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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115

The facts are these. Heather was born on 7 July 1988. She lives with her parents in Cambridge. She went to a local primary school. But that did not serve her well and in February 1997 it failed its OFSTED inspection. Heather's parents accordingly sought to transfer her to The Leys. It has an integral junior school known as St. Faith's. The Leys is an independent school and at the time it was a participant in the Assisted Places Scheme ("the A.P.S. "). The A.P.S. is a scheme whereby some pupils at independent schools have their school fees paid out of public funds. It originated under the terms of the Education Act 1980 . Until 25 August 1996 the A.P.S. was only available to those over the age of 11receiving education at schools providing secondary education, but on that date the A.P.S. was extended to children who had attained the age of five years and received education at schools which provided both primary and secondary education: *1118 regulation 3 of the Education (Assisted Places) (Amendment) Regulations 1996 (S.I. 1996 No. 2113) amending regulation 5(1) of the Education (Assisted Places) Regulations 1995 (S.I. 1995 No. 2016). Those within that extension have been referred to as "the first tranche." On 4 April 1997 the A.P.S. was further extended to apply to primary schools by virtue of section 1 of the Education Act 1997 . Those within that further extension have been referred to as "the second tranche"

Before 1 November 1996 the Labour Party, then the opposition, made it clear publicly that if it regained power it would dismantle the A.P.S. so as to redirect the saving in public expenditure towards reducing class sizes in the public sector of education. That day Mr. Tony Blair M.P., the Leader of the Opposition, caused a letter to be written to an interested parent, Dr. Tillson, about the Labour Party's proposed policy on the A.P.S., in which it was said: "We do not believe the scheme is a good use of inevitably scarce resources... However, we do not wish to disrupt the education of individual pupils and any children already on the scheme will continue to receive support in their education." Other similar statements were made on behalf of the Leader of the Opposition to an interested grandparent, Mrs. Treadwell, on 6 December 1996 and to an interested parent, Mrs. Williams, on 27 January 1997. Also on 27 February 1997 Mr. John Trickett M.P. wrote to one of his constituents who was a parent of a child with an assisted place at a school with an integral junior school, Mrs. Brookes, outlining Labour's policy on the A.P.S., and saying: "David Blunkett's office have confirmed that Labour will honour those existing places which have already been given; your child will not be forced to move school"

On 24 February 1997 The Leys offered Heather a place on the basis of the A.P.S. The offer was for a place at St. Faith's in the autumn term 1997 for four years to be followed by a move to The Leys in the autumn term of 2001. That offer was accepted by letter dated 27 February....

On 4 April 1997, the Education Act 1997 was passed, extending the A.P.S. to primary schools. On 1 May 1997 the General Election took place and the Labour Party formed the new government. One of the first pieces of legislation enacted thereafter was the Education (Schools) Act 1997 , which came into force on 31 July 1997. By section 1 of the Act the A.P.S. was abolished......

On 12 February 1998 the Prime Minister in an article in the "Evening Standard" said: "No child currently at private school under the scheme or who has already got a place has lost out. They will be able to continue their education." On 10 March 1998 the Secretary of State for Education and Employment, Mr. David Blunkett M.P., wrote a letter ("the Teed letter") to an interested grandparent, Mrs. Teed, in the following terms:

"We have fulfilled every pledge we have made on education. In relation to the A.P.S ., we have gone further. We could have stopped those taking up primary education for the first time (the previous government had not operated a scheme which ran through from the primary to the end of secondary), but we chose not to do so. To have blocked the opportunity of children taking up the place that they had already been offered last September would, in our view, have been wrong as it would have damaged the chances of the youngsters who would by then have missed the opportunity of going to the school of their parent's preference in their locality. By accepting, therefore, that we would honour the primary school provision, we left ourselves with a dilemma. Should we, therefore, accept that a child entering primary education under the A.P.S. (at prep school) automatically receives a place all the way through to the time they [sic] left education at the age of 18? Where there was provision of an 'all through' school and where there had been a clear promise of a place through to the age of 18, we have agreed to honour that promise. Where a child entered a school which concluded at the normal transfer age for secondary schools, we have agreed to pay through to that point in time. This is, in fact, what was said before the election and specifically by the former shadow schools minister, Peter Kilfoyle's commitment."

.....

Ms Mackenzie administers the A.P.S. in the Department. In her first affidavit of 22 January 1999 she has made clear that the Teed letter did not state Government policy correctly. She said:

"The [Teed] letter... was sent by the Secretary of State from his parliamentary office where he did not have access to all the relevant papers. It did not accurately state his policy in that it implied a commitment to extend through to age 18 assisted places held in junior departments of 'all through' schools: this was not among the circumstances, set out in the 30 September 1997 letter, in which it was his policy normally to exercise discretion in favour of a child. It follows from this that the Secretary of State acknowledges that what was said in the letter of 10 March was not his policy. The policy remains as set out in the department's letter dated 30 September 1997... On 21 April 1998 Mr. Wardle... wrote to Mrs. Teed providing a summary of the Secretary of State's policy."

.....

1. Legitimate expectation

Mr. Beloff submits: (i) the rule that a public authority should not defeat a person's legitimate expectation is an aspect of the rule that it must act fairly and reasonably; (ii) the rule operates in the field of substantive as well as procedural rights; (iii) the categories of unfairness are not closed; *1124 (iv) the making of an unambiguous and unqualified representation is a sufficient, but not necessary, trigger of the duty to act fairly; (v) it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence by public authorities to their promises. He cites authority in support of all these submissions and for my part I am prepared to accept them as correct, so far as they go. I would however add a few words by way of comment on his fifth proposition, as in my judgment it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation. In de Smith, Woolf & Jowell, Judicial Review of Administrative Action , 5th ed. (1995), p. 574, para. 13-030, the position is summarised in this way:

"Although detrimental reliance should not therefore be a condition precedent to the protection of a substantive legitimate expectation, it may be relevant in two situations: first, it might provide evidence of the existence or extent of an expectation. In that sense it can be a consideration to be taken into account in deciding whether a person was in fact led to believe that the authority would be bound by the representations. Second, detrimental reliance may be relevant to the decision of the authority whether to revoke a representation."

Mr. Beloff also referred to the recent decision of this court on 16 July 1999, Reg. v. North and East Devon Health Authority, Ex parte Coughlan [2000] 2 W.L.R. 622 , which contains a useful distillation of the authorities on legitimate expectation. Three categories of case were there identified, of which the third was, in Mr. Beloff's submission, applicable to the present case. That category was described by Lord Woolf M.R. (giving the judgment of the court consisting of himself, Mummery and Sedley L.JJ.), at p. 645:

"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy"

Mr. Beloff argues that the statements of prominent Labour Party politicians both in opposition and in office created a legitimate expectation that Heather would enjoy the benefit of the A.P.S. until conclusion of her education at The Leys....

Persuasively and skilfully though these submissions were advanced by Mr. Beloff, I am not able to accept them. No doubt statements such as those made by the Leader of the Opposition before May 1997 did give rise to an expectation that children already on the A.P.S., from which group children at "all through" schools were not excepted, would continue to receive support in their education until it was completed, and it may be that the clear and specific statement in the Teed letter did likewise, at any rate for a time. But the question for the court is whether those statements give rise to a legitimate expectation, in the sense of an expectation which will be protected by law.

I do not think that they did. As Mr. Havers, appearing with Mr. Garnham for the Crown pointed out, the starting point must be the Act of 1997. It is common ground that any expectation must yield to the terms of the statute under which the Secretary of State is required to act. Section 2(1) limits the ability of a school to provide assisted places to the circumstances provided for in subsection (2) .....

There are further difficulties in Mr. Beloff's way. His reliance on the pre-election statements founders on the fact that such statements were not made on behalf of a public authority. In Council for Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 , 401 Lord Fraser of Tullybelton said of legitimate expectations which may be protected by judicial review as a matter of public law: "Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue." An opposition spokesman, even the Leader of the Opposition, does not speak on behalf of a public authority. A further difficulty relates to the effect in law of a pre-election promise by politicians anxious to win the votes of electors. In Bromley London Borough Council v. Greater London Council [1983] 1 A.C. 768 , 829 Lord Diplock said that elected representatives must not treat themselves as irrevocably bound to carry out pre-announced policies contained in election manifestos. True it is, as Mr. Beloff pointed out, that Lord Diplock a little earlier on the same page recognised that an elected member "ought" to give considerable weight, when deciding with the other elected members whether to implement policies put forward in a manifesto, to the factor that he received the support of the electors when he fought the election on the basis of the manifesto policies. But I do not read Lord Diplock as suggesting that the obligation in the word "ought" was a legal one or giving rise to legal effects. No case has been shown to us of the court treating such a promise as of binding effect or otherwise as having legal consequences. There are good practical reasons why this should be so. As was explained on behalf of the Labour Party on 18 July 1997 in a letter to Mrs. Cutler: "Only once the new Government had full access to information on A.P.S. numbers and projected spending, was it possible to present more details on our policy of phasing out the A.P.S." It is obvious that a party in opposition will not know all the facts and ramifications of a promise until it achieves office. To hold that the pre-election promises bound a newly-elected government could well be inimical to good government. I intend no encouragement to politicians to be extravagant in their pre-election promises, but when a party elected into office fails to keep its election promises, the consequences should be political and not legal.

Of the post-election statements to which Mr. Beloff points, the Prime Minister's words in the "Evening Standard" article must be read in their context. Most of the article was concerned with the honouring by the new government of the manifesto pledge to reduce the size of infant classes in state primary schools and the reallocation of money to achieve that. It was explained that the phasing out of the A.P.S. was funding that programme. Only in the short paragraph which I have quoted was there reference to the impact on children with existing assisted places. The words used are very general and in one sense are literally true because every child on an assisted place was allowed to continue at least for a while. But no reasonable informed reader of the article could believe that it was the announcement of a change of the policy in detailed form already promulgated. And there is Ms Mackenzie's evidence that it was not so intended. Nor is there evidence of any detrimental reliance by Heather's parents on the Prime Minister's words.....

The Teed letter does contain an unambiguous representation in terms applicable to a person in Heather's position: "Where there was provision of an 'all through' school and where there has been a clear promise of a place through to the age of 18, we have agreed to honour that promise." But it was corrected some five weeks later by the letter from Mr. Wardle, acting on behalf of the Secretary of State, and there is no evidence that in the interim Heather's parents relied on the representation to change their *1127 position. Further there is no evidence that the Secretary of State intended to create a new category of children who would continue to keep their assisted places and there is clear evidence from Ms Mackenzie that the Secretary of State in the Teed letter misstated by mistake what his own policy was.

For my part I cannot accept that the mere fact that a clear and unequivocal statement such as that made in the Teed letter was made is enough to establish a legitimate expectation in accordance with that statement such that the expectation cannot be allowed to be defeated. All the circumstances must be considered. Where the court is satisfied that a mistake was made by the minister or other person making the statement, the court should be slow to fix the public authority permanently with the consequences of that mistake. That is not to say that a promise made by mistake will never have legal consequences. It may be that a mistaken statement will, even if subsequently sought to be corrected, give rise to a legitimate expectation, whether in the person to whom the statement is made or in others who learnt of it, for example where there has been detrimental reliance on the statement before it was corrected. The court must be alive to the possibility of such unfairness to the individual by the public authority in its conduct as to amount to an abuse of power. But that is not this case.

As for the letter of 11 March 1998 from the Secretary of State to Mrs. Begbie, while she sought to extract from it what he was saying, on her own account it left her confused (and she is plainly of high intelligence) and the Secretary of State never confirmed her understanding of the letter. He promised to return to her on it, but when belatedly there was a clear decision, that ran counter to any expectation which she had arising from that letter. In short, the letter contained no clear representation and could never reasonably have been relied on; nor was it because of Mrs. Begbie's wholly justified attempts to obtain clarification. I have to say that the way the Secretary of State dealt with the proper concerns of parents like Mrs. Begbie reflects no credit whatsoever on him. But I cannot say that his statements gave rise to a legitimate expectation, still less that there was an abuse of power.....