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

How was it that a recording of the meeting of 21 November 2012 came to be made, given that it had in terms been stated that “what is said in this room stays in this room” and that no verbatim record was being kept? At all events, there is no obvious reference to the point about the seeming confidentiality or privacy of the meeting in the claimants’ initial witness statements. When the alleged content of the meeting as being propounded was then queried in the evidence put in the course of these proceedings on behalf of the defendants (they having, entirely understandably, no note or record of that meeting) a witness statement was then put in by Dr Harris dated 28 September 2018. Among other things, he stated that “I have now found a recording of the meeting which was made at the time by a colleague.” He says that he, Dr Harris, was not aware at the time that the meeting was being recorded. He states: “During my checks of my emails for relevant material I have found the sound files as they were sent to me at the time and I attach relevant extracts…” He does not name the “colleague” in question. The exhibited extracts were also limited (and did not, for example, include the “what is said in this room stays in this room” passage). On the direction of this court, a transcript of the recording of the entire meeting was then made for the purpose of the hearing before us.

The defendants have at no stage sought to raise a legal objection to the admissibility of the sound recording and transcript. To the contrary: they rely on them.

Events following 29 November 2012

In the aftermath of the Part 1 report a number of criminal prosecutions were commenced and concluded.

On 22 January 2015 a Parliamentary written answer by a Minister stated:

“The Government has been clear that a decision on whether to undertake Part 2 of the Leveson Inquiry will not take place until after all criminal investigations and trials related to Part 1 are concluded. As these are still ongoing, it would be inappropriate to comment further.”

By December 2015 the outstanding criminal cases were anticipated to be concluded shortly. At that time, the second defendant (by his predecessor) received submissions from officials as to possible options for Part 2 of the Leveson Inquiry. The various options were than discussed between the two relevant departments, the Home Office and the Department of Digital, Culture, Media and Sport. The identified options were (1) to terminate the Inquiry (2) to continue with the Inquiry with the same terms of reference (3) to continue the Inquiry with amended terms of reference (4) to discontinue the Inquiry and establish a non-statutory review or inquiry to fill the remaining gaps.

There was in due course a meeting with Sir Brian Leveson (now President of the Queen’s Bench Division). His firm view was that, while it was a political decision for Ministers, Part 2 of the Inquiry should be proceeded with in some form, as some of the original terms of reference had not been dealt with. He also, among other things, said that he saw no advantages in a non-statutory review. He also estimated that Part 2 would be likely to cost less than Part 1 (which had cost in the region of £5 million).

Thereafter, officials engaged in further consultation, including with representatives of Hacked Off. Unsurprisingly, that organisation was viewing all these developments with dismay. On 6 April 2016 the second and third claimants and others wrote to the Prime Minister urging him “to remove any doubt by confirming that the second phase of the Leveson Inquiry will go ahead without fail once the last criminal trials have concluded.” Reference was also made in that letter in broad terms to “promises” to that effect which had been given not only publicly but in private meetings. By letter in response dated 12 May 2016 the Prime Minister among other things said: “We have always been clear that a conclusion of these cases must take place before a decision on the second part of the Inquiry is made”.

Shortly thereafter, Theresa May MP became Prime Minister on 13 July 2016.  She requested further advice.  There were further meetings on the part of the second defendant and others with Hacked Off and other interested parties.  Reassurances as to the implementation of Part 2 were sought. They were not given.  In lengthy written submissions provided by Hacked Off to the second defendant on 22 September 2016, following a meeting held on 6 September 2016, the equivocation of the Government in implementing Part 2 was strongly attacked. Lengthy citation in those submissions was made of the statements made in the House of Commons on 13 July 2011 when the Inquiry was first established. It was then shortly said in those submissions: "The Prime Minister personally promised to victims of press abuse and police corruption that Part 2 would happen in a private meeting". This sentence was then immediately followed by further lengthy citation of statements made in the House of Commons on 29 November 2012 and 12 February 2013.  It is to be deduced that the reference to “a private meeting” was intended to relate to the meeting of 21 November 2012. But that was not made explicit in the submissions.

On 1 November 2016 the Government announced a public consultation on that issue and also on the issue of implementation of s. 40 of the Crime and Courts Act 2013.

Judicial Review proceedings were then commenced by the fourth claimant and others, challenging the lawfulness of the consultation decision and process.  One of the points raised, among others, was that the fourth claimant had been "personally assured" in November 2012 by the former Prime Minister that Part 2 would proceed.  All the numerous grounds raised, however, were rejected as unarguable by Lewis J on 21 March 2017, in a judgment refusing permission to apply. Among other things, Lewis J concluded that it was not necessary for him to deal with the question whether the assurances relied on did or did not give rise to an expectation enforceable in public law: "nor, indeed, does this court have to decide at this stage whether there is even arguably such an expectation" (paragraph 35).

The consultation closed on 10 January 2017.  There were scores of thousands of responses, many made online: some favoured continuing the Inquiry, others favoured discontinuance.  In addition some 130,000 responses favouring Part 2 were received pursuant to petitions.

Prior to the general election of June 2017, the Conservative party manifesto stated that a Conservative Government would not proceed with Part 2 of the Leveson Inquiry.

Following the general election, there was further consideration.  On 7 November 2017 the two Secretaries of State wrote to the Prime Minister indicating, among other things, that they were "minded to" end the Inquiry. There was a meeting with representatives of Hacked Off on 18 November 2017, where references were made to the former Prime Minister having given promises about Part 2.  Following a meeting with Sir Brian Leveson on 4 December 2017, the defendants then wrote to Sir Brian on 21 December 2017 formally to seek his views on Part 2.

He replied on 23 January 2018.  He stated in that letter his opinion that he "fundamentally disagreed" with the view that Part 2 was not necessary.  He referred to the way in which the terms of the Inquiry had been announced in 2011 when it was established. He said: "These statements highlight the legitimate expectation on behalf of the public, all parties in Parliament and the alleged victims of media intrusion that Part Two would follow at the appropriate time." He made further detailed observations.  He recognised that there had been developments in the intervening six years and recognised the need to take stock of the progress made, while identifying gaps that might still remain.  Among other things, in this regard, he pointed out that Term of Reference 6 had not been met; and he also said that "self-certification of compliance is hardly sufficient to generate public confidence when so much has been revealed about wrongdoing..."  He acknowledged, of course, that whether the Inquiry was to be brought to an end was a matter for the Secretaries of State under the Inquiries Act 2005 and that he could only give his own view.  The letter concluded in this way:

“For the reasons I have explained, however, I have no doubt that there is still a legitimate expectation on behalf of the public and, in particular, the alleged victims of phone hacking and other unlawful conduct, that there will be a full public examination of the circumstances that allowed that behaviour to develop and clear reassurances that nothing of the same scale could occur again: that is what they were promised. For the reasons given above, I do not believe that we are yet even near that position and would urge you to give further consideration to the need for at least the bulk of Part Two to be commenced as soon as possible.”

The Decision under challenge

In due course further detailed submissions were presented by officials to the two Secretaries of State in the course of February 2018.  Those submissions sought to summarise the various views expressed.  Among other things, it was also recorded that “various high profile stakeholders” had stated that "those involved in Part 1 were assured  that further evidence would be heard in Part 2".  There were summarised at some length Sir Brian's views, including the reference to the "legitimate expectation" of public, Parliament and victims which the Secretaries of State were reminded to take into account.  Hacked Off's views were also summarised. This summary included, among other matters, the following: "They also argue that the former Prime Minister, David Cameron, had given promises to victims that they would get the opportunity to put forward their case during Part 2."

The decision was published in the combined form of a letter to Sir Brian dated 1 March 2018 (with annexed formal notice of termination) and a written Government Response of that  date on behalf of both the then Secretaries of State (Amber Rudd MP and Matt Hancock MP).  The overall decision, in sum, as stated in the letter to Sir Brian, was that continuing with the Inquiry "is no longer appropriate, proportionate or in the public interest, not least thanks to the changes we have seen since, and as a result of, your Inquiry." Mr Hancock then made a statement in the House of Commons that day (when he was then criticised by the Opposition for, in effect, kowtowing to the press).

In the letter to Sir Brian, under the heading "Legitimate Expectation and Consultation Responses", it was stated: "We recognise that when the inquiry was established there was a determination to undertake Part 2".  The letter went to refer to the passage of time and to intervening changes; and stated that the Government had "taken the views of the public, parliamentarians and victims expressed through the consultation into account".  The letter went on to outline subsequent changes and reforms, and stated the Government's view that "the risk of the kind of behaviour that led to the Inquiry being established has been significantly and proportionately addressed."

In the lengthy Government Response of the same date it was stated in the Foreword that "we have listened to all views and representations".  In the section on Part 2 the Response referred expressly to victims of press abuse and to the fact that they were "overwhelmingly supportive of continuing the Inquiry with unchanged terms of reference."  It was also recorded that they "felt terminating the Inquiry would show disregard for victims' concerns and would break the promise made to them by the then Government (under the premiership of David Cameron)..."  It was stated that the Government had considered the petitions and direct responses to the consultation, including from the victims of press abuse: the strength of their feelings was recognised.

The reasons given for the decision, as conveyed on 1 March 2018, can be summarised as follows:

Part 2 was no longer in the public interest and was disproportionate to the public benefit, especially given the sums already spent.

The grounds of challenge

As I have said, the claim form had also included a challenge to the decision not to bring into force s. 40 of the Crime and Courts Act 2013 but that is no longer pursued.  Nor are any grounds based on irrationality pursued.

The remaining part of the claim, which asserted breach of a legitimate expectation, had initially been put very broadly, not least in the witness statements. For example, the fourth claimant had said that she considered that "the Government is reneging on all its promises and undoing all the previous agreements which had been so hard fought for by the victims." Dr Harris subsequently referred with emphasis to a meeting with Mr Cameron on 13 July 2011 when he says Mr Cameron "gave a promise" that Part 2 would happen; and so on.

However, no doubt in the light of legal principles which I will come on to mention, the claim had become much more focused and delimited by the time it came on for hearing in this court.   In particular, Ms Mountfield QC, appearing with Mr Milford for the claimants, both accepted and asserted the following:

For the defendants, Ms Lieven QC, appearing with Mr Pievsky, submitted that the entire argument on behalf of the claimants was misplaced. She asserted that nothing had been said at the meeting of 21 November 2012 which could properly be relied on as giving rise to a legitimate expectation in the sense known to law; that the victims could not reasonably have, and did not, rely on it as such to their detriment; that in any event it had been taken sufficiently into account in the decision making process; and, finally, that (if it be necessary, which she said it was not) the defendants had in any event provided ample justification for the decision to terminate the Inquiry.

The law

I can deal with the applicable legal principles relatively shortly, as they were not really in dispute between the parties. The real issue arises from the application of those principles to the facts and circumstances of the instant case.

The underpinning rationale for the protection of legitimate expectations as a matter of public law is grounded in the requirement of fairness and in the requirement that power must not be misused. One key issue in that context is to ascertain (in any given case where an expectation actually exists) whether that expectation is indeed “legitimate”, in the sense that it will be protected by law.

The following propositions are in point for present purposes.

First, the starting-point is that the assurance relied on “must be clear, unambiguous and devoid of relevant qualification”: see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] AC 453 at paragraph 60 (per Lord Hoffmann). If it is not, a claim will necessarily fail.

Second, whether an assurance is to be regarded as clear, unambiguous and devoid of relevant qualification is objectively assessed by reference to how it would have been reasonably understood by those to whom it was made: see Paponette v Attorney-General of Trinidad and Tobago [2012] 1 AC 1 at paragraph 30 (per Lord Dyson).

Third, the doctrine has been invoked primarily with regard to legitimate expectations as to procedure: for example, a promise to a defined group that there will be consultation before a particular decision is made affecting that group. But it is also established that a legitimate expectation may be capable of arising, in appropriate circumstances, where the expectation relates to a substantive decision.

Similar sentiments on this particular aspect were expressed by Laws LJ in the case of R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755. Having, in paragraph 43 of his judgment, referred to the need for “a specific undertaking, directed at a particular individual or group” he went on in paragraph 46 to say this:

“These cases illustrate the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced. I should add this. Though in theory there may be no limit to the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good. There are two reasons for this, and they march together. First, it is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to a diverse class…

The second reason is that the broader the class claiming the expectation's benefit, the more likely it is that a supervening public interest will be held to justify the change of position complained of.”

Fourth, where a promise giving rise to a legitimate expectation has been given it is a general requirement that, if there is to be a departure, the fact that the contemplated step will amount to a breach of that promise should be taken into account.

We were referred in this regard to the case of R (Bibi) v Newham London Borough Council [2002] 1 WLR 237. Ms Mountfield drew attention to and placed particular reliance on what was said by Schiemann LJ at paragraph 39:

“But on any view, if an authority, without even considering the fact that it is in breach of a promise which has given rise to a legitimate expectation that it will be honoured, makes a decision to adopt a course of action at variance with that promise then the authority is abusing its powers.”

Fifth, another proposition also potentially comes into play. It is generally accepted that the more a decision lies in the “macro-political” field the less intrusive will be the court’s supervision: see, for example, R v Secretary of State for Education, ex p. Begbie [2000] 1 WLR 1110 at p. 1131 (per Laws LJ). It was rightly accepted before us that a “macro-political” context can be relevant at the first stage in determining whether an assurance engendering a legitimate expectation, recognisable in law, has been made at all: as well as being relevant to any subsequent debate, where it arises, as to justification for departing from such an assurance. As observed by Richards LJ in R (Wheeler) v Office of the Prime Minister [2003] EWHC 1409 (Admin) there in fact may be promises which are so “macro-political” that the courts simply will not entertain a case that such a promise gives rise to a legitimate expectation in the sense of an expectation which will be protected by law: see at paragraphs 41 and 43. The remedy in such a case lies with Parliament or the electorate, not with the courts.

Finally, for present purposes, I would touch on the question of reliance. It is plain, on authority binding at this level, that detrimental reliance is not required, as a legal cond ition precedent, to make good a claim based on legitimate expectation. That is made explicit by Peter Gibson LJ in his judgment in ex p. Begbie at p. 1124 A-B. Nevertheless, having so held, he went on to say this:

“… 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.”

That detrimental reliance should normally be present in this context and is a relevant consideration, albeit it is not a legal requirement, is further confirmed by the various speeches given in the House of Lords in the case of Bancoult (cited above). A very clear example of detrimental reliance by a defined class based on an assurance given by a public body to that class in fact can be found in the case of Paponette (cited above).

Disposal

Although I have a great deal of sympathy for the claimants and although I have no difficulty at all in comprehending their bitter disappointment at the decision not to proceed with Part 2, I am in no doubt that this claim must be dismissed. It seems to me that it fails at almost every level.

If one is to look for a clear statement from Mr Cameron as to the intended implementation of Part 2 then one can, on one view, find it. It is in his statement to the House of Commons on 29 November 2012. But Ms Mountfield does not rely on that as of itself generating a legitimate expectation which will be recognised and protected in law. The reason is not hard to see, given the authorities: this statement was a statement of intent, made in an intensely political context and made not to a small or defined class but in effect to the public at large.

But, that being so, it in my opinion is an indication at the outset as to just how unsatisfactory it is then to assert the creation of a legitimate expectation by reason of what Mr Cameron said at the prior meeting of 21 November 2012. It is true that Ms Mountfield can thereby claim that the relevant class was relatively small: no more than 30, and on her argument, significantly fewer if the core participant victims are selected as the relevant class. But it seems to me at the outset decidedly odd, indeed decidedly unattractive, that no reliance is placed on the considered public statements made by Mr Cameron in the House of Commons on 29 November 2012 as creating a legitimate expectation; but reliance is placed on his statements made at a private meeting a few days earlier, on the self-same subject-matter, as creating a legitimate expectation. This is particularly so when the meeting was designedly convened shortly before the anticipated publication of the Part 1 report and the inevitable ensuing statement in the House of Commons: the natural inference therefore is that any expectation engendered at the meeting would be subsumed into or superceded by the forthcoming Parliamentary statement. In any event, a host of other difficulties arise on the claimants’ case.

The first is that, as the transcript of the recording now shows, it was expressly stated on behalf of the group attending that meeting that “what is said in this room stays in this room.” That being so, I find it unacceptable that this claim is, in substance, formulated by reference to a breach of that assurance. Indeed, given that the doctrine of legitimate expectation is rooted in fairness (in the public law sense) it seems to me that it would be contrary to fairness to allow what is said in such a meeting, conducted on an agreed private basis, to be permitted to ground the claim.

Statements to the effect that “what is said in this room stays in this room” are, objectively (and no doubt subjectively, too), designed to encourage frankness and to discourage guardedness. Mr Cameron could not possibly, in consequence, have thought (or, objectively, could be expected to have thought) that what he was saying could or would thereafter be relied upon directly by those present as creating a legitimate expectation. If it was to be, why was it ever said that “what is said in this room stays in this room”? Moreover, Dr Harris in his witness statement makes clear that the overall strategy throughout had been to get politicians to commit “on the record.” Yet this meeting, at his own volunteering, was off the record – not just in the sense of not being attributable but also in the sense of not being reportable. The clear inference was that this was a designed (and entirely understandable) means for endeavouring to get Mr Cameron thereafter to commit on the record – as he did in the House of Commons on 29 November 2012. But the court should not, in my opinion, as a matter of public law lend itself for this purpose to deployment of, let alone enforcement of, statements made on a “what is said in this room stays in this room” basis – indeed to do so would be thoroughly counterproductive and would tend to discourage frank and open discussion (cf. without prejudice discussions between lawyers and litigants). If those in the room were proposing to place reliance on what was said in the sense of a having a legitimate expectation in that regard then a privacy commitment of this kind should never have been made: cf. the observations of Bingham LJ in the (tax) case of R v Inland Revenue Commissioners ex p. MFK Underwriting Agents Ltd. [1990] 1 WLR 545 a p. 1565 F-H.

That point of itself, therefore, causes me to hold against this claim. Any expectation engendered by what Mr Cameron said in this meeting, conducted on the basis that it was, cannot, in my judgment, be recognised or protected as a legitimate expectation for this reason alone.

83 In any event, there are, in my judgment, further insuperable difficulties for this claim.

Dr Harris had, it will be recalled, also indicated at the meeting that no verbatim record of the meeting was being kept. But it is to my mind also then most unsatisfactory that, in such circumstances, a legitimate expectation could thereafter be asserted by reference to an undocumented oral statement.

Take the present case. In her first witness statement, the fourth claimant asserted that at the meeting she specifically asked Mr Cameron for his assurance and: “He gave me that specific assurance. He said to me in terms that once the criminal trials were concluded Part 2 would take place”. Likewise, Dr Harris stated in his witness statement that he could “categorically say that Mr Cameron did indeed promise at the meeting on 21 November 2012 that Part 2 of the Inquiry would take place, by way of a response to a question about this from [the fourth claimant]”. It is surely not satisfactory, however, that a legitimate expectation should be claimed to derive from the purported recollection of an oral statement made several years earlier. I do not say, I stress, that a legitimate expectation can never arise from an oral assurance. But the very fact that a postulated assurance is given orally may of itself be revealing of there being no intention, objectively or subjectively, that an expectation would or should be engendered.

The present case is an illustration of the inherent dangers, in point of fact, in relying on the recollection of an alleged oral assurance for the purpose of founding a legitimate expectation such as to be recognisable in public law. This is because it has transpired, by reason of the recording covertly made and only recently revealed, that Mr Cameron at this meeting in fact, as I conclude, gave no such promise, categoric or otherwise, in answer to the fourth claimant or at all.

It is true that, as recorded, Mr Cameron stated at the outset that he remained committed to the report as established: “so Part 1 and Part 2.” But that clearly was an introductory statement of his then personal position and intent. Moreover, what he said at the meeting was throughout peppered with allusions to waiting to see first what Part 1 of the Leveson Inquiry came up with – he was demonstrably (and understandably) equivocal in that respect. His various answers have to be read as part of the whole and in that context. He plainly also was preserving Governmental discretion in the meantime.

As to the actual question which the fourth claimant put, it is to be recalled that it was not put in the specific form as previously drafted. Instead, as is now established by the recording, she asked Mr Cameron as to his “view” on “whether Part 2 should go ahead” and whether he would support it. His answer was, as I am prepared to accept, that “we should still be committed to it” and that “it should finish – in my view, it should finish to the end.” But that was offered simply as a statement of opinion as to what should (not would) happen: it was not, in my judgment, a categoric or specific promise as asserted by the fourth claimant and by Dr Harris (indeed, Mr Cameron had also later said that “we will have to return to this issue”). In the language of private law moreover (though I accept of course that the analogy is by no means exact), the statements that were made at this private meeting, whether viewed subjectively or objectively, surely reveal no intent to create legal relations.

In my view, those considerations, taken together, also would dispose of this claim. Put shortly, no clear assurance that Part 2 would go ahead was ever given at this meeting: and furthermore what was said was in any event qualified. That being so, the claim must fail on that footing as well.

Ms Mountfield did, I should add, seek to rely on what was said in the letter of 29 November 2012. But those attending the meeting could not legitimately open up or rewrite the meeting, as it were, by unilaterally thereafter writing such a letter in such terms (the signatories in fact included some who were not even at the meeting) – a letter to which in any event no response was received or confirmation of agreement given.

But if more were needed – and, as will be gathered, I do not think that it is – there is yet more.

There are these further difficulties for the claim:

I have also considered the question of detrimental reliance. Plainly nothing occurring before 21 November 2012 can be relied on for this purpose: for example, the (accepted) fact that the claimants gave limited evidence at Part 1 because it was expected that more detailed evidence would be given at Part 2, in accordance with the way in which the Inquiry had been structured at the outset. The second and third claimants do not themselves allude at all in their witness statements to what Mr Cameron said at the meeting of 21 November 2012: to the extent that his statements impacted on them (if at all) they thus do not claim that his statements caused them to act to their detriment. Nor does the first claimant in his witness statement give any details of that meeting (he frankly and understandably accepted that it was difficult to remember details of the meeting) or assert any detrimental reliance.

As to the fourth claimant, in her first two witness statements she also did not appear to assert any specific detrimental reliance: albeit she said that she was “very reassured” by what Mr Cameron had said. However, in her third witness statement, made on 30 October 2018 shortly before the hearing, she stated that she settled her claim against News Group Newspapers on 15 February 2013 (although for reasons she explained an apology in open court was only given in 2018). She says that that occurred “a few months after David Cameron provided assurances as to the continuation of Part 2 of the Inquiry in November 2012”. She also says that in settling her claim at that time she relied on her expectation that further evidence about News Group Newspapers’ actions would be uncovered in Part 2 of the Inquiry.

There is no reason to doubt that. But what the fourth claimant conspicuously does not say is that she settled her claim in reliance on the assurances, as she understood them, given at the meeting of 21 November 2012. It would, in truth, be implausible if she had. By February 2013 (when she settled her claim) the Government had made public statements not only in the House of Commons when the Leveson Inquiry was set up in July 2011 but also through Mr Cameron in the House of Commons on 29 November 2012. Her stated general expectation in her third witness statement, at all events, is to be read in that context; and as I say it does not specifically relate to the meeting of 21 November 2012. Besides, as she candidly admitted in her second witness statement, all of the group of victims were “acutely aware from the start” that there was a real danger that Government Ministers would renege on their promises to implement press reform: as had happened so often before. Yet further, this court has no way of knowing what Part 36 offers, funding pressures and so on may have been operative in February 2013 when the claim was settled.

Thus the overall conclusion has to be that no detrimental reliance on the statements made by Mr Cameron at the meeting of 21 November 2012 is in any event shown. Ms Mountfield did briefly allude to “moral detriment” (a phrase used in one of the cases); but so vague a notion can have no application in a case such as this. Lack of detrimental reliance, as the authorities make clear and as I accept, is not necessarily conclusive. It is nevertheless relevant to the asserted creation of a legitimate expectation in any given case that the objective interpretation of the language of the asserted assurance does not create the obvious prospect of any detrimental reliance: and the more so where, as here, those who seek the assurance do not, when seeking it, indicate how (if at all) they propose to rely on it. Overall, the absence of detrimental reliance, either foreseeable or resulting, is in the present case strongly confirmatory of the view which I in any event reach: that this claim based on legitimate expectation must fail.

For completeness, I will shortly state my present views on the other principal points argued.

It was submitted that the defendants could not have taken account of, or given any weight to, the assurances allegedly given on 21 November 2012 if they were at the same time denying their existence: cf. R (Badger Trust) v Secretary of State for Environment etc. [2014] EWHC 2009 (Admin) at paragraph 54 (per Kenneth Parker J.). I see the logic of that. But I am not sure such a proposition sufficiently reflects the particular circumstances of this case.

As Ms Mountfield conceded in the light of Bibi (cited above), the alleged assurances were only required to be taken into account if they gave rise to a legitimate expectation: and, for the reasons I have given, they did not. That renders this point academic. But in any event it is not at all clear to me, from the papers placed before us, that prior to making the decision of 1 March 2018 the defendants in fact had been specifically referred by Hacked Off or anyone else to the actual meeting of 21 November 2012 – as opposed to being referred to more generalised statements of “private assurances”: let alone that it was at that time being said that those assurances given at that meeting of themselves created a legitimate expectation. In fact this position only really crystallised in the claimants’ case in the skeleton argument prepared for the purposes of the hearing before us. At all events, to the extent that the defendants were being presented with a version of alleged events at that private meeting they understandably had no record of it. It was accordingly difficult for them to concede the accuracy of the assertions then being made. But at no stage did they deny such statements either. On the contrary, in the submissions of officials to the two Secretaries of State, it was recorded, in general terms, that there were such assertions which the victims were making: and those assertions thus in that way were taken into account. I am not sure what more could have been done given the circumstances. Moreover, it is entirely clear that consideration was in general terms given to principles of legitimate expectation: as had indeed been flagged up by Sir Brian Leveson himself and as was duly recorded in the submissions to the two Secretaries of State.

In the circumstances, the issue of justification also does not arise for decision. One can agree with the reasons given by the defendants for terminating the Inquiry. One can disagree with them (many no doubt would). I fully take on board the claimants’ criticisms of those reasons and their disagreement with them; and I understand their association with the powerful reasons given by Sir Brian Leveson in his letter of 23 January 2018. Even so, this remained an intensely political decision. It is not for judges in judicial review proceedings, under the guise of an assessment of proportionality and justification, simply to substitute their own views, whatever they may be, of the rights or wrongs of such a decision. Without expressing (or needing to express) a concluded view on the issue of justification, I would shortly indicate that I was left unpersuaded at the hearing that the reasons of justification advanced for the decision could not be sustained in law. In fact, the whole debate before us on this aspect operated on my mind so as to confirm just how intensely macro-political this whole issue was.

Conclusion

I have, I repeat, a great deal of sympathy for the claimants. I can readily understand their bitter disappointment at what has eventuated. The third claimant, indeed, has spoken of her “sense of betrayal” at what has resulted. But I am afraid that sympathy cannot override the law; and I can see absolutely no viable basis for these grounds of claim, based on principles of legitimate expectation in the way that they are, achieving the result which the claimants seek. So I would dismiss this claim.

Mr Justice Ouseley:

I agree.