The First Minister removed the claimant’s husband, a member of the Welsh Assembly, from his position as a cabinet minister after receiving complaints from three women of his sexually inappropriate behaviour. The member was subsequently found dead at his home, having taken his own life. The First Minister decided that there should be an independent investigation into his actions and decisions in relation to the member, to be established pursuant to his powers under section 71 of the Government of Wales Act 2006, read with section 48 of that Act, following a process to be specified in an operational protocol. In a private meeting, the First Minister gave the Permanent Secretary a “remit” to devise the protocol in terms that the evidence should be heard in private and witnesses were only to be questioned by the independent investigator conducting the inquiry and not by lawyers instructed by the core participants, including the claimant and her husband’s family. He subsequently issued a press statement announcing that an independent inquiry was to take place, to be led by a senior Queen’s Counsel, and that, to ensure that this happened separately from his office, he had asked the Permanent Secretary to begin the preparatory work for the inquiry. A draft operational protocol was devised and a senior Queen’s Counsel was appointed as independent investigator. After considering representations by the claimant, the investigator proposed certain amendments to the protocol. He later expressed concerns at delays in responding to his proposals, being concerned in particular that the Permanent Secretary was seeking the First Minister’s instructions on various matters concerning the protocol and that the First Minister was seeking to negotiate its terms. The Permanent Secretary subsequently published a final, revised version of the protocol and obtained confirmation from the First Minister of the latter’s approval of its terms. The claimant sought judicial review challenging the lawfulness of the operational protocol on the grounds, inter alia, that it had been adopted in breach of a legitimate expectation that the investigation and its procedures would be set up and decided independently of the First Minister, and that the terms of the operational protocol were unfair, irrational and inappropriate for the conduct of an open and independent inquiry in so far as they provided: (i) that the investigator was not empowered to compel witnesses to attend to give oral evidence and/or to produce evidence; (ii) that any oral evidence given to the investigator was to be heard in private; (iii) that the investigator could to refuse to permit the claimant and her husband’s family to attend hearings if attendance would cause a witness to withdraw his consent to give evidence; and (iv) that the claimant and family were not permitted to ask questions of any witness through their legal representatives.
On the claim for judicial review—
Held, claim allowed. (1) A statement in a press release was capable, both in principle and in practice, of giving rise to a clear and unambiguous representation as to a minister or government official’s intention in the same way as any other form of public statement, in particular where the reason for the press statement was to indicate in clear terms what action or decision a minister or Government official intended to take in order to deal with a particular issue. The thrust of the First Minister’s press statement, which was designed to reassure the family and the public at large in the light of public concern following the death of the claimant’s husband and the need to provide answers, was that there would be no compromise on the independence of the investigation or the transparency of the process. The statement, being not merely a statement to present intentions but a clear and unequivocal undertaking as to how things would be handled in the future, had given rise to a legitimate expectation, upon which it had been reasonable for the claimant to rely, that (i) the preparatory work for the setting up of the investigation would be handed over to and henceforth undertaken by the Permanent Secretary and nobody else, (ii) the Permanent Secretary would carry out that work independently, without input or interference from the First Minister or his office, (iii) the preparatory work would include all matters relevant to setting up the investigation, including such matters as the formulation of the operational protocol for the investigation, (iv) the First Minister would have no involvement in the decision-making, and (v) the Permanent Secretary would have a free hand, her only brief or instruction being to ensure that the investigation was independent. The ability of the claimant to rely on the press statement was unaffected by the prior “remit” which the First Minister had given to the Permanent Secretary, that remit having been given in a private meeting and not publicised, and therefore being incapable of affecting what the press statement, by its express and unambiguous terms and read in the context in which it was issued, would reasonably have been taken to mean (paras 64, 66–70, 72–75).
(2) The legitimate expectation created by representations in the press statement had been breached in that the Permanent Secretary had not had a free hand, already being subject to an unpublished remit from the First Minister, she had not carried out the preparations for the inquiry separately from the First Minister’s office, and the First Minister had continued to have control of the process and indeed the final form of the operational protocol. While only the First Minister had the ultimate power under section 71 of the Government of Wales Act 2006 to establish an inquiry, that did not prevent him from delegating the task to his officials or require that he, personally, had to be involved in deciding the precise terms upon which the investigation was to be conducted, and thus it had been open to the First Minister not only to delegate the preparatory work for the investigation to an official such as the Permanent Secretary, including the setting of the terms of the operational protocol, but also to direct that the Permanent Secretary was to carry out such preparatory work separately from the First Minister’s office. For the First Minister and Permanent Secretary to proceed in the way they had, without the First Minister informing the claimant that he had already given the Permanent Secretary a remit as to the terms of the operational protocol and that he would in fact be the final decision-maker on its final form, was neither rational nor proportionate to the legitimate expectation arising from the press statement, and was unlawful, in circumstances where the thrust of the statement was that the First Minister would definitely not be the decision-maker as to the operational protocol. The breach of the legitimate expectation had unfairly deprived the claimant of the benefit of the promised independent procedure, and the four aspects of the operational protocol to which the claimant objected fell to be quashed accordingly (paras 76, 80–82, 86, 88, 89–92, 112).
Per curiam. Apart from the breach of legitimate expectation, the four aspects of the operational protocol which the claimant challenged are not otherwise objectionable as a matter of legal principle and, given the non-statutory nature of the investigation, its subject matter and the need to encourage the attendance of witnesses and to ensure that they gave their best evidence, those flexible arrangements are a permissible option and are not inherently unfair to the claimant (paras 112, 114–118).
Leslie Thomas QC and Sheryn Omeri (instructed by Hudgell Solicitors) for the claimant.
Cathryn McGahey QC (instructed by Treasury Solicitor) for the First Minister and the Permanent Secretary.
George Peretz QC (instructed by Treasury Solicitor) appeared for the independent investigator but made no representations.