Public II 4 Legitimate Expectation

Forms of Legitimate Expectation

Procedural and Substantive

Schmidt v Secretary of State for Home Affairs

Established that legitimate expectation may be used for judicial review

Procedural Legitimate Expectation

Can arise when either: a public body has promised or represented that a particular procedure will be followed before a decision is made or where there has been an established practice for the public body to use a particular procedure

R v Liverpool ex parte Liverpool Taxi Operators’ Association

Case for the success of procedural legitimate expectation where a public body departs from an established practice for a procedure

Substantive Legitimate Expectation

Where an assurance or promise has led to a person to believe that they will receive a particular tangible benefit

R v North and East Devon Health Authority, ex parte Coughlan (Substantive Legitimate Expectation)

Leading authority on substantive legitimate expectation

Courts’ approach to assessing legitimate expectation

1. Has an expectation arisen?
2. If so, is the expectation legitimate?
3. Has the public body lawfully frustrated the legitimate expectation?

R v SoS for Education and Employment, ex parte Begbie (Are the oppositive a public authority?)

A legitimate expectation cannot be created by a spokesperson of an opposition political party

Expectation from an Express Promise

Can be a specific representation or a representation contained in a policy

AG of Hong Kong v Ng Yuen Shiu

A policy can contain a representation which gives rise to a legitimate expectation

R (Greenpeace Ltd) v SoS for Trade and Industry

Legitimate expectations arising from polices can be controversial as public bodies must be allowed to change their policy, otherwise they could fetter their discretion

R v IRC, ex parte Unilever

Expectation can be established from past practice

Factors for whether the expectation is legitimate

Clarity, Legality, Agency, Knowledge and Reliance

R v IRC, ex parte MFK Underwriting Agents Ltd

A promise has to be clear, unambiguous and devoid of relevant qualification to make a legitimate expectation

Paponette v Attorney-General for Trinidad and Tobago

For a promise to be clear, it must have been reasonably understood by those to whom it was made

R (Patel) v General Medical Council

An expectation arose through an unclear promise as the appellant had asked for a number of very specific assurances and tried to obtain a clear response

R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs

For past practices to provide legitimate expectation, there must be evidence that the practice was unambiguous and widespread

Legality of a Representation

A representation must be legal in the sense that it would be within the powers of the public authority to fulfil the promise in question

R v SoS for Education and Employment, ex parte Begbie (Ultra Vires Represetations)

A representation that was contrary to the requirements of statutory provisions was held not be a legitimate expectation

Rowland v Environment Agency

There was no power to extinguish a public access right and so the claimant could not rely on the agency’s past conduct of restricting access to found a legitimate expectation

R (BAPIO Actions Ltd) v SoS for the Home Department

A promise by one government department was binding upon another government department

R (Bibi) v Newham LBC

An expectation can still be legitimate where a public authority made a promise under a mistaken belief that they had the power to act

South Buckinghamshire District Council v Flanagan

Public body will not be bound by representation of one its agents where the agent has acted outside his authority in making the representation

Knowledge

Question as to whether a person can claim that they had a legitimate expectation when they had no knowledge of the representation or past practice at the relevant time

R v Ministry of Defence, ex parte Walker

Held that the applicant did not have a legitimate expectation as they were not aware of the scheme they were relying upon

R v SoS for the Home Department, ex parte Ahmed and Patel

The requirements of knowledge is not applicable in the cases of immigrants

R (Rashid) v SoS for the Home Department

An applicant could benefit from a policy of which he had no knowledge in the context of asylum and immigration policy

SoS for the Home Department v Rahman

Generally, a claimant cannot rely on a policy they had no knowledge of

Lumba v SoS for the Home Department

A policy can be departed from with good reason so this may conflict with legitimate expectation

R v SoS for Education and Employment, ex parte Begbie (Reliance)

Detrimental reliance is not essential to found legitimate expectation

R (Bancoult) v SoS for Foreign and Commonwealth Affairs (No 2)

Detrimental reliance is not essential but is a relevant consideration

Frustrating Legitimate Expectations

Although a legitimate expectation may arise, its frustration is not necessarily unlawful in all circumstances

R v Ministry of Agriculture, Fisheries and Foods, ex parte Hamble Fisheries

There is a duty to exercise powers fairly to determine whether a frustration is unlawful as well as the Wednesbury Standard

R v SoS for the Home Department, ex parte Hargreaves

Disagreed with the approach in Hamble Fisheries and said that the court could only interfere in a decision where it is Wednesbury unreasonable

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

1. where there is a legitimate expectation that an authority should bear in mind a previous policy, this can only be assessed with Wednesbury unreasonableness
2. where there is a procedural legitimate expectation, it must be complied with if there is an overriding reason to resile from it, this is assessed based on fairness
3. where there is a substantive legitimate expectation, the court can decide whether the frustration amounted to an abused of power, assessing this based on fairness against any overriding interest

R (Abbasi) v SoS for Foreign and Commonwealth Affairs

A legitimate expectation arising out of government policy regarding diplomatic relations would attract a particularly light intensity of review

R (Nadarajah and Abdi) v SoS for the Home Department

Proportionality approach should be adopted to determine whether procedural and substantive legitimate expectations can be lawfully frustrated

R (Fingle Glen Junction Business and Community Action Group) v Highways Agency

Proportionality applied to determine whether the quick decision of a new temporary road scheme without the past practice of consultation was proportionate to preventing further fatal or serious accidents

R (W) v SoS for Education

Proportionality applied to determine whether preventing a teacher from returning after a promise that he could was proportionate given the evidence of child abuse against him

Re Finucane

In a high policy or macro political context, the court will not apply proportionality as it is more intrusive and instead revert to rationality (Wednesbury standard)