Sargeant, R (On the Application Of) v First Minister Of Wales & Anor

A clear public statement may create an enforceable legitimate expectation about the procedure by which a public investigation will be established. Where a minister promises that preparatory work will be undertaken separately from the minister’s office, the minister must not retain undisclosed control over the investigation’s procedures. Departure from that procedural expectation must be rational and proportionate, and ordinarily requires transparency and an opportunity for affected persons to make informed representations. The court may quash decisions made through the unlawful process even where the substantive procedures adopted could themselves lawfully have been selected. Inquisitorial procedures, private evidence, and questioning by the investigator rather than participants are not inherently unlawful in a non-statutory investigation.

The claimant, the widow of Carl Sargeant, challenged the Operational Protocol governing an independent investigation into the former First Minister’s actions and decisions concerning Mr Sargeant’s removal from office. She argued that the former First Minister had unlawfully retained control over the investigation’s procedure despite a public statement that the preparatory work would take place separately from his office. She also challenged the procedures under common-law fairness principles and Article 8 of the European Convention on Human Rights, and challenged a notice issued to Welsh Government staff.

The central issues were whether the Press Statement created a legitimate expectation, whether that expectation was breached, whether the minister’s involvement engaged the rule against bias, whether Article 8 required additional procedural safeguards, and whether the staff notice was unlawful.

1. Judicial review granted. The court held that the Press Statement created a clear and unambiguous procedural legitimate expectation. It represented that the Permanent Secretary would undertake the preparatory work for the independent investigation separately from the First Minister’s office, with a free hand over matters including the Operational Protocol.
2. The expectation was breached. The Permanent Secretary operated under an undisclosed remit, consulted the First Minister about proposed amendments, and the First Minister retained effective control over the final form of the Operational Protocol. The Family was unaware of that involvement. The First Minister could have disclosed the position and invited informed representations before making the decisions.
3. The defendants’ argument that the First Minister had to determine the detailed procedure because only he possessed the statutory power to establish the investigation was rejected. Government of Wales Act 2006, sections 48 and 71, permitted delegation of preparatory work, including preparation of the Operational Protocol. The suggested power under section 46(5)(b) also provided a possible route where the First Minister was unable to act.
4. The court did not need to decide the rule against bias. It considered that the case for applying that rule to these procedural decisions was uncertain, and that the claimant would have faced considerable difficulty if relying on that ground alone.
5. The Article 8 challenge failed. The alleged reputational impact was speculative, and Article 8 did not require attendance at all evidential sessions or direct questioning of every witness. Inquisitorial procedures placing the investigator at the centre of the process were permissible and appropriate for an investigation of this kind.
6. The staff notice was withdrawn and replaced, making that issue academic. The four challenged aspects of the Operational Protocol were quashed: the absence of compulsory powers, private oral evidence, restrictions on attendance, and the prohibition on direct questioning by the claimant’s legal representatives. The court indicated that those procedures could nevertheless be substantively lawful if reconsidered through a lawful process.

Permission for judicial review was granted by Supperstone J after an oral hearing on 13 November 2018. The Divisional Court then granted the claim on the legitimate-expectation ground and quashed the specified procedural decisions.