• In the case of Finucane 2019 UKSC 7 it was held that an independent review, lacking the power to compel witnesses, into murder of a solicitor by paramilitaries in Northern Ireland, in which collusion by state agents had been alleged, and not been an inquiry complaint with ECHR art.2.
  • The review had lacked the means to identify those implicated in the death.

Facts of the Case

  • The appellant appealed against the refusal of judicial review of the secretary of state’s decision not to hold a public inquiry into the murder of her husband.
  • The appellant’s husband was a solicitor who had been murdered in 1989 by paramilitaries in Northern Ireland.
  • She alleged that the stat agents had colluded in the murder.
  • Investigations were conducted but there was no public inquiry and no examination of the state collusion allegations.
  • In 2001, the British government agreed to abide by the recommendations arising from a judicial investigation. In 2004, that investigation recommended that a public inquiry with the power to compel witnesses was required.
  • In 2011 however, the government decided to hold an independent review, with no power to compel witnesses, instead of a public inquiry.
  • The review concluded that the state agents had been involved in serious human rights violations but expressed doubts as to whether the murder would have taken place had it not been for stare involvement.
  • The Court of Appeal rejected the appellants arguments that she had a legitimate expectation that a public inquiry would be held, that a consultation process held before the decision not to hold an inquiry had been a sham with a predetermined outcome and that the decision violated the state’s procedural obligation under ECHR art.2 to investigate the death.

Issues in Finucane 2019 UKSC 7

  • Could the widow prove that reliance was a necessary requirement to prove wither procedural or substantive legitimate expectations.

Held by Supreme Court

  • The appeal was allowed in a part by the Supreme Court.

Lord Kerr

  • Where a clear and unambiguous undertaking had been made, the authority giving the undertaking would not be allowed to depart from it unless it was fair to do so. Although it was not necessary to decide in the instant case, the court disagreed with any suggestion that it was a prerequisite of a substantive legitimate expectation claim that the person relying on it could show that they had suffered a detriment, R. v North and East Devon HA Ex p. Coughlan [2001] Q.B.213, [1999] 7 WLUK 371. Where political issues overtook a promise given by government, and where contemporary considerations impelled a different course, then, provided a bona fide decision was taken on genuine policy grounds not to adhere to the original undertaking, it was difficult for a person holding a legitimate expectation to enforce compliance with it. The appellant’s allegation of a pre-determined outcome was serious and would require clear evidence before it could be accepted.

LORD CARNWATH

  • “I agree with the reasoning and conclusions of Lord Kerr on the principal issues in the appeal. I add a comment on the issue of “legitimate expectation” which was raised in argument and is discussed briefly in his judgment at paras 55ff. I do so only because of the reliance placed by the Secretary of State in argument on a judgment of my own in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17; [2016] 1 WLR 3383, and in particular on the concluding paragraph (para 121):
  • “… the trend of modern authority, judicial and academic, favours a narrow interpretation of the Coughlan principle, which can be simply stated. Where a promise or representation, which is ‘clear, unambiguous and devoid of relevant qualification’, has been given to an identifiable defined person or group by a public authority for its own purposes, either in return for action by the person or group, or on the basis of which the person or group has acted to its detriment, the court will require it to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. In judging proportionality the court will take into account any conflict with wider policy issues, particularly those of a ‘macro-economic’ or ‘macro- political’ kind.” (para 121, emphasis added)
  • It was submitted for the Secretary of State (inter alia) that, in so far as a relevant promise had been made by the Secretary of State, there had been no “detrimental reliance” by Mrs Finucane. 157. I agree with Lord Kerr (para 63) that the issues raised in that paragraph, including in particular that of “detriment”, have no application to this case, which concerns as he says “a policy statement about procedure, made not just to Mrs Finucane but to the world at large”. As I hoped I had made sufficiently clear, my reference in that concluding paragraph to the “Coughlan principle” was directed to the particular case of a promise made to an identifiable person or group relating to a substantive benefit (such as in Ex p Coughlan [2001] QB 213 the right to stay in a home, or in Paponette [2012] 1 AC 1 the use of a taxi-stand). Earlier in the judgment I had sought to explain why such cases were to be distinguished from other categories of “legitimate expectation” in the wider sense: on the one hand, promises relating to procedure, in relation to which the law was well-settled (my para 82); and, on the other, policy statements made to the public in general (para 116; as to which see also Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546, paras 29-31 per Lord Wilson).”  P.48

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