PETITION OF JON SHARP AGAINST THE SCOTTISH MINISTERS [2020] ScotCS CSOH_74 (23 July 2020)

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Cite as: [2020] RVR 227, 2020 GWD 24-315, [2020] CSOH 74, 2020 SLT 1092, [2020] ScotCS CSOH_74

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OUTER HOUSE, COURT OF SESSION
[2020] CSOH 74
P352/20
OPINION OF LORD FAIRLEY
In the Petition of
JON SHARP
against
THE SCOTTISH MINISTERS
Petitioner
Respondents
Petitioner: O’Rourke QC, Welsh; Ennova Law
Respondents: Crawford QC, Irvine; Scottish Government Legal Directorate
23 July 2020
Introduction
[1]       The emergency restrictions which were imposed in response to the COVID-19
pandemic led to the temporary closure of many businesses across the United Kingdom.
From March 2020 onwards, the Scottish Ministers introduced a range of measures intended
to provide financial support to such businesses in Scotland. These measures included
non-domestic rates reliefs, hardship funds and grants.
[2]       This petition concerns grant support which was introduced by the Scottish Ministers
for businesses operating in the retail, hospitality, and leisure (“RHL”) sector. As more fully
described below, that grant support evolved over the period between March and June of
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2020. By early June, the aggregate amount of grant funding which could be claimed by a
qualifying RHL business was determined by two factors: (i) the number of properties from
which the business had traded at the qualifying date; and (ii) the respective rateable values
of those properties. Specifically, from 8 June 2020 qualifying RHL businesses which had
traded:
1) from a single property with a rateable value of between £18,001 and £51,000 were
entitled to a single grant of £25,000;
2) from a single property with a rateable value not exceeding £18,000 were entitled
to a single grant of £10,000; and
3) from multiple properties were entitled to receive a full grant (of either £25,000 or
£10,000 depending on rateable value) for the first property operated by the
business, and 75% of the full grant (ie £18,750 or, as applicable, £7,500) for each
eligible property thereafter.
No grant was payable in respect of any property with a rateable value in excess of £51,000.
No grant was payable in respect of any property with a rateable value of less than £18,000 if
the cumulative rateable value of all properties operated by the business exceeded £500,000.
[3]       The petitioner owns and operates six coffee shops in Edinburgh. Five of his shops
have rateable values in the £18,001 to £51,000 range. The sixth shop has a rateable value of
less than £18,000. Under the RHL grant scheme described above, the petitioner has
accordingly received an aggregate RHL grant of £107,500 made up of one grant of £25,000,
four grants of £18,750 and one grant of £7,500. In this petition for judicial review, the
petitioner submits that the 25% reduction to each of the grants paid to him in respect of the
second and subsequent properties of his business is unlawful. He seeks reduction of the
policy of the Scottish Ministers to restrict grants paid in respect of second and subsequent
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properties of RHL businesses in that way. He submits that he had a legitimate expectation
that a full 100% grant would be paid in respect of all six of his properties. He submits that
the decision of the Scottish Ministers to restrict the amount of the grant payable in respect of
second and subsequent properties is irrational. In advancing these arguments, the petitioner
relies heavily upon statements made by the Chancellor of the Exchequer on 17 March 2020,
and by Cabinet Secretaries at a sitting of the Scottish Parliament on 18 March 2020. It is
necessary, therefore, to look in some detail at those statements within the context of the
evolution of the RHL grant support in Scotland.
The origins and development of RHL grant support in Scotland
[4]       On 11 March 2020 the World Health Organisation declared COVID-19 to be a
pandemic. On the same day, the Chancellor of the Exchequer presented his Budget to the
UK Parliament. In the course of his Budget speech the Chancellor announced that:
“…any eligible retail, leisure or hospitality business with a rateable value below
£51,000 will, over the next financial year, pay no business rates whatsoever…
I am providing, to any business currently eligible for the small business rates relief, a
£3,000 cash grant per business.”
[5]       On 14 March, the Scottish Government issued a news release announcing a 75% rates
relief for RHL properties with a rateable value of under £69,000, grants of “at least £3,000” to
small businesses, a 1.6% rates relief for all properties (effectively reversing the proposed
uplift in the poundage for 2020-21) and a fixed rates relief of up to £5,000 for all pubs with a
rateable value of less than £100,000.
[6]       On 17 March 2020, the Chancellor made a further announcement about an expanded
package of business support measures which he proposed to introduce in England. These
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included loan schemes, an expansion of non-domestic rates reliefs and further grants. In the
course of his announcement on 17 March, the Chancellor stated:
“I announced last week that for businesses in the retail, hospitality and leisure
sectors, with a rateable value of less than £51,000, they will pay no business rates this
year.
Today, I can go further and provide those businesses with an additional cash grant of
up to £25,000 per business to help bridge through this period.
Additionally, I am also today extending the business rates holiday to all businesses
in those sectors, irrespective of their rateable value.
That means that every single shop, pub, theatre, music venue, restaurant and any
other business in the retail, hospitality or leisure sector will pay no business rates
whatsoever for 12 months, and if they have a rateable value of less than £51,000, they
can now get a cash grant as well.
I also announced last week that we would be providing £3,000 cash grants to the
700,000 of our smallest businesses.
In light of the new circumstances, and to support their cash flow, today I can increase
those grants to £10,000.
Taken together, on top of the unlimited lending capacity I have already announced,
this is a package of tax cuts and grants, in this financial year, worth more than
£20 billion.
Local authorities in England will be fully compensated for the costs of these
measures, and the devolved administrations will receive at least £3.5 billion in
additional funding as a result to provide support to businesses in Scotland, Wales
and Northern Ireland.”
[7]       It was anticipated that delivery of financial support to qualifying businesses would
be effected through local authorities. Quantification of the funding to be provided to the
Scottish devolved administration for business support was to be achieved through the
application of the Barnett formula. The Barnett formula provides a means of calculating
block grant funding for Scotland for devolved matters where there are comparable spending
programmes in England or in England and Wales. It does so by the application of a
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percentage calculated by reference to relative population size. The current percentage for
Scotland is 9.7%. Where UK Government departmental budgets are increased or decreased,
an equivalent (or “consequential”) adjustment is made to the budget of the Scottish
devolved administration using the applicable Barnett percentage. These are referred to
either as “Barnett consequentials”, or simply “consequentials”.
[8]       On the afternoon of 18 March 2020, the Scottish Cabinet Secretary for Economy, Fair
Work and Culture delivered a statement to the Scottish Parliament. The statement included
the following passage:
“I welcome the further support that was announced by the chancellor, and the
Scottish Government will pass all consequentials to businesses to help them through
this challenging period. The First Minister has already confirmed that every penny
that we receive will go to support Scottish businesses and their employees, and I
confirm today that we will replicate the package of measures in full.
We have already confirmed our intention to effectively freeze the poundage rate next
year, and I confirm today that we will mirror the package of measures that was
announced by the chancellor. This will ensure that small businesses that receive the
small business bonus scheme or rural relief will be eligible for a £10,000 grant. We
will provide 12 months’ relief for properties in the hospitality, leisure and retail
sectors, and we will provide a £25,000 grant for hospitality, leisure and retail
properties with a rateable value between £18,000 and £51,000.”
The Deputy Presiding Officer then allowed questions on the statement. Those questions
were answered by the Cabinet Secretary for Economy, Fair Work and Culture, the Cabinet
Secretary for Finance and the Cabinet Secretary for Rural Economy and Tourism.
[9]       In response to a question from Donald Cameron MSP about the mechanics of
accessing support, the Cabinet Secretary for Finance stated:
“On the specific questions that Donald Cameron has asked, my colleague
Fiona Hyslop has confirmed that we will mirror what was in the announcement that
the UK chancellor made yesterday. I confirm that details will be put online so that
businesses can identify quickly and easily whether they are eligible. We will use the
rates system, as the English local authorities will, to distribute the grants as quickly
and effectively as possible the £10,000 grants for all small businesses that are in
receipt of the small business bonus or the rural bonus, and the £25,000 grants for
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businesses in the hospitality sector, with that being defined, again, by the rates
system.”
Responding to a question from Sandra White, MSP about the timing of financial assistance,
the Cabinet Secretary for Finance stated:
“Sandra White mentioned clubs and pubs which, along with music venues, cinemas,
studios and galleries, are all classified as retail and therefore would qualify for
100 per cent rates relief, irrespective of their rateable value. Some of them will also
be small businesses and so will get the £10,000 grant. We recognise the huge
challenge facing those businesses and we want to get the money to them as quickly
as possible.”
[10]       The Cabinet Secretary for Rural Economy and Tourism responded to a question by
stating:
“…I very much welcome the specific measures that have been announced for
businesses in hospitality, leisure and retail, including the small business bonus rural
relief grant of £10,000 and the £25,000 grant for hospitality, leisure and retail
properties with a rateable value of between £18,000 and £51,000. Those measures go
far more towards what is required than the UK Government’s initial response did. I
do not say that with any criticism; it is a developing scene, and it is now obvious
that the initial UK response was not adequate and has been substantially enhanced.”
The Cabinet Secretary for Economy, Fair Work and Culture also responded to questions,
stating inter alia:
“…The rates relief for the hospitality industry for the year and the £25,000 grant will
be very important measures for many areas. They will give people a bit of
confidence, time to plan and time to talk to their banks to see what is possible…
I reiterate that we are providing 12 months of rates relief for properties in the
hospitality, leisure and retail sectors, and we will provide a £25,000 grant to
hospitality, leisure and retail properties that have a rateable value that is between
£18,000 and £51,000. That will capture a great number of businesses…
…We have responded rapidly…After the announcement only yesterday evening by
the UK chancellor, we have responded immediately with a commitment to replicate
all the measures in relation to rates relief, but we accept that there is more to be
done.”
[11]       At 1626 hours on 18 March 2020, the official Scottish Government website
www.gov.scot published a news item summarising and quoting extracts from the statement
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to Parliament earlier that day by the Cabinet Secretary for Economy, Fair Work and Culture.
Two points expressly bullet pointed in that news item were:
“£10,000 grants for small businesses in receipt of the Small Business Bonus Scheme or
Rural Relief
£25,000 grants for hospitality, leisure and retail properties with a rateable value
between £18,000 and £51,000”
[12]       On 19 March 2020, a different official website of the Scottish Government,
www.mygov.scot published an article entitled “Help with non-domestic rates in Scotland
during coronavirus (COVID-19)”. The article referred to the 100% rates relief for all
occupied properties in the RHL sector. It provided guidance on where information about
the application process could be found. On the subject of grants, it stated:
Grants
Retail, hospitality and leisure businesses with a rateable value between £18,000 and
up to and including £51,000 will be able to apply for a one-off grant of £25,000.
A one-off grant of £10,000 will also be available to small businesses who get:
Small Business Bonus Scheme relief
Rural Relief
You can also get this grant if you applied for Nursery Relief or Disabled Relief but
are eligible for the Small Business Bonus Scheme.
You can only apply for one grant – even if you own multiple properties.”
[13]       On 24 March 2020, the Scottish Government published further details of eligibility
for the grant schemes on its www.gov.scot website, stating:
“The one-off grants are designed to help protect jobs, prevent business closures and
promote economic recovery, and more than 90,000 ratepayers across Scotland will be
able to benefit…
Two types of grant are now available to ratepayers:
a one-off £10,000 grant to ratepayers of small businesses
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a one-off grant of £25,000 available to retail, hospitality and leisure business
ratepayers with a rateable value between £18,001 and £50,999…
The one-off £10,000 grant is available to ratepayers of small businesses in receipt
of the Small Business Bonus Scheme (SBBS) or Rural Relief, or eligible for SBBS in
receipt of Nursery Relief or Disabled Relief and with a rateable value up to £18,000.”
Potential applicants were directed to the www.mygov.scot website for further information
on how to apply.
[14]       On 24 March, the UK Government issued its guidance to local authorities on the
English grant schemes. Paragraph 12 of that guidance specified that the grants in England
would be “per property”. In particular, eligible RHL businesses would receive a grant per
property of £10,000 for all properties with a rateable value of up to £15,000 and a grant of
£25,000 per property for properties in the £15,000 to £51,000 range. Guidance to businesses
subsequently issued by the UK Government on 1 April stated:
“Eligible businesses can get one grant per property.
You cannot claim both the retail, hospitality and leisure grant and the small business
grant on the same property.”
[15]       On 15 April, the Scottish Government published a “factsheet” containing details of
an expansion of the scope of both of its grant schemes. The factsheet stated:
“In addition to the 100% grant on the first property, ratepayers will also be eligible
for a 75% grant on each subsequent property that meets the criteria for each grant.”
A further update to the www.mygov.scot website on 17 April explained that whilst the
£10,000 grant had been extended to all properties in the RHL sector with rateable values of
less than £18,000, that extension would only apply where the cumulative rateable value of
all properties operated by the business was in the range £35,001 to £51,000. With effect from
8 June, that upper cumulative limit was increased from £51,000 to £500,000.
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[16]       The combined effect of these various announcements was that with effect from
8 June 2020, the petitioner was entitled to receive grants in respect of all six of his shops,
subject to a restriction by 25% of the amount due in respect of five of them. This resulted in
his aggregate grant entitlement being £107,500. Had the petitioner’s shops been situated in
England, he would have received a full 100% grant for all six properties. This would have
resulted in an aggregate entitlement of £135,000.
[17]       In a joint letter to the Convenor of the Economy, Energy and Fair Work Committee
dated 25 April 2020, the Cabinet Secretary for the Economy, Fair Work and Culture and the
Cabinet Secretary for Finance provided a full appraisal of the business support measures in
Scotland. That letter explained that all Barnett consequentials received in respect of UK
Government business support measures (amounting to around £2.253 billion) had been
passed on to Scottish businesses. The letter stated inter alia:
“With regards to the policy of awarding the Small Business Grant at 75% for second
or subsequent eligible properties, we have chosen to go beyond the UK Government
for the vast majority of the economy.
In England, we believe that very few properties beyond the RHL sectors will actually
receive any grant for multiple properties due to restrictions in the design of the Small
Business Rates Relief compared to the more generous Small Business Bonus Scheme
in Scotland. We estimate that around 5,500 properties in the broader economy will
benefit from a £7,500 grant in Scotland but would receive nothing in England.
Meanwhile, around 3,500 RHL properties would receive £7,500 in Scotland
compared with £10,000 in England. These figures demonstrate that, on balance,
more properties will gain more in Scotland.
Whilst we do provide slightly less grant support to the RHL sectors with multiple
properties through the grant schemes than in England, properties in the RHL sectors
will also benefit from 100% rates relief in 2020-21. This is a substantial saving for
many businesses, on top of the potential wage savings through the UK
Government’s furlough scheme. In sharp contrast, there are many businesses
outside the RHL sectors who are not getting any rates relief or grant funding. The
Scottish Government has sought to ensure as much fairness at a time when
businesses in many sectors, across the country, are grappling with the impact of
Covid-19.
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The 75% grant figure for second or subsequent eligible properties was chosen as a
fairer means of allocating funding and ensuring there are resources to provide
broader support for the economy. We also believe it more accurately reflects the
realities of operating multiple properties for the majority of businesses. For example,
a 75% grant will reflect the greater efficiency and lower overhead and operating costs
for a business operating across multiple sites.”
The letter recognised the desire of many businesses to have consistency across the UK, but
noted also the need for distinctive approaches in Scotland where evidence pointed to that
being necessary.
[18]       Before leaving the question of the rationale for the 75% limit on grants for second
and subsequent properties, it should be noted that in the answers to the petition the
respondents aver that Scotland has a significantly higher proportion of low value rateable
properties than England. In submissions, and under reference to an Affidavit from a
representative of the Scottish Government Local Government and Analytical Services
Division, Mr Storrie, it was explained by Senior Counsel for the respondents that the
expression “higher proportion” was intended to signify a higher percentage relative to
population. In addition, it is averred that Scotland has a similarly higher percentage of
hospitality properties than England. The combined effect of this is that an exact replication
of the English grant scheme in Scotland would cost more in Scotland than the aggregate
amount of the Barnett consequentials generated by the equivalent scheme in England. Exact
replication of the two English grant schemes in Scotland would be respectively 8.45% and
50% more expensive.
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Submissions
Petitioner
[19]       Senior Counsel for the petitioner submitted that a claim to a legitimate expectation
could arise from a promise which was “clear, unambiguous and devoid of relevant
qualification” (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
[2009] 1 AC 453, per Lord Hoffman at page 488H; R v Inland Revenue Commissioners, ex parte
MFK Underwriting Agents Limited [1990] 1 WLR 1545, per Bingham LJ at page 1569; R (Save
Britain’s Heritage) v Secretary of State for Communities and Local Government [2019] 1 WLR 929).
The statements made by the Cabinet Secretaries in the Scottish Parliament on 18 March 2020
constituted a clear, unequivocal and unconditional promise to “mirror” or “replicate” the
English grant schemes which had been announced on 17 March by the Chancellor. That
gave rise to a legitimate expectation on the part of the petitioner that a full £25,000 grant
would be made available per property on all qualifying properties. Senior Counsel also
pointed to the use by the Cabinet Secretary for Economy, Fair Work and Culture on more
than one occasion of the expression: “a £25,000 grant for hospitality and leisure properties
with a rateable value between £18,000 and £51,000” (emphasis added) and noted that similar
language had been used by the Cabinet Secretary for Rural Economy and Tourism. Senior
Counsel submitted that, in context, the only possible construction of what was said was that
the respondents had promised that a full £25,000 grant per qualifying property would be
made available. Although detrimental reliance was not essential, it was a relevant
consideration (Bancoult, pp 488-9). From 18 March, the petitioner had relied upon that
promise in his dealings with suppliers, and in taking important decisions about the funding
of his shops going forward. He had a legitimate expectation that the promise would be
honoured. The website post of 24 March and the factsheet of 15 April each constituted a
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departure from and frustration of that expectation. In the circumstances, that departure
represented an abuse of power by the respondents (R v Secretary of State for Education and
Employment ex parte Begbie [2000] 1 WLR 1115; R v North and East Devon Health Authority ex
parte Coughlan [2001] QB 213; R (Bhatt Murphy) v The Independent Assessor [2008] EWCA
Civ 755).
[20]       It was further submitted that I should treat the explanations now given by the
respondents for choosing to adopt a different policy to that which had been implemented in
England with caution and as ex post facto rationalisation (R (Ermakov) v Westminster City
Council [1996] 2 All ER 302; R (Nash) v Chelsea College of Art and Design [2001] EWHC
Admin 538 at paragraphs 34 and 35).
[21]       Apart from the submission that I should treat reasons given ex post facto with some
caution, the issue of rationality did not feature prominently in the oral submissions for the
petitioner as a “stand alone” ground for review. To some extent, it was relied upon as a
facet of the case based on legitimate expectation to suggest that where there was a departure
from a previously declared policy giving rise to a legitimate expectation, reasons should be
given.
[22]       As a separate ground of review, rationality is relied upon at paragraph 14 of the
petition under reference to the well-known dictum of Lord Diplock in Council of Civil Service
Unions v Minister for the Civil Service [1985] AC 374. Read short, the petitioner avers that the
policy decision of the Scottish Ministers to restrict the amount of grant payable for second
and subsequent properties by 25% is so outrageous in its defiance of logic as to be unlawful.
It is averred that it is illogical at least without giving reasons to place businesses in
Scotland at a disadvantage when compared to equivalent businesses in England whilst
maintaining that the English support schemes are being “mirrored”. It is said that having
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linked the grant schemes to the non-domestic rates system, it is irrational further to
sub-categorise eligible properties in a manner unrelated to liability for non-domestic rates.
Respondent
[23]       Senior Counsel for the respondents began by noting that, within the legal and
constitutional framework created by the Scotland Act 1998, the Barnett formula was the
accepted method of allocating funds to Scotland in relation to devolved matters. There was,
however, no presumption that the approach taken by the Scottish Government to spending
the monies so allocated would be precisely the same as that taken in England. It was the
responsibility of the Scottish Government to formulate policies in devolved areas which
were suitable for Scotland. That was an inevitable consequence of devolution. The premise
of the petitioner’s submission was that the Scottish Government was merely administering a
UK scheme. That was incorrect. There was no requirement on the Scottish Government to
justify or give reasons for adopting a different policy to that which may have been adopted
in England. The rationality of Scottish Government decisions should not be judged simply
by comparison to the position in England. Both nations are entitled, rationally, to arrive at
different policy decisions.
[24]       Whilst accepting that I could scrutinise the statements made by the Cabinet
Secretaries in the Scottish Parliament on 18 March even where those had been made in
response to parliamentary questions Senior Counsel submitted that the language used did
not create a clear, unambiguous and unqualified representation in the terms contended for
by the petitioner. The statements had to be taken in their full context (R (Association of British
Civilian Detainees: Far East Region) v Secretary of State for Defence [2003] QB 1397). At their
highest, the statements by the Cabinet Secretaries could give rise only to a legitimate
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expectation that all consequentials arising from the policies announced by the Chancellor on
17 March would be passed on in Scotland as rates relief and business support. That was
exactly what had happened. The detail of the English grant schemes was not known until
the UK Government published its guidance on 24 March. That was the first point at which
there was any indication that grants in the RHL sector in England would be per property
rather than per business. The indications on 18 March that the English schemes would be
“mirrored” or “replicated” had to be read in that context and in light of what the Chancellor
had said on 17 March. In the absence of a promise in the terms contended for by the
petitioner which was clear, unambiguous and devoid of qualification, the submission for the
petitioner insofar as based upon legitimate expectation could not succeed (Bancoult at
para [60] per Lord Hoffman).
[25]       Even if that was wrong, the particular policy under consideration was one which lay
within the “macro-political field”. The decision challenged in the present case was not an
administrative decision but the exercise of an executive function. Policy decisions about the
detailed allocation of the Barnett consequentials for business support within Scotland were
political ones with which the courts should be slow to interfere other than, perhaps, on
grounds of Wednesbury irrationality (Begbie, page 273 D-E; Bancoult, paragraph [60], and
cf Couglan and R (Bibi) v Newham London Borough Council [2002] 1 WLR 237). This was not a
situation where the respondents required to give reasons at all for the particular policy
adopted or for any change to that policy (R v Higher Education Funding Council ex parte
Institute of Dental Surgery [1994] 1 WLR 242). This factor was relevant both to the issue of
whether or not there had been an “abuse of power” as well as to the issue of rationality. In
any event, the respondents had given reasons for this policy which were neither ex post facto
nor irrational.
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Analysis and decision
Legitimate expectation
[26]       In relation to the aspect of the petitioner’s case based upon legitimate expectation, it
was common ground that the relevant questions were:
a. Did the respondents create a legitimate expectation in the terms contended for
by the petitioner by making a promise which was clear, unambiguous and
devoid of any relevant qualification?
b. If so did the respondents frustrate that expectation? and
c. If so, was the frustration of the legitimate expectation so unfair that to take a
new and different course amounted to an abuse of power?
The particular expectation for which the petitioner contends is that he would receive a grant
of £25,000 per property for each of his six shops.
[27]       The undertakings given by the Cabinet Secretaries on 18 March to “mirror” or
“replicate” the package of measures announced by the Chancellor on 17 March 2020 could
not legitimately have formed the basis for such an expectation. On 17 March, the Chancellor
spoke of providing businesses in the RHL sector with “an additional cash grant of up to
£25,000 per business”. The first point to note is that “an additional cash grant” is framed in
the singular and is said to be “per business”. An ambiguity as to whether the grant was to
be per business or per premises could arguably be said to arise from the Chancellor’s
reference in the immediately preceding paragraph to “businesses…with a rateable value of
less than £51,000”. In particular, the concept of rateable value is one which is usually
understood to apply to properties or premises rather than to the wider collection of assets
and goodwill that make up a “business”. At best for the petitioner, however, the
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Chancellor’s statement was ambiguous on the issue of whether the proposed grant support
being described by him was intended to be per business or per property. Having regard to
the way in which the grant schemes ultimately developed in Scotland, it is also worth noting
that the use by the Chancellor of the qualifying words “up to” clearly signified that whilst
individual grants would be capped at £25,000, they would not necessarily be paid at that
maximum level. The words “up to” were relevant words of qualification.
[28]       The petitioner also founds upon other sections of the statements of the Cabinet
Secretary for Economy, Fair Work and Culture and the Cabinet Secretary for Rural Economy
and Tourism on 18 March. The former spoke of providing “a £25,000 grant for hospitality,
leisure and retail properties with a rateable value between £18,000 and £51,000” (emphasis
added). The latter described “the £25,000 grant for hospitality, leisure and retail properties
with a rateable value of between £18,000 and £51,000”. These expressions, viewed in
isolation, might create an impression or understanding that grants were to be paid per
property and that multiple grants would be available for businesses with multiple
properties. On the other hand, the particular context in which those statements were made
was of an undertaking to “mirror” or “replicate” the package of English measures. As I
have already noted, the policy announced by the Chancellor on 17 March, though arguably
ambiguous, was expressed as being a grant “per business”. None of the Cabinet Secretaries
who spoke on 18 March expressly addressed the question of whether grants would be per
business or per property. In the context of the Chancellor’s announcement on 17 March, the
consistent and repeated use by the Cabinet Secretary for Economy, Fair Work and Culture
and the Cabinet Secretary for Rural Economy and Tourism of the singular definite and
indefinite articles (“the £25,000 grant” and “a £25,000 grant”) might also be said to be
consistent with a single grant per business. The language used by the Cabinet Secretary for
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Finance indicated that £25,000 grants were available “for businesses” in the RHL sector. She
also made clear that details of eligibility would be put online “so that businesses can identify
quickly and easily whether they are eligible”. In their full context, the statements by the
Cabinet Secretaries on 18 March were not a clear, unambiguous and unconditional promise
to pay multiple grants to small businesses and RHL sector businesses operating from
multiple properties. On 19 March, the post on the official MyGov website clarified the
position, stating: “You can only apply for one grant – even if you own multiple properties”.
Prior to that clarification, however, it was not clear from what was said on 18 March
whether the grant support was to be made available per business or per property.
[29]       As matters later developed, the respondents did ultimately make grant support
available on a per property basis for all of the petitioner’s shops, but at a restricted level on
second or subsequent properties. That extension of eligibility happened in two stages on
15 April and 9 June. Prior to 15 April, however, the respondents did not state sufficiently
clearly and unequivocally that any grant would be paid in respect of second and subsequent
properties such as to create a legitimate expectation to that effect upon which the petitioner
was entitled to rely.
[30]       Since the petitioner cannot point to a sufficiently clear, unambiguous and
unconditional promise in the terms for which he contends, the part of his argument which is
based upon the principle of legitimate expectation must fail. For that reason, it is not
necessary for me to consider in any detail the two further questions related to frustration of
expectation and abuse of power. On the latter of those questions, however, I saw significant
force in the respondentssubmission that the policy for allocation of Barnett consequentials
fell, in the particular circumstances of this case, within what is referred to in the case law as
the “macro-political field” where a change of policy would not readily be seen as an abuse of
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power. I would also have regarded it as material that on 19 March the respondents stated
on an official and publicly accessible website that applicants could apply for only one grant
even if they owned multiple properties. That same message was repeated on a different
official website on 24 March. Even if contrary to the conclusion that I have reached the
respondents did clearly announce a policy on 18 March in the terms contended for by the
petitioner, that policy was very swiftly revoked. That would also have been a relevant factor
in considering whether any such revocation was unfair and an abuse of power. Given the
conclusion that I have reached on the first of the three questions bearing upon the legitimate
expectation argument, however, it is not necessary for me to express a concluded view on
these other issues.
Rationality
[31]       To the extent that rationality featured as a facet of the petitioner’s case based on
legitimate expectation in the submission that a departure from a previously declared
policy giving rise to a legitimate expectation should be accompanied by reasons I need say
nothing further. For the reasons already noted, I have concluded that the petitioner did not
have such a legitimate expectation.
[32]       To the extent that rationality was relied upon as a “stand alone” ground of review,
Senior Counsel for the petitioner conceded that there was no duty on the respondents, as a
devolved administration, to give reasons for the way that it decided to distribute the Barnett
consequentials. For the reasons which were forcefully put by Senior Counsel for the
respondents about the constitutional and legal consequences of devolution, that concession
seemed to me to be properly made. Turning to the averments in the petition, the mere fact
of there being a difference between England and Scotland in their respective approaches to
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the distribution of grant support for businesses does not mean that either approach is
irrational, nor does it follow from the fact that eligibility for a grant is linked to
non-domestic rates valuations that an identical approach should be taken in both
jurisdictions. The reasons given in the joint letter from the Cabinet Secretaries of 25 April for
restricting grants on second and subsequent properties by 25% are not obviously illogical.
They are political reasons based upon a clear desire by the respondents to achieve an
equitable distribution of a finite amount of money the Barnett consequentials to
businesses within Scotland affected by the COVID-19 closures. I did not understand the
petitioner to suggest that Mr Storrie was wrong in his statement that Scotland has, as a
matter of fact, a greater percentage than England of low-rated non-domestic properties per
head of population. In these circumstances, I am not satisfied that the petitioner has shown
that the decision of the respondents to limit the amount of grant payable in respect of second
or subsequent properties of RHL businesses can be said to be irrational in the sense
described by Lord Diplock.
[33]       In these circumstances, I shall sustain the respondents’ first and second pleas-in-law,
repel the petitioners pleas-in-law and refuse the petition. I shall reserve all questions as to
expenses.



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