Niazi & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

A discretionary ex gratia compensation scheme may be withdrawn without notice or consultation where no promise or established practice of consultation exists. Long operation of the scheme does not create a legitimate expectation of its indefinite continuation, particularly for unidentified future applicants. Procedural fairness depends on context, and exceptionally strong facts are required before withdrawal without consultation amounts to an abuse of power. A statutory assessor may adopt a general costs policy under a broadly defined discretion, provided the assessor remains willing to consider substantial new arguments for changing the policy. Payment at Legal Help rates was not irrational, and Article 6 was not engaged.

The claimants comprised three individuals who expected to seek compensation under a discretionary ex gratia scheme for alleged miscarriages of justice, and solicitor firms acting for such applicants. The Secretary of State announced the scheme’s immediate withdrawal without prior consultation and introduced changes to legal-cost payments under the statutory scheme in Criminal Justice Act 1988, section 133.

The claimants sought judicial review on grounds including procedural unfairness, legitimate expectation, abuse of power, irrationality, failure to give reasons, unlawful fettering of discretion and breach of Article 6. The central issues were whether consultation or notice was legally required and whether the new costs policy was lawful.

1. Withdrawal of the discretionary scheme. The Secretary of State was entitled to discontinue the ex gratia scheme. Its discretionary nature and long existence did not amount to a promise that it would continue indefinitely. The claimants were unidentified future potential applicants, not even bare applicants, and there was no established practice of consultation.
2. Fairness and legitimate expectation. Procedural fairness may apply to the exercise of prerogative or common-law powers. Its content depends on context. In the absence of a representation or practice promising consultation, exceptionally strong facts would be required before withdrawal without consultation or notice became conspicuously unfair or an abuse of power. The facts did not meet that threshold. The Cabinet Office Code of Practice on Consultation did not require consultation before every policy change.
3. Reasons and rationality. The reasons for withdrawal, including concerns about anomalies in the scheme and its relationship with the statutory scheme, were intelligible and rational. Considering the relative treatment of victims of crime was not an irrelevant consideration.
4. Costs policy. Section 133 of the Criminal Justice Act 1988 conferred no right to recover legal costs and gave the assessor a broadly defined discretion. Adopting Legal Help rates as a standard was not irrational merely because the rates might not reimburse full private-client costs. The concession that the assessor would listen to substantial new arguments for changing the policy sufficiently addressed the complaint of fettering discretion.
5. Human rights and outcome. Article 6 was not engaged. The applications were dismissed.