European Convention on Human Rights – Public Law & Regulation

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.

Continue reading Developments in Legitimate Expectation – Secrets, Politics and Inquiries

If a public body adopts a policy about how it will exercise one of its functions, it must follow it.

This principle has been developed over the last 15 years in a series of cases brought against the Secretary of State for the Home Department. Initially it was regarded as an outworking of the doctrine of legitimate expectation (Saadi at [7]). More recently it has been treated as a freestanding ground of judicial review which is ‘a requirement of good administration‘ (Nadarajah at [68]) and ‘a basic public law right‘ (Lumba at [58]).

The full extent to which the duty has now been cut loose from its traditional moorings in legitimate expectation became evident last year in the Supreme Court case of Mandalia. In that case the claimant successfully relied on the Home Office’s failure to follow an internal policy – a ‘process instruction’ to civil servants – of which he neither had, nor could have had, any knowledge at the time when it should have been applied. Following Mandalia, even an unpublished policy is now binding.

The duty is qualified by another basic public law principle, that policies should not fetter discretion. If the circumstances of an individual case provide a ‘good reason‘ for doing so (Lumba at [26]) a public body may, and sometimes must, depart from its own policy.

Subject to this qualification, the requirement to follow existing policies has developed into an important obligation on public bodies. However, two recent cases expose some of the limits of reliance on policies as a ground of public law challenge.

Continue reading The Duty to Follow Policies (and its Limits)