Gill, R (on the application of) v Lord Chancellor's Department

Where a public authority publishes procedural guidance which creates a legitimate expectation, fairness may require compliance with that procedure in the absence of a good reason for departure. Reliance is not a condition precedent to a legitimate expectation, although it may be relevant on the facts. Guidance expressed through terms such as “generally” and “normally” may still contain a specific procedural safeguard framed by “in any event” and “must”. A failure to provide the promised safeguard can vitiate the resulting decision.

Mr Gill, a Justice of the Peace, sought judicial review of the Lord Chancellor’s decision to remove him from office following a complaint about his conduct. The complaint was investigated by a panel whose magistrate members came from Mr Gill’s own bench, although the applicable guidance stated that, in any event, at least one magistrate member should be from a different bench where practicable.

The Lord Chancellor accepted that Mr Gill had a legitimate expectation that the normal procedure would be followed, but concluded that no unfairness had resulted. The issue was whether the panel’s composition breached that expectation and invalidated the removal decision.

1. Claim succeeded. The court quashed the Lord Chancellor’s decision of 18 November 2001 to remove Mr Gill from the magistracy and directed reconsideration in accordance with the guidance, before a differently constituted panel.
2. The guidance contained two safeguards directed to independence and impartiality: the presence of a non-magistrate and external representation among the magistrate members. The first was provided, but the second was not. Although the guidance used terms such as “generally”, “normally” and “as far as practicable”, the words “in any event” and “must” gave the external-representation requirement substantial weight.
3. The defendant could not avoid the legitimate expectation by showing that the procedure was fair in the general sense or that the panel had not actually demonstrated bias. Mr Gill was entitled to fairness underwritten by the published procedure, unless there was a good reason to depart from it.
4. It would have been practicable to co-opt a magistrate from another advisory committee area. No good reason for departing from the guidance had been established. The panel’s composition was therefore inconsistent with the letter and spirit of the guidance and breached the claimant’s legitimate expectation.
5. Reliance was not a condition precedent to legitimate expectation: