Chapter 5: Legitimate Expectation Flashcards
- Introduction
Legitimate Expectation
The most recent ground of challenge to be developed in judicial review is that of legitimate expectation.
Legitimate expectation relates to 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.
- Introduction
The doctrine emerged as a derivative of the duty to act fairly, discussed in the previous chapter. The phrase was first introduced in the UK by Lord Denning in Schmidt v Secretary of State for Home Affairs [1969] 2 CH 149
Lord Denning
[…] an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has
some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.
1.1 Types of legitimate expectation
Legitimate expectations comprise two primary forms:
* Procedural legitimate expectation
* Substantive legitimate expectation
Procedural legitimate expectations were the first to be recognised in UK law but subsequently the
concept of a substantive legitimate expectation has been developed too.
1.2 Procedural
Procedural legitimate expectations can arise when either:
* A public body has promised or represented that a particular procedure will be followed before a decision is made: For example, in R v Liverpool Corporation, ex parte Liverpool Taxi Operators’ Association [1972] 2 QB 299, the Town Clerk of Liverpool Corporation had assured the Association that it would not increase the number of licensed taxis without hearing representations from the
Association. The Court of Appeal held that it was unlawful for the Corporation to have
departed from this undertaking.
Procedural
Where there has been an established practice for the public body to use a particular procedure. For an example of an expectation of this kind, arising from established past practice, see the GCHQ case, which is discussed later in this chapter
1.3 Substantive
In more recent years, the courts have accepted that substantive legitimate expectations can arise
in some circumstances, where an assurance or promise has led a person to believe that they will receive a particular, tangible benefit. Unlike a procedural legitimate expectation, a substantive legitimate expectation, if upheld by the court, will entitle the person to the actual benefit itself.
This extension emerged from two lines of authority
The first concerned assurances given by the
Inland Revenue in respect of tax affairs (R v IRC, ex parte Preston [1985] AC 835). The other concerned criteria in a Home Office circular regarding overseas adoption (R v Secretary of State for the Home Department, ex parte Asif Khan [1985] 1 All ER 40).
Procedural irregularities
Following these cases, a period of disagreement ensued within the judiciary as to whether or not
these cases suggested that an expectation of a substantive benefit could be enforced, or whether
the cases were really dealing with procedural irregularities. It was the Court of Appeal in R v North
and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622 which finally put the
matter beyond doubt by bringing the strands of authority together and enforcing a substantive
legitimate expectation. See later on in this chapter for further details on this important case.
- Courts’ approach to assessing legitimate expectation
- Has an expectation arisen?
- If so, is the expectation legitimate?
- Has the public body lawfully frustrated the legitimate expectation?
- Has an expectation arisen?
In the GCHQ case, Lord Fraser stated that: Legitimate […] 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
- Has an expectation arisen?
As this indicates, a legitimate expectation can only be generated by or on behalf of a public
authority. Therefore, in R v Secretary of State for Education and Employment, ex parte Begbie
[2000] 1 WLR 1115, Peter Gibson LJ held that a legitimate expectation was not created by the
spokesman of an opposition political party, including the leader of that party, as such a person
did not speak on behalf of a public authority. This was notwithstanding that the party leader and
other members subsequently formed the new Government following a general election. As this indicates, a legitimate expectation can only be generated by or on behalf of a public
authority. Therefore, in R v Secretary of State for Education and Employment, ex parte Begbie
[2000] 1 WLR 1115, Peter Gibson LJ held that a legitimate expectation was not created by the
spokesman of an opposition political party, including the leader of that party, as such a person
did not speak on behalf of a public authority. This was notwithstanding that the party leader and
other members subsequently formed the new Government following a general election.
Two Broad Ways
Lord Fraser’s statement also highlights that there are two broad ways in which a legitimate expectation can arise: express promise or regular practice.
3.1 Express promise
An expectation can be generated by a specific representation, as seen for example above, in the
case of Liverpool Taxi Operators’ Association. See also ex parte Coughlan in which a substantive legitimate expectation was created when several severely disabled patients were promised by the Health Authority that they would be able to live at a purpose-built residential facility for as long
as they chose
Representation can also be contained in a policy.
This was established by the Privy Council in AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 where it was held that the Hong Kong government had to honour the terms of its original policy to allow Chinese nationals, who were the subject of repatriation to China, to put forward a case to remain in Hong Kong.
R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin)
Where the courts enforced the promise to hold ‘the fullest possible consultation’ in an Energy White Paper. Note that, legitimate expectations arising from policies are controversial,
because public bodies must be allowed to change their policy, otherwise they could fetter their discretion. This is discussed further later in the chapter
3.2 Established past practice
An expectation can also arise from an established practice or settled course of conduct by the public body towards the claimant/a class of persons to which the claimant belongs
GCHQ case
This follows from the GCHQ case, which concerned a long-standing and settled practice for trade unions to be consulted by government before the service conditions of staff at GCHQ were altered. The House of Lords held that this had generated a legitimate expectation that they would be consulted before a ban on trade union membership was introduced. (However, you will recall that the law lords went on to hold, on the facts, that it had not been unlawful for the government to have frustrated this legitimate expectation, given the overriding considerations of national security that had to be taken into account
R v IRC, ex parte Unilever plc [1996] STC 681
In this case the Inland Revenue had accepted late ‘loss relief claims’ from Unilever on 30 occasions over a 20-year period. Then,
without warning, the IRC refused to accept further late claims. The Court of Appeal held that, whilst there had not been an express promise or conscious practice by the IRC, there had been a clear and consistent pattern of conduct by the IRC upon which Unilever could rely.
- Is the expectation legitimate?
An expectation will only be enforceable if it is ‘legitimate’. The legitimacy of the expectation will
depend upon a variety of factors.
As the Court of Appeal explained in the Coughlan case
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.
The same applies to expectations based on past practice.
Relevant factors, sometimes referred to as ‘criteria’, can include the following: clarity, legality, agency, knowledge and reliance. It is important to appreciate that the significance and
application of these factors will vary, depending on the context within which the expectation has arisen.
4.1 Clarity
4.1.1 Promises and policies
The following are key cases on the issue of the clarity of a promise or policy. In R v IRC, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545 it was stated that a promise
had to be: ‘[…] clear, unambiguous and devoid of relevant qualification’.
The Privy Council has added, in Paponette v Attorney-General for Trinidad and Tobago [2010]
UKPC 32, that the question to be asked is: ‘[…] how on a fair reading of the promise it would have been reasonably understood by those to whom it was made’
R (Patel) v General Medical Council [2013] EWCA Civ 327
See also the case of R (Patel) v General Medical Council [2013] EWCA Civ 327 where the court
held that a legitimate expectation had arisen through a promise. This was because the appellant had asked for a number of very specific assurances and tried to obtain a clear unequivocal response to his question concerning the ‘promise’ which arose in an educational context.
4.1.2 Past practices
R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs [2011] UKSC 47
In R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs [2011] UKSC 47, Lord Wilson held that, in order to establish that the 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. On the facts, the taxpayers’ evidence was far too thin and equivocal to establish such a practice.
4.2 Legality
A representation must be legal in the sense that it would be within the powers of the public authority to fulfil the ‘promise’ in question. Therefore, a LE can only arise on the basis of a lawful promise or practice.
R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115
An undertaking that any children already on a government-funded scheme at an independent school would be able to continue on that scheme was held not to have generated a legitimate
expectation. One of the reasons given by Peter Gibson LJ was that it would have been contrary to
the requirements of statutory provisions - the Education (Schools) Act 1997.
Rowland v Environment Agency [2003] EWCA Civ 1885
The claimant sought a declaration against the Environment Agency, after it changed its position on ownership of a stretch of waterway. For some years the waterway had been treated as a private right of way attached to the claimant’s property. However, the Agency later decided that it had always provided for public
access. The Court of Appeal held that, as there had been no statutory power to extinguish the public access rights, the claimant could not rely upon the Agency’s past conduct to found a
legitimate expectation.
Two further points are worth noting on the requirement of legality:
- The promise giving rise to the alleged legitimate expectation does not in all circumstances necessarily have to have been made by the person or body who may be bound by it.For example, in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27 Lords Mance and Rodger, in the majority, held that a promise made by one
government department (the Home Office) was binding upon another government department
(the Department for Health).
Two further points are worth noting on the requirement of legality:
An expectation can still be legitimate where the public authority made a promise in the mistaken belief it was under a statutory duty to do what it had promised to do.
In R (Bibi) v Newham LBC [1996] EWHC Admin 4 the Court of Appeal held that, even though it had become apparent to the local authority that they did not have a statutory duty to provide permanent housing to the applicant ‘it lay within the powers of the local authority both to make the representation and to fulfil it’.
4.3 Agents
An agent is someone who is authorised to act on behalf of another person or body. The Court of Appeal in South Buckinghamshire District Council v Flanagan [2002] EWCA Civ 690 established that a public body will not be bound by a representation of one of its agents where the agent
acted outside his authority in making the representation.
Solicitor appointed by district council
In this case, a solicitor had been appointed by the District Council to prosecute the defendant for
breaching enforcement notices. The solicitor reached a settlement with the defendant’s lawyer,
under which he agreed to the withdrawal of the enforcement notices.
4.3 Agents
The court held that the solicitor had not been given actual authority by the council to do so. Neither did he have ‘ostensible authority’, as it did not lie within the usual authority of a solicitor acting in these circumstances. Therefore, the Council was not bound.
