Promises, promises: the enforceability of…

Introduction

1. On 22 May 2024, the Prime Minister announced that a general election would be held on 4 July 2024. So began the traditional round of policy announcements from politicians on all sides of the political debate as to the policies they would introduce if elected to Government in due course. As the election nears, no doubt all the main parties will promise much; yet the real question will be about delivery once the victor is in power. But what can be done if a political party, in its enthusiasm to persuade people to vote for them, makes promises in the pre-election period which it does not honour once in power? In an age when an increasing volume of pre-election policy briefing and statements are expected to be made over social media, with the associated greater degree of informality and, perhaps therefore, a greater potential for excess, confusion or mistake, the question of the enforceability or otherwise of pre-election promises is more important than ever.

R v. Secretary of State for Education and Employment, ex parte Begbie

2. Even if the potential for post-election disappointment is greater in an age driven by social media, the question itself is not a new one. Indeed, against the background of the Labour Party’s established lead in all the main opinion polls, it is perhaps fitting that the leading case in this somewhat niche field of public law stems from promises made by Tony Blair’s Labour Party in the run-up to the 1997 election, the last time they were returned to power from the Opposition Benches. It is perhaps even more fitting that it arose in the context of education law, given Tony Blair’s statement priority for government when in Opposition of “education, education, education”[1] and the focus, in this found of election campaigning on the Labour Party’s proposal to impose VAT on private school fees. Education is often, unsurprisingly, a hot topic in these circumstances.

3. In R v. Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, the Court of Appeal considered a series of pre-election statements (as well as post-election statements) by Labour Party politicians which were inconsistent with the terms of one of the first pieces of New Labour legislation to make it on to the statute book, the Education (Schools) Act 1997 (the “1997 Act”).

4. The case concerned the abolition of the former Assisted Places Scheme (“ASP”). In February 1997, the applicant, Heather Begbie, then aged 9, was offered a place at the Leys School in Cambridge, an independent school which educated pupils up to the age of 18, under the state-funded ASP. The ASP was a means-tested scheme under which the Government would meet the fees of pupils at private schools whose parents could not otherwise afford to send them there. In its original form, it had covered only secondary school education, but in the final year of the Major administration before the 1 May 1997 election, it was expanded on two occasions. First, on 25 August 1996, to cover the education of pupils aged at least 5 years old who were at schools providing both primary and secondary education; and, secondly, on 4 April 1997, to cover primary schools. Before 1 November 1996, the Labour Party made it clear that, if elected, it would abolish the APS and redirect the savings in public expenditure to reduce class sizes in the state education sector[2].

5. So far, so clear. But what of the detail? Specifically, what would happen to those children who were already benefiting from a place at a private school under the APS? Would they be required to relinquish the spot immediately upon the APS being abolished, or would they be given some sort of interim or transitional protection? In an election campaign where much was made of encouraging aspiration and providing opportunities for the future, this was an important detail and one which was closely scrutinised.

6. A number of attempts were made, both before and after the general election, to clarify the position of those already attending private schools on places under the APS. On 1 November 1996, Tony Blair caused a letter to be written to an interested person, stating that “… 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”. Similar broad statements were made on his behalf, and on behalf of the then Shadow Education Secretary, David Blunkett, on several occasions before the election. The 1997 Act came into force on 31 July 1997. Section 1 abolished the APS. Section 2 created a system of transitional arrangements for existing assisted pupils. For those receiving primary education, section 2(2) provided that they would be able to continue with their place until the end of the school year in which they completed their primary education, with a discretion on the part of the Secretary of State to permit a pupil to continue on the scheme for a further period of secondary education “where he is satisfied that it is reasonable to do so in view of any particular circumstances relating to that pupil”. Following the enactment of the 1997 Act, its effect was explained in a departmental circular to headteachers. Further, and crucially for the purposes of the Begbie case, both the Prime Minister and the Secretary of State made further statements as to the operation of the APS and the transitional arrangements in the press and to interested parents (and grandparents). Following these statements, there was correspondence between the Secretary of State and Mrs Begbie.

7. It is fair to say that the various attempts to clarify the operation of the transitional arrangements were not a success. The statements produced a mass of contradictory and confusing statements. Amongst the more colourful descriptions in the litigation are the following:

“It is a very sorry state of affairs when a Secretary of State has to explain away his own letters as mistaken or unclear and a statement of the Prime Minister as an inaccurate representation of policy, taken out of context.” (Maurice Kay J, at first instance, repeated by Peter Gibson LJ, 1123D)

“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.” (Peter Gibson LJ, 1127E)

“The hopes of many of seeing their children complete their education under the APS were raised by the general statements made by politicians in opposition and have been cruelly disappointed by the policy adopted by the same politicians when in government, and their aggrieved feeling will not have been lessened by the erroneous, confused and contradictory statements made by the Government while they were trying to obtain clarification of the policy.” (Peter Gibson LJ, at 1129D)

“The government’s policy was misrepresented through incompetence. … Mrs Begbie … has conducted herself throughout with dignity, restraint, and a clarity of mind which contrasts with the letter to her from the Secretary of State of 11 March…” (Laws LJ, at 1131E)

“[Mrs Begbie] expressed herself “still rather confused” – unsurprisingly, given the opacity of the Secretary of State’s letter.” (Sedley LJ, at 1133C)

8. In Heather’s individual case, it was clear that she did not fall within the scope of any of the categories in the circular through which she might have been able to continue beyond the age of 11. Further, the Secretary of State refused to exercise his residual discretion in section 2(2) in her favour. Accordingly, the Begbies launched judicial review proceedings to quash the Secretary of State’s decision. Mrs Begbie ran three arguments in her claim. First, the undertakings, both pre- and post-election, had created a legitimate expectation that the Secretary of State would exercise his discretion to allow Heather to continue with an assisted place until the end of her education at the Leys School at the age of 18, and to resile from that expectation was unfair and unreasonable; secondly, the decision was unreasonable; and, thirdly, the decision infringed her right to education under Article 2 of the First Protocol (“A1P2”) to the European Convention on Human Rights (“ECHR”).

9. Despite the criticisms of the Government’s communications and the obvious sympathy that the Court had with the position of Heather, the claim failed. The principal judgment was by Peter Gibson LJ, although Laws and Sedley LJJ gave concurring judgments. In so far as the pre-election statements were concerned, Gibson LJ considered, at 1125C, that “[n]o doubt” such statements “did give rise to an expectation that children already on the APS from which group children at “all through” schools were not excepted, would continue to receive support in their education until it was completed” but the question for the court was “whether those statements give rise to a legitimate expectation, in the sense of an expectation which will be protected by law”.

10. The primary difficulty for the Claimant, on which all three judges agreed, was the fact that any expectation had to yield to the terms of the section 2 of the 1997 Act, pursuant to which the Secretary of State had to act. If the statements were implemented in their broad terms, then not only Heather but also others like her – effectively, all children receiving education at “all through” schools, on the grounds of consistency of treatment – would have had to benefit. Such an approach would be “plainly outside the contemplation of the section, and contrary to what must have been intended by section 2(2)(b)”.

11. But there were further problems, specifically relating to the pre-election statements. Peter Gibson LJ identified two problems in particular:

The pre-election statements were not made on behalf of a public authority. As he held at 1125H, “An opposition spokesman, even the Leader of the Opposition, does not speak on behalf of a public authority”.
Elected representatives are not bound in law to carry out the pre-announced policies in election manifestos.

12. Both of these reasons were significant and merit some analysis.

13. As to Peter Gibson LJ’s first point, it is obvious that a political party, seeking power but not yet elected (or seeking re-election) is, by definition, not exercising public or governmental functions when making a pre-election statement. Those are the key indicators of the exercise of public power such as to render a body amenable to judicial review: see, for example, the modern line of cases on amenability beginning with R v. Panel on Takeovers and Mergers, ex parte Datafin Plc [1987] AC 815. In this respect, it must be recalled that these arguments related to the first ground of challenge, based on legitimate expectation. The concept of legitimate expectation is, of course, a doctrine grounded in the attempt to hold public authorities to promises as to how they will exercise powers which are vested in them. But if the body in question holds no power at the time it gives an indication as to its future conduct, the concept does not bite at all.

14. The second point is more involved. Peter Gibson LJ relied on the “Fares fair” case – Bromley LBC v. Greater London Council [1983] 1 AC 768 – as the basis for this part of this reasoning. That was the case involving a challenge to the GLC’s attempt to levy a supplementary rate on London Boroughs to provide it with the funding needed to implement a pre-election manifesto promise to reduce London bus and tube fares by 25%. So it, too, involved an analysis, albeit in a different context, of the enforceability of pre-election promises. At 829F, Lord Diplock held that once officials were elected they must not “treat themselves as irrevocably bound to carry out pre-announced policies contained in election manifestos even through, by that time, changes of circumstances have occurred that were unforeseen when those policies were announced and would add significantly to the disadvantages that would result from carrying them out”.

15. There was thus already high and good authority for the proposition that political parties and politicians, once in power, are not absolutely and legally bound by their pre-election promises. But there were good practical reasons too. Lord Diplock identified the fact that circumstances might have changed in an unforeseen way. Peter Gibson LJ expanded on this idea at 1126C when he explained 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”.

16. That is a powerful pragmatic reason why pre-election promises cannot bind a party once in power. They are necessarily made from a position of uncertainty in at least three respects:

The person making them may never hold the statutory or common law power to which the promise relates. It is, in that sense, a promise made in a vacuum.
Circumstances may change. The circumstances pertaining once the person is vested with the power in question may be very different from those existing when the promise was made. It would be profoundly unsatisfactory if a politician were to be held to a statement made in different circumstances where the current implementation may be disadvantageous to the general electorate. Such an obligation would be perverse.
The person making the representation will, certainly if in opposition, be doing so from a position of ignorance as to the full facts. They will not know the true and complete position unless and until they are in power[3]. At that stage, things might look very different and there may be no justification whatsoever in favour of the promise – and, indeed, there may be every justification to resile from it. In that sense, knowledge really is power.

17. Against that background, Peter Gibson LJ rejected the legitimate expectation argument based on the pre-election statements; so too that element of the argument based on the post-election statements. The analysis of the post-election material contains important analysis for the doctrine of legitimate expectation, and especially the concept of detrimental reliance, more generally. The rationality and A2P1 arguments were peremptorily dismissed. Laws LJ provided valuable additional analysis on the legitimate expectation arguments but not specifically on the pre-election promises issue.[4]

18. Sedley LJ did however provide further commentary on pre-election promises in a postscript to the main analysis at 1134B-D. He began by recalling that in the Bromley case, Lord Diplock had said that an administration “may properly and morally ought to have regard to its pre-election promises”. But this was not the same as saying that it must have regard to them, still yet act upon them. He distinguished one possible scenario, however, in which such promises might take effect: “A pre-election promise may of course be expressly adopted by a new administration once in office, but then it acquires a new character with, no doubt, consequences analogous to those of any other representation made by a public authority”.

19. Two things stand out about this passage:

One possible reading of the Bromley case was that it left open the possibility of pre-election promises amounting to a material consideration to be taken into account in post-election decision-making. While Sedley LJ accepted that they could be taken into account, he rejected the idea that they must be considered, let alone followed. For the pragmatic reasons already identified, that must be right: it could not rationally be required of an administration once in power that they shut their eyes to the promises they made in order to be elected, but not can they be obliged to follow them once occupying elected office. In light of the confirmation in R (Friends of the Earth) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190 that rationality is the test for identifying material considerations in the absence of a statutory list, the door is surely now closed to any material considerations argument in practice as well as in principle.
Sedley LJ did, however, identify the possibility of post-election confirmation of a statement leading to position analogous to legitimate expectation. Again, that must be right: if an administration, once in power, expressly confirms its pre-election promise, the difficult of public authority status disappears as too will the pragmatic considerations highlighted above. The promise will, in effect, have been restated and will take on the same status as any other public authority representations as capable, in principle, of giving rise to a legitimate expectation.

Later cases: R (Domb) v. Hammersmith & Fulham LBC

20. If post-election affirmation of an earlier promise seemed, in Begbie, to represent the one remaining avenue for enforcement of pre-election promises, later litigation has demonstrated that even this is not an easy path. In R (Domb) v. Hammersmith and Fulham LBC [2008] EWHC 3277 (Admin), [2009] BLGR 340, the Administrative Court (Harrison J) was faced with a claim for enforcement of a manifesto promise by the local Conservative party in Hammersmith and Fulham not to re-introduce home care charging, made in its manifesto for local elections in 2006. It was returned as the majority party in the Council. At the first Council meeting following the elections, the pre-election manifesto was recorded in the minutes as having been “duly noted and adopted”. The precise meaning of this phrase proved to be unclear in the litigation but there was no dispute that there had been no vote. Two years later, faced with mounting funding difficulties for its adult social care budget, the Council decided at a meeting, and following a consultation, to adopt a recommendation to re-introduce home charging. The Leader and the Cabinet Member for Community and Children’s Services were both acutely aware that this represented a departure from the manifesto.

21. The Claimants were individuals with serious care needs in the Council’s area. They challenged the decision to re-introduce home charging on a number of bases. The first ground was that the Council had adopted the manifesto once elected and thereby given rise to a legitimate expectation in the manner contemplated by Sedley LJ in Begbie. Further, it was argued that the Council had not properly considered that it was departing from the legitimate expectation when making the decision under challenge.

22. Was this enough to avoid the difficulties in Begbie? No. The Court rejected the claim on all grounds. On this ground, Harrison J did not dispute that Sedley LJ’s dictum was capable of being applied. However, it was necessary to examine the facts carefully to determine the context. He held that, in all the circumstances, the words “noted and adopted” could not “reasonably be understood as cloaking the manifesto with the greater legal consequences for which the claimants contend”. It was significant both that no vote had been taken and that the wording in the minutes did not go as far as in previous years, where there was reference to manifestos being adopted “as policy or as an overall framework for Council policy”. There was much more in the manifesto than the care charging provisions and it was unlikely that the Opposition in the Council would have agreed to these matters without a vote: [21]. In addition, the Councillors were acutely aware of the manifesto promise when they made the decision to adopt home charging: [22]. The claim was dismissed overall. On appeal to the Court of Appeal, the legitimate expectation point was refused permission – by Sedley LJ: [2009] EWCA Civ 941, [2009] BLGR 843, [4]-[5].

23. So far from being the exception that proves the rule, Domb in fact demonstrates the stringency of the test that will be applied to suggestions that manifesto pledges have ben adopted by a public authority following an election. The test to be applied is not entirely clear and, plainly, individual cases will turn on the facts of what happened in specific meetings. But some clear indication of conscious adoption is likely to be necessary before Sedley LJ’s concluding dictum can be successfully applied to give legal force to a pre-election pledge.

Conclusion

24. It is clear, then, that politicians cannot be held in law to their pre-election pledges. Whatever scope may have been thought to have been left over in the Bromley case was firmly closed down in Begbie. That was for good reasons of both principle and pragmatism: an administration cannot be bound by statements made by bodies or individuals which do not constitute public bodies as a matter of public law; and to give binding legal effect to such statements risks fixing constituents with unanticipated adverse consequences. There is certainly scope for pre-election promises to be given effect by post-election adoption but Domb illustrates the level of carefully scrutiny which the courts will apply to such suggestions.

25. Does this mean that those currently campaigning for election to Westminster can rest easy, unconcerned by the later consequences of their statements and able to promise the world even if they deliver little once in power? No: it is just that the controls lie elsewhere, outside the legal sphere. As Peter Gibson LJ made clear in Begbie, at 1126D:

“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 not legal.”

This blog was written by David Blundell KC

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[1] In his Leader’s speech at the Labour Party Conference in Blackpool on 1 October 1996, Tony Blair famously said “Ask me my three main priorities for government and I tell you: education, education and education.” See British Political Speech | Speech Archive and UK: BLACKPOOL: LABOUR PARTY ANNUAL CONFERENCE: TONY BLAIR SPEECH (youtube.com) (both last accessed on 2 June 2024).

[2] Tony Blair had himself made this clear in his 1 October 1996 conference speech: “Under Labour that scheme will be phased out, that money will be used to make sure that every five, six and seven-year-old is in a class of a size of 30 or under.” Ibid.

[3] For an example of unpleasant surprises on obtaining public office, see the famous “there’s no money left” note left by Liam Byrne for his successor, when stepping down as Chief Secretary to the Treasury: Ex-Treasury secretary Liam Byrne's note to his successor: there's no money left | David Laws | The Guardian (last accessed on 3 June 2024).

[4] Laws LJ’s analysis of macro-political issues was, in part, the subject of Jonathan Sumption QC’s 2011 FA Mann Lecture: Judicial and Political Decision-Making: The Uncertain Boundary [2011] JR 301.