Legitimate Expectation Notes

Legitimate Expectation

From procedure to substance:

A ‘legitimate expectation’ refers to the effect on a person of a change in policy by a public body.

• The role of the law here is to delineate between mere hopes (what the law should not protect) and expectations (which the law should protect).

• There is a tension between legality (rule of law issues that a person should be able to plan their life around the law) and the value of change (it would be unsatisfactory for a public body to be unable to change its policy).

English law currently protects both procedural and substantive legitimate expectation.

• Traditionally, an applicant could only expect to have their procedural legitimate expectations protected, but this has been expanded to substantive grounds, in Coughlan and after.

• The ‘legitimate expectation’ is the consequence of a change of policy, by either:

1. Refusing to apply the initial policy;

2. Applying a different policy;

3. Not applying a policy at all.

• The conduct or assurance can be in relation to a process, or as an outcome.

Procedure:

This is seen in Ng Yuen Shiu, where it was held that a public authority is bound by its undertaking as to the procedure it will follow, so long as this does not conflict with its duty.

• Policy was that if illegal immigrants came forward, they would be able to make representations as to they they should stay. However, they came forward and attempted to deport without opportunity for representation.

  • Similarly, in ex p Liverpool Taxi Fleet Operators, the local corporation made representation that it would not increase the number of taxi licenses in Liverpool without a consultation, but did so anyway.

  • Or, in R (Greenpeace), a white paper said that it would not produce any more nuclear power stations without full public consultations, but the government then sought to do so regardless, with minimal consultation.

• Merely procedure, not outcome – it grants a right that the applicant would not otherwise have (no general right to consultation).

Substance:

This is far more problematic and the case law is far less clear.

Concerns:

Substantive legitimate expectations are less likely to be protected than procedural expectations. This is focussed on the fettering of discretion, such that public bodies cannot do their jobs.

• Ultra vires problem:

  • There are concerns as to the legitimacy of the Court intervening in these cases – if Parliament granted discretion, and this is thwarted, the will of Parliament is being thwarted?

• Inability to respond.

  • Can make it very difficult for local authorities to respond to changing situations.

    • For example, in Hamble Fisheries, if unable to make such changes, there is a risk that you could end up with no fish.

    • Ex p Richmond: Laws J – ‘such a doctrine would impose an obvious and unacceptable fetter upon the power, and duty, of a responsible public authority to change its policy when it considered that that was required in fulfilment of its public responsibilities’.

• Appeal/review distinction.

  • If substantive legitimate expectations are protected, there is a risk of the court substituting its view of the merits of the case for that of the public authority.

These problems do not arise, at least not to the same extent, in cases of procedural legitimate expectations. Here, the court is holding a public authority to the way in which they will exercise their discretion.

• By guaranteeing certain process rights, this does not constrict the number of possible policy options open to the public authority.

History of substantive review:

The starting point is ex p Hamble Fisheries, where Sedley J held that ‘legitimate expectation is now in effect a term of art, reserved for expectations which are not only reasonable but which will be sustained by the court in the face of changes of policy’.

• As such, the court will decide if a legitimate expectation is worthy of protection, and doubted the distinction between substance and process – most importantly, it would make no difference to fairness to so restrict.

• On public policy concerns: no individual can legitimately expect the discharge of public duties to be distorted because of that individual’s position.

However, doubted in ex p Hargreaves, which considered the suggestion of a substantive legitimate expectation as ‘heresy’, because:

1. It fetters discretion; and

2. Asks the court to weigh up the merits of the decision.

The Court asserted that there is a viable distinction between substance and procedure, and substantive review will be dealt with by Wednesbury.

Establishment of legitimate expectations in Coughlan:

Despite the previous uncertainty, Coughlan established beyond doubt that review for substantive legitimate expectations is permitted.

• The case established three categories, distinguishing between substance and procedure. It is not entirely clear how to distinguish between the categories.

They are:

1. Wednesbury unreasonableness:

• This is appropriate for full-on substantive review of the result of a decision.

2. Procedural legitimate expectations:

• Where the public body creates an expectation in the procedure of a particular decision (in how the decision will be reached). Courts will decide this with reference to procedural fairness rules.

3. Substantive legitimate expectations.

• Here, the Court decides whether it is unlawful for the public body to go back on the substance of its promise. These situations would have certain characteristics:

1. Representation was very specific, analogous to a contract; or

2. Frustration of the expectation would amount to an abuse of power.

• Craig argues that this might be an example of proportionality in disguise.

Coughlan has subsequently been confirmed.

• R (Bancoult) (No 2): on these facts, there was no ‘clear and unambiguous’ promise that led to reliance of a detriment; to be a substantive legitimate expectation, it must have been relied on explicitly, leading to a detriment.

• Paponnette: accepted that there was a substantive...

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