Summary
A discretionary ex gratia compensation scheme may be withdrawn without notice or consultation where no promise or established practice of consultation exists.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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- Human rights and outcome. Article 6 was not engaged. The applications were dismissed.
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Key cases cited
17 authorities cited.
- O'Brien and others (FC) (Appellants) v. Independent Assessor (Respondent) [2007] UKHL 10
- In re McFarland (AP) (Appellant) Northern Ireland [2004] UKHL 17
- Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent) [2004] UKHL 18
- R v Secretary of State for the Home Department, Ex p Doody (R v Secretary of State for the Home Department, Ex parte Smart (Elfed Wayne)) [1994] 1 AC 531
- Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
- British Oxygen Co Ltd v Board of Trade (British Oxygen Co Ltd v Minister of Technology) [1971] AC 610
- Sumukan Ltd v The Commonwealth Secretariat [2007] EWCA Civ 243
- Al Rawi & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Anor [2006] EWCA Civ 1279
- Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363
- Association of British Civilian Internees - Far Eastern Region v Secretary of State for Defence [2003] EWCA Civ 473
- R v North and East Devon Health Authority, Ex p Coughlan [1999] EWCA Civ 1871
- R v Commissioners of Inland Revenue, Ex p Unilever Plc [1996] STC 681
- R v Devon County Council, Ex p Baker [1995] 1 All ER 73
- R v Rochdale Metropolitan BC, ex parte Schemet [1993] 1 FCR 306
- R v Panel on Take-overs and Mergers, Ex parte Guinness Plc (Guinness Plc, Ex parte) [1990] 1 QB 146
- Airey v Ireland (1979) 2 EHRR 305
- R v Port of London Authority, Ex parte Kynoch Ltd [1919] 1 KB 176
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Cases citing this case
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