LEGITIMATE EXPECTATIONS (LE)

Lawfully created expectations

Does an LE arise?

Adopt a multi-factorial approach. The following fall to be considered:

Does the LE arise from a statement or past practice?

LE 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: GCHQ.

General Requirements

R v Inland Revenue Commissioners, ex p MFK Underwriting Agencies: For a legitimate expectation to arise on the basis of a specific statement or representation, that statement must be “clear, unambiguous and devoid of relevant qualification”. It is clear that this requirement of clarity applies to both promises and past practices.

In PQs, note the general difficulty of an LE arising from a past practice (Lord Wilson in R(Davies) v Commissioners of HMRC). R (Davies) v Commissioners for HM Revenue and Customs: For practice cases, the claimant will need to produce clear evidence which shows that “the practice was so unambiguous, widespread and well-established as to carry a commitment to a group of individuals, of which the individual is part”.

As regards an LE arising from a statement, one particular case shows a strict application of MFK Underwriting Agencies R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2). Facts: Divisional Court held that prerogative legislation banishing Chagos islanders from homeland was unlawful. Foreign Secretary thereafter stated: “I have decided to accept the court’s ruling and the Government will not be appealing. The work we are doing on the feasibility of resettling the [islanders] now takes on a new importance. We started the feasibility work a year ago and are now well underway with phase two of the study. Furthermore, we will put in place a new Immigration Ordinance which will allow the [islanders] to return to the islands.” However, government later reinstated ban on resettlement. Held (3-2 split): no LE. This statement was not devoid of qualifications, as the undertaking was contingent on the feasibility study. Commentary: This is perhaps questionable, given that the feasibility study was concerned with whether it would be financially viable for the UK government to undertake a resettlement programme, as distinct from the question whether the islanders should be permitted to return at all.

However, there is a trend towards a less strict approach than Bancoult. The test is how “on a fair reading of the statement it would have been reasonably understood by those to whom it was made, and there is a focus on how the recepients of the promise, typically ordinary people without legal training, would have understood it”: Paponette v Attorney-General of Trinidad and Tobago. In PQs, mention Bancoult (No. 2) but follow Paponette.

As an aside, it is generally required (regardless of what the LE is based on) for the claimant to come with ‘clean hands’.

• MFK Underwriting Agencies: “It is necessary that the taxpayer should have put all his cards face upwards on the table… [T]he taxpayer should indicate the use he intends to make of any ruling given… [K]knowledge that a ruling is to be publicized in a large and important market could affect the person by whom and the level at which a problem is considered and, indeed, whether it is appropriate to give a ruling at all… The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, or fair and open dealing, to which the authority is entitled as much as the citizen.”

• R (Patel) v GMC: Because of the “importance [C] attached to the information he was legitimately seeking” and because “he was trying his utmost to provide a clear statement of his intentions and to obtain a clear unequivocal response to his question”, it was more likely that the representation would generate a legitimate expectation – and one was found to arise.

• Rahman: There was an appeal to equitable notions of ‘clean hands’ (the claimant’s evasion of immigration rules disqualified him from any LE). Stanley Burton LJ at [45]:
  His evasion or avoidance of immigration rules disqualifies him from establishing any legitimate expectations”.

Is knowledge of the statement/past practice required for an LE to arise? \

This asks if the claimant can have a LE that he will be treated in a particular way if he was not aware of the public authority’s statement or practice indicating how it intended to act.

The position of English law was traditionally that no knowledge is required: R (Rashid) v Secretary of State for the Home Department (2005).

However, there was still some judicial unease about the artificiality of finding LE without knowledge, as noted in Rashid, R(A) v SS for the Home Department (2006), and Mandalia.

Mandalia: there has been some departure from the ascription of the legal effect of policy to the doctrine of legitimate expectation. Invocation of the doctrine is strained in circumstances in which those who invoke it were…unaware of the policy until after the determination adverse to them was made…the applicant's right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing, which was best articulated by Laws LJ in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [68]: “Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I...

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