‘Shameful contempt for staff’: Garry Graham on the details behind the pay judicial review

Trade unions may have lost their court challenge to the government’s pay guidance for civil servants, but the process has revealed details about the decision that was unknown before, says Prospect’s deputy general secretary


By Garry Graham

24 Oct 2018

On 4 October Prospect, FDA and the PCS were in court challenging the Cabinet Office and the Treasury over the publication of this year’s civil service pay remit guidance. It is deeply disappointing that the court has not found in our favour, but this process has not been for nothing. Our legal challenge has uncovered a shocking culture of deception and contempt for staff at senior levels of government which is both revelatory and deeply damaging to the Cabinet Office. We set out here both the background to our challenge and what we now know was happening behind the scenes.

Liz Truss, the chief secretary to the Treasury announced in September last year the lifting of the 1% blanket pay cap for the public sector. Since that time, the unions had been seeking to engage with the Cabinet Office and the Treasury on the guidance that would determine the pay of over 400,000 civil servants and other public sector workers.


This process started in Easter when the Cabinet Office committed to a number of meetings between the unions, the Cabinet Office, and the Treasury to discuss the guidance. At the meeting on 29 March the Cabinet Office stated that they wished to positively engage with the unions on the guidance over a number of months. A first draft was seen by unions on 1 June but with no commitment to a number on pay, instead this was marked with an ominous X. Unions raised a number of technical issues including the opportunity to have access to “recycled” monies, the introduction of progression arrangements and the stated ability for employers to put forward business cases to have access to a higher pay remit figure. But we were clear that, in a context of significant movement on pay in other areas of the public sector, we needed an indication of what X was and an opportunity for meaningful discussion of that number. The clear indication we were given on 4 June was that X had not yet been determined and that we would have a chance to engage on it. A number of meetings were then scheduled and cancelled at short notice.

On 25 June the Cabinet Office published the pay remit guidance with no further discussion having taken place. X was revealed as being 1-1.5%. Both in terms of process and content the publication of the guidance provoked an angry response from Prospect and the other unions. The unions’ general secretaries met with the minister for the Cabinet Office David Lidington on 27 June and in a forthright meeting slated the lack of meaningful consultation and demanded the withdrawal of the guidance to allow for consultation to take place. The minister undertook to reflect on and consider the representations made. Ultimately the minister wrote to the unions, apologising for the process followed but refusing to withdraw the guidance.

Subsequent to this, Prospect, FDA and PCS issued judicial review proceedings challenging the government over the lack of consultation. The response from government has been shocking and has revealed a level of duplicity, disdain and bad faith which is unparalleled in our experience of industrial relations in the public and private sector over almost 30 years. Firstly, they have missed almost every legal deadline they have set themselves or been set by the courts. Witness statements have been submitted late, requests for further information and notes of meetings ignored (and then finally addressed at the 11th hour before the hearing). This is unparalleled in our experience.

Perhaps most shockingly – the legal defence being argued was that the Cabinet Office and the Treasury never meant to consult with the unions at all in the remit guidance. This may be a “clever” legal ruse but it is disastrous from industrial relations and HR perspective and deeply damaging to the reputation and standing of the Cabinet Office and the Treasury and those seeking to argue it.

As a result of our legal action we have discovered vital information that was not disclosed to us at the time:

  • Prior to the meetings with the unions on 29 March a number of meetings took place – including a meeting of the ‘HR executive of the civil service’  where a “range” for X was suggested by the Cabinet Office as being “1-2%”. It is asserted that HR directors and heads of department raised concerns about this and there was a consensus that this should be reduced to “1-1.5%”. It is reported that this decision was subsequently ratified at a meeting of permanent secretaries on 28 February.
  • That the range of 1-1.5% had been “signed off” by the chief secretary and also the Cabinet Office minister for implementation Oliver Dowden shortly prior to the meeting with the unions on 29 March.
  • The minister for the Cabinet Office did not sign off the remit figure and guidance until 22 June and as late as mid-June was seeking guidance on the scope and practicality for the guidance to be “renegotiated”.
  • The Cabinet Office accept that the 1-1.5% range is “well below all other public sector workforces” (Their emphasis in advice to the minister) and that the “civil service is behind the (wider public and private sector) market at most grades”.

It is clear from the above that the engagement with the unions was a sham. It is also clear from the above – even till very late on – decisions could have been made to put right the process. This information has had to be dragged out of the Cabinet Office as a result of our legal action.

The process set out by the Cabinet Office in their “defence” stands in sharp contrast to the processes followed in the NHS, local government and pay under the auspices of the Scottish Government where officials and ministers have been supportive of positive and meaningful engagement with the unions. The Cabinet Office have claimed that key decisions were made before the unions even met with them on 29 March. It is never explained, if that were the case, why this was never set out to the unions.

Perhaps even more galling for members is the that fact that it is claimed by the Cabinet Office that permanent secretaries and other senior leaders from departments argued for lower increases in pay than the range suggested by the Cabinet Office. This makes a mockery of pay delegation and is shameful. It is increasingly clear that there are very few at senior levels of the civil service prepared to argue for a fair deal for their staff and as a result the civil service and related bodies are increasingly the poor relation when it comes to public sector pay. We have previously called for action, not simply warm words. It is clear, given the account of the Cabinet Office, that those “warm words” were in fact weasel words.

The result of the judicial review is disappointing, but it has not dented our determination to argue for a fair deal for our members. It is time for senior leaders in the civil service to decide whether they are prepared to join us and make the case on behalf of their own staff.

Read the most recent articles written by Garry Graham - Garry Graham: As the pay freeze ends, ministers must enact real reform

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