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

A substantive legitimate expectation requires an assurance that is clear, unambiguous and devoid of relevant qualification, assessed objectively by reference to how it would reasonably have been understood. The context is critical. An informal, private and off-the-record political discussion will not ordinarily create an expectation protected by public law, particularly where the subject is macro-political and affects an undefined wider class. Detrimental reliance is not a legal prerequisite, but its absence may strongly indicate that no protected expectation arose. A public authority must take a legitimate expectation into account before departing from it, but that duty arises only where a legally recognisable expectation exists.

The claimants, victims of press misconduct and participants in Part 1 of the Leveson Inquiry, challenged the Secretaries of State’s decision of 1 March 2018 to terminate the Inquiry without proceeding to Part 2. They relied on an alleged assurance given by the former Prime Minister at a private meeting on 21 November 2012 that Part 2 would proceed after related criminal proceedings.

The claim was confined to legitimate expectation and to an alleged failure to take the assurance into account. The claimants sought quashing and reconsideration, not an order requiring Part 2 to proceed. The central issue was whether the statements made at the private meeting created a legitimate expectation recognised and protected in public law.

1. Claim dismissed. The statements made at the meeting of 21 November 2012 did not create a legally protected legitimate expectation.
2. The assurance relied upon had to be clear, unambiguous and devoid of relevant qualification, objectively assessed by reference to how it would reasonably have been understood: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] AC 453; Paponette v Attorney-General of Trinidad and Tobago [2012] 1 AC 1. The doctrine can apply to substantive as well as procedural expectations, but substantive cases generally concern a small and defined class: R v North and East Devon Health Authority, ex p. Coughlan [2001] 1 QB 213; R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755.
3. The meeting was expressly private and off the record. It was therefore unfair and contrary to the purpose of such frank discussions to treat statements made there as enforceable assurances. The Prime Minister’s words were statements of personal opinion and intent, qualified by the need to await the Part 1 report and preserving governmental discretion. They were not a categorical promise that Part 2 would occur.
4. The subject was intensely macro-political, concerning press freedom and accountability and affecting a broad, indeterminate class. That context strongly militated against recognising a protected expectation: R v Secretary of State for Education, ex p. Begbie [2000] 1 WLR 1110; R (Wheeler) v Office of the Prime Minister [2003] EWHC 1409 (Admin).
5. Detrimental reliance was not legally necessary, but it was relevant. The evidence did not establish reliance on the alleged private assurance. Since no legitimate expectation arose, the defendants were not required to treat it as a material consideration. The justification issue therefore did not arise. In any event, the decision remained intensely political and the court was not entitled to substitute its own view of the merits.