Developments in Legitimate Expectation – Secrets, Politics and Inquiries

In two recent cases, Jefferies and Finucane, the courts have considered key themes in the modern doctrine of legitimate expectation, including whether an expectation can be created in conditions of strict confidence, and the circumstances in which the government can resile from expectations created in a macro-political context. 

The Leveson Inquiry into the behaviour of the British press was originally intended to take place in two parts. The first would inquire into the culture, practice and ethics of the press, and make recommendations for more effective regulation (Leveson 1). This occurred during 2011 and 2012. It generated a 2000 page Final Report, which in turn spawned a new regulator, IPSO.

Following this there was to be a hiatus, during which criminal prosecutions arising from the conduct of the News of the World could take place. Once these were completed, it was proposed that Leveson would reconvene to inquire into the corporate governance of the press, and the conduct of the police, politicians and other public servants in relation to it (Leveson 2).

On 1 March 2018, the current government announced that Leveson 2 would not proceed.

R (Jefferies) v Secretary of State for the Home Department was a judicial review of this decision brought by four people whom Leveson 1 found to have been treated badly by sections of the newspaper industry – a group which included Gerry and Kate McCann, parents of the missing Madeleine. They challenged the decision not to hold Leveson 2 on the ground that they had a legitimate expectation that the second stage of the inquiry would go ahead.

Shortly after Jefferies, the Supreme Court reached a decision in the long-running case of Geraldine Finucane, which also turned on the question of whether the claimant had a legitimate expectation of a public inquiry, in this case into the murder of her husband in one of the most infamous episodes of the Northern Ireland Troubles.

Both cases deal with important themes in the law on when legitimate expectations arise, and when (having arisen) they can lawfully be frustrated.

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A Very British Coup – The Speaker of the House of Commons and the Brexit Crisis

The Speaker of the House of Commons, John Bercow, has indicated that, in accordance with a longstanding rule of Parliamentary procedure, the government is unable to bring the EU Withdrawal Agreement back to the House for a third vote. In doing so, he has strayed beyond the limits of precedent, and therefore of his authority, and has provoked a minor constitutional crisis.  

The Brexit policy of the UK government can be stated simply: to keep bringing back to Parliament the Withdrawal Agreement it negotiated with the EU until the House of Commons eventually decides to accept it. So far, the Agreement has been voted on and rejected twice. The government wants there to be a third vote. And, if it loses that, there will certainly be a fourth, and even a fifth.

The announcement by the Speaker of the House of Commons on 18 March 2019 that no further vote can take place in this session of Parliament is of constitutional significance because – while superficially a decision on an arcane point of Parliamentary procedure – it amounts in substance to a veto by him of the main policy of the elected government, with which he has now placed himself in direct opposition.

To justify his approach, the Speaker appealed to historical precedent and Parliamentary convention. But he has strayed far beyond the limits of any legal or constitutional map. Whatever his motives, he is now engaging in procedural innovation for which there is no basis in law or past practice. In doing so, he runs the risk of turning the current political sclerosis over Brexit into a genuine constitutional crisis.

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Dial B for Brexit – The Government’s Conference Call with Big Business, and the Brexit Endgame

Shortly after Parliament voted down Theresa May’s Brexit deal by a record margin, three Cabinet ministers spent about an hour on a conference call with executives from major UK businesses. The call was transcribed, and it offers a good insight into the relationship between business and government, and what this means for the Brexit endgame.

The House of Commons voted on the EU Withdrawal Agreement shortly after 7.30pm on the evening of 15 January. The government motion to approve the Agreement was defeated, as everyone knows, by the historically unprecedented margin of 230 votes.

After the vote, three senior Cabinet ministers went straight back to Whitehall where, at 9.30pm, they held a conference call with around 330 executives representing businesses with major operations in the UK.

Inevitably, given the number of people involved, someone recorded the call and leaked a transcript to the press – in this case to the Daily Telegraph, which promptly published the text on its website (here, sheltering behind its paywall).

Aside from the pleasure of feeling like an eavesdropper at the Davos conference, reading the transcript offers a genuine insight into the relationship between government and big business, and the likely next steps in the ongoing Brexit saga.

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The EU Withdrawal Agreement – how and why the UK government agreed the worst of all possible deals

The Withdrawal Agreement in which the UK has negotiated the terms of its exit from the EU is, according to Angela Merkel, a ‘diplomatic piece of art’. And so it looks from the perspective of most European capitals, given how favourable it is to the long-term interests of the EU. Viewed from the UK, however, it represents one of the most abject failures of statecraft in modern British history. This is the story of how and why it got to be so bad that it has achieved the remarkable feat of uniting both ends of the political spectrum against it.

As is now widely acknowledged across political party lines at Westminster, the EU Withdrawal Agreement, in the form that was endorsed by the Council of Ministers on 25 November 2018, amounts to a strikingly bad deal for the UK.

Less coherent than any other available option, it leaves all of the fundamental issues as to the future unresolved, while committing the UK in international law to processes and outcomes that ought to be unacceptable to any democratic nation state. It concedes most of the UK’s original bargaining positions in return for no permanent benefit, and creates a fatally weak basis for negotiations on a future trade deal. In consequence, its adverse political and economic effects are likely to be worse in the long term than the disruption of a ‘no deal’ Brexit would be in the short term.

Moreover, these defects are not the product of the usual give-and-take of negotiation – a tolerable compromise, acceptable to everyone because it fully satisfies no-one. Instead they are the outcome of a series of avoidable decisions, the most important of them made in No. 10 Downing Street by the Prime Minister personally. As a result, the Agreement represents one of the most abject failures of statecraft in modern British history.

The things that are wrong with this deal can be summarised in four main points. But to understand them, and the Agreement itself, it is important to describe briefly how the UK got itself into this mess.

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Evaluating Regulation in the Brexit Debate

Placing a value on the UK’s regulatory flexibility after Brexit should be key to informing the policy choices that need to be made by Parliament. But the government has adopted conflicting positions. It has told one story for general consumption and another in the Brexit debate. Which is right? 

What is the value to the UK economy of the ability to set its own rules after Brexit? How much could be saved in costs to British business if unnecessary regulations were repealed and bad regulations replaced by better ones?

These questions are fundamental to the debate about what type of Brexit the UK should be working towards – or, for some people, whether it should still be working towards Brexit at all – but it is hard to find any convincing answer to them. The UK government appears to have no coherent position on the issue.

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Thoughts on Amenability to Judicial Review

The Court of Appeal in Holmcroft v KPMG upheld the Divisional Court’s judgment that KPMG was not amenable to judicial review on all the facts of the case, but differed sharply in its reasons for reaching that conclusion. Was its rationale any more convincing than that of the first instance court? Not really.

Two years ago, I wrote a piece about the judgment of the Divisional Court in the case of Holmcroft Properties v KPMGCan a Firm of Accountants be a Public Body?

The title question was rhetorical. The answer is yes because, regardless of the source of its powers, a body can be ‘public’ – and therefore capable of being judicially reviewed – to the extent that it exercises a public function. There is no special exception for big firms of accountants, or anyone else.

However, this obviously begs a further question. When, and in what circumstances, does someone exercise a public function?

On this I was critical of the Divisional Court – not so much because of the outcome on the particular facts of Holmcroft, but because of the inadequacy of the reasoning by which the court got there. Indeed the whole of the law in this area – the law relating to a body’s ‘amenability’ to judicial review’ – is inadequate at many levels.

Holmcroft was appealed, and we now have the decision of the Court of Appeal, in which the leading judgment was delivered by Lady Justice Arden, her last before taking her seat (as Lady Arden) in the Supreme Court. Might this resolve some of the problems with the first instance judgment?

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The UK Productivity Puzzle, the English Regions and the Law

(Part 2 of 2)  The regulation of broadcast media considered in the last post to this blog draws attention to the real structural problems in the government and economy of the UK, and in particular of England. But it is merely a symptom of a deeper malaise, a malaise which both was a cause of Brexit and requires urgent remedial treatment if the UK is to survive as a major world economy after its break with the EU. If Parliament used the legislative tools at its disposal, there is no reason why the problem cannot be addressed.

The last posting to this blog considered how the UK broadcast media landscape, and the way in which it is regulated, reveals the serious structural defects in how the UK, and in particular England, are governed (London Calling – The BBC, Channel 4, and the Problem of the English Regions).

This, however, is not unique to broadcasting. It is merely symptomatic of a much deeper problem which now has significant implications for the economic as well as political and constitutional health of the nation.

It also entirely capable of being addressed, if Parliament used the legislative powers that are available to it, and that already have their template – however inadequately it has been designed and is currently enforced – under the Communications Act 2003.

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