This is the first of two posts on the Supreme Court’s recent judgment in In the matter of an application by Geraldine Finucane for Judicial Review [2019] UKSC 7. The second post can be found here.
Legitimate expectation has long occupied an uncertain place within the broader doctrinal landscape of English administrative law. It sits, uncomfortably, at a number of junction points within the field. Most obviously, it straddles the distinction, such as it is, between procedural and substantive grounds of judicial review, while also enjoying an ambiguous relationship with facets of administrative law such as the relevancy doctrine (see, e.g., R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607) and a nascent principle of consistency or equal treatment (see, e.g., R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25, and this post). The Supreme Court’s latest foray into this area, in In the matter of an application by Geraldine Finucane for Judicial Review [2019] UKSC 7, does little to clarify things.
The facts are helpfully set out in the Supreme Court’s press summary, and for present purposes can be stated briefly. The key issue concerned the existence and discharge of any legal obligations to inquire into the death of the applicant’s husband, a Belfast solicitor who had been murdered in 1989 by three ‘loyalist’ gunmen. The Supreme Court concluded that in the circumstances, such an obligation arose under Article 2 of the European Convention on Human Rights and had not been discharged. The focus of this post, however, is on a second, and unsuccessful, ground of challenge — legitimate expectation. The argument here was founded upon assurances given to the applicant by the UK Government between 2004 and 2008. Giving the leading judgment, Lord Kerr concluded that it was ‘quite clear’ that those assurances, ‘individually and cumulatively, … amount[ed] to an unequivocal undertaking to hold a public inquiry into Mr Finucane’s death … That there was a plain and explicit undertaking that a public inquiry would take place cannot be doubted…’
Against this background, two questions — common to any case in which legitimate expectation is in issue — arose. Did the assurances that had been made, along with any other relevant features of the context, give rise to a legitimate expectation? If so, what were the legal consequences of such an expectation’s having arisen? In addressing these points, the Supreme Court did take the opportunity to clarify one aspect of legitimate expectation doctrine, but, as we will see, the regrettable net result of Finucane is the thickening, rather than the dispersal, of the fog that surrounds this area of administrative law.
Reliance
Judicial suggestions that a legitimate expectation can only arise if there has been detrimental reliance upon the relevant undertaking are not unheard of. For some time, however, the orthodox — and better — view has been that detrimental reliance is not a prerequisite. Lord Carnwath’s judgment in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 therefore came as something as a surprise. He said that
the trend of modern authority, judicial and academic, favours a narrow interpretation of the Coughlan principle, which can be simply stated. Where a promise or representation, which is ‘clear, unambiguous and devoid of relevant qualification’, has been given to an identifiable defined person or group by a public authority for its own purposes, either in return for action by the person or group, or on the basis of which the person or group has acted to its detriment, the court will require it to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. [Emphasis added]
This dictum attracted considerable criticism, and rightly so. As Joanna Bell, ‘The Privy Council and the doctrine of legitimate expectation meet again’ (2016) 75 CLJ 449 puts it, ‘not every recipient of a public authority promise can commit the resources to rely to their detriment’; however, as she goes on to point out, it may nevertheless be ‘important to protect such individuals from the moral detriment which results when a public authority resiles without adequate justification’.
In a concurring judgment in Finucane, Lord Carnwath acknowledges such criticism and reconsiders his position. He notes the ‘alternative approach’ adopted by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, according to which ‘[i]t is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power’. In Finucane, Lord Carnwath declares himself now ‘inclined to prefer’ Lord Hoffmann’s view.
This is in line with Lord Kerr’s leading judgment in Finucane, in which he unequivocally dismisses ‘any suggestion that it must be shown that the applicant suffered a detriment before maintaining a claim for frustration of legitimate expectation for a fundamental reason’. In adopting this position, Lord Kerr notes that ‘[a] recurring theme of many of the judgments in this field is that the substantive legitimate expectation principle is underpinned by the requirements of good administration’, and that it would be incompatible with this view ‘to permit public authorities to resile at whim from undertakings which they give simply because the person or group to whom such promises were made are unable to demonstrate a tangible disadvantage’.
This is surely the better view. Indeed, it is odd, to say the least, that Lord Carnwath appeared to lend credence to the opposing view as recently as 2016 in his United Policyholders judgment. Lord Carnwath’s explanation for this in Finucane is also troubling. He indicates that the position he staked out in United Policyholders was based on an ‘analogy with breach of contract or estoppel in private law’. That Lord Carnwath should have drawn upon such an analogy is puzzling, given that it is now some years since the House of Lords made it clear in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348 that (as Lord Hoffmann put it in that case) that in relation to legitimate expectation ‘public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet’. Quite so. It is worth adding that, as intimated at the beginning of this post, legitimate expectation doctrine’s coherence is compromised by its uncertain relationship with other aspects of administrative law doctrine. Yet even more profound difficulties are made likely by the sort of misplaced ambivalence exhibited by Lord Carnwath in United Policyholders as to whether legitimate expectation is, in the first place, fully a public law doctrine. It is to be hoped that Lord Carnwath’s recantation in Finucane draws a line under such basic judicial missteps in this area.
Procedure and substance
The clarification supplied by Finucane concerning the relevance (or otherwise) of detrimental is thus to be welcomed, not least because, as Lord Kerr recognises, a requirement of detrimental reliance would sit uncomfortably with the courts’ understanding (such as it is) of the normative foundations of the substantive legitimate expectation doctrine. However, while this development is positive, the champagne must, for two reasons, remain on ice. First, that clarification of this point was required, so long after the emergence of the doctrine of substantive legitimate expectation, is itself troubling. It signifies the ambivalence that has existed — and which continues to exist — at Supreme Court and Privy Council level as to the normative underpinnings of the law in this area, such ambivalence having also been on display in the Supreme Court’s highly problematic judgment in Gallaher of last year.
Second, the way in which the Court addresses the question of the relevance (or otherwise) of detrimental reliance itself introduces a degree of uncertainty. That is so because in concluding that it is not a prerequisite to the accrual of a legitimate expectation, Lord Kerr (rightly) says that reliance can be relevant at a different stage of the analysis: ‘a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it’. However, such analysis of ‘the question of fairness’ (quite what this means we will consider below) is normally only in issue when the expectation in play is substantive in nature. It is in that context that the court — as established in R v North and East Devon Health Authority, ex parte Coughlan[2001] QB 213 — most familiarly balances the interests in upholding the expectation against the public policy interest in frustrating it, so as to determine the lawfulness of a decision to frustrate.
Indeed, it is not always clear whether the Supreme Court in Finucane considers itself to be dealing with a procedural or substantive legitimate expectation. Lord Kerr says that in this case, ‘the promise made did not partake of a substantive benefit to a limited class of individuals (as, for instance, in Ex p Coughlan); it was a policy statement about procedure, made not just to Mrs Finucane but to the world at large’. This suggests that Lord Kerr considers himself to be dealing with a procedural legitimate expectation, because the promise did not ‘partake of’ — by which he presumably means that the promise did not relate to — a ‘substantive benefit’. He also says that the undertaking in question was ‘to hold a public inquiry’, which can be regarded as a form of procedure, as distinct from a substantive benefit.
However, what is somewhat disorientating is the way in which Lord Kerr imports into the discussion — without clearly acknowledging that he is doing so — considerations that are normally confined to substantive legitimate expectation cases. Thus, having concluded that a legitimate expectation had arisen, Lord Kerr goes on to consider whether the Government had acted lawfully by frustrating it. In deciding that it had, Lord Kerr relies upon the sort of rationale that would normally be understood to justify judicial deference to an administrative judgment upon a matter of substance or policy — precisely the sort of matters that may inform the approach to judicial review of a decision to frustrate a substantive expectation. Thus, for instance, Lord Kerr cites a number of dicta from other cases concerning judicial deference in the face of ‘macro-political’ considerations, and goes on to say that:
Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it.
And, in his conclusion on this point, Lord Kerr says that ‘[t]he decision as to whether a public inquiry into Mr Finucane’s death should take place was a matter of considerable political importance’ and that the matter was one for ‘political judgment’. Although it may seem surprising for such considerations to rear their head in a ‘procedural’ case, Lord Kerr was right to acknowledge them. For while (as the Court acknowledged) the undertakings that gave rise to the legitimate expectation can be characterised as relating to matters of procedure rather than substance, this was no ordinary procedural legitimate expectation. Rather, it was an undertaking to supply a form of process — a public inquiry — that is potentially involved, costly and lengthy, and in a context that raised considerable political and other sensitivities. In this sense, any characterisation of the expectation as (merely) procedural would be myopic, given that any judicial insistence upon its fulfilment would have engaged institutional competence and democratic legitimacy considerations that are normally the preserve of cases entailing challenges to the substance of administrative decisions and policies. As such, it would have been mistaken for the Court to approach the question of the enforcement of the expectation mechanically, by insisting that whatever procedure had been promised had to be delivered. To have done so would have been to overlook the policy and resource implications of enforcing the expectation in this case, and any attempt to shelter behind the ‘procedural’ nature of the undertaking would have been wholly unconvincing.
The outcome in Finucane is thus defensible, as is the account that Lord Kerr took, en route to that outcome, of the competence and legitimacy-related considerations that were relevant to determining the scope of the Court’s role on review. In this way, Finucane serves as an important reminder that cases that concern the provision of procedural safeguards or benefits may nevertheless raise the sort of concerns that are more commonly associated with directly ‘substantive’ challenges to administrative decisions. This, in turn, underlines the fact that while the distinction between procedural and substantive matters is (and ought to be) an important architectural feature of administrative law doctrine, circumstances can and do arise in which it may serve to obscure more than it illuminates. Recognition of this in Finucane is thus to be welcomed. At the same time, however, such recognition was supplied in a manner that was highly implicit and regrettably opaque. The upshot is that while Finucane may have arrived at a sensible outcome, it also flags up a series of questions that the Court failed to grapple with, but which must be considered if the law in this area is to be placed upon a more stable foundation. Those questions will be considered in a second post on Finucane.
I am grateful to Alison Young for her comments on an earlier draft of this blogpost.
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