Background
Niazi and others (the applicants) were persons who claimed to have suffered miscarriages of justice. Bhatt Murphy and others (the lawyers) were solicitors who specialised in advising such persons on making applications for compensation in such circumstances. These cases arose from separate decisions, first, to withdraw a discretionary scheme under which such compensation was payable and, second, to reduce the level of costs payable to solicitors acting in such cases.
The applicants had instructed solicitors but had not submitted applications for compensation to the Secretary of State under the discretionary scheme before it was withdrawn. They unsuccessfully sought judicial review of the Secretary of State's decision to withdraw the discretionary scheme with immediate effect save as regards applications already received. The applicants had argued that (a) there should have been consultation before withdrawal of the discretionary scheme, (b) that that was required by the Cabinet Office Code of Practice on Consultation, and (c) the Secretary of State should have given advance notice of the proposed change so that the applicants would have been on notice that their claims for compensation under the discretionary scheme would have to be submitted before a certain date.
The lawyers unsuccessfully sought judicial review of the decision of an independent assessor, taken at the same time, that from that date legal costs incurred in respect of compensation applications would be assessed by reference to 'legal help' rates rather than on the more generous 'private client' basis which had previously applied. They had submitted that the assessor should have (a) consulted them before changing the policy relating to recoverable costs, and (b) should have made transitional arrangements under which private client rates would continue to apply to cases where the solicitor had been retained but no application for compensation had been submitted.
Both groups of claimants appealed to the Court of Appeal against the rejection of their judicial review applications.
The decision
The Court of Appeal ruled that both appeals should be dismissed, on the following key grounds:
- The Cabinet Office Code of Practice applied to all public consultations by government departments and agencies, but that did not mean that public consultation was a required prelude to every policy change. In the present cases, there had been no promise that there would be consultation before the existing arrangements were changed.
- In such circumstances, there could be no objection to the authority in question deciding to effect a change in its approach, since that involved no abuse of power.
- The position might have been different as regards the change in the legal costs rules had the effect of this change been that the lawyers were trapped into having to continue representing clients whose cases they had undertaken on a 'private client' cost basis. But the change had been introduced with transitional provisions (albeit not in the terms sought) and the lawyers would have been entitled to terminate their retainers, had they chosen that course, in light of the change.
In effect, according to the Court, both sets of appellants were in effect arguing for a more generous scheme. But the reach of the relevant policy changes were wholly in the hands of the decision-maker and none of the special features of the law of legitimate expectation which might justify their being constrained was present. In particular there was no evidence of any assurance, promise or practice that the policy would be set differently in any respect. In such circumstances, there could be no legitimate expectation which the courts would enforce.
The views of Laws LJ and Sedley LJ
Laws LJ delivered the leading opinion in the Court's judgment and took the time to set out his understanding of the doctrine of legitimate expectation and to discuss the scope of the doctrine as he saw it.
- Legitimate expectation (either procedural or substantive) may arise in circumstances where a public decision-maker changes, or proposes to change, an existing policy or practice in circumstances where the change or proposed change of policy or practice is so unfair as to amount to an abuse of power.
- The 'paradigm case' in which this may occur is in the context of procedural legitimate expectation where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy.
- Such a procedural expectation may also arise in a 'secondary case', i.e., in the absence of any assurance, but only where the impact of the authority’s past conduct on potentially affected persons must, again, be "pressing and focussed" in the sense of there being an individual or (small) group who in reason, "have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change".
- In such cases the court will not allow the decision-maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by the force of an overriding legal duty owed by the decision-maker, or other countervailing public interest such as the imperative of national security.
- By contrast to procedural legitimate expectation, a substantive legitimate expectation arises where the court allows a claim to enforce, "the continued enjoyment of the content – the substance – of an existing practice or policy, in the face of the decision-maker’s ambition to change or abolish it", in circumstances where a specific undertaking, directed at a particular individual or (small) group, has been given in terms of which the relevant policy’s continuance is assured.
- The court will recognise and respect the right of the public authority to override whichever type of legitimate expectation may exist in the public interest, but in exercising that prerogative the authority must itself respect the requirement of proportionality.
Whilst concurring in the result, Sedley LJ offered a somewhat contrasting view of the scope of the legitimate expectation doctrine as follows:
- A duty to consult before modifying policy may arise from an explicit promise to do so. It may also arise from practice which generates a similarly legitimate expectation that, other things being equal, there will continue to be no change without prior consultation.
- But there is no equivalent expectation that policy itself, and with it any substantive benefits it confers, will not change.
- The most that the beneficiary of a current policy can legitimately expect in substantive terms is, first, that the policy will be fairly applied or disapplied in his particular case, and second, that if the policy is altered to his disadvantage, the alteration must not be effected in a way which unfairly frustrates any reliance he has legitimately placed on it.
Comment
It is interesting to consider whether, and to what extent, the two opinions in this case (the Master of the Rolls expressed no opinion of his own or preference for either of those offered by Laws or Sedley LJJ) create real tension in the development of the notion of substantive legitimate expectation.
On the one hand, Laws LJ appears to be clearly of the view that the courts will enforce a substantive legitimate expectation to the extent of preventing a change in policy content. On the other, Sedley LJ appears to be saying that the courts would shrink from that challenge and only ever seek to ensure that the manner of the policy change was such as to be fair. However, in acknowledging the ability of the public authority to override a substantive expectation, whilst always satisfying the requirement of proportionality, Laws LJ may in fact be somewhat closer to Sedley LJ than might otherwise appear.