Legitimate Expectation (L7)

Question 1

What is a legitimate expectation?

Answer 1

Where a public authority has:
Given a promise as to how it will act in a given area, or
Followed a consistent practice which those affected by it could reasonably expect to continue,
The law requires the practice or promise to be honoured unless there is good reason not to do so.

Question 2

How does Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) demonstrate legitimate expectation by a PRACTICE?

Answer 2

Staff employed at GCHQ had been permitted to belong to national trade unions, and most had done so.
Well-established practice of consultation about important changes in the Ts&Cs of service.
In 1983, government banned staff at GCHQ from joining any trade union for “national security” reasons.
The HoL held that it was unfair to deprive civil servants of the right to belong to a trade union without first consulting them or their union.

But this was justified because the decision had been based on considerations of national security that outweighed the applicants’ legitimate expectation of prior consultation.

Question 3

How does R v Home Secretary, ex parte Ruddock [1987] 2 All ER 578 demonstrate legitimate expectation by a PROMISE?

Answer 3

At the time, telephone tapping was authorised according to non statutory administrative rules, the content of which had been published and adhered to by successive Home Secretaries.
A person, therefore, had a legitimate expectation that his telephone would be tapped only in accordance with those rules.
An interception of a communication which was not in accordance with the published policy would be unlawful.
However, on the facts there had not been unlawful exercise of discretion.

Question 4

How does Lennon v Hamilton District Council 1990 S.C.L.R. 514 demonstrate legitimate expectation by a PROMISE?

Answer 4

Unlawful for a housing authority to refuse to allow a person to succeed to a secure tenancy on the death of his aunt.
He had no right to succeed under the housing legislation but was ‘entitled’ to succeed by virtue of the authority’s house allocation policy.

Question 5

What does the legitimate expectation doctrine achieve?

Answer 5

The doctrine of legitimate expectation protects interests which are not legal rights.
Yet, it falls under the ground of ‘legality’ (Diplock categorisation).
The doctrine allows judicial review of both procedural and substantive fairness.

Question 6

What is a procedural legitimate expectation?

Answer 6

A procedural legitimate expectation is an expectation that a certain process will be followed before a decision is taken.

Question 7

What is a substantive legitimate expectation?

Answer 7

A substantive legitimate expectation is an expectation of receiving or continuing to receive some benefit or avoiding some disadvantage.

Question 8

What did Lord Mackay of Clashfern say in R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd [2003] 1 WLR 348 about legitimate expectation’s application to public/private law?

Answer 8

“… In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out … estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into ‘the public law of planning control, which binds everyone’.”

Question 9

What are some reasons to protect expectations, as set out in legal commentary?

Answer 9

Trust in the public authorities/keeping promises.
Certainty.
Equal treatment of citizens.

Question 10

What are some reasons to protect expectations, stated in case law?

Answer 10

‘Fairness’ (e.g. Bingham LJ in MFK Underwriting).
‘Abuse of power’ (e.g. ex parte Preston).
‘So unfair as to amount to an abuse of power.’ (Lord Woolf in Coughlan).

Question 11

What are some reasons NOT to protect expectations?

Answer 11

The doctrine does not require that any person who has an expectation is to be protected.

Legality – not undermining the ultra vires constraint.
Legality – conflict with fettering doctrine?
Rigid application of rule = unlawful fettering. A rule creates legitimate expectations?

The need for flexibility in the development and application of policy.

Unpredictability – does it promote certainty if the way in which competing considerations are balanced against each other to produce outcomes varies according to context and the circumstances of particular cases?

Interests of others/public interest.

Question 12

What are some situations which may fall under this ground of review?

Answer 12

Change of general policy/rule + claim made by individual who had relied on previous policy.
E.g. prisoners’ parole policy changed.

General policy or rule not applied to particular case.
E.g. Lennon case.

Representation made to particular person + relied on + public body seeks to resile because of change of policy.
E.g. Coughlin case.

Representation to particular person + relied on + public body makes decision inconsistent with specific promise.

Question 13

What does R (Bapio Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27 tell us about HOW expectations are created?

Answer 13

The expectation must be induced by statements or conduct of the decision-maker.

Question 14

Who must the person be who makes the representation?

Answer 14

A representation must be made by a person with actual or ostensible authority.

Question 15

What does Lord Woolf, MR tell us in Coughlan about to whom the representation must be made?

Answer 15

A representation may be made to a specific individual, a defined class of persons, or the public in general, according to circumstances.

“Nevertheless, most cases of an enforceable expectation of a substantive benefit…….are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract”

Question 16

What does Bingham LJ say in R v Inland Revenue Commissioners, ex parte MFK Underwriting [1990] 1 WLR 1545 about the representation?

Answer 16

( at 1570).
Any representation must be “clear, unambiguous and devoid of relevant qualification”.

Question 17

What does R (Bapio) tell us about to whom the representation is made in contrast to Coughlan?

Answer 17

Suggests that a representation to large numbers of persons will be upheld where appropriate:

You must be within the class to whom the representation can reasonably be expected to apply + it must be reasonable for you to rely upon it.

Question 18

What are some reasons why an expectation might NOT be legitimate?

Answer 18

Person seeking to rely on the expectation must put ‘all cards face up on the table’ (MFK Underwriting) – a need for full disclosure.
Expectation would confer unmerited or improper benefit.
Subject matter suggests it would be inappropriate, e.g, where third party/wider public interests are affected.
Where there has been no detrimental reliance on a representation.
Situations in which an apparent promise cannot be relied on, e.g., statements made by political parties during election campaigns.

Question 19

What does Lord Hoffman say in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453 about the need for reliance on the representation?

Answer 19

(para 60)
There is no absolute rule that the applicant should have relied upon the promise to his detriment.

Question 20

What does Peter Gibson LJ say in R v Secretary of State for Education, ex parte Begbie [2000] 1 WLR 1115 about detrimental reliance in contrast to Bancoult?

Answer 20

(at 1124).
Cases where there is no detrimental reliance would be “ very much the exception”.

Question 21

What were the facts of R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213?

Answer 21

A severely disabled woman was receiving nursing care in Mardon House, an NHS facility.
Health Authority had made several representations to her that she would be able to live out her days there.
Health Authority decided to close Mardon House on cost grounds.
Coughlan sought judicial review claiming a breach of her legitimate expectation of a home for life.

Note: she could not claim on her statutory rights because she was still offered care and accommodation elsewhere, so she sought review under her legitimate expectation.
The Court of Appeal held that the decision was unlawful; for the authority to frustrate Coughlan’s legitimate expectation was so unfair that it amounted to an abuse of power.

Question 22

What did the court hold in Coughlan as to when legitimate expectation may be lawful frustrated?

Answer 22

In such circumstances, the court had to determine whether there was a sufficient overriding interest to justify a departure from what had previously been promised.
That in view of the importance of the promise to the applicant, the fact that it was limited to a few individuals and that the consequences to the health authority of honouring it were likely to be financial only, the applicant had a legitimate expectation that the health authority would not resile from its promise unless there was an overreaching justification for doing so.
And that, in the circumstances, including the fact that the quality of the alternative accommodation to be offered to the applicant was not known, the closure decision was an unjustified breach of that promise which constituted unfairness amounting to an abuse of power.

Question 23

What did Laws LJ say in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 about the appropriate standard of review for legitimate expectation?

Answer 23

Suggests that proportionality is the appropriate standard of review:
“Accordingly a public body’s promise or practice as to future conduct may only be denied….where to do so is the public body’s legal duty, or is … a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest.”

Question 24

What is the proportionality test for review (as proposed in Nadarajah)?

Answer 24

The court should consider:
The importance of the government aim or objective.
Whether there is a rational connection between the objective and the measure in question, i.e., do the means used advance the end.
Whether the measure is necessary for achieving the desired objective or a less intrusive measure would suffice; and
Whether the measure imposes excessive burdens on the individual/interest affected in relation to the benefits achieved.

Question 25

What is the limitation to the legitimate expectation doctrine?

Answer 25

A public body may not extend its statutory powers or evade its duties by making promises or representations – such representations are generally unenforceable.
There is clearly some tension between doctrine of legitimate expectation and doctrine that discretion should not be fettered by self-created rules.
But this has not prevented the development of the doctrine.