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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Reckless, R (on the application of) v Kent Police Authority [2010] EWCA Civ 1277 (16 November 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/1277.html Cite as: [2010] EWCA Civ 1277

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
CO/2239/2009
[2009] EWHC 2291 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/11/2010

LORD JUSTICE CARNWATH :

1. The Claimant, Mr Mark Reckless, applies for judicial review to challenge the appointment to the Kent Police Authority ("KPA") of Mr Tim Thompson to fill a vacancy that became available after 31 March 2009.
2. The application, together with a similar application relating to three appointments in the previous year, came before Collins J who refused permission following an oral hearing on 3 July 2009. On 26 February 2010 Laws LJ granted Mr Reckless permission to challenge Mr Thompson's appointment, considering it arguable that the 2009 appointment by the existing members was "in reality a rubber-stamping exercise". He refused an extension of time in relation to the challenge to the 2008 appointments. He directed that the Court of Appeal should hear the judicial review application.
3. The relief that Mr Reckless seeks is:

i) A quashing order in respect of the appointment of Mr Thompson;

ii) A declaration that the existing members of a police authority should appoint new independent members and that there is consequently no further role for a selection panel, or for Home Office and Office for Commissioner of Public Appointments representatives, once the panel has fulfilled its statutory purpose by drawing up a shortlist.

The law

Background

4. Until the Police and Magistrates Court Act 1994 ('the 1994 Act"), police authorities were comprised of elected councillors and magistrates. Provision for independent members was made in the 1994 Act, which inserted a new Schedule 1B (headed 'Membership of Police Authorities') into the Police Act 1964. The Schedule provided for the preparation of a short-list by the Secretary of State, from which appointments were to be made by specified categories of members.
5. In July 2003 Kenneth Hamer was appointed by the Home Secretary to chair a review and report on the then current legislative provisions and non-statutory guidance for appointing independent members. His report, entitled "Review of the Selection and Appointment Process of Independent Members of Police Authorities", was presented to Parliament on 4 May 2004. He found that the appointment process for independent members of police authorities was cumbersome and needed to be streamlined. He commented on the range of practices adopted by different authorities:

"The APA said that 24 police authorities used a small, mixed panel of councillors and magistrates to interview short-listed candidates and make the final appointments. This panel then made recommendations to all councillor and magistrate members of the police authority. However, in 13 police areas, all councillor and magistrate members carried out the interviews. This meant that the interview committee comprised 12 councillor and magistrate members of the police authority. In the remaining 4 cases, the police authority chose to split the final appointments stage into two groups of 6 councillor and magistrate members. Each candidate was interviewed by both groups.

…

Even in those cases where all existing councillor and magistrate members took part in the interview it was a lottery who turned up on the day. Not all councillor and magistrate members attended although invited to do so…" (paras 7.7-9)

6. He proposed a streamlined system with independent scrutiny:

"The final appointments stage in the recent round was not handled satisfactorily. Firstly, it lacked any form of independent scrutiny as the panels were made up exclusively of existing councillor and magistrate members of the police authority. Secondly, in those cases where all councillor and magistrate members were invited to attend it must have been intimidating for candidates to be interviewed by a panel of up to 12 members of the police authority. It was also equally upsetting for many candidates to undergo two final interviews before separate panels.

58. It follows from the conclusions I have reached, and the recommendations I have made, that the selection and appointments process of independent members should be streamlined and carried out locally by a single appointments panel with independent scrutiny, but with the Secretary of State having a power of veto over the final appointment of independent members (paras 7.13-14)."

7. Following the report, the Government published a White Paper entitled "Building Communities, Beating Crime", presented to Parliament in November 2004. This included proposals for a five person selection panel to appoint independent members for each police force area, and adopted Hamer's recommendation that the Home Secretary should have a power of veto.
8. This led in due course to legislation in the form of the Police and Justice Act 2006. Mr Reckless has taken us through some of the Parliamentary debates. While these are not strictly relevant to the issue of construction, they show that the balance between local and central power in the appointment process was a matter of controversy. Power given to the Secretary of State by the Bill to determine the method of appointment did not survive into the Act, which, as appears below, gave the final decision to "the existing members".

The current law

9. The issue turns on the interpretation of regulation 9 of the Police Authority Regulations 2008 (the "2008 Regulations"), made under the Police Act 1996, as amended by the Police and Justice Act 2006.
10. Section 3 of the 1996 Act provides that there shall be police authorities for designated areas (including Kent) in England and Wales, which when established are to be bodies corporate. By section 4 every police authority is to consist of 17 members, unless the Secretary of State provides by order for a greater number. The KPA consists of 17 members. Under regulation 7 of the 2008 Regulations, the members of a police authority having 17 members are split as to (i) 9 members of relevant local councils and (ii) 8 independent members.
11. Schedule 2 of the Act requires the Secretary of State to make regulations relating to different categories of membership, as follows:

"Appointment of councillor members

2 Regulations under paragraph 1 shall provide that—

(a) in the case of a police authority in relation to which there is only one relevant council, the members falling within paragraph 1(2)(a) are to be appointed by that council;

(b) in any other case, those members are to be appointed by a joint committee consisting of persons appointed by the relevant councils from among their own members.

Appointment of other members

3(1) Regulations under paragraph 1 shall provide that the members falling within paragraph 1(2)(b) are to be appointed—

(a) by the existing members of the authority,

(b) from among persons on a short-list prepared by a selection panel.

(2) Those regulations may make provision as to qualification for membership of a selection panel, and may provide for a specified number of the members of a panel to be persons of a specified description…"

Chairman and vice chairmen

4(1) The Secretary of State shall by regulations provide that—

(a) a police authority is to appoint a chairman from among its members at each annual meeting; and

(b) at an annual meeting a police authority may appoint one or more vice-chairmen from among its members…."

12. We are concerned with "other members", that is the independent members. Regulation 9 of the 2008 Regulations provides:

"(1) The [independent members] shall be appointed--

(a) by the existing members of the police authority,

(b) from among persons on a short-list prepared by a selection panel in accordance with Part 3 of these Regulations

(2) Where an existing member of the police authority is on the short-list referred to in paragraph (1)(b) that person shall not be entitled to play any role in the appointment of persons from that short-list and shall not be considered to be an existing member of the police authority for the purposes of paragraph (1)(a)."

13. Regulation 32 (under Part 3) provides that the selection panel shall consist of five members, three of whom are to be appointed by "the members of the police authority", one of whom is to be appointed by the Secretary of State, with the fifth to be appointed by the other four members from a list of candidates prepared by the Secretary of State. Under regulation 38 the selection panel is to nominate persons willing to be candidates for appointment as independent members of the police authority. Unless there is a smaller number of non-disqualified persons wishing to be candidates, the number of persons to be nominated by the selection panel "shall be a number twice the number of appointments to be made under regulation 9". The persons so nominated "shall form the short-list of persons for the purposes of regulation 9".

The appointment of Mr Thompson

14. At a meeting of the full KPA on 11 February 2009, the KPA considered a report from its Chief Executive on the process to be adopted for the appointment of a Independent Member; they agreed to the appointment of a selection panel of three members, and resolved to:

"Delegate authority to the selection panel to undertake with the Chief Executive the selection process in accordance with the legislative requirements and report to the April meeting of the KPA with a recommendation for appointment."

15. At a meeting on 9^th March 2009 it was reported that one member (presumably, Mr Reckless) had raised concerns about the legality of the procedure, particularly on the question of delegation, and it was noted that candidates would be informed of the possibility of legal challenge.
16. The subsequent process is described in a witness statement of Mr Hill, a member of the authority, who chaired the selection panel. There were 34 applications for the position. In accordance with regulation 32, a five-member selection panel sat, consisting of three appointed by the members, a Home Office Representative, and an independent assessor. They considered the applications on paper and selected four candidates for the first round of interviews. The same panel conducted the first round of interviews on 31 March 2009. They selected a short-list of three candidates for the final interviews for the one vacancy arising. The final interviews took place on 9 April 2009. The interview panel consisted only of the three members. The Home Office representative and the independent assessor were present at the interviews, but as observers only. Following the interviews, the three person panel decided to recommend Mr Thompson for appointment.
17. At a meeting on 15 April 2009 the full KPA considered the Chief Executive's report, seeking "Members' approval for the recommendation made by the Authority's Independent Member Selection Panel". Having outlined the procedure, the report stated that "as a result of the process and the Panel's deliberations" Mr Thompson had been "nominated for appointment". By this time Mr Reckless had lodged an application for permission for judicial review of the procedure, and it was noted that the outcome was not yet known. In those circumstances, the Chief Executive's recommendation was –

"to consider, and if in support of the Panel's recommendation, agree the proposed appointment."

18. The minutes of the meeting record that for this item three members, in addition to Mr Thompson, declared an interest and withdrew from the discussion. The Vice-Chair provided "an overview" of the selection process and referred to the high quality of the applications received, and the preparation of the short-list for interview. Members were asked "to endorse the nomination of Mr Tim Thompson for reappointment…" The names of the other short-listed candidates were not mentioned in the report or the minutes, and there is no indication that any other information was given, or asked for, about the reasons for the panel's choice. The minutes then record:

""Members endorsed the Selection Panel's nomination and formally agreed the re-appointment of Mr Thompson, as outlined above"

19. Mr Reckless himself was unable for personal reasons to be at that meeting, and accordingly took no part in the decision. He had already, in March 2009, begun the present judicial review proceedings in respect of the decision the previous year, and the decision in February to adopt the same procedure in 2009. As I understand it, he has not taken any steps in these proceedings to find out the identities of the other 2009 short-listed candidates. According to Mr Hill's statement, Mr Thompson was regarded as "by some margin the strongest candidate" of those seen. Mr Reckless is not in a position to question that assessment, and has adduced no evidence on which we could do so. Accordingly, it is not part of his case that there was a better candidate. He is properly concerned, however, that the process should have been legally correct.

Power to delegate

20. Much of the debate before us was directed to the question whether there was power to "delegate" the appointment function to a panel. Mr Maclean, for the KPA, relied on the Local Government Act 1972 sections 101(1) and 107(1), which provide as follows:

"101(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions--

(a) by a committee, a sub-committee or an officer of the authority…

107(1) Subject to the following provisions of this section--

(a) sections 101 to 103 and 106 above shall apply to a police authority . . as they apply to a local authority."

21. Mr Reckless submits that those provisions have no application in this context, because the power is given to "the existing members", not to the police authority as such (in contrast, for example, to paragraph 4, which provides for the appointment of the chairman by the "police authority"). Mr Maclean responds that this is a distinction without a difference. The authority is for practical purposes made up of its existing members, and there is no sensible reason why Parliament should have intended to exclude the ordinary power of delegation. The reference to the "existing members" is, he says, "a convenient drafting device" to enable provision to be made for the exclusion of members who are themselves shortlisted (as is done by regulation 9(2)). He points to other parts of the regulations where the phrases "existing members" and "police authority" appear to be used interchangeably (for example, regulations 24 and 34). He also relied on the lack of any specific provision in the standing orders for procedural matters (e.g. quorum, voting) for a decision to be taken by the existing members, as contrasted with the authority.
22. On this part of the case, I agree with Mr Reckless. The power of delegation under section 101 is conferred on "the police authority", which I take as a reference to the body corporate. There is a clear distinction in law between a body corporate and its constituent members. The ordinary meaning of the phrase "the existing members" is a reference to the members as a group of individuals, not to the body corporate. I see no reason to read these statutory words in other than their ordinary meaning.
23. I do not, with respect, understand the argument that this is a "convenient drafting device", to enable specific provision to be made for excluding particularly categories of member from voting. That could have been done whatever expression were to be used for the substantive power. If the draftsman had wished to refer to the authority as such, he could easily have done so. Whether or not there are anomalies in other parts of the regulations, this is no reason in my view for rewriting a clear provision in the primary legislation. Finally, if the standing orders fail to make provision for such decisions, that may be a gap to be filled, but again it is not a reason for recasting the primary legislation.
24. It is, however, at the next stage of the argument, that I part company with Mr Reckless. In fairness to Mr Reckless the authority has contributed to potential confusion by the ambivalence of some of its language. For example, papers prepared for the 2008 appointments stated that the panel would "select the final appointees", and that "delegated authority" would be given to the selection panel to "make the appointment" subject only to "formal endorsement and approval" by the full authority. Similarly, their grounds of resistance prepared in May 2010 (presumably on legal advice) stated in terms that the function of selecting from a short-list was "validly delegated to and exercised by a committee of the KPA…" By contrast, as has been seen, the 2009 resolution was less clearcut. It did not purport to delegate the decision itself, but rather "the selection process", leading to a report "with a recommendation" which members were asked to agree "if in support".
25. In my view, the arguments about statutory "delegation" as a formal concept have diverted attention from the real point. The fact that the decision has to be made by "the existing members", and cannot be delegated, tells one nothing about the process which they are to adopt.
26. Mr Reckless argued that the use of the definite article in respect of the members "implies all of them, and not some of them". It followed, as I understood him, that nothing short of a full interview process of the short-listed candidates, carried out by all the "existing members" sitting together, would be sufficient, followed by a collective decision made by them all. Taken to extremes, the submission would require a unanimous decision of all the members, but I do not understand Mr Reckless to go that far. Presumably he would accept a majority decision as sufficient.
27. However, there are other practical issues, for example the necessary quorum. It is perhaps ironic that Mr Reckless himself was unable to be present on the day of the April decision which he seeks to quash. But, he does not, I think, argue that his own absence (or that of other members who were absent or withdrew) in itself invalidated the decision. Mr Maclean told us that the quorum provisions of the authority's standing orders have been applied to such meetings. Whether or not they are strictly applicable to a decision made by the members rather than the authority, I did not understand Mr Reckless to take issue with that approach.
28. Again, as has been seen, there is provision in the regulations to exclude those members who are on the shortlist from taking part in the final decision. That also makes good sense, but it does not appear to reflect any provision in the primary legislation. If the expression "the existing members" meant that all the members without exception had to be party to the decision, that regulation might arguably be ultra vires, but no-one has so suggested.
29. In my view, such points are illustrations of a fallacy underlying Mr Reckless' position. Apart from the specific provisions referred to above, the regulations do not purport to prescribe the means by which the members are to investigate the matter, or to reach their decision. For example, there is no specific requirement for all or any of them to interview any of the candidates, nor as to the manner of voting. In the absence of any prescribed rules, the procedure is a matter for them. All that is necessary in law is that it should be fair, and reasonably adapted for the purpose of providing the members with the material necessary to make an informed decision as between the candidates on the statutory short-list, and enabling them to reach what can properly be termed a collective decision. There is no reason why, as part of that process, they should not ask a smaller group of members to assemble information, to conduct interviews for the purpose, and to make recommendations. That is not a delegation of their statutory function. It is simply an exercise of their implied power to take steps to obtain the information necessary to perform it.

The decision in this case

30. In summary, what the statute requires is the preparation by the statutory selection panel of a short-list, followed by a collective decision by the members "from among" the persons on the shortlist. Was that requirement satisfied by the procedure adopted in 2009?
31. There are some apparent oddities in the procedure. It is not clear to me why it was necessary to have a two-stage process, leading first to a reduction from 34 candidates to four, and then from four to three; nor why the final short-list included three names, rather than the two required by the regulations in respect of the single vacancy (reg 38). However, these points are not directly relevant to Mr Reckless' case, and understandably are not covered in detail in the evidence.
32. Of more concern is the fact that the names on the final shortlist were not as such presented to the meeting of the members who made the final decision. It is this, no doubt, that gave rise to Laws LJ's concern as to "rubber-stamping". I confess that my own initial reaction was similar. It seemed to me at least arguable that, if the members as a group were to make a decision "from among" the persons on the shortlist, then at the very least they must be informed of the names in question, and have sufficient information to understand the reasons for the recommendations between them. I remain of the view that this would be desirable, both in the interests of transparency, and also to ensure that the members are left in no doubt that the decision is for them, not the panel. However, I have concluded that it would be wrong to treat this as though it were a mandatory requirement, at least as applied to the facts of this case.
33. Mr Thompson's name was presented to the April meeting, not simply as a decision for recording or ratification, but as a recommendation. This should have been sufficient to make clear to members that it was for them to make the decision. As Mr Maclean says, there was nothing to require them to make a final decision that day. Although there is no evidence of exchanges between the panel members and other members before that meeting, it is difficult to believe that there had not been some informal discussion of what was going on. In any event, if by the time of the final meeting any of the members had remaining doubts about the recommendation, or wished to obtain more information about the other names on the short-list, there is no reason to think that they could not have done so, and if necessary asked for the decision to be deferred. In the event no-one did so. We`must assume they were satisfied that they could properly accept the recommendation on the basis of the information they had. As I have said, Mr Reckless himself does not adduce evidence to question their choice. In these circumstances, where all present had the opportunity to inform themselves, where there is no reason to think that anyone was disadvantaged by not doing so, and where there is nothing to counter the evidence that they chose the best candidate, it would be unduly formalistic to treat the decision as invalidated merely because all the shortlisted candidates were not in terms presented to the meeting.

Conclusion

34. Mr Reckless has performed a useful service by highlighting the confusion which appears to exist over the relevance of "delegation" in this context. I acknowledge also the skill and moderation with which he has advanced his arguments. However, in the end I am satisfied that the appointment of Mr Thompson in 2009 was validly made. Although in some respects I have parted from the authority's legal arguments, I do not think it necessary to make any form of declaration. This judgment (if agreed by my colleagues) will speak for itself.
35. Accordingly, I would dismiss the appeal.

LORD JUSTICE RIMER :

36. I have had the advantage of reading in draft the judgments of Carnwath LJ and Pill LJ. The appeal turns on a short issue. With hesitation, I have come to a conclusion differing from that favoured by my Lords. I would allow the application and quash Mr Thompson's appointment.
37. The argument included discussion about whether 'the existing members' of the KPA could lawfully delegate, or had purported to delegate, their power and duty under regulation 9 of the 2008 Regulations to appoint a new independent member to the KPA. In my view they could not delegate it, nor did they purport to do so. What happened was that a list of possible appointees was lawfully drawn up by a selection panel established in accordance with Part 3 of the Regulations (see regulations 9(1)(b), 32 and 38). The panel reduced that list to a short-list of three candidates, interviewed them and recommended Mr Thompson to the members of the KPA for appointment. A meeting of the members convened in accordance with the KPA's standing orders then made the decision to appoint Mr Thompson. His appointment was therefore made by 'the existing members', and not by anyone else.
38. The critical question is, however, whether, as required by regulation 9(1)(b), he was appointed 'from among persons on a short-list prepared by [the] selection panel ….' On one view he was. As there was only one appointment to be made, regulation 38(2) required a short-list of no more than two. In fact, the selection panel produced a short-list of three, but no-one has suggested that that factor vitiated the process. Mr Thompson was one of the three names on the short-list. It can therefore be said that 'the existing members' appointed him 'from among' those three names and that he was therefore validly appointed.
39. Whilst that is a possible interpretation of the requirements of the Regulations, it appears to me to be an improbably narrow one. The appointing body is 'the existing members'. The selection panel has a statutorily vital role to play in identifying the possible appointees and reducing them to a short-list. But when it is has done so, the sense of the Regulations that I would favour is that all the names on the short-list should then be put before 'the existing members' so that they can then make their decision as to whom from among them they wish to appoint. That process will, furthermore, not be satisfied if the selection panel does no more than provide the members with a list of names. It must also provide them with information about the short-listed candidates that is perceived to be sufficient to enable the members to make a considered appointment (and I can see no reason why it should not include a recommendation in favour of a particular candidate or candidates). It will, however, be exclusively for the members to decide whether to appoint any of the short-listed candidates. They may perhaps consider that they will need yet further information about them before doing so. Only, however, if a procedure of this nature is followed will 'the existing members' be making any appointment 'from among persons on [the] short-list' …' in compliance with regulation 9(2).
40. In the present case, this procedure was not followed. The members were given just one name and a recommendation. They did not choose Mr Thompson 'from among [the] short-list …'. The rejection of the others on that list was, in practice, made by the selection panel, which the Regulations did not empower it to do. I consider it follows that the procedure adopted for the appointment of the new independent member was materially flawed and that Mr Thompson's purported appointment was invalid.

LORD JUSTICE PILL :

41. I agree that the application should be dismissed.
42. Schedule 2 to the Police Act 1996, substituted by the Police and Justice Act 2006, empowers the Secretary of State to make regulations in relation to the membership of police authorities. Paragraph 3(1) of the Schedule provides:

"Regulations under paragraph 1 shall provide that the members falling within paragraph 1(2)(b) [independent members] are to be appointed—

(a) by the existing members of the authority,

(b) from among persons on a short-list prepared by a selection panel."

43. In exercise of powers under the 1996 Act, the Secretary of State made the Police Authority Regulations 2008 (2008/630). The Regulations make detailed provision for the membership of police authorities. Paragraph 9(1) of the Police Authority Regulations 2008 provides:

"The members referred to in regulation 6(1)(b) or 6(2)(b) [independent members] shall be appointed—

(a) by the existing members of the police authority,

(b) from among persons on a short-list prepared by a selection panel in accordance with Part 3 of these Regulations."

44. Part 3 of the Regulations provides for the establishment of selection panels to nominate persons for appointment as independent members of police authorities and for provisions governing the procedure of such panels. Part 3 specifies, in considerable detail, how selection panels are to be constituted and their functions. It imposes a requirement to advertise vacancies (regulation 41) and a duty to maintain a record of persons who have applied to be considered for appointment (regulation 44).
45. The functions of a selection panel as to short-listing are set out at Regulation 38:

"(1) Where appointments to a police authority are to be made under regulation 9 the selection panel for the authority's area shall nominate persons willing to be candidates for appointment.

(2) Unless there are only a smaller number of persons willing to be candidates who are not disqualified from being members, the number of persons to be nominated by a selection panel under this regulation on any occasion shall be a number twice the number of appointments to be made under regulation 9.

(3) . . .

(4) . . .

(5) The persons nominated under this regulation shall form the short-list of persons for the purposes of regulation 9."

46. Regulations 41 and 45 impose duties to be discharged "where a selection board are required to nominate persons willing to be candidates to be appointed as public authority members".
47. The clear intention of the Regulations appears to me to be that it is the selection panel which assesses the quality and suitability of candidates and is then expected to make a nomination or nominations to the existing members of the authority though it is they who, under regulation 9, formally appoint.
48. I gratefully adopt Carnwath LJ's summary of the facts and of the appellant's submissions. A selection panel was properly constituted by the respondents under Part 3 of the Regulations. Its deliberations are summarised at paragraph 4 of the report of the Chief Executive to the respondents for their meeting of 15 April 2009:

"Overall the process consisted of an initial application form and paper sift. Interview 1 (which included an exercise on a major NHS reorganisation) and interview 2 (where candidates were required to present an assessment of a Home Affairs Select Committee report on shared services). As a result of the process and the Panel's deliberations the following individual have [sic] been nominated for appointment as Independent Member of the KPA effective from 15 April 2009:

Mr Tim Thompson"

49. Under the heading "Decision required", the Chief Executive stated:

"Members are asked to formally agree and endorse the selection panel's nomination as outlined above."

At the meeting, a decision was taken:

"Members endorsed the selection panel's nomination and formally agreed the re-appointment of Mr Thompson, as outlined above."

50. The evidence before the court from Mr P.M. Hill, who chaired the selection panel, is that 34 applications for the post were received. Four candidates were interviewed at first stage, on 31 March 2009, and the long list of four candidates was then reduced to three. That is more than the number required by regulations 38(2). Mr Hill refers to them as the "short-listed candidates". They included Mr Thompson. Thus a short-list was prepared by the selection panel under regulation 9(1)(b).
51. The second interviews were conducted on 9 April 2009 and Mr Thompson was recommended for appointment. I do not consider that a firm recommendation of one candidate was contrary to the Regulations. As Carnwath LJ states at paragraph 33, the appointing members could have rejected the person proposed.
52. The appointment appears to me to have been made in accordance with the Regulations. The scheme contemplates a major role for the selection panel in the appointment process. The appointment was made by a quorum of the "existing members of the Authority", as required by regulation 9(1)(a), and I agree with Carnwath LJ that not all members needed to be present. The short-list required by regulation 9 was prepared by the selection panel and they nominated a person on it. Mr Thompson was appointed "from among persons on a short-list prepared by a selection panel", as required by regulation 9(1)(b). There was literal compliance with regulation 9 and what is more, in my view, the procedure followed complied with the general intention of the Regulations.
53. Where a different view could be taken is that, read alone, regulation 9(1)(b) might appear to contemplate the entire short-list going before the existing members for consideration. That could lawfully be done and the existing members required to make their own assessment of candidates. Submission of only one name to the existing members did not, however, in my judgment, involve a breach of the Regulations. I bear in mind the tasks of the selection panel, as specified in the Regulations, and the language used, including the requirement to "nominate" persons for appointment. Moreover, it would be open to the existing members to reject a nominated person or to ask for particulars of others on the short-list. The scheme does not appear to me to contemplate a reassessment of those on the short-list by existing members and I would not read into the Regulations a requirement to do so.
54. Even if I am wrong about that, I would not quash the decision for a failure to name the other persons on the short-list in the report to existing members. If there was a defect, it went to form rather than substance. The Regulations contemplate a detailed procedure by the selection panel and there was, in my judgment, compliance with Regulation 9. Mr Thompson was among the persons on the short-list. Appointment by the existing members could take the form it did at the meeting on 15 April 2009. It was open to members to reject the proposal or to seek further information from the selection panel.
55. For those reasons, and notwithstanding the submissions forcefully made by Mr Reckless, I would dismiss this application.