Was the government’s recent decision to end a discretionary compensation scheme an abuse of power? asks Nicholas Dobson
The legality of Charles Clarke’s decision to withdrew the ex gratia compensation scheme for miscarriages of justice was challenged by the claimants in R (Niazi and others) v Secretary of State for the Home Department and another [2007] EWCA Civ 1495, [2007] All ER (D) 302 (Jun) on the grounds of procedural fairness, abuse of power, irrationality and also legitimate expectation.
The former home secretary’s written ministerial statement, issued on 19 April 2006, indicated that since the government currently paid compensation under both a statutory scheme (the Criminal Justice Act 1988, s 133) and a discretionary scheme, the latter—which cost over £2m per year to operate but benefited only between five and 10 applicants—was confusing and anomalous and could not continue to be justified.
In Niazi, Lord Justice May noted that it was not possible to spell out from the ministerial statement, or past practice relating to the discretionary scheme, any representation or promise that it would
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