legitimate expectations

Question 1

Categories of Protection

Answer 1

• The procedural protection of procedural legitimate expectations.
  
  • i.e., you expect a particular procedure, and the court requires the procedure to be followed.
• The procedural protection of substantive legitimate expectations.
  
  • i.e., you expect a substantive benefit, and the court requires a particular procedure before that expectation is not fulfilled.
• The substantive protection of substantive legitimate expectations.
  
  • i.e., you expect a substantive benefit, and the court requires the expectation to be fulfilled.

Question 2

Ruddock

Answer 2

• CND members’ phone calls were intercepted by the Security Service (M.I.5), in alleged breach of the government’s criteria governing interception.
• Sedley, counsel for the applicants, argued that there was a legitimate expectation that the published criteria would be followed.
• Laws, counsel for the Secretary of State, argued that the doctrine of legitimate expectations did not apply.
• The High Court held that there was a legitimate expectation, but that the Secretary of State’s decision was not irrational.

Question 3

Richmond

Answer 3

• Laws J interpreted Ruddock as holding that there could be procedural, as opposed to substantive, protection of substantive legitimate expectations.
• Laws J argued that the doctrine of legitimate expectations did not, and should not, include substantive protection.
• ‘…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 4

Hamble

Answer 4

• Hamble Fisheries Ltd had relied on the Ministry’s policy and argued that it had a legitimate expectation that the policy would continue.
• Sedley J held that the court’s duty was ‘to protect the interests of those individuals whose expectations of different treatment has a legitimacy which in fairness outtops the policy choice which threatens to outweigh it.’
• In this case Hamble Fisheries Ltd’s expectation was outweighed by the minister’s policy objectives, but Sedley’s reasoning is controversial.

Question 5

Hargreaves

Answer 5

• Prison rules on home leave were changed. Prisoners argued that they had a legitimate expectation that the earlier rules would be applied.
• The Court of Appeal overruled Sedley J’s judgment in Hamble Fisheries.
• Hirst LJ described Sedley J’s judgment as ‘heresy’.
• Matters of substance were to be resolved using the Wednesbury test, not using a balancing exercise to be undertaken by the court.

Question 6

Coughlan

Answer 6

• Pam Coughlan had been promised a ‘home for life’ and it would be unfair to frustrate that expectation.
• Lord Woolf MR summarised three ways in which legitimate expectations can be legally protected:a) A legitimate expectation is a relevant consideration. The reviewing court is confined to Wednesbury grounds.b) A legitimate expectations can require the opportunity for consultation, unless there is an overriding reason.c) A legitimate expectation cannot be frustrated if to do so is ‘so unfair that to take a new and different course will amount to an abuse of power. Here … the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.’

Question 7

Coughlan

Answer 7

• Coughlan’s case fell within category (c).
• The court held that there were three requirements for the special protection afforded to category (c):
  
  1. The promise is very important.
  2. The promise is made to only a few persons.
  3. The consequences of holding the authority to its promise were ‘likely to be financial only’.
• To get the special category (c) protection, ‘the promise or representation [would normally have] the character of a contract’.

Question 8

Nadarajah

Answer 8

• Laws LJ:
  
  • ‘a public body’s promise or practice as to future conduct may only be denied … in circumstances where to do so is the public body’s duty, or is otherwise … a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified.’

Question 9

Niazi

Answer 9

• Sedley LJ:
  
  • ‘The time has come, I respectfully think, to say that the description of [Hamble Fisheries] in Ex parte Hargreaves [1997] 1 WLR 906 as heretical is shown by a solid body of authority both before and since to have been mistaken. … the concept of policy—which is of course a form of public promise—giving rise to a substantive expectation which the courts will not allow to be unjustly frustrated, far from being heretical, is today entirely orthodox.’

Question 10

Bancoult

Answer 10

• Had the Foreign Secretary made a clear and unambiguous promise that the Chagos Islanders would be allowed to return?
• The majority held that the promise was insufficiently clear and unambiguous, it was not made to a small group of people, and the consequences of resettling the Chagos Islanders would be more than financial.
• Lord Bingham and Lord Mance dissented. Lord Mance said, ‘[T]here is no indication that the Government gave any real weight to the legitimate expectation…’

Question 11

Rashid

Answer 11

• An Iraqi Kurd’s application for asylum was refused on the ground that he could safely relocate to the Kurdish Autonomous Zone.
• The Home Office overlooked a policy against relying on internal relocation.
• The Kurd did not know about the policy, but did he have a legitimate expectation?
• Pill LJ: ‘there plainly is a legitimate expectation … Whether the claimant knows about the policy is not in the present context relevant.’

Some problems with the Court of Appeal’s judgment:

• It seems to have been based, not on a legitimate expectation (because there was none), but on the principle of consistency.
• The principle of consistency does not depend on the knowledge of the claimant.
• This contrasts with cases like Coughlan, in which special protection is given because the claimant expected a particular promise to be fulfilled.
• But see now Mandalia v Home Secretary [2015] UKSC 59.

Question 12

Wheeler v Prime Minister

Answer 12

• The claimant argued that there was a legitimate expectation to a referendum before the ratification of the EU Treaty of Lisbon, due to a promise the Prime Minister had made.
• The Court held: ‘In our view a promise to hold a referendum lies so deep in the macro-political field that the court should not enter the relevant area at all.’

Question 13

Geraldine Finucane

Answer 13

• The government had given an unequivocal undertaking to hold a public inquiry into Pat Finucane’s death.
• UKSC clarifies there’s no need to show detrimental reliance.
• But the government had acted lawfully in frustrating this expectation. As Lord Kerr put it:
  
  • ‘Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it.’

Question 14

Ultra Vires and Expectations

Answer 14

• A public authority acts ultra vires if it makes a promise that it had no power to make.
• But what are the consequences of the rule against fettering discretion?
• Does the doctrine of legitimate expectations simply hold public authorities to bad bargains, just like they would be held to an unfavourable contract?
• But public authorities can only fetter their discretion by contract if they have the statutory power to do so.