Legitimate Expectations

Question 1

Why does Elliott argue that “legitimacy” and “protection” are not necessarily separate variables in the LE inquiry?

Answer 1

Sedley J, Hamble Fisheries - “legitimate” has become a term of art expressing policy decisions. Suggests legitimacy may merely express the conclusion of the court that the expectation is worthy of protection; conversely the consequences protection of the LE would have on D’s discretionary freedom caused the court to deny the existence of an LE in Police Negotiating Board.

Question 2

3 Step Analytical Framework for LE cases.

Answer 2

1) Does the expectation exist?
2) What is C legitimately entitled to expect? PLE or SLE, noting that for SLEs there is greater scope to unfetter D’s discretion by reference to the public interest (Sales & Steyn)?
3) What kind of protection will the court offer to C’s expectation?

Question 3

Fisher

Answer 3

The notification of a relevant change of policy destroys any expectation founded on earlier policy

Question 4

CCSU

Answer 4

LE may arise from both express promises given on behalf of D and regular practices which C can reasonably expect to continue

Question 5

Begbie (representations)

Answer 5

C sought to rely on some pre-election statements made by the Labour Party in their capacity as Opposition; such statements were NOT given on behalf of a public authority. C’s expectation also illegitimate as the Labour Party would only be in a position to fully assess the ramifications of his representation once it had taken office.

Question 6

MFK (2 ratios + facts)

Answer 6

1. The representation must be clear, unambiguous and devoid of relevant qualification
   Here D’s representatives made it clear that they did not intend to fetter D’s freedom of future action; moreover C’s evidence consisted of disjointed responses by various representatives not amounting to a formal policy
2. The representee must act fairly and openly towards the authority. Having requested the ruling on which he relied, C ought to have indicated the use he intended to make of the ruling.

Question 7

Bloggs (how does BAPIO change this?)

Answer 7

The promise or practice must be by or on behalf of the public authority said to be bound to fulfil the LE. However BAPIO suggests that a promise made by one Minister or one Ministerial department can bind another central govt department on the basis of the legal fiction that they are all part of the Crown.

Question 8

Sales and Steyn on Begbie

Answer 8

The broader principle behind Begbie is that the closer the context for the ultimate decision is to the context which D specifically had in mind when promulgating the policy or assurance, the less convincing the admin autonomy argument against holding D to his policy/assurance.

Question 9

Davies

Answer 9

For LEs founded on previous practice, the practice must be “so unambiguous, so widespread, so well-established and so well-recognised as to carry within it a commitment of treatment in accordance to it”

Question 10

Parents for Legal Action (MFK caveat)

Answer 10

C must demonstrate his case falls clearly within that to which the statement relates

(MFK – it is NOT an obstacle that D’s statement was intentionally issued to the world at large)

Question 11

Must C always know of the representation or practice to have an LE?

Answer 11

Rashid suggests not, but in ZK Pill LJ identified the distinctive feature of Rashid as the “cumulative errors giving rise to an abuse of power”; he indicated that coherent evidence explaining why the LE was not previously known would have to be adduced in other cases.

Collins J in A provided an alternative way of analysing such cases based on the principle of consistency, endorsed by Forsyth since LE should only bear on the narrow issue of whether C has reposed trust in the official.

Question 12

Lumba (ratio + Lord Phillips)

Answer 12

D must follow his published policy (and not some different unpublished policy inconsistent w/ the published policy) w/o good reasons for doing otherwise.

Question 13

Is DR required?

Answer 13

In Begbie Gibson LJ said DR is not an absolute prerequisite; however DR may be significant in three ways

1. It may help convince the court that C really did hold the expectation (Sedley LJ, Begbie)
2. The frustration of the LE is more likely to be unfair where C has acted on it (MFK); conversely it will be exceptional that DR is not present when frustration is held to be unfair.

Question 14

In which category of cases is DR absolutely irrelevant?

Answer 14

In cases involving the non-application of established policy DR will not be required, JR in such cases being founded on the principle that like cases ought to be treated alike (Oxfam)

Question 15

Police Negotiating Board (legitimacy point)

Answer 15

The constitutional context of the representation and the constitutional implications of the representation (objective factors) go to the question of legitimacy rather than that of whether the LE existed (cf subjective factors like DR). Here protection of the LE contended for would significantly constrain D from effecting a policy change in an area bearing significantly on the public purse and it was thus intrinsically unlikely the govt would have been willing to make a promise giving rise to such an LE.

Question 16

Begbie (legitimacy)

Answer 16

C’s expectation must be objectively reasonable.

Question 17

Lumba (legitimacy)

Answer 17

Lord Phillips (dissenting) thought that only Cs whose detention resulted from the secret policy had cause for complaint; for those Cs who would have been detained even if the published policy had been applied their only LE was of being detained under the published policy

Question 18

What does Craig argue are the two elements to the test of “legitimacy”?

Answer 18

i. The expectation must be derivable from the text of the policy (fact)
ii. It must not run contrary to the purpose for which Parliament conferred the relevant power on the decision-maker to enforce the expectation (normative)

Question 19

Coughlan (3 points)

Answer 19

1. An SLE is more likely to be substantively protected when the representation is made to a limited class of persons giving it the “character of a contract” and affects a very important interest
2. An SLE will be enforced when, balancing the individual damage against the public interest, frustration of C’s expectation is so unfair as to be a misuse of D’s power
3. This balancing approach can be justified because of the inadequacies of rationality review. A decision to prioritise a policy change over an LE will almost always be rational from D’s viewpoint even if it is arbitrary or unfair

Question 20

Coughlan establishes that the governing principle in SLE cases is one of abuse of power. Does Craig agree? Why?

Answer 20

No; “abuse of power” is merely a conclusion as to whether the SLE should be enforced and not a normative standard in itself. Craig prefers the proportionality approach advocated by Laws LJ in Nadarajah.

Question 21

Have courts accepted Laws LJ’s proportionality approach to SLE cases in Nadarajah?

Answer 21

o Lord Phillips in Lumba appeared to endorse this – the court’s tendency to protect an LE created by unambiguous promises/where there is DR/where the promise is made to a small group may be explained on the ground that frustration of the LE is in these cases less likely to be proportionate. Though this was a minority judgment, there is no indication the other judges disagreed.
o However, Lord Mance in Bancoult appeared to have doubts about proportionality in LE

Question 22

Sales and Steyn criticise Coughlan

Answer 22

It is for the decision-maker to identify what the countervailing public interest must be and its importance, though the weight attached to D’s assessment will vary w/ relative institutional competence. The court’s approach to the balancing test in Coughlan did not respect this principle; the “merely financial” consequences of enforcing the LE actually went to broad policy issues re scarcity of healthcare resources.

Question 23

Robertson v Minister of Pensions

Answer 23

Sought to allow ultra vires representations to create LEs by analogy with estoppel - The assurance given to C was, on the face of it, authoritative, intended to be binding and intended to be acted upon, so C ought to be entitled to rely on the assurance.

Question 24

Ex p Reprotech (Pebsham) - two reasons to reject estoppel

Answer 24

• Estoppels bind individuals while public law binds everyone.
• Public authorities have to take into account the public interest, the hierarchy of rights created by the HRA etc.

Question 25

BAPIO

Answer 25

The majority invoked the legal fiction of “indivisibility of the Crown” to hold that as Ministers are all exercising the executive power of the Crown, an undertaking given by one Minister could generate an LE concerning powers falling within another Minister’s remit

Question 26

In BAPIO, Lord Scott criticised the majority decision as based on a legal fiction. How might we deal with this objection?

Answer 26

Murray – it is not always easy to divide the general govt function of “policymaking” along departmental lines, thus the indivisibility of the Crown is not really a legal fiction at all – govt policy is govt policy, whichever facet of the policy is under scrutiny

Question 27

Flanagan (Elliott’s gloss)

Answer 27

A LE based on a representation allegedly made on behalf of a public body can only arise if the person making the representation as to the body’s future conduct has actual or ostensible authority to make it on its behalf (Elliott suggests the company law context might be instructive in determining when this will be the case, e.g. the official could have been authorised to make the representation had the public body so chosen)

Question 28

Rowland v Environment Agency (1 ratio, 1 Mance LJ)

Answer 28

1. The doctrine of LE cannot operate to extend agencies’ powers by rendering enforceable acts or decisions that are ultra vires the body itself
2. However Mance LJ suggests that an ultra vires representation could give rise to an LE that should the assurance turn out to be unlawful, D would take into account the previous common assumption (i.e. it is a mandatory relevant consideration) and try to minimise the hardship caused to C.

Question 29

Stretch (2 points)

Answer 29

1. Where ECHR rights (e.g. here A1P1) are engaged the decision to frustrate an LE based on an ultra vires representation must be subjected to proportionality review.
2. The Court [was] not persuaded that the application of ultra vires in this case respects the principle of proportionality” as D would not have prejudiced the public interest or any 3rd party interests by giving effect to the LE.