)(a) and (b) is obvious. S.12A(1)(c) confers a wide discretion, but the delegation can only be to the relevant deputy and to no-one else. It is to be noted that s.12A(5) states that the provisions of s.12A(1) shall be 'without prejudice to any other enactment that makes provision for the exercise by any other person of powers conferred on a chief constable'. My attention has not been drawn to any such provision.
- The two most important paragraphs of the regulations for the purposes of this case are 12 and 13. 12 deals with probationary service and 13 with discharge of a probationer. So far as material, they provide as follows:-
"12(1). Subject to paragraphs (2) and (3), a member of a police force appointed in the rank of constable … shall be on probation for such period as the Secretary of State shall determine in respect of such appointments.
(2)In making a determination under paragraph (1), the Secretary of State may … confer on the chief officer discretion to determine the required period of probation in a particular case.
13(1). Subject to the provisions of this regulation, during his period of probation in the force the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted, physically or mentally, to perform the duties of his office, or that he not likely to become an efficient or well conducted constable.
(2) A constable whose services are dispensed with under this regulation shall be entitled to receive a month's notice or a month's pay in lieu thereof.
(3) A constable's services shall not be dispensed with in accordance with this regulation and any notice given for purposes thereof shall cease to have effect if he gives written notice to the police authority of his intention to retire and retires in pursuance of the said notice on or before the date on which his services would otherwise be dispensed with; and such a notice taking effect on that date shall be accepted by the police authority notwithstanding that less than a month's notice is given.
(4) Where a constable has received a notice under this regulation that his services are to be dispensed with and he gives written notice of his intention to retire and retires under paragraph (3), he shall nevertheless be entitled to receive pay up to and until the date on which the month's notice he has received would have expired or where he has received or is due to receive a month's pay in lieu of notice she shall remain entitled to that pay notwithstanding the notice he has given under paragraph (3)."
- Regulation 3 defines chief officer to mean 'chief officer of police' who is defined in s.101 of the 1996 Act to mean the Chief Constable. For the purposes of paragraph 12, the Secretary of State has made a determination, paragraph 1) of which provides, so far as material:-
"A member of a police force appointed in the rank of Constable … shall … be on probation for the first 2 years of his service as a Constable in that police force following his last appointment thereto or for such longer period as the chief officer determines in the circumstances of a particular case."
The wording of paragraph 1) of the determination reproduces that which was previously contained in Regulation 14 of the Police Regulations 1995 as amended. The 1995 regulations were repealed and replaced by the 2003 Regulations, but the provisions of regulation 12 (and the determination under that regulation) and 13 are, for all purposes relevant to this claim, identical to those replaced. This is material when I come to consider the decision of the Court of Appeal in R v Chief Constable of Greater Manchester Police ex p Lainton [2000] I.C.R. 1324 which is central to the submissions made in relation to the power to delegate.
- Mr Sheldon has drawn my attention to the references in the Regulations to the Chief Officer. There are some 30 most of which confer powers or impose duties. The majority require the chief officer to deal with matters which, as is accepted, it would be, to quote words of Laws LJ in Lainton's case, "plain beyond the possibility of sensible argument that [they must] in reason be delegable". (p.1333B). Examples are paragraphs 5(1) (power to appoint part time officers), 19A (requirement to give samples of urine or saliva), 22 and 23 (discretion to allow particular limits on travelling time or attendance at Police Federation meetings). There are many others.
- Mr Sheldon submits that, since the regulations do not specifically refer to any limitation on the chief officer's powers to delegate any of his functions and since many of them do require delegation to avoid an altogether impossible burden on the chief officer and so a detriment to proper management of his or her force, the regulations must be construed in a consistent fashion so that a power to delegate is implicit. The more serious for the individual the result of any decision, the more important it is for the delegation to be to an appropriately senior officer. That is the safeguard, and to construe the regulations so that certain functions are not delegable by reference to their impact is unsatisfactory and difficult to apply.
- There is no doubt that as a general rule where Parliament confers powers or imposes duties on named bodies or individuals, there can be no delegation. But this general rule may be overridden if, to use words taken from de Smith, Woolf & Jowell, Judicial Review of Administrative Action (1995) p.366 approved by the Court of Appeal in Lainton (p.1332A). "In the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally". Those observations do not suggest that in considering whether delegation is possible the effect of the action in question is necessarily material.
- There has since 1943 been recognised to be an exception to the general principle of non-delegation in that ministers can always delegate functions given by statute to them unless there are specific statutory requirements that they personally deal with a particular matter. The authority which confirmed this exception is Carltona Ltd v Commissioner of Works [1943] 2 All ER 560. In that case at p.563 Lord Greene MR said this:-
"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there has been thousands of requisitions in this country by individual ministers. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."
- In R(Chief Constable of the West Midlands Police) v Birmingham Justices [2002] EWHC 1087 Admin, the Divisional Court had to consider whether the Chief Constable had power to delegate his statutory function of making applications for anti-social behaviour orders. In deciding that he did, Sedley LJ in paragraphs 9 and 10 stated:-
"9. Although the Carltona case [1943] 2 All ER 560 is frequently cited as a source of the 'alter ego' doctrine, it can be seen that Lord Greene's reasoning is not predicated on this. It is predicated on the proposition that the departmental head is responsible for things done under his authority. The relevance of the alter ego doctrine is that Crown servants were at that time taken in law to hold their positions by grace and not by contract, so that the minister was first among equals, not an employer with servants or a principal with agents. His implied power to delegate functions depended, therefore, on two things: the conferment of a power in terms which implicitly permitted their delegation and the existence of persons to whom he could delegate them without parting with ultimate responsibility.
A chief constable similarly is not the employer of the officers under his or her command but is legally answerable for them. The Carltona principle appears to apply readily in such a situation, with two well established qualifications. One is that some functions are such that they cannot, consistently with the statutory purpose, be delegated at all: see R V Chief Constable of Greater Manchester Police, Ex p Lainton [200-] ICR 1324, Paragraph 28. The other is that delegation has to be to somebody suitable. As the Carltona case demonstrates, who is suitable is primarily for the office-holder to decide. Today, however, it is clear that an improper delegation will be a matter for the courts, at least where the discharge of a statutory office is in issue. "
This reference to the two qualifications (the second of which does not deny a power to delegate but merely requires delegation to a suitable person) depends on acceptance of the relevant observations in Lainton.
- In Director of Public Prosecutions v Haw [2008] 1 WLR 379 the Divisional court was concerned with the lawfulness of the delegation by the Commissioner of Police of the Metropolis of the need for an authorisation of particular demonstrations. The court held that there was an implied power to delegate where the responsibilities of an office created by statute were such that delegation was inevitable: see Paragraph 33 of the judgment of the court given by Lord Phillips, CJ, in which he concluded:-
"In such circumstances there will be a presumption, where additional statutory powers and duties are inferred, that there is a power to delegate unless the statute conferring them, expressly or by implication, provides to the contrary. Such a situation is, in practice, indistinguishable from one in which the Carltona principle applies. Thus whether Sedley LJ was correct as a matter of legal theory would seem to be only of academic significance."
- Both Sedley LJ and Lord Phillips CJ distinguished Nelms v Roe [1970] 1 W.L.R. 4 insofar as it appeared to decline to apply the Carltona principle to the Commissioner of Police of the Metropolis. It is to be noted that the court in that case accepted the propriety of delegation by the Commissioner to a Superintendent but did not accept the lawfulness of delegation by the Superintendent to an Inspector. The Carltona principle was prayed in aid by counsel to justify the further delegation, arguing that the Superintendent was the alter ego of the Commissioner. Sedley LJ declined to accept the view that the Carltona principle did not apply to the Commissioner. He was in my view correct and he has been upheld by the court in Director of Public Prosecutions v Haw. The chief officer (or Commissioner who is the chief officer for the Metropolitan Police) can discharge functions through an officer for whom he or she is answerable. While not answerable to parliament, he or she is ultimately answerable to the court if it is said that the officer chosen to carry out particular functions was not sufficiently senior or competent. And the decision in Nelms V Roe can, I think, be justified on the basis that the Commissioner had delegated to the Superintendent and the Superintendent could not further delegate to a more junior officer.
- In Re Golden Chemical Products Ltd [1976] 2 All ER 543 Brightman J considered the application of the Carltona principle in a decision to present a petition to wind up a company as expedient in the public interest. Counsel argued that the initial decision making process can be performed by someone other than the minister 'if, but only if, it leads to no serious invasion of the freedom or property rights of the subject'. Brightman J rejected this argument saying that he found no warrant for the distinction in the authorities. The reverse was the case. He pointed out that in R v Skinner [1968] 2 QB 700 (approval by an official of the breathalyser) the accuracy of the equipment was of vital importance to every motorist since failure would result in the commission of a criminal offence. At p.550: Brightman J concluded:-
"Nor do I think that the principle which [counsel] advocates is of practical application. A distinction between a case which involves a serious invasion of the freedom or property rights of the subject, and a case which involves a similar invasion which is not serious, seems to me to be impossibly vague. I am aware that the absence of a precise demarcation line is not, so counsel for the company reminded me, a practical impediment to telling night from day. But if counsel for the company's principles were adopted, it seems to me that we would be groping in a perpetual twilight, except at the extremes of midnight and midday."
- In the context of those observations, it is I think instructive to consider regulation 7. This concerns business interests incompatible with membership of a police force. The chief officer must when notified (as he or she must be) of a business interest by a serving officer decide whether it is compatible with him or her remaining a member of the force. There is a right of appeal to the police authority against an adverse decision but it must be obvious that such a decision creates a serious risk for the member of the force. If there is an appeal, the chief officer must submit his reasons and copies of all relevant documents. It must be obvious that those duties must be capable of being delegated since, if the chief officer has personally to consider each individual case, the burden is oppressive. There is a further right of appeal to the Secretary of State. If all this fails, regulation7(6) provides that the chief officer may, subject to the approval of the police authority, dispense with that member's services. That decision, albeit subject to the approval of the police authority, is obviously very serious for the member of the force affected by it. It would, I suppose, be at least arguable, that the power under regulation 7(6) should be exercised by the chief officer personally. But the requirement of approval by the police authority may point in the other direction.
- I must now turn to Lainton's case, since it clearly indicates that the power of dismissal under what is now Paragraph 13 can only be exercised by the chief officer personally. In Paragraph 25, Laws LJ, who gave the leading judgment, said:-
"Here, it is accepted that there can be no delegation if the power to dispense with the services of a probationer constable under regulation 15(1) [now 13(1)]. That is the express effect of the decision in their Lordships' House in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155."
- He refers to observations of Lord Hailsham LC at p.1161 F-G and Lord Bridge at p.1165 C-D. In Paragraphs 28 and 29, he states:-
"28. In my judgment, Mr Millar's arguments based on regulations 14(5) and 15(5) do not assist him. These provisions do not allow for delegation as such. They provide that the assistant commissioner stands in the shoes of the commissioner. Mr Hunt submitted that the assistant commissioner in the Metropolitan Police Force may for his part, in the case of regulation 14(5), then delegate the power to extended under regulation 14(2). Nor, in my judgment, will the argument based on the Evans case assist Mr Millar. Dismissal under regulation 15(1) is one thing; a matter of much greater weight than an extension under regulation14 (2). I take the view that this part of the case falls to be resolved by reference to the approach summarised by de Smith, Woolf and Jowell in the passage which I have set out. Regard must be had to the public interest in seeing that the chief officer deals with matters of special substance. Dismissal, in regulation 15(1), plainly falls into that category. Extension, in regulation 14(2), in my judgment does not.
29. I would not, however, part with the case without expressing some misgivings at this conclusion. It requires the court to construe regulations 14 and 15 differentially, notwithstanding the common context of the two of them and the similarity in their language. It requires the court, more broadly, to arrive at a view in relation to any of the many references to chief constable in these regulations as to whether or not the function conferred on him is delegable in the particular case. In reaching its view, it must have in mind the content of the function, its relative importance to other functions and so forth. It seems to me that that approach, driven though I am to adopt it, renders somewhat fragile the principle of legal certainty which must, one would have thought, apply to the construction of these regulations as it does in our public law generally. Speaking for myself, I hope that some consideration will be given hereafter to the form of the Regulations."
Regulation 14(5) defined chief officer to include, in the case of the Metropolitan Police, an assistant commissioner. Regulation 14(2) contained what is now in Paragraph 1 of the Secretary of State's determination pursuant to Regulation 12 of the 2003 Regulations. The court decided that a decision to extend a probationary period could be delegated, but a decision to remove could not.
- Mr Sheldon submits that what were but dicta in Evans' case were not in truth binding on the court. In Evans' case the chief constable had made the relevant decision. In reaching it, there had been a lamentable failure to treat Mr Evans' fairly. At p.1161G, Lord Hailsham said:-
"It may well be that part or all of the inquiry on the facts may be delegated to a subordinate official, as was done here by the appellant to the deputy chief constable, though, where this is done, the ultimate decision must not be delegated…"
Lord Bridge at p.1165C accepted that there could be delegation of the investigation, which must be carried out fairly. He went on:-
"But in the case of such delegation certain conditions should be observed. First, the delegate should make clear to the constable the precise nature of the complaint and that he, the delegate, is acting on behalf of the chief officer of police to hear whatever the constable wishes to say about it. Secondly, the delegate should make a full report to the chief officer of what the constable has said. Thirdly, the chief officer should himself show the report to the constable and invite any comment on it before reaching any decision …"
It is implicit in these observations that the ultimate decision cannot be delegated.
- Lord Brightman's speech was agreed by all members of the committee. He, together with Lords Fraser and Roskill, did not refer to the issue of delegation. He did not need to do so since the chief constable had made the decision in question. Thus, powerful and persuasive though they may have been, the observations of Lords Hailsham and Bridge were clearly in my view not part of the ratio decidendi of the case.
- Mr Sheldon submits that the decision of the Court of Appeal in Lainton on the issue of delegation was also obiter and therefore not binding on me and further was based on a misapprehension that the observations in Evans were binding. There were two matters raised in Lainton. The first, was that, absent any extension of the probationary period, the probationer automatically became a full constable at the end of his probationary period. This was decided in the claimant's favour and rendered determination of the issue of delegation unnecessary. Nonetheless, it had been fully argued and the court went on to decide it stating that a decision to extend a period of probation was but a decision to remove was not delegable. In those circumstances, I take the view that it would be wrong of me to fail to follow it; indeed, it is binding on me. Sedley LJ and Lord Phillips CJ did not dissent from this conclusion.
- It is to be noted that Laws LJ was unhappy at the decision he felt compelled to reach. In Paragraph 25, he gave weight to the consideration that the decision in Evans must have been taken to have been in the mind of the legislator when the 1995 Regulations were made. Mr Ford submits that, particularly having regard to what Laws LJ said in the last sentence of Paragraph 29, the enactment of the same wording in the 2003 regulations must be taken to have endorsed the decision in Lainton. I am bound to say I am not sure that any great weight should necessarily be attached to what is assumed to have been in the legislator's mind. But Mr Ford goes further and draws attention to s.12A of the Police Act 1996, inserted by s.124(2) of the Criminal Justice and Police Act 2001, which gives power to the or the senior deputy chief constable to exercise a chief constable's functions in his or her absence (an obviously necessary power) but also (s.12A(1)(c)) at any other time, with the consent of the chief constable. I do not think this, as Mr Ford suggests, is the legislature's answer to Lainton. It provides for a sensible and necessary delegation but only to a single individual, namely a deputy. This will avoid any argument but does not – indeed, cannot since it is accepted that many of the functions of the chief officer referred to in the regulations can be delegated – operate as an indication that that is the limit of any power to delegate a statutory function.
- As will be apparent, if I had been dealing with this claim in the absence of any authority, I would have decided that the delegation to TACC Price was lawful. It is not and cannot be suggested that he was an inappropriate delegate. But, for the reasons I have given, I am bound to decide that the decision made by TACC Price on 3 June 2009 was ultra vires and of no effect.
- Since the decision was of no effect, Mr Ford submits that the claimant's probationary period came to an end on 6 June 2009 and so, following the ratio of the decision in Lainton, he automatically became a full constable. Mr Sheldon submitted that this was an absurd result and that, the decision being valid until set aside, the dismissal was proper at the time and so there was no progression to full constable. One difficulty with that argument is that in order for the chief constable to have allowed the appeal, the claimant would have had to be still a constable. Furthermore, unless he remained a probationer, it would not have been possible to extend his probationary period, which was what he realistically and sensibly asked to be done. Mr Ford goes on to submit that the chief constable could not dispense with his services since he had become a full constable and the processes for dismissing a full constable were understandably more elaborate and time consuming.
- Regulation 13 provides for 28 days' notice or payment in lieu. The decision to dispense with the services of a probationer can be made at any stage of the probationary period, but no doubt will often be at or towards the end of it. If 28 days' extended beyond the end of the probationary period, it would be to say the least strange if the result was an automatic progression to becoming what I have called a full constable. Thus, albeit no-one explicitly determined (as Paragraph (1) of the determination pursuant to regulation 12 requires) to extend the probationary period, such determination was implicit.
- It seems to me that Surrey's system of appeal to the Chief Constable carries with it the same implicit extension of the probationary period. In his skeleton argument, Mr Sheldon suggested that, because the claimant had requested that he be allowed an extended probationary period to prove himself, he was precluded from arguing that the chief constable's decision was made after he had ceased to be a probationer. That argument, based on a supposed estoppel or waiver, was not pursued. It was recognised to be bad.
- I appreciate the problems that flow for chief constables generally and, I suspect, the Commissioner of Police of the Metropolis as well as a result of the inability as the law now stands to delegate under regulation 13. But for the future, if Surrey wishes to maintain its present system (which I would encourage: it is obviously fairer to the probationer, particularly as there is no right of appeal or even of review by the police authority) I think some changes are desirable. In particular, to avoid any arguments, the probationary period should, if necessary, be extended to expire when the chief constable's decision is made. The delegate should produce a report and should inform the probationer that he is recommending dispensing with his services. He can properly indicate that, unless the probationer wishes to make submissions to challenge the decision, the chief constable will be likely to approve the recommendation. The probationer can than decide to exercise his right to resign voluntarily, as is the position under the present scheme, and he will receive the pay benefits set out in regulation 13. It will be important to ensure that the probationary period does not need to be extended to cater for the chief constable's decision if there is to be a challenge because otherwise there may be an incentive to gain some extra weeks' pay by such a challenge.
- In this case, since the decision of TACC Price was ultra vires, the chief constable's was the proper regulation 13 decision. Thus the claimant was entitled to 28 days' pay in lieu of notice after 30 July and, of course, to pay between 4 July and 30 July.
- Even if I had been persuaded that Mr Ford's submissions were correct, I would not have ordered reinstatement. It is clear that the chief constable's decision was based on a full consideration of the merits of the claimant's case and was one he was entitled to reach on the material before him, including that produced by the claimant. His reasons are satisfactory. Any relief in judicial review is discretionary and I would not have thought it right to require the claimant to be reinstated and the chief constable to have to go through the process of dismissal.
- Mr Sheldon relied on delay to preclude relief. He submitted that there had been prejudice in that the chief constable could have gone through the necessary processes before now to deal with dismissal. I am far from persuaded that this is realistic since it would not be possible to deal with the process when the individual concerned was not a member of the force. But the argument is not needed in the light of my decision on relief.
- Accordingly, I am prepared to grant a declaration that the decision of TACC Price on 3 June 2009 was unlawful. I will hear counsel on whether a wider declaration to cover Surrey's system is desirable. In addition, I am prepared to direct that the claimant is paid what will, I think, amount to some 8 weeks' salary for the period after 6 July 2009 until 28 days' after the Chief Constable's decision.
