Windsor and Maidenhead, R (on the application of) v Dewar & Ors

A substantive legitimate expectation requires a clear and unambiguous representation on which reliance was reasonable. A public authority cannot ordinarily rely on a political assurance as creating a legal entitlement where the maker lacked authority to bind the relevant body and the circumstances made reliance unreasonable.

In allocating councillor places on a police authority, the statutory requirement concerns the political balance of the relevant councils taken as a whole. Local representation need not reflect the political majority in each individual council. Continuity may be considered, provided the decision-maker remains mindful of the statutory political-balance requirement.

The claimant local authority sought judicial review of the refusal by the Joint Committee responsible for appointing councillor members to the Thames Valley Police Authority to appoint its Conservative nominee. The claimant relied on a previous letter from the Joint Committee’s chairman and alleged that the refusal was irrational.

The issues were whether the letter created a substantive legitimate expectation that the claimant could appoint a Conservative councillor at the next reallocation, and whether the Joint Committee’s reliance on the existing allocation and continuity was irrational.

1. Legitimate expectation. The claim concerned a substantive, rather than merely procedural, expectation. The applicable principles were those identified in Regina v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, para 57. A representation must be clear and unambiguous and reliance on it must be reasonable.
2. The chairman’s letter did not promise that the claimant would obtain a Conservative place. His personal undertaking to do all he could implied that the result remained uncertain, and the letter acknowledged that no other authority had agreed to cooperate. There was no evidence that he had express or ostensible authority to bind the Joint Committee. It was also unreasonable for one public authority to assume that the chairman of another public authority could create such an entitlement in these circumstances.
3. Irrationality. The Joint Committee had taken the previous arrangement into account. The statutory requirement in paragraph 4(1)(b) of Schedule 2 to the Police Act 1996 required the councillor members to reflect, so far as practicable, the balance of parties among the relevant councils taken as a whole. It did not require each council’s representative to belong to that council’s majority party.
4. Continuity in the Authority’s membership was a relevant consideration and it was not inherently irrational to attach weight to it. The weight was for the Joint Committee, subject to continued attention to the statutory political-balance requirement. The resolution left the claimant with a power to nominate and did not remove every possibility of continuity.
5. The application for judicial review therefore failed. The defendant’s costs were summarily assessed at £14,500.