THE LIMITS OF SUBSTANTIVE LEGITIMATE EXPECTATION IN DISCIPLINARY PROCEEDINGS
R (ON THE APPLICATION OF PATRICK WOOD) –v- THE SECRETARY OF STATE FOR EDUCATION (SINGH J)
1. In this claim for judicial review the Claimant challenged the decision of the Secretary of State taken under section 142 of the Education Act 2002 to bar him from working with children. As the Claimant has spent his entire professional life as a teacher the obvious and serious consequences of such a bar including the impact on the Claimant’s reputation as well as on his employment prospects were manifest.
2. The Claimant’s complaint inter alia was that the case was investigated by the Department for which the Secretary of State was responsible between 2003 and 2005 but at that stage it was decided that no action would be taken to bar him. In particular he was sent a letter which the Claimant submitted made it clear no further action would be taken against him in the absence of further misconduct coming to the Department’s attention. It was common ground between the parties that there was no evidence or allegations of any misconduct since that time. In those circumstances the Claimant submitted that the decision to bar him in October 2009 was unlawful on a number of grounds principally that the decision was an abuse of power because it was taken in breach of a substantive legitimate expectation. This note is confined to this aspect of the application.
Substantive legitimate expectation – a review of the relevant authorities
3. The doctrine of substantive legitimate expectation crystallised principally in the case of R v. North and East Devon Health Authority ex parte Coughlan (2001) QB 213 Woolf MR, Mummery LJ and Sedley LJ, where it was stated:
“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.”
4. In referring to the review of substantive legitimate expectation by the House of Lords in R v. Inland Revenue Commissioners ex parte Preston (1995) AC 835 and by the Court of Appeal in R v. Inland Revenue Commissioners ex parte Unilever Plc (1996) STC 681, the Court observed that it cannot be suggested that special principles of public law applied to the Revenue or to taxpayers, nevertheless what appears to have happened is that different and apparently contradictory lines of authority had emerged in other fields of public law raising similar challenges. In Coughlan the Court synthesised the relevant principles drawing on the relevant major cases in various fields of public law in particular those in the tax context including R v. Inland Revenue Commissioners ex parte MFK Underwriting Agents Limited (1991) WLR 1545 in which Bingham LJ and Judge J stated that, for a statement to give rise to a legitimate expectation, it must be “clear unambiguous and devoid of relevant qualification”.
5. In Coughlan the Court of Appeal made it clear both that the doctrine of substantive legitimate expectation does exist in English public law and that the arbiter of whether there is an overriding public interest which justifies the failure to honour that expectation is the Court itself. The Court is not confined to the review of the executive’s decision on the grounds of irrationality only. The Learned Judge also referred to the useful review of the state of English public law in relation to substantive legitimate expectation in the judgment of law’s LJ in Nadarajah v. Secretary of State for the Home Department (2005) EWCA Civ 1363 at paras.46-70 in which the Learned Judge made it clear that there is no distinction in principle as to the approach to be taken by the Court between procedural and substantive expectations. The second is that the standard of review which the Court could adopt where the executive seeks to resile from its previous promise is that of proportionality (see para.68).
6. In the present case the Claimant accepted that the Secretary of State was entitled in principle to adopt the change of policy which was reflected in the historical cases review. What he sought to challenge was the application (or, as he submitted, misapplication) of that policy to the facts of the present case. The Secretary of State contended that any challenge to the change in policy as such would have been unsustainable because it lay within the “macro political field” rather than the field of general policy. (See R v. Secretary for Education ex parte Begbie (2001) WLR 1115 at page 1131 where Laws LJ drew a contrast between cases which fall within the macro political field and others such as the case before this court which concerns a relatively small identifiable number of persons. In those circumstances, Laws LJ said “if there had been an abuse of power I would grant appropriate relief unless and overriding public interest is shown …”. On the facts of the present case, the Secretary of State was content to accept that the Claimants challenge could properly be brought against the decision in his particular case since that did not lie in the “macro political field”.
7. The most recent case relating to substantively legitimate expectation is the decision of the Judicial Committee of the Privy Council in Paponette v. Attorney General of Trinidad and Tobago  3 WLR 2019. The judgment of the majority was given by Lord Dyson. At paragraph 28 Lord Dyson quoted with approval from the opinion of Lord Hoffman in R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No.2) 2009 AC 453 at paragraph 60, where Lord Hoffman said that it is not essential that the applicant should have relied upon a promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with that promise would be an abuse of power. At paragraph 30, Lord Dyson said that the question whether a representation is “clear, unambiguous and devoid of relevant qualification” depends on how, on a fair reading of the promise, it would have been reasonably understood by those to whom it was made. At paragraph 37, he made it clear that while the initial burden lies on the applicant to prove the legitimacy of his expectation, in particular that it was clear, unambiguous and devoid of relevant qualification, and that in order to support the legitimacy of that expectation, he may be able to show that he relied on the promise to his detriment, once those elements have been proved by the applicant the onus then shifts to the public authority concerned to justify the frustration of the legitimate expectation.
Substantive Legitimate Expectation – Judgment
8. The learned judge accepted the Claimant’s submission that the representations made by the Secretary of State in 2005 created a legitimate expectation that he would not have further action taken against him unless further misconduct came to the Department’s attention. In the learned judge’s view the letter did condone a representation to the effect which was “clear and unambiguous and devoid of relevant qualification”. That is how it would reasonably have been understood by the person to whom it was addressed (see Paponette (above)). Although this point was not conceded by the Secretary of State, in substance the submission that was made on his behalf was that he was entitled to change his mind because there was an overriding reason in the public interest to do so.
9. The main dispute in the present case is about whether the Secretary of State was right in that submission that he was entitled to change his mind in the public interest. In order to satisfy this test there were two issues. Firstly (a) that there was a legitimate aim in the public interest and (b) the conduct of the Secretary of State satisfied the principle of proportionality (see Nadarajah and Paponette (above)). The learned judge concluded as to (a) there was and could be no real dispute, there was clearly a legitimate aim. The public interest in protecting children in particular in protecting them from the risk of sexual abuse is manifest and pressing. As to (b) the principle of proportionality, the Claimant invited the court to subject the reasoning to those advising the Secretary of State in the process leading up to his decision to impose the bar, in particular, Sir Roger Singleton (the author of the relevant review) to close and rigorous and sustained criticism. This is because the Claimant submitted that since it is for the Secretary of State to satisfy the court that his conduct accorded with the principle of proportionality, he would fail in that task if the Claimant could show that the reasoning process was defective in material respects. Furthermore, and in particular, the Claimant submitted that the reasoning process failed to comply with the Secretary of State’s own policy as to the way in which the Historical Cases Review made by Sir Roger Singleton should be conducted.
10. The Learned Judge concluded it would not be appropriate to accept the Court’s invitation by the Claimant because the Judge accepted the central submission made on behalf of the Secretary of State that there was an important distinction to be drawn between the decision to reconsider the Claimant’s case and the resulting decision to make a barring order against him. The availability of an appeal on the merits of the barring order was relevant to the question whether the Secretary of State’s decision to resile from the Claimant’s legitimate expectation satisfies the principle of proportionality. It was also relevant that the appeal will be held by an independent judicial body. Another very important reason why the availability of an appeal is relevant is that, in the present context, there were not only the interests of the parties involved but also an important public interest in the protection of children, in particular protection from sexual abuse by people who are in positions of trusts such as teachers.
11. Another important consideration in the assessment of proportionality was that the Secretary of State did not simply resile from the legitimate expectation that had been created in this case without more. The Review was well aware of the sensitivity of reviewing cases which had been thought to be closed and sought to devise fair procedures which would be followed before a barring order was imposed. It was not only the right to make representations, a right which the Claimant exercised, but also the involvement of an expert panel chaired by an eminent and respected person from outside the Department, Sir Roger Singleton, and the advice of the LFF with its expertise and experience in the field. It should also be noted that the procedures which the Secretary of State devised included the opportunity to have a face to face assessment rather than just a paper based one.
12. Counsel for the Secretary of State submitted that another reason for rejecting the challenge to its decision to bar the Claimant, was that an appeal can be brought against such a decision. He relied in particular on the decision of the Court of Appeal in R (on the application of M) v. London Borough of Bromley  2 FLR 802, where M’s counsel attempted to extend the matters beyond the procedure grounds into substantive grounds before the court. This was rejected by Buxton LJ who stated “The opportunity to make that decision should in my view not be likely held from them [The Tribunal].” Singh J in this case stated that the judgments in M also tend to support the Secretary of State’s submission that in its assessment of proportionality this court should be slow to stop a case being considered on its merits by the relevant tribunal. Otherwise there was a real risk that the case may be one where, although the reasoning process which led to the decision to bar an individual may be criticised in some way, the Tribunal would have upheld the barring order on its merits. If that were to be the case, the public interest Singh J. stated would be undermined. Singh J. further stated that this did not mean that every decision to reconsider a case will always be proportionate and that much will depend upon the facts of each particular case.
13. The adoption of substantive legitimate expectation is now firmly rooted in public law but subject to certain very important qualifications. In particular, that of overriding issues of public policy. However, where regulatory bodies and disciplinary bodies are seeking to rely upon such a defence to Claimant’s claim for a review of such a decision, they would be wise to put into place appropriate systems of review of and challenge to those decisions to resile from policies which might give rise to a substantive legitimate expectation. In doing so, that review should be if possible independent and give the prospective claimant or appellant appropriate opportunities to make representations before the relevant tribunal or reviewing body. A failure to put into place such processes might give rise to a successful claim that the processes were not proportionate and were exercised in some capricious or high-handed or arbitrary manner.