R v Secretary of State for Education and Employment, Ex parte Begbie (Begbie, Ex parte)

A substantive legitimate expectation cannot compel a public authority to act contrary to statute. A statutory discretion framed for exceptional, individual circumstances cannot be used to recreate for an entire class the benefit which Parliament removed.

Pre-election promises made by opposition politicians are not representations made on behalf of a public authority and ordinarily have political, rather than legal, consequences. A clear official representation made by mistake does not alone bind an authority permanently. The court considers all the circumstances; timely correction and the absence of detrimental reliance may prevent unfairness amounting to an abuse of power.

A published policy may guide discretion if it preserves individual consideration and permits justified departures. The right to education does not require the state to subsidise private education of a particular type where access to the state system remains available.

The appellant held a publicly funded assisted place in the primary department of an independent all-through school. The Education (Schools) Act 1997 abolished the Assisted Places Scheme. Its transitional provisions ordinarily ended a primary pupil’s assisted place on completion of primary education, while giving the Secretary of State a discretion to extend it in particular circumstances.

The Secretary of State refused an extension after officials and ministers had made a series of inconsistent statements, including a mistaken statement suggesting that places at all-through schools would be honoured until the age of 18. Maurice Kay J dismissed the application for judicial review on 10 July 1999.

The appeal raised whether the statements created an enforceable substantive legitimate expectation, whether the published policy was irrational, and whether withdrawal of funding infringed article 2 of the First Protocol to the European Convention on Human Rights.

1. Disposition. The appeal was dismissed unanimously. Peter Gibson LJ delivered the first judgment. Laws and Sedley LJJ expressly agreed with his conclusion and reasons.
2. Statutory constraint. Section 2 of the Education (Schools) Act 1997 was the starting point. It required a pupil receiving primary education to cease holding an assisted place upon completing that phase unless the Secretary of State exercised a pupil-specific discretion. Requiring the Secretary of State to honour the mistaken promise for virtually every primary pupil at an all-through school would recreate a general entitlement which Parliament had removed. The discretion could not lawfully be used to undermine that statutory purpose.
3. Legitimate expectation. Pre-election statements made by opposition politicians were not promises made on behalf of a public authority. Applying C.C.S.U. v Minister for Civil Service [1985] 1 A.C. 374 and Bromley London Borough Council v Greater London Council [1983] 1 AC 768, such promises ordinarily carried political rather than legal consequences unless adopted by the administration after taking office. No such adoption occurred.
4. The Teed letter contained a clear representation applicable to the appellant’s circumstances, but it misstated the Secretary of State’s policy and was corrected about five weeks later. A clear representation made by mistake does not by itself establish an expectation which must be enforced. All the circumstances must be considered. Detrimental reliance is not invariably a condition of substantive legitimate expectation, but it is commonly important. There was no change of position before the correction and no unfairness amounting to an abuse of power.
5. Policy and irrationality. The published policy lawfully distinguished free-standing preparatory schools, where specific promises had been made and accepted in reliance on the Kilfoyle letter, from all-through schools, for which no comparable evidence existed. The distinction and the resulting disparities were neither arbitrary nor irrational. Sedley LJ added that a policy promoting consistency must remain flexible and must not be treated as an inflexible body of rules.
6. Right to education. Article 2 of the First Protocol to the European Convention on Human Rights guaranteed access to the existing state education system. It did not require the state to establish or subsidise education of a particular type or to continue funding a private-school place. There was no breach.
7. Additional observations. Laws LJ observed that abuse of power underlies the principal doctrines of public law. The intensity of review of a frustrated expectation varies with statutory context: courts ordinarily exercise greater restraint in a macro-political field than in a discrete case affecting a small and identifiable group. Those observations were additional because the statutory incompatibility was dispositive.
8. The court made no order as to costs and refused permission to appeal to the House of Lords.

1. Court of Appeal: In [2000] 1 WLR 1115, the court unanimously dismissed the appellant’s appeal and affirmed the dismissal of the judicial review claim.
2. High Court: Maurice Kay J dismissed the application for judicial review on 10 July 1999. He rejected the grounds based on legitimate expectation, irrationality and article 2 of the First Protocol to the European Convention on Human Rights.