June 28th, 2024 by James Goudie KC

Two decisions on legitimate expectation.  The first is R (BIRMINGHAM CITY COUNCIL) v SoS for TRANSPORT (2024) EWHC 1487 (Admin).  It concerned both substantive and procedural legitimate expectation.  The terms of a letter from the SoS to the Council confirming that Private Finance Initiative credits had been issued towards the capital costs of a highway project, and the Local Government PFI Project Support Guide (2009-10), had not created a legitimate expectation that if the PFI contract was terminated or varied the Government would withdraw credits only in exceptional circumstances.  However, the SoS had acted unfairly by withdrawing the credits without offering the Council a further opportunity to make representations.  On  substantive legitimate expectation, it was reasonably to be expected that the Council would rely on the guidance in the July 2010 letter and in Section G of the Guide on the topic of termination or variation of PFI contracts. The Government had intended that the claimant should rely on Section G of the Guide for that purpose.  However, the examples in Section G offered practical advice and guidance to local authorities on the application of the government’s policy to possible scenarios and were not intended to be read as an unqualified commitment by the Government as to how it would proceed in the circumstances of any actual case. The language was deliberately qualified in its terms.  The July 2010 letter and Section G para 2.1 of the Guide did not give rise to the substantive legitimate expectation for which the claimant contended.  However, as to procedural legitimate expectation/fairness, there had ben a clear shift in the Government’s position following the Council’s submission of its Full Business Case in August 2023, which had not been made known to the Council and upon which the Council had no opportunity to reflect or to engage, but which had very significantly affected the outcome of the process. In the light of what had gone before, fairness demanded that the Council should have been given the further opportunity to engage and respond.


The second decision is R (DONALD) v SSHD (2024) EWHC 1492 (Admin), again concerned with both substantive and procedural legitimate expectation, amongst other matters.  A decision by the SoS not to implement two of the 30 recommendations made in the “Windrush Lessons Learned Review”, an independent assessment of the events leading up to the “Windrush” scandal, was unlawful. The decision breached a legitimate expectation that the Home Office would not decline to implement any of the recommendations without first consulting relevant stakeholders; breached the public sector equality duty; and indirectly discriminated against the Windrush community.  As to substantive legitimate expectation, the Home Office had published a plan of future action in relation to a policy that was to be kept under review and would continue to develop.  It contained no explicit statement that all 30 recommendations would be implemented, and nor was that implied.  Although its focus was on how, and not whether, the recommendations would be implemented, that did not amount to a sufficiently clear, unambiguous and unqualified representation as to give rise to a substantive legal expectation that all of the representations would be implemented.  Indeed, it indicated that some of the Recommendations would be the subject of further investigation and deliberation.  Moreover, it had been published to the world at large.  While a substantive legitimate expectation could arise from a promise made to the world at large, the cases in which that happened were ones in which the main beneficiaries of the promises formed a relatively small group.  It was difficult to envisage a case in which the Government would be bound by a representation made generally or to a diverse class.  As to procedural legitimate expectation, there was a legitimate procedural expectation that the SoS would consult with relevant stakeholders, including the Windrush community.  Although there was no explicit statement to that effect, the prospect of a lack of consultation was so conspicuously unfair as to give rise to a legitimate expectation that there would be consultation.

Comments are closed.