Legitimate Expectations

Question 1

Does a LE arise from a statement or past practice?

Answer 1

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.

Question 2

What are the general requirements for LE?

Answer 2

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.

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).

Question 3

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2).

Answer 3

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.

Question 4

Trend towards a less strict approach than Bancoult.

Answer 4

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.

Question 5

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

1. MFK Underwriting Agencies:
2. R (Patel) v GMC:
3. Rahman:

Answer 5

1. 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.”
2. 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.
3. 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”.

Question 6

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

1. The position of English law was traditionally… (case?)
2. judicial unease about LE without knowledge?
3. Mandalia
4. Laws LJ Nadarajah
5. 2 exceptions
6. what does Elliott propose?

Answer 6

1. The position of English law was traditionally that no knowledge is required: R (Rashid) v Secretary of State for the Home Department (2005).
2. 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.
3. Mandalia: 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]:
4. “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 would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.””
5. However, the court noted two exceptions. At [31]: firstly, “it is a well-established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers”. Secondly, “a decision-maker must follow his published policy … unless there are good reasons for not doing so.”
6. (Elliott says this should be disaggregated as a separate doctrine of consistency, and can now ‘stand on its own two feet’)

Question 7

Which case doubted the existence of this free-standing doctrine?

Answer 7

by R (Gallaher Group) v Competition and Markets Authority:

(1) “Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law” ([24]).
(2) Instead, the court, by inferring from previous authorities, saw consistency and fairness as part of LE and rationality review ([26]). “In the present context, however, it is not necessary in my view to look for some general public law principle of equal treatment.”

“Such language [of consistency of treatment] adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged”.

(3) “In public law, as in most other areas of law, it is important not unnecessarily to multiply categories. It tends to undermine the coherence of the law by generating a mass of disparate special rules distinct from those applying in public law generally or those which apply to neighbouring categories.” ([50]).

Question 8

Is detrimental reliance required?

1. authority?
2. cases where LE arose notwithstanding absence of detrimental reliance?

3, Will cases lacking detrimental reliance be common?

Answer 8

1. Not a prerequisite: Begbie.
2. Furthermore, there are cases in which legitimate expectations have been held to arise notwithstanding the absence of detrimental reliance on the facts, like Ng Yuen Shiu (1983).
3. However, while detrimental reliance is not an absolute prerequisite, it will be relatively rare for a LE to arise in the absence of such reliance: Begbie.

Question 9

How should LE be protected?

Procedural protection

1. Ng Yuen Shiu
2. R (Greenpeace)

Answer 9

Attorney-General of Hong Kong v Ng Yuen Shiu (1983). Facts: HK government issued a statement saying that a certain category of illegal immigrants – into which a claimant fell – would be interviewed before any decision on deportation. However, the government made the decision to deport the claimant without any interview. Verdict: Successful. While there was no free-standing right to a hearing (now outdated!), the claimant had a LE of one (an interview). Lord Fraser: When a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and implement its promise, as long as it does not interfere with its statutory duty.

R (Greenpeace) v Secretary of State for Trade and Industry (2007). Facts: The Minister issued a white paper stating that there would be a public consultation before any decision to build new nuclear power stations. But 3 years later, in the consultation paper, the government only asked the public what issues it should consider, instead of the substantive issue on whether new stations should be built. Judicial review was sought.Verdict: Successful. A LE had been generated by the 2003 White Paper which had not been met by the 2006 consultation.

Question 10

How should LE be protected?

Substantive protection

1. Coughlan
2. Patel
3. United Policyholders Group

Answer 10

The starting point must be R v North and East Devon Health Authority, ex p Coughlan (2001): “[M]ost cases of an enforceable expectation of a substantive benefit [i.e. a substantive LE] are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract.”

R (Patel) v GMC: (1) While “in theory there may be no limit to the number of beneficiaries of a promise for the purpose of a substantive legitimate expectation, in reality it is likely to be small if the expectation is to be upheld because… it is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to a diverse class”. (2) Furthermore, “the broader the class claiming the benefit of the expectation the more likely it is that the supervening public interest will be held to justify the change of position to which complaint is made”.

However, United Policyholders Group v Attorney General of Trinidad and Tobago (2016) UKPC 17: the facts of Coughlan are exceptional. In hindsight, the court in Coughlan was unnecessarily ambitious in seeking a grand unifying theory for all the authorities concerning consistency of policy. The doctrine of substantive LE leading to substantive protection is to be narrowly construed; successful claims should be exceptional.

Question 11

If a substantive LE arises, does it deserve substantive (or merely procedural) protection?

1. Coughlan
   - how stringent is this standard?
2. Subsequent cases?
   - Patel/Begbie
3. What about the factors to be reviewed?

Answer 11

1. Coughlan: If a substantive LE arises, 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”.
   - This espouses a stringent standard of review.

Subsequent cases, however, move away from such stringency. The most recent case on substantive LE in recent years, Patel, endorsed and applied at [61] Begbie: the standard of review will be calibrated based on the context:

“As it seems to me the first and third categories explained in Coughlan are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear… In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in Coughlan that few individuals were affected by the promise in question…There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision.”

So, that’s the standard of review. What about the factors to be reviewed? Courts apply a balancing approach.

Question 12

What factors need to be reviewed?

1. Lord Woolf in Coughlan
2. R(Nadarajah)
3. Paponette

Answer 12

Note what Lord Woolf said in Coughlan: “the court will have the task of weighing the requirements of fairness against any overriding interest relied upon the change of policy… the court has when necessary to determine whether there is a sufficient overriding interest to justify a
departure from what has been previously promised”

This is followed in two subsequent cases. R (Nadarajah) v Secretary of State for the Home Department, 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 legal duty, or is otherwise, to use a now familiar vocabulary, 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.”

Paponette v AG of Trinidad and Tobago: “The critical question in this part of the case is whether there was a sufficient public interest to override the legitimate expectation to which the representations had given rise. This raises the further question as to the burden of proof in cases of frustration of a legitimate expectation. The initial burden lies on the applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been proved by the applicant, however, the onus shifts to the authority to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest.”

Question 13

How might detrimental reliance be relevant when weighing the factors to be reviewed?

1. Bancoult
2. R(Patel)

Answer 13

1. Bancoult: “It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called ‘the macro-political field’”
2. R (Patel) v GMC: “While detrimental reliance is not a condition precedent to the existence of a substantive legitimate expectation in public law, its presence may be an influential consideration in determining what weight should be given to the legitimate expectation when evaluating the balance of fairness.” On the facts, C had spent $40,000 USD on a course the General Medical Council had told him would be accepted. The court concluded that “detrimental reliance is present in abundance” and it was a short step to finding that frustration of the promise was not capable of lawful justification and thus unlawful

Question 14

In practice, which 2 factors have courts placed an emphasis on when deciding whether SLE should be protected?

Factor 1

example cases:

(i) R(Patel)
(ii) Paponette

Answer 14

(1) Whether the decision-maker took the legitimate expectation into account in their decision-making and considered for themselves whether the detriment to the individual was outweighed by public interest considerations.
(i) R (Patel) v GMC: (1) If a decision-maker fails to consider the expectation, then the decision is liable to be impugned for failure to take into account a relevant consideration. On the facts, the GMC’s failure to consider how its change in policy would detrimentally affect those to whom the Council had given assurances based on a former policy provided a sufficient basis for the court to quash the decision, without needing to engage in a balancing exercise. (2) Where the decision-maker has failed to weigh the unfairness to C of frustrating their expectation against public interest goals, its decision to frustrate an expectation is less likely to be considered justifiable and afforded respect by a court, making judicial intervention more likely. On the facts, the court said that while, in conducting the balancing exercise, it would usually afford the decisions of a specialist body such as the GMC “a considerable degree of respect”, in this case the GMC had offered no reasoning to explain key premises of its decision nor was there any serious consideration of how it might mitigate the impact of its change of policy on those in the claimant’s position. Those omissions made it more likely that the court would intervene on the basis that the decision-maker had failed to justify its decision to frustrate C’s expectations.
(ii) Paponette v AG of Trinidad and Tobago: If reasons are not articulated by the decision-maker then it will be harder for the court to conclude that justifications exist for frustrating the expectation.

Question 15

In practice, which 2 factors have courts placed an emphasis on when deciding whether SLE should be protected?

Factor 2

(i) R (Patel) v GMC:
(ii) R (Niazi) v Secretary of State for the Home Department
(iii) Jones v Environment Agency:

Answer 15

(2) The extent to which the decision-maker has adopted some measures which serve to mitigate the impact of this decision on those whose expectations are frustrated by it.
(i) R (Patel) v GMC: The fact that the GMC had not put in place any “mitigating measures” in changing policy, such as transitional provisions to lessen the impact of the change on those with legitimate expectations who would be negatively affected by the change, was one factor telling against lawful justification.
(ii) R (Niazi) v Secretary of State for the Home Department: Provision for measures such as a fair hearing or the making of transitional arrangements to “cushion those who would otherwise be unfairly affected by a change of policy” operate to lessen the degree of prejudice to C that calls to be justified; put another way, if a decision-maker adopts such measures it shall be easier for them to justify frustration of the expectation.
(iii) Jones v Environment Agency: In the alternative it is possible that the court may make adoption of mitigating measures a condition precedent of upholding the defendant’s decision as lawful.

Question 16

What 2 kinds of unlawfully created expectations are there?

Answer 16

(1) Where an unauthorised official represents that the agency will do something that it has legal power to do, (2) Where an agency represents that it will do something that it lacks legal power to do

Question 17

Unlawfully created expectations created by representations issued by unauthorised officials

Answer 17

These are representations relating to acts intra vires the public body but ultra vires the official concerned.
If the official had no actual or ostensible authority to make the representation, no LE can arise: South Buckinghamshire DC v Flanagan (2002). “Legitimate expectation involves notions of fairness and unless the person making the representation has actual or ostensible authority to speak on behalf of the public body, there is no reason why the recipient of the representation should be allowed to hold the public body to the terms of the representation.”

Question 18

Unlawfully created expectations created by representation concerning action which is ultra vires the agency

1. Bibi
2. ECtHR jurisprudence
3. Stretch v UK
   (i) facts
   (ii) Verdict
4. subsequent cases re supremacy if legality
5. R (Albert Court Residents’ Association) v Westminister City Council:
6. Rainbow Insurance Company Ltd v The Financial Services Commission (Mauritius):

Answer 18

1. No LE may arise, under domestic law: Bibi at [46], Bloggs 61 at [39].
2. However, ECtHR jurisprudence is different. It places the ultra vires doctrine as just one of the many considerations to be weighed in its proportionality review, in ascertaining if the LE of the victim should be upheld. (NB see Williams’ handout showing why we should uphold such an expectation)
3. Stretch v UK (2004)
   (i) Facts: The applicant purchased from a local authority a 22-year lease with an option to renew. However, when renewal negotiations had reached an advanced stage, the local authority informed the applicant that its statutory predecessor never had legal capacity to grant such an option. The claimant sought relief from the ECtHR after the CA accepted the argument.
   (ii) Verdict: Successful. The ultra vires nature of the representation was not determinative; the applicant had acquired a LE of exercising the option; for the purposes of Article 1, Protocol 1 ECHR, the LE is attached to the property right. The unlawfulness of the authority’s action (ie. legal incapacity) was merely a factor to be weighed in balance.
4. Despite Stretch v UK, domestic cases have continued to emphasize the supremacy of the principle of legality. So no LE may arise in these circumstances.
5. R (Albert Court Residents’ Association) v Westminister City Council: The court could not “grant any relief which would have the effect of preventing [the defendant] from complying with its statutory duty… [A]n otherwise legitimate expectation cannot require a public authority to act contrary to statute”. This proposition “is no more than an incident of the principle of legislative supremacy”.
6. Rainbow Insurance Company Ltd v The Financial Services Commission (Mauritius): There is “an established line of authority that nobody can have a legitimate expectation that he will be entitled to an ultra vires relaxation of a statutory requirement”; “what is at stake here is the principle of legality”. Even where Convention rights are in play “the law should be slow to weaken the principle of legality”, and an unlawful representation could not prevail where third party interests might be compromised.

Question 19

Middle ground proposed by Mance LJ in Rowland

Answer 19

While you cannot have a LE that the public body will act unlawfully, you can, in this sort of cases, have a LE that the public body will do all it lawfully can to put you as close as possible to what it promised.

Question 20

What is a legitimate expectation?

Answer 20

refers to the effect on a person of a change in policy by a DM: the law tries to delineate between mere hopes (law should not protect) and expectations (law should protect). There is a tension between legality (rule of law means people should be able to plan their lives around the law) and the need for change (it would be unsatisfactory for a DM to be unable to change its policy).

Question 21

What is the public interest in legal certainty?

What does Schonberg argue?

Answer 21

as the community is able to repose trust and confidence in public institutions.

Schonberg: “Administrative power is more likely to be perceived as legitimate authority if exercised in a way which respects legitimate expectations. Perceived legitimate authority is more efficacious because it encourages individuals to participate in decision making processes, to co-operate with administrative initiatives … greater compliance will in turn improve the administration’s ability to solve co-ordination problems and that may actually make its exercise of authority more legitimate.”

Question 22

PROCEDURE

1. How might a court protect C’s expectation re fair procedure?
   - what other admin concepts is it tied to?
2. Ng Yuen Shiu [1983]:
   - Lord Fraser
3. R (Greenpeace) [2007]:
   - Sullivan J
4. ex p Liverpool Taxi Fleet Operators [1972]:
   - CA Denning
5. What do both Greenpeace and Liverpool Taxi do?

Answer 22

1. A court may protect C’s expectations by requiring a fair procedure to be followed before the public authority makes a decision.
   - There is a relationship with natural justice and fair process here —a legitimate expectation may entitle C to be treated in a particular procedural way when —absent the expectation —no such entitlement would arise. For example:

2, Ng Yuen Shiu [1983]: Hong Kong adopted a policy that if illegal immigrants came forward, they would be allowed to make representations as to why they should be allowed to stay. C came forward, but the authorities attempted to deport without giving C a hearing. PC: quash the deportation order:
o Lord Fraser: “Where a public authority… has promised to follow a certain procedure, it’s in the interests of good administration that it should act fairly and implement that promise, as long as that implementation doesn’t interfere with its statutory duty.”

3. R (Greenpeace) [2007]: white paper provided that the government would not produce nuclear power stations without full public consultations, but the government then sought to do so regardless, with minimal consultation.
   - Sullivan J: the in-principle decision to build a nuclear power station was quashed. “There was procedural unfairness, and a breach of the claimant’s legitimate expectation that there would be “the fullest public consultation”.
4. ex p Liverpool Taxi Fleet Operators [1972]: city council had a statutory power to set the number of taxi licenses in Liverpool. It made a public undertaking that it would not increase the number without consultations, but did so anyway.
   - CA (Denning): court should intervene to ensure that the council acted fairly in deciding the policy “So long as the performance of the undertaking is compatible with their public duty, they must honour it.”
5. In Greenpeace and Liverpool Taxi, the legitimate expectation grants a right C would not otherwise have (no general right to consultation).

Question 23

SUBSTANCE

1. is it more or less controversial than procedural LE?
2. re constitutional legitimacy?
3. difficulty for DMs to respond to changing situatinos
   - Hamble Fisheries
   - ex p Richmond
4. appeal/review distinction
5. do the aforementioned issues arises to the same extent in cases of PLE?

Answer 23

1. This area of the law is more controversial and the case law is less clear. There are concerns here about fettering discretion, such that public bodies cannot do their jobs.
2. Constitutional legitimacy of judicial intervention: problematic for the court to intervene where Parliament has conferred discretion on the DM.
3. Inability to respond: can make it difficult for DMs to respond to changing situations:
   - Hamble Fisheries: if unable to make change the fishing licence policy, there could be a shortage of fish.
   - Ex p Richmond [1994]: SS exercised statutory powers to introduce a quota system for aircraft usage (limiting the use of noisier aircraft). One argument was a consultation exercise with LAs about proposed changes led to a legitimate expectation alternative measures would be introduced. Laws J: although the scheme is unlawful for non-compliance with the statute, he denies there is any authority for substantive legitimate expectations: “such a doctrine would impose an obvious and unacceptable fetter on the power, and duty, of a responsible public authority to change its policy when it considered that it was required in fulfilment of its public responsibilities.”
4. Appeal/Review distinction: if substantive legitimate expectations are protected, there is a risk of the court substituting its view of the merits of the case for that of the public authority.
5. No -they only limit how the decision must be made not whether it can be made at all.

Question 24

Substantive expectations pre-Coughlan

Pro-substantive LE

1. overview of the state of agreement
   (i) Hamble fisheries facts
   (ii) SedleyJ:

Answer 24

1. Prior to Coughlan there had been a sharp disagreement:
   (i) ex p Hamble Fisheries Ltd [1995]: Minister had statutory power to change the licensing regime for fishing of pressure stocks. Did C have a legitimate expectation that his licence would not be revoked?
   (ii) Sedley J: difficult to see why it is less unfair to frustrate a substantive expectation than a procedural one, “such a doctrine does not risk fettering a DM… because no individual can legitimately expect the discharge of public duties to stand still or be distorted because of that individual’s peculiar position.” What matters is whether C can show “an expectation worthy of protection.” Advocates for a balancing test between C’s expectation and “policy considerations which militate against its fulfillment”—while this is for the DM to strike, the court is not limited to “bare rationality” in reviewing his decision. It would be “wrong to allow changes of policy to be unduly fettered.” But “there is the value of legal certainty.”

Question 25

Substantive expectations pre-Coughlan

Anti-substantive LE

1. ex p Hargreaves facts
2. CA
   (i) Hirst LJ
   (ii) what is the concern arising in Hargreaves re Sedley?

Answer 25

1. ex p Hargreaves [1997]: prisoners who had served 1/3 of their sentence could apply for parole. Policy changed, could only apply if they had served 1/2 of the sentence.
2. CA: the court could not consider substance, only procedure. Here there was no such expectation, the Home Secretary had legitimately exercised his discretion and no individual representations were made to Cs.
   (i) Hirst LJ:“Mr. Beloff characterised Sedley J.’s approach as heresy, and in my judgment he was right to do so. On matters of substance… Wednesbury provides the correct test.”

It is clear the concern in Hargreaves is that Sedley is using JR of substantial legitimate expectations to undercut the high threshold of Wednesbury unreasonableness—Hirst thinks substantive expectations would: (i) fetter discretion; (ii) asked the court to weigh the merits of the decision.

Question 26

Establishment of legitimate expectations in Coughlan

Answer 26

Coughlan established review for substantive LEs is permitted. Three grounds for review in this area:

1. Wednesbury unreasonableness: appropriate for full-on substantive review of discretion
2. Procedural legitimate expectations: to be decided with reference to procedural fairness rules
3. Substantive legitimate expectations: is it unlawful for a DM to go back on the substance of its promise? These situations are characterized by: (i) very specific representations, analogous to contract; (ii) frustration of the expectation that would amount to an abuse of power.

Question 27

Facts and judgment of Coughlan

Answer 27

ex p Coughlan [2000]: C, a long term care patient, agreed to be moved to a purpose-built facility from a hospital, on the condition it would be “a home for life” — however, D resolved to close the facility as it was prohibitively expensive. CA (Lord Woolf): On the facts, the financial arguments in favour of the policy change were insufficient to justify dashing the LE.
• Where there is no legitimate expectation, the court is confined to Wednesbury grounds. However, where there is a substantive LE “the court will … decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.”
• There may be difficulty in deciding whether a given case can be reviewed as a substantive LE, or just on Wednesbury grounds —normally the former will be cases “where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract.”
• Two stages: (i) establish the “legitimacy of the expectation”; (ii) “weigh the requirements of fairness against any overriding interest relied upon for the change of policy.” Relevant factors will be terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.”

Note: Hargreaves was interpreted narrowly so as to avoid a direct clash. But does mean that it’s hard to draw the boundaries between categories substantive LEs and Wednesbury unreasonableness.

Question 28

What is the intensity of review under Coughlan?

Answer 28

Elliott notes that the review under Coughlan is intense. The way in which this test operated in Coughlan itself suggests that there is a real risk of the distinction between appeal and review dissolving:

• Sales & Steyn [2004]: unclear from reasoning in Coughlan why C’s expectation outweighed financial reasons of the LA. “Constitutionally, discretionary decisions as to the allocation of finite resources subject to many competing individual demands are generally left to bodies subject to democratic accountability and with a complete view of all the claims upon those resources, not the courts.”

Question 29

Intensity of review: two variables: legitimacy and protection

Answer 29

Two key inquiries are:

(i) whether the expectation was legitimate —asks what C was entitled to expect, not what he actually did expect;
(ii) how that expectation should be protected.

• Protection of procedural LEs:if C merely expects a procedure will be followed then the court will generally require adherence to such a procedure.
• Protection of substantive LEs: three principle ways of protecting these:
o Although C expected the ongoing conferral of a benefit, he is only entitled to a fair procedure:
♣ ex p Khan [1984]: C sought entry into the UK of a child he adopted from Pakistan (his nephew) —he had relied on a Home Office circular, stating the criteria used by the HS. The child was denied entry. McCullough J: C had an LE —once the HS stipulated certain entry conditions, he should not be allowed to depart from them “without affording interested persons a hearing and then only if the overriding public interest demands it.” Although C actually expected the child to be admitted (based on the criteria) he could only legitimately expect a fair hearing.
o C was entitled to expect the ongoing conferral of benefit, but the appropriate protection is procedural —countervailing factors can dictate the level of protection for C’s expectation.
o C is entitled to expect a substantive outcome and a substantive protection is appropriate —in these cases it is legal certainty that prevails over administrative autonomy.
♣ ex p Coughlan

Question 30

Are the two inquiries - expectation and protection - mutually exclusive?

Answer 30

No - e.g. in Hamble Sedley J indicates that an expectation will only be legitimate if the court decides it is worthy of some protection —the inquiries are two sides of the same coin.
• Craig: argues they should be kept separate for two reasons: (i) transparency: it accords better with reality to acknowledge C had a legitimate expectation, which should, nevertheless, give way to policy factors; (ii) conceptual clarity: it allows ‘legality’ and ‘legal certainty’ to be kept separate —the first question, as to the legitimacy of the expectation, concerns legal certainty, the second question, concerning protection, concerns ‘legality’ and asks whether the DM’s discretion should be fettered.

Question 31

Legitimacy: what is the claimant entitled to expect?

Answer 31

It is clear from GCHQ that a LE need not be generated by express statement —an established practice may be enough at least in cases where a procedural LE
• GCHQ [1985]: Minister varied GCHQ contracts, without consultation, to bar staff membership of trade unions. Cs argued they had an LE of prior consultation as that had been the established practice. Minister argued he was justified in failing to consult in light of recent disruption by trade unions (national security argument). HL: GCHQ staff had a legitimate expectation they would be consulted, however, national security considerations justified the failure to consult.
o Lord Fraser: “Legitimate … expectation may arise either from (1) an express promise given on behalf of a public authority, (2) or from the existence of a regular practice which C can reasonably expect to continue.”

Question 32

The higher standard of review for SLE

Answer 32

require “a specific undertaking, directed at a particular group” and established practice only enough for procedural LEs in exceptional circumstances.
• R. (Niazi) [2007]: HS withdrew a prerogative scheme for the payment of compensation to victims of miscarriages of justice. Cs challenged the decision on the basis that the withdrawal of the scheme breached their substantive LEs. CA (Laws LJ): no LEs here because there was no “specific undertaking, directed at a particular group, by which the relevant policy’s continuance is assured.”
o “The doctrine of substantive legitimate expectation plainly cannot apply to every case where a public authority operates a policy over an appreciable period. That would expand the doctrine far beyond its proper limits.” The broader the affected class, the more likely the new policy is justified by public interest.
o Classes of case: three types of cases: (i) paradigm procedural (DM provides unequivocal assurance before changing policy); (ii) secondary procedural (LE arises out of past benefit); (iii) substantive. (ii) and (iii) are concerned only with “exceptional circumstances.”
o Duty of good administration underpins LEs: “good administration generally requires that where a DM has given a plain assurance, it should be held to it. This is an objective standard of public decision-making on which the courts insist.”

Question 33

cases which illustrate that a representation must be made to a narrow class of people (rather than the public at large) + be unambiguous without qualification

Answer 33

• Wheeler [2008]: PM did not hold a referendum on the Lisbon Treaty, despite having made a promise to hold one in relation to the Constitutional Treaty. High Court: no LE: the context of the promise was “in the realm of politics, not of the courts” and it “is for Parliament to decide whether the government should be held to any promise previously made.” Further “it was relevant, but not decisive, that the promise was made to and affected the public at large” and “the doctrine of legitimate expectation could not reasonably extend to the public at large, as opposed to particular individuals… who are directly affected.”
• R (Bancoult) [2008]: an order compulsorily removing Chagos Islanders from their home was quashed on the ground that the exclusion of an entire population from its land was ultra vires. Government stated it would allow the Islanders to return home, subject to a feasibility study. The government decided the resettlement was not feasible and the territory was still wanted for defence purposes. HL: no LE because there was no unambiguous promise that the Islanders could return and settle permanently—it was always subject to the feasibility study.
o Lords Bingham (dissent): thought the ordinary meaning of the government statement was that the Islanders would be allowed to return home. NB: clearly influenced by government’s “reprehensible” treatment of the Islanders.

However, note that a statement made to the world at large can give rise to a procedural LE: Ng Yeun Shiu

Question 34

Who is the burden of proof on?

Answer 34

The burden of proof is on C:

• R (Davies) [2011]: C (ex pats) were taxed by HRMC on the basis they were ordinarily resident. They argued they were not as they complied with: (i) a guidance booklet published by HMRC; (ii) representations made to HMRC as to the interpretation of the booklet. SC: reject C’s argument. The booklet was written in general terms, so couldn’t form the basis of unequivocal assurance. Although it was open to C to argue that HMRC’s representations established a LE, the burden of proof was on them and they had failed to discharge it.

Question 35

Cases after Coughlan: some limits

Answer 35

• The following restricts the expansiveness of Coughlin by limiting the available remedial action R (Bibi) [2002]: promises made by the council created an LE that C refuges would be provided accommodation within 18 months. CA: the refugees had an LE that permanent accommodation would be provided, but that did not mean that the council had a duty to give them permanent accommodation, rather that they must take the LE into account when placing Cs on a housing list.
o “The court, even where it finds that the applicant has a legitimate expectation of some benefit, will not order the authority to honour its promise where to do so would be to assume the powers of the executive.”
o Noted that in some cases, it would be open to the DM to frustrate an LE lawfully, but only where a condition precedent had been fulfilled e.g. one year’s notice.
• An UV decision can’t give rise to an LE: Rowland v Environmental Agency [2005]: navigation authority gave R permission to erect signs along a waterway (assuming they were private), but later concluded that public rights of navigation existed. C tried to argue that her LE meant the ‘private’ signs could not be removed. HL: C could have no LE that the authority would extinguish public rights of navigation, since the authority had no statutory power to do so.

Question 36

Cases after Coughlan where LEs were protected

Answer 36

• R (BAPIO) [2008]: change in policy limited recruitment of doctors from outside EEC. HL: change was unlawful. International medical students under the previous programme had an LE they would be able to obtain employment on graduation.
o Lord Mance: “the inconsistency and its effects were so profound as to render such guidance invalid.” Very relevant that there is serious detrimental reliance:

Question 37

Laws LJ, proportionality, and legitimate expectations:

Answer 37

• R (Nadarajah) [2005]: asylum seekers sought to challenge steps taken to deport them on the grounds that deportation was precluded by the HS’s own policy. CA: dismissed the claims. Laws LJ: principle of LE’s is grounded in fairness and good administration, by which public bodies ought to deal straightforwardly and consistently with the public.
o Suggested approach: (i) where a DM has adopted a policy / practice, law will require it to be honoured unless there was good reason not to do so; (ii) this follows not from fairness, but from the principle of good administration; (iii) standard set by good administration may only be departed from where to do so was the public body’s legal duty or was otherwise a proportionate response having regard to a legitimate aim pursued by the public body in the public interest.
o Under this approach there is no distinction between procedural and substantive expectations —the distinction has nothing to do with good administration: difference is not one of principle, although statutory duty will more often dictate frustration of a substantive LE.
o Proportionality test: this will be judged (as usual) by weighing competing interests. Where (i) promise is unambiguous ; (ii) there’s detrimental reliance; (iii) promise made to specific group, it will be harder to justify a deviation from the LE. On the other hand, where the DM is concerned to raise “macro-political” issues of policy, it will be harder to argue the LE should be maintained.

Question 38

Elliott: Are cases like Nadarajah about LEs at all?

Answer 38

• Where the individual is ignorant of the policy —as N had been —the justification for enforcing adherence must be found in the need to treat like cases alike, independently from the virtue of protecting LEs.
• Nadarajah shows another way in which Coughlan is moderated —the intensity of review is variable. In Coughlan we see a high intensity of review, but Laws notes there’s a spectrum. Elliott argues that the proportionality test won’t be applied in all LE cases, in fact, there are different tests:
o The high standard of review used in Coughlan: (Elliott equates this with proportionality, which he sees as being inherently a higher standard of review); likely only to be applied in analogous circumstances —specific promise made to an individual (or small group) where DM can properly assess the likely implications of adhering to that promise.
o Reasonableness review: tend to apply where the expectation is founded on a policy / statement of general application. Laws in Begbie seemed to recognise the distinction with Coughlan.
• The high standard of review in Coughlan will only be applicable to a small category of cases, where the court can only frustrate the LE if it’s satisfied that public interest in doing so outweighs the unfairness that will be occasioned.

Question 39

R (Lumba) [2011]:

Answer 39

Cs (foreign nationals) were detained under an unpublished policy, which conflicted with the published one. SC: the policy was unlawful and the tort of unlawful imprisonment was made out. Lord Phillips (obiter) commented on LE:
• Lord Phillips (dissenting): Where an LE is made out, the courts have several options: (i) the courts will “require due consideration to that LE when exercising its power “(Bibi); (ii) “in an extreme case the courts can require the authority to comply with its undertaking” (Coughlan). He thinks a published policy is capable of giving rise to a legitimate expectation.
• Comment on Laws LJ in Nadarajah: Laws’ comments were obiter, as is Phillips’ approval of them here. He is concerned, however, that it could allow “a minister’s unjustified failure to comply with his policy to be treated as an unlawful act that subjects him to potential liabilities in private law independently of the discretionary remedies of judicial review.”

Question 40

Knowledge, consistency and adherence to policy

Answer 40

There is some disagreement as to whether C must show detrimental reliance; Craig argues that it will be required in most cases, however, in Bibi Schiemann LJ said “to disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage” (because such people, as the refugees here, may have relied on the promise but will still be unable to show detriment), rather he think the doctrine can apply where there is “moral detriment”.

In Nadarajah Laws LJ thought that knowledge and detrimental reliance were two factors to be weighed in a proportionality analysis.

Must C know about the representation? There is no doctrinal difficulty in uncoupling knowledge from LE —the enquiry here is objective, asking what C was entitled to expect, not what he actually expected.

Mandalia [2015]: C (visa applicant) was required to show a certain bank account balance in order to stay. Due to an administrative error on his part, the bank statement he provided did not go far enough back. The policy at the time was to show flexibility for such errors, but the DM did not do so. C did now know about this policy. SC (Lord Wilson): although the doctrine is “strained” in such circumstances, he could decide the case on “a principle, no doubt related to the doctrine of legitimate expectation but free standing, which was best articulated by Laws LJ in Nadarajah” — i.e. where a DM has an established practice, this demands consistency of treatment, subject to public interest reasons for departing from the policy.

Craig: Lord Wilson follows these normative arguments from good administration / equality —these in themselves are enough for a remedy in these cases.

Question 41

Extra cases on Barber reading list:

ex parte US Tobacco International [1992]:

Answer 41

JR of SS decision to implement regulations banning snuff. Claimed that a government grant to help set up a factory in 1984 to manufacture snuff generated an LE. QB: C was entitled to form certain expectations, but public interest considerations would take precedence over such expectations. C should have been given ample opportunity to compile a comprehensive response to the change in policy.

Question 42

Extra cases on Barber reading list:

ex parte Baker [1995]:

Answer 42

ex parte Baker [1995]: JR of decision by LA to close old peoples’ homes. Argued they had a duty to consultation. CA: Reached its decision seemingly purely on the basis of natural justice reasoning regarding the nuances of the authority’s duty to ‘act fairly’, Brown LJ nevertheless held that if there had been a “clear and unambiguous representation” on which it was “reasonable” for the claimant to rely, the body would be bound by this unless this would involve contravening its statutory duty

Question 43

EXTRA NOTES FOR EXAM

What is the current law?

(i) Ingredients

Answer 43

• (i) expectation must arise directly from a promise, policy, representation which was clear and without qualification (MFK); (ii) no overriding reasons which the court should not protect the expectation (Wheeler) —e.g. national security; (iii) detrimental reliance is not required, but is a very common feature of the LE cases and will often work in the applicant’s favour (Begbie).
o Bibi: three stage approach to whether there is a legitimate expectation: (i) to what extent has the public authority committed itself; (ii) has the authority acted unlawfully in relation to its commitment; (iii) what should the court do?
o Paponnette: shift in the burden of proof —C must establish that their expectation is illegitimate, then the burden shifts to the public authority to show overriding reasons why the expectation should be frustrated.
♣ Williams: this works in the same way as burdens of proof under the Human Rights Act, which is frequently raised alongside LE claims. Fits with Etienne Mureinik’s ‘culture of justification’

Question 44

EXTRA NOTES FOR EXAM

What is the current law?

(ii) Remedial inquiry

Answer 44

• assuming an LE is made out there are three remedy options avalaible:
o Procedural relief for a procedural expectation: Ex p Liverpool Taxi; Ng Shuen
o Procedural relief for a substantive expectation: Ex p Khan, GCHQ
o Substantive protection for a substantive expectation: Coughlan
♣ Debate over what the test should be here:
• Coughlan: suggested that it must amount to an ‘abuse of power’ for the DM to change position.
• Nadarajah: Laws LJ suggests that proportionality is the better test.
• Best approach? Craig and Schonberg argue that proportionality is the way forward; we’d be better off allowing the courts to take a precise and structured approach. Abuse of power is an imprecise and heavily loaded term, which holds a narrow focus on the public authority.

Question 45

EXTRA NOTES FOR EXAM

(iii) Reasons for keeping LEs:

Green Light

Answer 45

o Green light:

upholding LEs will foster trust in public bodies and this trust will ultimately make it easier to govern—even if upholding the LE might be problematic in the short term.

• See Craig and Schønberg, (2000) PL 684 at 697:
‘a lack of respect for legitimate expectations may undermine trust in public authorities. Trust is highly valuable because individuals are more likely to participate in decision-making processes, to co-operate with initiatives, and to comply with regulations devised by authorities which are perceived as trustworthy. Respect for legitimate expectations is, therefore, not only about fairness to the individual and control of administrative power, it is also a powerful means to administrative efficacy.’ And the story from Hong Kong, see C. Forsyth and R. Williams, (2002) 10 Asia Pacific Law Review 29. See also Laws LJ in R. (Niazi) v Secretary of State for Home Department [2008] EWCA Civ 755. In discussing the question of procedural legitimate expectations specifically he held that:

o Red light:

• infringement of both branches of the rule of law:
• legal certainty (the right to plan one’s life). See Craig, “Substantive Legitimate Expectations in Domestic and Community Law” (1996) 55 CLJ 289 at 304: ‘a basic tenet of the rule of law is that people ought to be able to plan their lives, secure in the legal consequences of their actions’. But NB Schwarze on actual as opposed to apparent retroactivity: J. Schwarze, European Administrative Law Ch 6.
• equality (treat like cases alike and different cases differently), cf departure from policy in one case but not others. Cf Pearlman (jurisdiction, Lord Denning).

But NB from whose perspective?

Thwarted reliance or abuse of power? Inequality or inconsistency?
• Private rights;
o estoppel analogy,
o cf waiver in Locabail [2000] QB 451
• Public wrongs;
o ‘abuse of power’: see Laws LJ in R v Dept for Education and Employment, ex p Begbie [2000] 1 WLR 1115 at 1130B ‘fairness and reasonableness (and their contraries) are objective concepts: otherwise there would be no public law, or if there were it would be palm tree justice’,
o and Children and Family Court Advisory and Support Service [2001] EWHC Admin 693 Scott Baker J at[44]: ‘the question [to what has the public authority committed itself] has to be looked at objectively and not through either [the claimant’s] eyes, or the eyes of [the defendant].’ See also Laws LJ in R v Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [68], cited with approval by Lord Wilson giving the judgment of the SC in Mandalia: ‘requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public’.
o NB this is part of a wider debate in admin law about whether we should be taking a public wrongs (see, e.g. R v Somerset County Council , ex p Dixon [1998] Env LR 111. Sedley J at 121 ‘Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs’.

Question 46

EXTRA NOTES FOR EXAMS

(iv) explanation for the law

Answer 46

♣ Three separate doctrines:
• ‘Almost contracts’: Coughlan
• Regulating use of policies: involves ‘enforcing good rule based management’ and ‘transitional provisions’ cases. Khan
• Upholding equality and consistency: Mandalia —no knowledge required
♣ Claimed benefits:
• Draws focus away from remedies and shifts it to the reason for upholding the LE. The differing treatment of each reason / category will give the case law structure.
• Would explain inconsistencies in the case law —e.g. why knowledge was not required in Nadarajah and Rashid but was treated as essential in Coughlan. Williams explains this difference in that Coughlan was a ‘like contract’ case and the others were cases falling in the ‘equal treatment’ category.
• Allows us to focus on when certain factors will be relevant:
o Long temporal duration won’t hurt an almost-contract C (see Coughlan herself and the claimants in Ng Siu Tung) but it will hurt a pipeline/transitional provisions C
o Being part of a small class is helpful at least in pragmatic terms for an almost-contract C (though not necessary) whereas as an equality C you want to be part of a very large class and indistinguishable from them, etc.

o My thoughts: I don’t agree with Williams for two reasons:
♣ The first category is unhelpful at best and dangerous at worst: developing a ‘category’ based on public law assurances that create quasi-contractual rights cuts against the general application of private law principles to public authorities (i.e. very restrictive —see Michael in tort). There are good reasons why we want to limit the situations in which liability to confer a benefit will arise and creating a vague category which is animated by a contractual analogy cuts against these reasons.
♣ If we take out the first category, the second two blur together and we’re left with a single doctrine: the real difference between the two (other than the difference policy concerns that seem to lie behind them) is that knowledge is required for the second category but not the third. This isn’t a true distinction at all. Further, the policy rationales aren’t different enough to justify two different categories of case.

o Barber: better solution: It is the change in policy that is being reviewed, a legitimate expectation (including its effect and character) are facts that inform whether the change in policy was reasonable.
♣ For example, in Ng Yuen Shui policy A (giving a hearing) and policy B (not giving a hearing) were, in themselves, fine. The problem was C —the change in between them without sufficient notice. It is this change that is subject to review.
♣ Explains why it doesn’t matter what the individual knew (Rashid) and explains why the court can order natural justice rights (because respecting such rights will render the change in policy a reasonable one).
♣ ‘Legitimate expectations’ has a different meaning in ultra vires representations (as in Roland) as it’s not a change that’s being assessed. E.g. in the tax cases —Matrix Securities and Lever Finance —these cases are treated differently to intra vires representations and the court is more willing to give rise to the representation. In these cases, due to the fact that one person is affected; rules are also reasonably confined (Lever)

Question 47

EXTRA NOTES FOR EXAM

Legitimate expectations and natural justice:

Answer 47

• Elliot: doctrine offers enhanced rights —e.g. there might be no general duty to consult, but the doctrine can give rise to a duty in a particular circumstance. E.g. Ng Yeun Shiu and Greenpeace give some weight to the idea that they might exist separately to NJ, since the rights generated derive specifically from the expectations engendered by the policy and White Paper respectively. Further, Sedley in Niazi pointed out that NJ won’t provide for transitional arrangements to protect those who had taken steps in light of the old policy.

o Above doesn’t adequately distinguish: descriptively Elliott is correct that an LE can provide procedural rights that would not have been available under natural justice. However, NJ is highly dependent on context and it will demand different protection in different circumstances; as such, we could see an LE as a particular fact which (as part of context) demand a particular procedural protection.

Question 48

EXTRA NOTES FOR EXAM

Legitimate expectations and discretionary review

Answer 48

• Coughlan: Lord Woolf noted three categories of case: (i) DM must bear in mind a previous representation (Wednesbury applies); (ii) procedural LE; (iii) substantive LE (where the decision to take a different course amounts to an ‘abuse of power’).
• Begbie: Laws LJ: the Coughlan categories are “not hermetically sealed”

Question 49

EXTRA NOTES FOR EXAM

Issues in protecting substantive LEs

Answer 49

• The concern here is that the court is just taking the decision for the public authority; problematic in terms of separation of powers and the judicial function. Constitutional legitimacy problems given that Parliament has conferred discretion on the DM.
• Also big problems in that DMs need to be able to respond to changing situations e.g. Hamble Fisheries (need to be able to respond to shortage of fish).
• Steyn and Sales: unclear based on the reasoning in Coughlan why C’s expectation outweighed the financial reasons of the LE: they think that “the allocation of finite resources subject to many competing demands” is an issue best left to democratic institutions who are politically accountable.
• However:
o Hamble Fisheries: Sedley: “such a doctrine does not risk fettering a DM … because no individual can legitimately expect the discharge of public duties to stand still or be distorted because of that individual’s peculiar position.” What matters is that C can show “an interest worthy of protection” —balancing test between C’s expectation and “policy considerations which militate against its fulfilment.” Court is not limited to bare rationality.
Clear from Sedley’s approach in this case that he is using substantive LEs to introduce a lower threshold of review than typical rationality review. Hirst LJ railed against this approach in ex p Hargreaves.

Question 50

EXTRA NOTES FOR EXAM

How intensive is the review in this area?

Answer 50

• There are two questions, so two areas in which the standard of review can be varied. However, note that Sedley in Hamble conflated them noting that an expectation will only be legitimate if it is worthy of protection — Craig thinks they should be kept separate.
o Whether the expectation was legitimate (what was C entitled to expect, not what he did expect)?
♣ How clear the representation was will determine whether C’s expectation was legitimate.
• Thus it will be higher in cases of substantive LEs. Contrast GCHQ (established practice may be enough for substantive LE); Niazi (Laws thought much more needed for substantive LEs).
• Similarly, in Wheeler (ref. on the Lisbon treaty) and Bancoult (Chagos islanders) thought there would need to be a representation made to a narrow class of people made in unambiguous terms.
o How should the expectation be protected?
♣ Khan giving a procedural protection (hearing) to a substantive expectation.
♣ Bibi: refugees had an expectation that they would be provided with accommodation LE was a factor that had to be taken into account when placing C’s on list.
♣ BAPIO: expectation protected (medical students). Mance: “inconsistency and its effects were so profound as to render such guidance invalid.” Very relevant that there is detrimental reliance.
♣ Public interest revenant here: ex p US Tobacco (had built factory, then snuff banned) —public interest trumped any expectation.
• Laws and Proportionality:
o Nadarajah: principle is grounded in fairness and good administration, by which public bodies ought to deal straightforwardly and consistently with the public. Where DM has adopted a policy, law will expect it to be followed, unless there was good reason not to do so, must be a proportionate response. There should be no difference between substantive / procedural.
♣ Factors are: (i) detrimental reliance; (ii) promise made to a specific group; (iii) whether macro-economic issues of policy are involved. Harder to argue that LEs should be maintained.
o Papponette: PC endorses proportionality, but this is a very Coughlan-esq case.
o Endorsed by Lord Phillips in Lumba and Lord Wilson in Mandalia. In Lumba Phillips noted that in some cases the LE will merely have to be taken into account

Question 51

EXTRA NOTES FOR EXAMS

Disagreement as to some elements:

Answer 51

• Do we need detrimental reliance? Schiemann thought not in Bibi as it would put weakest at risk (nothing to lose). Nadarajah, Laws thought it was a factor in proportionality exercise.

My thoughts: I think we should see this as (per Barber) just review of discretion — it’s about moving from Policy A to Policy B, not about the LEs themselves —they are just a factor in the analysis. Explains why: (i) don’t need to know about the policy (Mandalia); (ii) we’re not concerned with actual expectation, but legitimate expectation. Big debate in discretionary review about when proportionality is the correct standard of review —it is in this area because it naturally lends itself. An LE behaves a bit like a right in that it as a concrete fact against which the relevant administrative action can be weighed.

Question 52

EXTRA NOTES ON EXAMS

Thoughts on LEs

Answer 52

• We get variable review because, as can be seen in the Weds / proportionality debate, we’re asking whether it’s right to review the DM’s discretion in changing from one policy to another. Bibi, Begbie, Wheeler are all classic areas of macro / policy / politics where courts don’t want to get involved, hence there’s a low standard of review. Much more like Wednesbury.
• The relevance of how many people the representation was made to, whether it was clear, devoid of qualification (e.g. Paponette) and whether there was reliance are all relevant because if those things are satisfied, it’s less reasonable for DM to change policy (at least without, for example, imposing transitional measures). Thus the fact of detrimental reliance (e.g. BAPIO) or an unambiguous promise (Coughlan but not Bancoult) is relevant when conducting proportionality review.
• Not a separate doctrine because we can see from Nadarajah and Rashid that it will apply even where there is no expectation.
• Ultra vires:
o Can’t fit in the discretionary review model as we’re not saying that the issue is the choice to move from one policy to the other, just that there’s an incorrect policy in the first place.
o However, the same rationales that underlie the LEs apply here: (i) rule of law / certainty; (ii) hardship to the individual.
o Possibly this is where we could have a separate doctrine of LEs based on hardship to the individual —we’d look at things like clarity of representation, specificity, whether belief was reasonable, reliance —it would look a lot like an estoppel. perhaps this is why we have this thread of tax cases that recognise that unfairness might be caused by a UV representation by tax authorities such that person being taxed can rely on it and not be investigated (Preston, MFK).
o Reprotech was wrong to dismiss estoppel as irrelevant in public sphere. Because you can just add a ‘is it not contrary to the public interest’ line to ensure that it only operates where it’s not a general measure

• General rule is that DM can’t fetter his own discretion (eg by adopting a policy that allows for no exceptions – see eg Walumba Lumba)
• British Oxygen shows that you can adopt a policy which basically says that certain people won’t get particular rights/ consideration, as long as you hear their views
  o Brent LBC shows that the key is that your mind is, then, “ajar”, that you’ll hear representations
• This goes to legality: parl has conferred a power, so DM can’t put himself in position where he can’t consider people who may have a right under that power (hence the situation re a common law discretion is looser – elias. You just have to act fairly (eg khan)
  o Note that you can’t bow to a risk – phoenix aviation – although you can take it into account, and court will look at the context, seriousness of the risk, public interest etc – corner house
• The extent to which court will control the rigidity of exercise of discretion partly depends on the context and aim of the policy that allegedly fetters it – as long as the person does allow for exceptional cases
  o in british oxygen, it’s deemed legit that, as a general rule, whilst they’ll hear applications, they won’t give grants for items of less than £25 – would flood the Board otherwise
  o Findlay: it’s relevant to making a policy about release of prisoners to bear in mind the severity of their crime/ sentence. Exceptional cases were allowed for, so all the prisoners can ask is that he bears in mind the relevant stuff (deterrence etc) when exercising his policy; which he did.
• So the general rule against fetter of discretion: mirrors our general regard for legality. Also public policy: if DM fetters his discretion, he may not be able to do the job that he should be doing.
• It does capture general tensions in admin law. Adopting a policy may be helpful to give clarity of guidance, so people can plan their lives etc (rule of law). But this could remove some discretion (whilst not fettering it illegitimately) which otherwise could have been use to deal w. particular cases of unfairness
  o Purdy. Good for RoL that she wins. But might this fetter discretion?
• More generally, the basic concepts battling it out here may lead to problems:
  o We say that DM can create policies but can’t unduly fetter his discretion
  o But what if someone has relied on a policy/ representation which is then held to fetter his discretion? Or what if someone thinks that they’re covered by the discretion, and is then excluded by adoption of a policy? Should they have no redress? Seems to open up scope for both (a) bad administration and (b) individual hardship
• this is where LEs come in, then

Question 53

Arguments in favour of protecting SLE

Answer 53

a) Fairness in public administration
− Sedley J (Hamble Fisheries) – that’s the real question. Difficult to see why any less unfair to frustrate LE that something will be done than that C will be heard, for example. No risk of fettering PBs in discharge of their duties b/c no individual expects them to stand still or be distorted for his own peculiar position.
b) Equality – like cases should be treated alike
c) Risk of hardship where compensation isn’t sufficient or practical; e.g. Khan
d) Rule of law – predictability & certainty
e) Maintenance of trust in PBs
f) PBs must comply w/gen. EU law principles - incl. LE, where case falls within the scope of EU law

Question 54

Arguments against protecting SLE

Answer 54

a) liberty to make changes in policy is inherent in our constit form of govt. so that existing policy shouldn’t be ossified or unduly fettered
 no evidence of any such impact so far!

Question 55

Protection of Admin Autonomy v Conflicting Policy

Answer 55

1) Admin autonomy
− Diplock: admin policies may change in circs, incl. changes in political complexion of govt. Any reasonable expectations aroused by previous circular are destroyed and new ones are created.
2) Legal Certainty
− Forsyth: judicial motivation for seeking to protect LE is plain: if executive undertakes (expressly, by past practice or combination) to behave in a particular way, the subject expects compliance. That’s fundamental to good govt. & would be monstrous to allow executive to freely renege on it. Public trust in govt. should be protected.
− Shonberg: tension isn’t simply b/w public & private interests b/c legal certainty encompasses public interests within itself, since community as a whole benefits from trust in govt.

Question 56

Likely Impact of HRA

Answer 56

Many LE cases may also be pleaded under HRA (e.g. Coughlan - breach of right to home under Art 8) – may lead to less apps for JR being made under LE. If brought under both, should keep HRA separate from LE, so not to allow the former’s reasoning confuse the existing law on LE (Craig)

Question 57

LE as a close cousin of estoppel

Answer 57

Close cousins of estoppel:
R v IRC ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, per Bingham LJ: ‘If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness.’

But NB more recently Reprotech v East Sussex CC [2002] UKHL 8, [2003] 1 WLR 348, per Lord Hoffmann:
“There is of course an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power: see R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213. But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote.

public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet.”

Question 58

Craig on why we should uphold LE even if UV

Answer 58

1. We do not always ‘mop up’ ultra vires behaviour, note time limits
2. NB the key consideration; there are two forms of ultra vires; the ultra vires basis of the expectation and the potential breach of one or other branch of the rule of law; balancing the lesser of two evils is inevitable. Upholding the UV LE might be unlawful, but since when was it lawful to breach the Rule of Law?
3. If we are concerned about cynical and deliberate extensions of power by public bodies we can control for them, e.g. by only upholding UV LEs in a context where there was clearly a mutual mistake.
4. Conversely, if we’re really worried about incentives, what message does the current law send to public bodies? See the CA in Stretch v West Dorset District Council (1999) 77 P&CR 342 per Peter Gibson LJ: ‘unjust’ that public bodies should thus be able to ‘take advantage of their own errors to escape from the unlawful bargains that they have made’
5. NB also the upholding of ultra vires legitimate expectations in the EC context: Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 53 and Case 14/61 Hoogovens v High Authority [1962] ECR 253.
6. Decision of the ECtHR Stretch v UK (2004) 38 EHRR 12:
[38] ‘the Court does not dispute the purpose or usefulness of [the UV] doctrine which indeed reflects the notion of the Rule of Law underlying much of the Convention itself. It is not, however, persuaded that the application of the doctrine in the present case respects the principle of proportionality. 
[39]….local authorities inevitably enter into many agreements of a private law nature with ordinary citizens in the pursuance of their functions, not all of which however will concern matters of vital public concern… there is no issue that the local authority acted against the public interest in the way in which it disposed of the property under its control or that any third party interests or the pursuit of any other statutory function would have been prejudiced by giving effect to the renewal option’

Question 59

WILLIAMS HANDOUT

Is the current law of even intra vires LE satisfactory?

Answer 59

No:
• Continuing controversy over whether Coughlan was correctly decided, see above.
• Not predictable, see again the 3:2 split over the clarity requirement in Bancoult; our lack of clarity regarding the role of reliance or knowledge etc. NB this is important for ‘the judge over your shoulder’.
• It’s evident from Coughlan itself that the courts have not thoroughly mapped out and understood the area. Why is there no discussion of procedural protection of substantive legitimate expectations, just procedural protection of procedural ones (Liverpool Taxi)? Why are categories (a) and (c) either side of category (b) even though they turn out not to be hermetically sealed?…
• This is all at least in part because general underlying theories such as ‘abuse of power’ cannot provide specific answers in specific cases.
• And the development of the law has been driven by remedies (substantive protection or procedural protection?) Not unknown in public or private law, see the history of the prerogative remedies, but history has also been to break free from that.

Question 60

Williams on advantages and disadvantages of her own approach

Answer 60

• Will it lead to more litigation? No: at present there is litigation caused by uncertainty of the rules and principles applicable. If courts understand better why they are upholding a legitimate expectation (or not) that will help to focus and inform the discussion of ingredients, counter-arguments etc as above.
• E.g. shortness of duration a key consideration for transitional provision cases, but not for almost contracts. Knowledge or reliance are conceptually important for almost contracts, good policy management and transitional provision cases, but are irrelevant for equality/consistency cases.
• Avoids court-manipulable uncertainty, e.g. 3:2 split in Bancoult (above).
• If the distinctions are understood properly then they won’t be mistaken for each other anyway.
• Courts can already make fine distinctions e.g. between contracts, gifts, estoppels etc. and this is no different.
• In any case, major impact is on reasoning, not outcome. Remedies are to be determined case by case as at present. But at least we will understand why a remedy is being given rather than the answer being because a court says so.
• And provide much more focused guidance for administrators on how to handle policy pipelines, bargains with citizens etc.

Question 61

Adam Perry and Farrah Ahmed, ‘The Coherence of the Doctrine of Legitimate Expectations’ (2014) 73 CLJ 6

Answer 61

The note how the current bases of the doctrine are either ‘over-inclusive’ or ‘under-inclusive’; representation is under-inclusive because it does not allow for policy and fairness is over-inclusive because it fails to distinguish LE from the rest of administrative law

Question 62

My Collection argument on SLE’s misguided search for an overarching ‘meta-value’ (Daly)

Answer 62

2 arguments concerning the lack of clear and coherent of conceptual basis of SLE

1. The doctrine is a smokescreen for judicial intervention;
2. Reynolds argues that that finding an overarching principle would give greater ‘guidance’ when determining the scope + rules of the doctrine; this concern is echoed in the case law, as Laws LJ in Nadarajah concluded that the current understanding of the doctrine (that it is an instrument of fairness to combat against abuse of power) ‘in truth, reveals no principle’.

Both arguments overlook that the doctrine does not stem from a first set of principles (Daly). This does not preclude the creation of a normative basis per se but establishing such a principle is misguided for 2 reasons:

1. may undermine nuanced judicial consideration of the issues before the court. Ahmed and Adam note how the current bases of the doctrine are either ‘over-inclusive’ or ‘under-inclusive’; representation is under-inclusive because it does not allow for policy and fairness is over-inclusive because it fails to distinguish LE from the rest of administrative law
2. Even if such a principle were well established, Gee and Webber question whether it could lead to excessive rationalisation putting principle over practice. The courts, in response, would be unlikely to follow the normative stricture

Question 63

My Collection argument on PLE’s incoherence

Answer 63

1. confusion surrounding the nature of the test of fairness

2. confusion surrounding the fairness tests’ relationship with common law procedural fairness

Question 64

My Collection solution to incoherence

Answer 64

Attempts to disaggregate the doctrines by Williams and Elliott are preferable to the opaque judicial references to ‘abuse of power’

Question 65

My Collection argument re the UV doctrine

Answer 65

Even though it is clear and coherent, it is with ‘regret’ that the courts must ‘uphold an unfair outcome’ (Lord Justice may Rowlands v Environment Agency)

Question 66

My Collection argument on PLE’s incoherence

Answer 66

1. confusion surrounding the nature of the test of fairness

The SC in Finucane rehabilitated the notion of ‘fairness’ when determining whether a procedural expectation should be enforced. although this is coherent with the formulation in Coughlan, also requiring fairness to justify departure from a PLE, it suffers from the same inadequacy: ‘what is fairness?’

moreover, the use of fairness is disorienting given that Lord Canwath in Gallaher held that notions such as ‘caprivious unfairness’ are not grounds in themselves. As such, it is unclear what the precise nature of fairness is

2. confusion surrounding the fairness tests’ relationship with common law procedural fairness which Lord Carnwath described as ‘well-established and well-understood.

E.g. why is a PLE defeasible in light of macro-political and macro-economic issues but a procedure regarded as ‘fair’ is not? Elliott points to the normative roots: PLE stems from good administration (per Lord Kerr Finucane) whereas procedural fairness stems from dignitarian and instrumentalist views. As such, this suggests that there is something more fundamental about the normative basis of procedural fairness than ‘good administration’, though it is not clear what

Question 67

My Collection solution to incoherence

Answer 67

Attempts to disaggregate the doctrines by Williams and Elliott are preferable to the opaque judicial references to ‘abuse of power’

Williams proposes 3 sub-doctrines: (a) cases akin to contract (i.e. Coughlan), (b) (i) good rules based governance; (ii) changing policy A to B, (c) equality cases (Nadarajah).

Elliott seeks to separate the ‘equality cases’ regarding them as revolving around ‘consistency’ which currently stretches the LE doctrine and can ‘stand on its own two feet’.

Both approaches face a steep climb as Lord Carnwath in Gallaher also dismissed the idea of certainty as anything but a ‘desirable objective’, it is ‘not an absolute rule’.

BUT, neither Williams nor Elliot propose that it is an ‘absolute rule’ - rather, they simply elevate the ‘objective’ to a stand alone basis, which may provide greater guidance to courts and decision makers

Question 68

My Collection argument re the UV doctrine

Answer 68

Even though it is clear and coherent, it is with ‘regret’ that the courts must ‘uphold an unfair outcome’ (Lord Justice may Rowlands v Environment Agency)

Rowland emphasised that a LE claim can only be legitimate if the authority has the power to make the decision (intra-vires). However, the law is currently that a public body may misconstrue its powers and the bona fide citizen will bear the burden. The court in Stretch v UK showed similar disatisfaction to that expressed by Lord Justice May in Rowland.

However, the Mansworth-Jelley case represents a crack in the clear and coherent orthodoxy. The HMRC recognised LE claims even though its published guidance was UV. 3 cases have been recognised already. Therefore, this divergence from clarity and coherence is a satisfactory one. Additional clarity and coherence could be ensured by adopting Craig’s ‘balancing’ approach, and abandoning the very UV doctrine

Question 69

Collection conclusion

Answer 69

The amorphous doctrine of LE, currently driven by remedies available, should be broken down into more practical sub-doctrines

The current doctrine is unclear, incoherent and unsatisfactory for interrelated and unrelated issues. Finally, the issues concerning the UV doctrine illustrate that blinkered adherence to the doctrine is as misguided as the attempt to find a unifying meta-value

Question 70

Is the doctrine of substantive legitimate expectations needed?

Introduction

Answer 70

The doctrine of substantive legitimate expectations requires a public body to fulfil an individual’s expectation as to how the body will act in the future which arises as a result of the body’s actions or representation, which were “clear, unambiguous and devoid of relevant qualification.” It is necessary to hold public administration to the high standards expected of it. However, the doctrine fills a niche and difficult role within public law, balancing the contrasting principles of fairness and legal certainty on the one hand and legality and administrative freedom on the other. In addition, the courts are at risk of supplanting a public body’s authority by defining the correct decision they ought to reach, even though Parliament assigned a discretion to the public body. The intensity of the doctrine must be greater than that of Wednesbury unreasonableness, else the doctrine would lack any independent application, yet the courts do not have the same statutory justification for scrutinising the merits of a public body’s decision as they do in the context of human rights. These tensions have given rise to an inherently limited doctrine, which ought not to be extended by the continued application of the courts alone, for fear of interfering beyond their appropriate remit.

Question 71

Is the doctrine of substantive legitimate expectations needed?

Why have a doctrine of substantive legitimate expectations?

There are two views of legitimacy: the first should be rejected entirely

Answer 71

The answer to such a question is shaped by one’s perception of the meaning of legitimate in this context, and by looking at how legitimacy is defined, one can explore the underlying principles which justify the doctrine. There are two views of legitimacy: the first should be rejected entirely and the second must be tempered against other public law doctrines.

The first is that Parliament granted the authority a discretion so that it could make whatever decision it deemed best (within reason) and that all one can legitimately expect is that the decision-maker will exercise its discretion in the public interest and in accordance with the law. Any expectation which arose prior to the decision on the basis of representations or general policies cannot be legitimate because the circumstances are always liable to change; in order to best serve the general public, it must be open to a public body to resile from a previous position which it realises is wrong. Such a position relies heavily on the principle that a public body must not fetter its discretion and a doctrine which demands that a body abide by its former decisions is restrictive, because it does not allow the decision-maker to reconsider facts which may not have been considered at the time the assurance was made. However, this extreme view exposes individuals to potentially capricious decision-making and is liable to frustrate individuals who have relied upon the guidance of the decision-maker.

Question 72

Is the doctrine of substantive legitimate expectations needed?

Why have a doctrine of substantive legitimate expectations?

There are two views of legitimacy: the second must be tempered against other public law doctrines.

Answer 72

The second perspective is that, where an expectation arises from a representation made by a decision-maker, then that expectation can be considered to be legitimate. Such an approach would uphold the principle of legal certainty, as individuals can rely on the assurances given to them, knowing that the decision-maker can be held to account if it resiles from its previous position. However, it fails to take into account that sometimes it will be necessary to alter a decision which was made and a decision-maker cannot always be bound by guidance that was made before the decision actually came to be made. Circumstances may change, or the consequences of a policy may have not been entirely thought through. Nevertheless, this second position is far closer to the actual position of English law, which is that any expectation which is reasonable on the basis of a sufficiently clear and unambiguous representation is legitimate, because the high standards of fairness to which public bodies are held demand that an individual’s reasonable expectation be afforded some legal weight.
There is one notable exception: where the expectation is that the local authority will act unlawfully. When considering the legitimacy of an expectation, Schiemann LJ held that, in addition to being a reasonable expectation, the assurance was also that the assurance “lay within the powers of the local authority both to make the representation and to fulfil it.” This is a necessary limit on the doctrine of substantive legitimate expectations, because public authorities cannot be allowed to make assurances which they know to be unlawful as a justification to act ultra vires and unilaterally extend their powers.

Consider Rowland - the proposition still holds but this case glosses over it

Question 73

Is the doctrine of substantive legitimate expectations needed?

Why have a doctrine of substantive legitimate expectations?

Summary of argument

Answer 73

The doctrine of legitimate expectations serves to protect individuals from abuses of power. Whilst English law recognises that decision-makers must be able to exercise a discretion flexibly, substantive legitimate expectations allow individuals to rely on the guidance given to them by decision-makers, in order to comply with the rule of law. Therefore, at this early stage, only unreasonable or unlawful expectations will be excluded, because this first question merely engages the doctrine, so that it can be considered alongside other factors (such as the wider public interest) at the next stage.

Question 74

Is the doctrine of substantive legitimate expectations needed?

How do the courts apply the doctrine?

The intensity of review

Answer 74

Traditionally, a public body’s decision is unlawful on its merits only if the decision is Wednesbury unreasonable - so unreasonable that no reasonable decision-maker would have made it. An exception is made in the context of human rights, where the courts have imported a test of proportionality, undertaking a closer review of the decision. Where, therefore, should substantive legitimate expectations fall on this scale?
It is clear that the intensity of review must be greater than that in Wednesbury, otherwise there would be no need for an independent doctrine. Although there will clearly be cases where the two doctrines overlap, such that to frustrate the applicant’s legitimate expectation would be a course of conduct which no reasonable public body would take. For example, in R v IRC ex p Unilever, the actions of the Inland Revenue Commission had given rise to an expectation on the part of the applicants that late tax returns would be accepted. The IRC then departed from this practice without reason, and were found to be irrational for doing so. Such actions could also be described as giving rise to a legitimate expectation, which the IRC were then obliged to fulfil having no justification for departing from it.

Question 75

Is the doctrine of substantive legitimate expectations needed?

How do the courts apply the doctrine?

Cases where Wedensbury does not apply yet the doctrine of SLE is still capable of invalidating a decision

Answer 75

However, there are also cases where Wednesbury does not apply yet the doctrine of substantive legitimate expectations is still capable of invalidating a decision. In R (BAPIO) v Secretary of State for the Home Department, guidance issued by the Health Secretary not to hire international medical graduates where domestic graduates were available conflicted with the legitimate expectations created by the policy of the Home Secretary to allow international graduates permanent residence if they could support themselves. The decision of the Health Secretary is clearly not irrational and this was not argued by the applicants - there are (and indeed, were) reasons that a reasonable public body would offer such guidance. However, two of their Lordships held that the guidance was nevertheless unlawful because it “dashed the legitimate expectations which [the Government] had fostered and on which [the international graduates] had acted.”

The courts have consequently adopted a proportionality assessment in deciding whether the actions of the public authority have been unlawful. This is both unnecessary and undesirable for the doctrine and extends further than it ought to go. Proportionality is appropriate in the context of human rights, where the court is balancing defined (if somewhat vague) rights against certain objectives, but it cannot be adopted entirely for the purpose of legitimate expectations.

Question 76

Is the doctrine of substantive legitimate expectations needed?

How do the courts apply the doctrine?

Application of proportionality

Answer 76

First, such an assessment requires the court to consider not only whether the public body has a legitimate aim for its actions, but whether its actions were necessary. Although the courts have a statutory duty under the HRA to ensure that public bodies comply with human rights, there is no similar duty to force them to comply with legitimate expectations and so there is less justification for such a strong interference with public bodies. The courts must not draw a false equivalency between human rights, which the courts have a statutory to protect and are fundamental to a modern democracy, and legitimate expectations, which will vary greatly in their importance and consequences, protected only by the common law.

Secondly, it is not necessary for the courts to decide whether it is necessary for the public body to have acted in the way that it did. The court must accept the weight afforded to public interests by the administrative body and seek an appropriate balance between the public interest, as determined by the public body, and the individual’s expectation (HAYLEY: is this what really happens in the case law? see coughlan and Paponette) . To do otherwise would be to usurp the role of the administration. The doctrine of substantive legitimate expectation serves to prevent abuses of power and is not served by the courts supplanting the judgments of decision-makers for their own.

Sales and Steyn have proposed that the courts adopt the test of “fair, just and reasonable” used when considering a private law duty of care in relation to the exercise of statutory powers. This would allow for a greater discretion to be afforded to a public body without having to permit anything within Wednesbury unreasonableness. Such a test would grant the doctrine unique role in administrative law, providing protection which is more stringent than Wednesbury yet more flexible than proportionality.

Question 77

Is the doctrine of substantive legitimate expectations needed?

Conclusion

Answer 77

The doctrine of substantive legitimate expectations serves to allow individuals to rely upon the guidance offered by decision-makers and so prevent capricious decision-making and abuses of power. However, the doctrine must afford sufficient flexibility to public bodies so that the courts are not supplanting the decisions of public bodies with their own. Therefore, the doctrine is needed, but should be applied in a limited fashion and the courts should reconsider the proportionality assessment that they have adopted in favour of a less strict test.

‘This is an excellent essay, but discusses only one facet of the doctrine of SLE.

Grade: 2:1/1st’