A more recent version of these Jr Legitimate Expectation notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Constitutional and Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Con & Ad : JR, Legitimate Expectation Introduction
?????Not a ground mentioned by Lord Diplock in GCHQ.
?????Legit expectation = the concept that an expectation of either a procedure or a benefit, arising from a representation or promise made by a public body, or even an established practice carried out by a public body, may be protected in law.
?????Long-employed in EU law, doctrine first mentioned in UK law by Lord Denning, Schmidt.
?????Schmidt v Home Sec (1969) o Asked to leave at end of student visa. o They demanded a hearing. Court said no, there's no reason. o The students had no legit expectation of a hearing in this case. o Lord Denning, what might give rise to a claim: 'had some right or interest or some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say'.
?????Types of legit expectation: (1) Procedural; (2) Substantive A definition
??? ?An expectation of a procedure or benefit, arising from a promise or practice, which may be protected by law. Questions to consider:
?????When does a LE arise?
?????What are the requirements for a valid LE?
?????Can a LE be frustrated lawfully
?????(1) Promise made or practice established + (2) Is it legitimate ? (3) LE 'arises'.
?????(4) Was it lawful for the LE to have been frustrated by the public body -> (5) if not, the LE is upheld, i.e. public body not allowed to resile from it. Rationale
?????Rationale for protecting the promise o Legal certainty o Trust in public bodies o Participation o Compliance o Fairness
?????Rationale for frustrating the promise o Administrative 'autonomy' o Adaptability o Legality 1
o Avoiding fettering of discretion
?????So BALANCE between these interests. (1) PROCEDURAL LE
??? ?Expectation that a particular procedure will be followed. Where either o (a) a public body has promised or represented that a particular procedure will be followed o OR (b) where there has been an established practice for the public body to use a particular procedure (eg GCHQ).
? ?? ? Ex p Liverpool Taxi Operators Association (1972) o The Town Clerk of Liverpool Corp had assured the Association that it would not increase the number of licensed taxis without hearing representations from the Association. o CA held: the Corporation could not depart from this undertaking.
? ?? ? LE arising from past/established practice: GCHQ (1984): o Expectation ('legit interest') of consultation with trade unions. o [but lost case due to national security]
? ?? ? AG Hong Kong v Ng Yuen Shiu (1983) o Expectation of a full hearing. o Hong Kong authorities worried about illegal immigrants; AG said if come forward, we will give you a hearing about whether you can remain. o Ng Yuen Shiu came forward; immediately arrested, faced with deportation, without a hearing. o Court said: there was a legit expectation of a hearing. (2) SUBSTANTIVE LE
??? ?Expectation that a 'promised'/tangible benefit will be received.
??? ?If upheld by the court, will entitled the person to the actual benefit itself.
? ?? ? This extension emerged from 2 lines of authority:
? ?? ? (1) Assurances given by the Inland Revenue re tax affairs, deriving from R v IRC, ex p Preston (1985): o an IRC inspector had undertaken not to raise any further inquiries into Preston's tax affairs if he withdrew claims for interest relief and capital loss. Preston subsequently did so but, following receipt of new info, the IRC served notice on him that he was liable for additional income tax. o HL HELD: JR could in principle be available for unfairness amounting to abuse of power where the conduct of the IRC was the equivalent of a breach of a representation made to the taxpayer concerned.
2 o Though the JR review failed on the facts, because the inspector had made his undertaking on basis that there had been full disclosure by the taxpayer, which had not been the case, so the undertaking by the inspector was not seen to apply. o HL didn't frame this specifically in terms of 'legit expectation'. o But Divisional Court, R v IRC ex p MFK: recognised that this was what the case had involved. It accepted that a representation by the IRC that it would forgo tax, which would otherwise have been payable, could be binding, providing the taxpayer gave full disclosure and the IRC's statement was clear & unambiguous. nd
? ?? ? (2) 2 line of authority began with case of R v SSHD, ex p Asif Khan
? ?? ? R v SSHD ex p Asif Khan (1985) o re a Home Office circular, which specified 4 criteria that would need to be satisfied in order for a child to be permitted to enter the UK for purposes of adoption. The Khan family received this circular and followed the procedure, and satisfied the 4 criteria. However, HO applied a condition that was not referred to the circular, refused the application. o Asif Khan fulfilled all the criteria, in a published policy, for adoption. o He met all the criteria for adoption in the policy circular. o He wasn't allowed to adopt. o CA HELD: the circular had created a legit expectation that the procedures set out in it would be followed, and that their case would be decided on the basis of the published criteria. He had a legit expectation as to the promised benefit.
? ?? ? Applied by Divisional Court in R v SSHD, ex p Ruddock (1987): o Various government pronouncements had set out the conditions to be satisfied before a warrant could be issued to the security services to intercept communications. o Taylor J held: these had created a legit expectation that a warrant would only be issued if those conditions were met. On the facts, however, no grounds for concluding that they had not been met.
? ?? ? Then there was a period of disagreement within the judiciary, re whether or not they meant that an expectation of a substantive benefit could be enforced, or whether the cases were really dealing with procedural irregularities.
??? ?Put beyond doubt in Coughlan, which enforced a substantive legit expectation.
? ?? ? R v N & E Devon HA, ex p Coughlan (2000), CA
3 o Injured in a car crash; being cared for in a facility; N&E Devon HA wanted to move her into a different facilities; she didn't want to move. o Devon HA made a promise: if you move to this other facilities, we'll provided you with a home for life, you won't be moved again. They did. o A few years later, they asked them to move against. o Court HELD: there was a substantive expectation that they would not be moved again.
How does a LE arise?
? ?? ? Lord Fraser, GCHQ: '[Legit] expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue'.
? ?? ? (1) Express promise /specific representation o Specific Representation made to an individual/group:
? Ex p Liverpool Taxi Operators' Association
? Ex p Coughlan: a substantive LE was created when several severely disabled patients were promised by the HA that they would be able to live at a purpose-built residential facility for as long as they chose. o Policy laid down by a public body
? AG of Hong Kong v Ng Yuen Shiu (1983), PC: the gov of Hong Kong (a British colony then) had recently announced a new policy of repatriation of Chinese nationals entering illegally via Macau. After petitions made to the Governor, the policy was partially modified by an announcement that illegal entrants who had arrived via Macau would be interviewed and have their cases determined individually on their merits. The applicant was detained, however, for deportation, without being given the opportunity to put his case.
? PC held: the HK Gov was bound by its undertaking as to the procedure it should follow. Where a public body had promised to follow a certain procedure before reaching a certain decision, good administration required that it should act fairly and implement its promise, as long as it did not interfere with its statutory duty.
? Ex p Asif Khan: re policy/criteria for adoption.
? R (Greenpeace) v SoS Trade and Industry (2007), Admin Court:
? In 2003, an Energy White Paper published by gov described nuclear power as an 'attractive option'; stated that, before decision to build nay more nuclear power stations, there would be 'the fullest possible consultation, followed by a further white paper setting out any proposals'.
4 In Jan 2006, after public consultation, gov published a report saying that new nuclear power stations would make a 'significant contribution to meeting our energy policy goals'.
? Greenpeace argued: gov had not fulfilled the promise to carry out a full consultation, this was breach of legit expectation.
? HELD: although there were no procedural rules requiring the gov go consult, there was a clear promise in the 2003 White Paper that there would be 'the fullest public consultation' before a decision was taken to support new nuclear power stations. A declaration was granted in favour of Greenpeace.
? Legit expectations arising from policies are controversial, because decision-makers must be allowed to change their policy: otherwise they would be liable for a acting illegally, by fettering their own discretion.
? So where a policy exists, the applicant's challenge will not relate to changes in the general norms of the policy; but that, in their particular circumstances, the change or departure requires additional legal protection.
? NB, for a policy to create a LE, it requires clarity, and maybe knowledge and reliance
? And the recognition of a LE created by a policy does not mean the applicant will necessarily get the benefit---see 'frustration' discussion.
? ?? ? (2) From established Past practice, a consistent matter of behaviour by public body o From an established practice or settled course of conduct by the public body towards the C, or towards a class of persons to which the C belongs. o GCHQ: over 40 yrs the civil service had consistently been consulted with before the service conditions of GCHQ staff were altered. HL HELD: this had generated a leg expectation that they would be consulted before a ban on trade union membership was introduced (However, in this case was not unlawful to frustrate the legit ex given the overriding considerations of national security). o R v IRC, Ex p Unilever (1996): o On 30 occasions over 20 years, the IRC accepted loss relief claims, which were submitted over two years after the relevant accounting period. Then, without any warning, IRC suddenly refused to do so. o CA HELD: accepted there had no express representation or conscious practice by the IRC to allow late claims for loss relief. Nevertheless, there had been a clear and consistent5
pattern of conduct by IRC in which the claims were invariably allowed. o In such circumstances, IRC had acted unfairly as to have abused its powers, when it rejected Unilever's loss relief claims without giving clear advanced notice of its intention to enforce the strict time limit. o Unilever had missed tax deadline; Tax Revenue imposed a fine on them. But Unilever had not paid their tax on time for 21 years. Court held: a legit expectation has arisen from past practice.
Is the Expectation legitimate? Legitimacy of expectation (clarity; legality; knowledge; reliance)
? ?? ? Factors for legitimacy of the expectation, CA, Coughlan: 'This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion'.
? You don't need all 4, they are contextual (1) Clarity
? ?? ? (a) Promises & policies o R v IRC, ex p MFK Underwriting Agents, 1990: Promise must be 'clear, unambiguous and devoid of relevant qualification' o Paponette v AG for Trinidad and Tabago (2010), PC: the question to be asked is how, on a fair reading, the promise would have been reasonably understood by those to whom it was made. o Assess with regard to context, R v SoS Education ex p Begbie (2000) o Re assisted places scheme---Up to 1997, Conservatives had a policy of the state supporting gifted children through private school education. o Run up to 1997 election, Labour Party, in opposition, said anyone currently in the scheme would not be adversely affected until their placement ceased. o Begie's daughter was at an all-through school (primary an secondary), and thought she would be able to attend until 18. o However, new Labour Education Sec, David Blunkett, determined that her education would only be funded until end of primary school age. o Applicant applied for JR on basis of a legit expectation. o Took it to court. Court HELD: a promise in run up to election, in that context, something said by a party not in power was not enforceable. o Laws LJ: 'Pre-election promises made in opposite are worthless before the law . . . such promises are not being made by a public authority. Therefore, they are not governed
6 by the law on judicial review . . . it is unrealistic to hold opposition politicians to promises they made before they were in possession of all the information (which will only occur once they are in government)'. o Not always straightforward whether a policy is sufficiently clear, R (Bancoult) v SoS Foreign Affairs (No 2) (2009), HL: o 1968-1971, British gov removed entire population of Chagos Islands to make way for construction of an American military airbase at Diego Garcia. o CA held (2001): that he power under the British Indian Ocean Territory Order 1965 did not extend to a power to expel all its inhabitants. o In response, Foreign Soc issued a press release, accepting the court's ruling, and saying they were doing a feasibility study re resettling the Ilois and that 'we will put in place a new Immigration Ordinance which will allow the Ilois to return to the outer islands while observing our Treaty obligations'. o A new Immigration Ordinance was issued, which permitted citizens with a connection to the territory to enter any of the Chagos islands except Diego Garcia. o However, when the feasibility study identified a number of practical difficulties, which would make long-term resettlement precarious and costly, restrictions on entry to the Islands were re-imposed. o HL HELD (3/2 majority)---that the Foreign Sec's statement did not amount to a clear representation that the islanders would be able to resettle, irrespective of the findings of the feasibility study, so there was found to be no legit expectation to that effect. o See also, R (Alansi) v Newham LBC (2013): re the removal of the C from the borough housing department authority's 'priority home-seeker category'.
? ?? ? (b) past practice o R (Davies) the Commissioners for HMRC (2011), SC: o Lord Wilson: HELD: in order to establish that HMRC had a settled practice in respect of the claimant taxpayers, there would need to be: 'evidence that the practice was so unambiguous, so widespread, so well-established and so well recognised as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it'. o On the facts, the taxpayers' evidence was far too thin and equivocal to established a legit ex. (2) Legality
??? ?Promise must be 'legal' (i.e. within the powers of the body making it); and must be made by appropriate person.
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