JR - Legitimate Expectation

What is legitimate expectation as a ground of judicial review?

Legitimate expectation protects expectations created by a public authority through a promise, representation, policy or established past practice.

In what common-law principle is legitimate expectation rooted?

Legitimate expectation is rooted in the duty of public authorities to act fairly.

When does a legitimate expectation arise in public law?

It arises where a public authority creates an expectation that it would be unfair for it to frustrate.

Which case is associated with the origin of legitimate expectation?

Schmidt v Secretary of State for Home Affairs.

What did Schmidt v Secretary of State for Home Affairs establish about legitimate expectation?

Schmidt v Secretary of State for Home Affairs indicated that a person should not be deprived of a legitimate expectation without being heard.

What are the two main types of legitimate expectation?

Procedural legitimate expectation and substantive legitimate expectation.

What is a procedural legitimate expectation?

It is an expectation that a public authority will follow a particular process before making a decision.

Does a procedural legitimate expectation concern the outcome of a decision?

No. It concerns the procedure that will be followed rather than the substantive outcome.

How may a procedural legitimate expectation arise?

It may arise from an express promise that a procedure will be followed or from an established practice of following that procedure.

What did R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association establish about procedural legitimate expectation?

Ex parte Liverpool Taxi Fleet Operators’ Association held that an authority acted unlawfully by failing to consult taxi operators after promising consultation before increasing the number of licences.

Why was the authority’s decision unlawful in ex parte Liverpool Taxi Fleet Operators’ Association?

The authority had created a legitimate expectation of consultation and then failed to provide it.

Can an established procedural practice create a legitimate expectation without an express promise?

Yes. A sufficiently regular and established practice may create an expectation that the same procedure will continue.

What is a substantive legitimate expectation?

It is an expectation that a public authority will provide, preserve or confer a particular benefit or substantive outcome.

Why are substantive legitimate expectations harder to establish than procedural expectations?

Courts are more reluctant to restrict a public authority’s freedom to change policy or exercise substantive discretion.

What did R v North and East Devon Health Authority, ex parte Coughlan establish about substantive legitimate expectation?

Ex parte Coughlan enforced a promise that severely disabled residents would have a “home for life” and held that closing the facility would unlawfully frustrate that expectation.

What promise created the substantive legitimate expectation in ex parte Coughlan?

The authority had promised the residents that the facility would be their home for life.

Which earlier cases contributed to the development of substantive legitimate expectation before Coughlan?

Ex parte Preston and ex parte Asif Khan.

What did R v Inland Revenue Commissioners, ex parte Preston suggest about legitimate expectation?

Ex parte Preston suggested that fairness may restrain a public authority from departing from assurances it has given.

What did R v Secretary of State for the Home Department, ex parte Asif Khan establish?

Ex parte Asif Khan held that a Home Office circular could create an expectation that overseas adoption applications would be assessed according to the stated criteria.

What factors commonly strengthen a substantive legitimate expectation claim?

A clear promise, an identifiable small group, serious reliance and a high degree of unfairness if the promise is withdrawn.

What are the three broad steps for assessing a legitimate expectation claim?

Ask whether an expectation arose, whether it was legitimate, and whether the public authority lawfully frustrated it.

What is the first step in analysing legitimate expectation?

Determine whether the public authority created an expectation.

What sources of expectation were recognised in the GCHQ case?

An express promise, a policy or a regular and established practice.

Can an express promise creating a legitimate expectation appear in a published policy?

Yes. A sufficiently clear promise in a policy document may create an expectation.

Can a direct assurance by a public authority create a legitimate expectation?

Yes. A clear assurance made directly to a person or group may create an expectation.

Why must courts balance express promises against the rule against fettering discretion?

Enforcing a promise should not improperly prevent a public authority from exercising the discretion Parliament gave it.

What did Attorney-General of Hong Kong v Ng Yuen Shiu establish about policies and procedural expectations?

Ng Yuen Shiu held that a government that announced a policy allowing migrants to make representations was required to honour that procedure.

What did R (Greenpeace Ltd) v Secretary of State for Trade and Industry establish about consultation promises?

R (Greenpeace Ltd) v Secretary of State for Trade and Industry held that a promise of the “fullest possible consultation” in a policy document was capable of enforcement.

What type of legitimate expectation arose from the promise in Greenpeace?

A procedural legitimate expectation of full consultation.

Can a regular and established past practice create a legitimate expectation?

Yes. Consistent past conduct may create an expectation that the practice will continue.

What did the GCHQ case recognise about past practice and legitimate expectation?

It recognised that a regular practice may create a legitimate expectation of continued treatment or procedure.

What did R v Inland Revenue Commissioners, ex parte Unilever plc establish about established practice?

Ex parte Unilever held that a tax authority’s acceptance of late claims over approximately 20 years created a legitimate expectation that it would not suddenly reject them without fair warning.

Why did the tax authority’s conduct in ex parte Unilever create a legitimate expectation?

Its long-standing and consistent acceptance of late claims amounted to an established practice.

What level of evidence is required to establish a legitimate expectation based on past practice?

The practice must be supported by strong evidence showing that it was unambiguous, widespread and well established.

What did R (Davies) v HMRC establish about expectations based on past practice?

R (Davies) v HMRC held that the alleged practice must be unambiguous, widespread and well established.

Must the promise or practice creating a legitimate expectation come from a public authority?

Yes. The expectation must generally be attributable to a public authority with relevant responsibility.

What did R v Secretary of State for Education and Employment, ex parte Begbie establish about the source of a promise?

Ex parte Begbie held that promises made by opposition politicians did not create a legitimate expectation because they were not made by the public authority responsible for the decision.

Why did the statements in ex parte Begbie fail to create a legitimate expectation?

They were made by politicians while in opposition rather than by an authority exercising the relevant public power.

What is the second step in analysing legitimate expectation?

Determine whether the expectation was legally legitimate.

What broad criteria are considered when deciding whether an expectation is legitimate?

Clarity, legality, authority or agency, the claimant’s knowledge and reliance.

How clear must a promise be to create a legitimate expectation?

It must be clear, unambiguous and devoid of relevant qualification.

Which case states that a promise must be clear, unambiguous and devoid of relevant qualification?

R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd.

What objective test is used to interpret a promise for legitimate expectation?

The court asks how a reasonable person would understand the promise in its context.

Do vague political statements normally create a legitimate expectation?

No. Vague or general political statements lack the necessary clarity and precision.

What did Paponette v Attorney-General for Trinidad and Tobago establish about the clarity of promises?

Paponette applied an objective approach and confirmed that vague political statements do not ordinarily create legitimate expectations.

How does precision affect a legitimate expectation claim?

Specific and carefully framed assurances are more likely to create an enforceable expectation.

What did R (Patel) v General Medical Council establish about precise assurances?

R (Patel) v General Medical Council found a legitimate expectation where the claimant had requested and received specific assurances.

Can a public authority create a legitimate expectation that it will act unlawfully?

No. A public authority cannot bind itself to do something outside its statutory powers.

Why is legality a requirement of legitimate expectation?

A promise cannot require a public authority to exercise powers it does not possess or to act contrary to statute.

How did legality affect the claim in ex parte Begbie?

The alleged promise could not be enforced where it conflicted with the governing statutory scheme.

What did Rowland v Environment Agency establish about unlawful promises?

Rowland v Environment Agency held that no legitimate expectation could arise where the authority lacked statutory power to fulfil the alleged promise.

Can a promise made by one government department bind another department?

It may do so where the relevant government authority had power to fulfil the promise.

What did R (BAPIO Action Ltd) v Secretary of State for the Home Department establish about cross-departmental promises?

R (BAPIO Action Ltd) v Secretary of State for the Home Department recognised that a promise may bind another department where the government had authority to fulfil it.

Can a promise based on a mistaken understanding of the authority’s duty still create a legitimate expectation?

Yes. A mistaken view of the authority’s duty does not necessarily prevent the promise from being relevant.

What did R (Bibi) v Newham London Borough Council establish about promises made under a mistaken duty?

R (Bibi) v Newham LBC recognised that a promise made under a mistaken understanding of the authority’s obligations could still create a legitimate expectation.

What agency requirement applies to a promise creating a legitimate expectation?

The person making the promise must act within their actual or legally recognised authority.

Can an unauthorised officer bind a public authority through a promise?

Generally no. An assurance made outside the officer’s authority will not normally bind the authority.

What did South Buckinghamshire District Council v Flanagan establish about unauthorised assurances?

South Buckinghamshire DC v Flanagan held that an unauthorised planning assurance did not bind the authority because the person making it lacked authority.

Must a claimant normally know of a representation before relying on legitimate expectation?

Yes. The normal position is that the claimant must know of the promise or representation.

What did R v Ministry of Defence, ex parte Walker establish about knowledge?

Ex parte Walker held that a claimant could not rely on compensation criteria of which they had no knowledge.

Why did the legitimate expectation claim fail in ex parte Walker?

The claimant was unaware of the original criteria and therefore could not have formed an expectation based on them.

What minority view was expressed in ex parte Ahmed and Patel about knowledge?

Hobhouse LJ suggested that legitimate expectation is wholly objective and may not always require the claimant’s actual knowledge.

What controversial exception to the normal knowledge requirement arose in R (Rashid) v Secretary of State for the Home Department?

R (Rashid) v Secretary of State for the Home Department recognised a legitimate expectation despite the claimant’s lack of knowledge of the policy.

Is the approach in Rashid widely accepted?

No. It is controversial and has been widely doubted.

What did Secretary of State for the Home Department v Rahman establish about representations to the claimant?

SSHD v Rahman reaffirmed that there is normally no legitimate expectation without a relevant representation made or communicated to the claimant.

How does the modern law distinguish legitimate expectation from consistency in applying public policies?

Where the claimant lacked knowledge of a policy, the stronger argument may be that the authority acted unlawfully by failing to apply its policy consistently rather than frustrating an expectation.

Must public authorities apply their policies consistently?

Yes. They should follow their published policies unless there is a lawful and sufficient reason to depart from them.

What did R v Secretary of State for the Home Department, ex parte Urmaza establish about policy consistency?

Ex parte Urmaza held that policies should be applied consistently unless there is good reason to depart from them.

What did Lumba v Secretary of State for the Home Department establish about unpublished or disregarded policies?

Lumba v SSHD held that public authorities must follow the policies governing the exercise of their powers.

What did R (Kambadzi) v Secretary of State for the Home Department establish about detention policies?

R (Kambadzi) v SSHD held that failure to comply with a policy governing detention reviews was unlawful.

What did Mandalia v Secretary of State for the Home Department establish about immigration guidance?

Mandalia v SSHD held that failure to apply relevant immigration guidance rendered the decision unlawful.

Is detrimental reliance essential to every legitimate expectation claim?

No. Reliance is not strictly required, but it is highly persuasive.

How does reliance strengthen a legitimate expectation claim?

The greater the claimant’s reliance, particularly detrimental reliance, the greater the unfairness caused by frustrating the expectation.

Is detrimental reliance commonly present in successful legitimate expectation cases?

Yes. It is usually present, especially in strong substantive expectation claims.

What did ex parte Begbie indicate about detrimental reliance?

Ex parte Begbie recognised that detrimental reliance is commonly present in successful legitimate expectation claims.

Is reliance a question of law or fact in legitimate expectation?

It is a factual question.

Which case states that reliance is factual rather than legal?

R (Bibi) v Newham LBC.

What did R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) establish about reliance?

Bancoult (No 2) confirmed that reliance is relevant but not an essential requirement of legitimate expectation.

What is the third step in analysing legitimate expectation?

Determine whether the public authority lawfully justified frustrating the expectation.

Who bears the burden of justifying departure from a legitimate expectation?

The public authority bears the burden of showing that sufficient public interest justified the departure.

What did Paponette establish about the burden of justifying frustration?

Paponette held that the public authority must justify frustrating the expectation by identifying a sufficient overriding public interest.

What is the default judicial approach to procedural legitimate expectations?

Courts strongly protect promised procedures as an aspect of fairness.

Which case illustrates strong protection of a promised consultation procedure?

Ex parte Liverpool Taxi Fleet Operators’ Association.

Can a procedural legitimate expectation be overridden?

Yes. An overriding and urgent public interest may justify departure from the promised procedure.

What did the GCHQ case establish about overriding a procedural legitimate expectation?

The government lawfully departed from its usual consultation practice before banning trade unions at GCHQ because national security required urgent action.

Why was the lack of consultation lawful in the GCHQ case?

The public interest in national security outweighed the procedural expectation of consultation.

Why are courts more cautious about enforcing substantive legitimate expectations?

Enforcement may fetter policy change, interfere with executive discretion and raise separation-of-powers concerns.

What was the early deferential approach to substantive legitimate expectation?

A lawful policy could generally be changed, and an expectation did not freeze the authority’s discretion.

What did R v Secretary of State for the Home Department, ex parte Findlay establish about policy changes?

Ex parte Findlay held that prisoners could expect their cases to be considered under the lawful policy in force at the relevant time, but could not insist that an earlier parole policy remain unchanged.

Why did the prisoners’ legitimate expectation claim fail in ex parte Findlay?

They had no enforceable right to prevent the Home Secretary from replacing the old policy with stricter lawful criteria.

What did Lord Scarman say in ex parte Findlay about changing policies?

Applicants can expect consideration under the lawful policy currently in force, not the indefinite continuation of an earlier policy.

What did R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble Fisheries suggest about substantive expectations?

Ex parte Hamble Fisheries suggested that Wednesbury review was not the sole test and that public authorities must also act fairly when changing policy.

What approach did Sedley J favour in ex parte Hamble Fisheries?

He favoured a broader fairness-based review of decisions frustrating substantive expectations.

What did R v Secretary of State for the Home Department, ex parte Hargreaves establish about substantive expectations?

Ex parte Hargreaves rejected the broad Hamble Fisheries approach and held that substantive policy decisions should generally be overturned only if Wednesbury unreasonable.

How did ex parte Hargreaves distinguish procedural and substantive review?

Courts could enforce procedural fairness more readily, but should show greater restraint when reviewing substantive policy choices.

What major framework for legitimate expectation was established in ex parte Coughlan?

Coughlan divided legitimate expectation cases into three categories with different standards of review.

What is Category 1 under the Coughlan framework?

A general policy expectation that the authority will consider and apply its current policy.

What standard of review applies to Category 1 expectations under Coughlan?

The decision is generally reviewed under Wednesbury unreasonableness.

Which cases illustrate Category 1 policy expectations?

Ex parte Findlay and ex parte Hargreaves.

Why are Category 1 legitimate expectation claims difficult to establish?

The authority retains broad freedom to change or apply policy, subject mainly to rationality review.