Grounds for JR - Legitimate Expectations

Question 1

In which case does the notion of legitimate expectations as a ground for judicial review emerge?

Answer 1

CCSU v Minister for Civil Service

Question 2

What did Lord Diplock say in the case of CCSU v Minister for Civil Service?

Answer 2

He said - that judicial review should be available when an individual is deprived of:
“Some benefit or advantage which either -
(a) ‘he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment’
(b) ‘he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn’

Question 3

Why is there a need to allow judicial review in cases involving legitimate expectation?

Answer 3

Forsyth said - “If the executive undertakes, expressly or by past practice, to behave in a particular way the subject expects that undertaking to be complied with. That is surely fundamental to good government and it would be monstrous if the executive could freely renege on its undertakings. Public trust in the government should not be left unprotected.”

Question 4

Which two key conflicting principles have underpinned the development of legitimate expectations?

Answer 4

Administrative Autonomy and Legal Certainty - the tension between the two has shaped the concept of legitimate expectations.

Question 5

What are the three types of promise which may give rise to procedural legitimate expectations?

Answer 5

1. Express promise of consultation before action taken
2. Expectation of consultation arises from past practice
3. Expectation based on previous enjoyment of a benefit

Question 6

Which case involves a promise of consultation before action taken?

Answer 6

R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operator’s Association - Liverpool council had promised the Taxi’s association that it would not increase the number of licences for taxis without consulting them. Then did precisely that with no consultation.

Question 7

Which case involved an expectation of consultation based on past practice?

Answer 7

Council of Civil Services Unions v Minister for the Civil Service - Mrs Thatcher removed the right of workers at GCHQ to belong to trade unions.

Question 8

What did Lord Fraser say in the case of Council of Civil Services Unions v Minister for the Civil Service?

Answer 8

He said - “…the evidence shows that, ever since GCHQ began in 1947, prior consultation has been the invariable rule when conditions of service were to be significantly altered. Accordingly in my opinion, if there had been no question of national security involved, the appellants would have had a legitimate expectation that the Minister would consult them before issuing the instruction [banning trade union membership”

Question 9

Which case involved an expectation based on the previous enjoyment of a benefit?

Answer 9

Devon County Council ex parte Baker; Durham County Council ex parte Curtis - The case concerned the decision by the two Councils to shut down certain residential homes for the elderly. Devon had engaged in fairly extensive consultation with the residents; Durham only specifically made the residents aware of the plan 5 days before the final decision was made to go ahead with it. Residents from both homes claimed that they had had a legitimate expectation of proper consultation, which had been frustrated by the Councils’ actions.

Question 10

What did Simon Browne say about the varying ‘demands of fairness’ in regards to legitimate expectations?

Answer 10

He said - it is perhaps an “unsurprising principle that the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit…”

Question 11

What are the two key types of legitimate expectations?

Answer 11

1. Procedural Legitimate Expectations

2. Substantive Legitimate Expectations

Question 12

What are procedural legitimate expectations?

Answer 12

An individual has an expectation that a certain procedure will be followed.

Question 13

What are substantive legitimate expectations?

Answer 13

An individual has an expectation that a certain outcome will be reached.

Question 14

Why is the concept of substantive legitimate expectations a controversial one?

Answer 14

In the case of R v Secretary of State for Transport ex parte Richmond upon Thames LBC it was said - “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”

Question 15

Which case demonstrated the potential rigidity to public policy of the substantive legitimate expectations ground for judicial review?

Answer 15

R v Secretary of State for the Home Department ex parte Khan

Question 16

What are the details of the Khan Case?

Answer 16

The applicant sought to adopt his brother’s child from Pakistan. The Home Office had published general criteria which would be applied to decide whether to allow the child to come into the UK. The applicants appeared to satisfy all the criteria, but when the application was made, it was refused and it was evident that different criteria had been applied, in particular the HO appeared to have decided that because the child was living in good conditions with his mother, entry to the UK should not be allowed.

Question 17

What approach did the courts take to the Khan Case?

Answer 17

They said - “The Secretary of State… should not in my view be allowed to resile from [the published criteria] without affording interested persons a hearing, and then only if the overriding public interest demands it.”

Question 18

What key question arose from the Khan Case?

Answer 18

Does the position of the court (in regards to substantive legitimate expectations) mean that authorities are prevented from changing their policies unless the courts think the overriding public interest demands it?

Question 19

Which case clarified the tension between substantive legitimate expectations and public policy alterations?

Answer 19

R v North and East Devon Health Authority, ex parte Coughlan

Question 20

What was said in the Coughlan Case?

Answer 20

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

Question 21

What further question arose following the clarification made in the Coughlan Case?

Answer 21

Some people questioned whether the role of the court in “weighing the requirements of fairness against any overriding interest relied upon for the change of policy” would risk dissolving the distinction between review and appeal?

Question 22

Which other case clarifies how the courts balance substantive legitimate expectations with public policy?

Answer 22

R v Secretary of State for the Home Department ex parte Hargreaves

Question 23

What did the Hargreaves Case establish?

Answer 23

This case established that depending on its importance, the substantive legitimate expectation may only be treated as a consideration, which should be considered by the decision-maker, but to which s/he can give as much or little weight as s/he pleases – this is likely to apply where a general policy is being changed.

Question 24

What does the concept of legitimacy relate to in regard to legitimate expectations?

Answer 24

Legitimacy is not about what individuals actually expect, but about what they are entitled to expect (Elliott) - see the case of Re Findlay.

Question 25

Which three cases clarified the qualities needed fo the existence of a legitimate expectations?

Answer 25

1. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
2. R (Bloggs 61) v Home Secretary
3. (GCHQ Case)

Question 26

Which quality of a legitimate expectation was highlighted in Bancoult?

Answer 26

The assurance must be clear, unequivocal and unambiguous - in the case of Bancoult, an undertaking to work ‘on the feasibility of resettling the Ilois’ on the Chagos Islands and to change the law to permit resettlement did not amount to an ‘unequivocal assurance’ that the Ilois could return, so no legitimate expectation was found by the majority.

Question 27

Which quality of a legitimate expectation was highlighted in Bloggs?

Answer 27

The expectation must be founded upon a promise or practice by the public authority that is said to be bound to fulfil it. (e.g. the police cannot bind the prison service).

Question 28

Which quality of a legitimate expectation was highlighted in GCHQ?

Answer 28

An established practice may lead a claimant to legitimately expect that the same practice will be followed in the future.

Question 29

Which other case further reinforced the ‘clear, unequivocal and unambiguous requirement”?

Answer 29

R v Devon County Council ex parte Baker; Durham County Council ex parte Curtis, Simon Browne LJ - there must he said be “a clear and unambiguous representation upon which it was reasonable for him to rely”

Question 30

Which other case reinforced the idea that regular practice may suffice for a legitimate expectation?

Answer 30

R v IRC ex p Unilever plc - IRC had for over 20 years allowed Unilever to claim relief for trading loss even though the relief was not properly sought, being out of time. It then revoked this practice, with no notice, costing Unilever millions.

Question 31

What are the two types of assurances that may give rise to a legitimate expectation?

Answer 31

1. Assurances to the claimant only - see case of R v Inland Revenue Commissioners, ex parte Unilever Plc
2. Assurances to the world at large - see the case of Attorney General of Hong Kong v Ng Yeun Shiu

Question 32

What extra stage may claimants have to pass through when relying on legitimate expectations arising from assurances to the world at large?

Answer 32

The claimants invoking such statements must be able to show that they fall within the group to whom the statement relates.

Question 33

Is knowledge necessary in relying upon a legitimate expectation?

Answer 33

Common Sense would suggest so but the case of R (Rashid) v Secretary of State for the Home Department suggested otherwise.

Question 34

What are the details of the Rashid Case?

Answer 34

The claimant was resisting removal to Iraq on the grounds that deportation would breach Home Office policy. Neither the Claimant nor those in the Home Office dealing with his case knew of the policy until after the decision was made.
It was held that the claimant’s ignorance was immaterial. Note, however,
unease was expressed by judges that legitimate expectations were the correct vehicle to use.

Question 35

How may policy consideration prevent a legitimate expectation arising?

Answer 35

In cases where it is unreasonable for the promisee to believe that policy will not change they may be prevented the existence of a legitimate expectation may be precluded - see the case of Findlay v Secretary of State for the Home Department.

Question 36

What were the details of the Findlay Case?

Answer 36

The Minister announced changes to parole policy, motivated by public concern about prisoners obtaining parole seemingly too soon into their sentences and also of prisoners committing offences while on parole. The changes meant that, amongst other things, life prisoners would have to serve much longer sentences than they had been lead to believe under the old policy. They claimed a legitimate expectation that the old policy would be applied to them. The courts denied this, Lord Scarman said on the issue - “but what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that this case will be examined individually in the light of whatever policy the policy the Secretary of State sees fit to adopt [provided the new policy] is a lawful exercise of…discretion..’