Legitimate Expectations

What is the doctrine of legitimate expectations (LE)?

A doctrine concerning expectations arising from govt representations or promises which may be protected when later denied by policy change.

What 2 types of expectations can arise under legitimate expectations?

1. Procedural expectations — expectation of a process (e.g. hearing/consultation)

2. Substantive expectations — expectation of an outcome or benefit (e.g. entitlement to a benefit)

Do remedy and expectation always align in LE?

NO — a procedural or substantive remedy may be granted regardless of the type of expectation.

Depends on the court’s balancing exercise.

What are the 3 doctrines of legitimate expectations?

1. Procedural legitimacy expectations (PLE)

2. Substantive legitimate expectations (SLE)

3. Principle of consistency

What is procedural legitimate expectation (PLE)?

Expectation of a procedural right with a procedural remedy — Coughlan

What is a substantive legitimate expectation (SLE)?

Expectation of a substantive benefit where remedy may be procedural or substantive depending on fairness — Coughlan

What is the principle of consistency?

A requirement that public authorities act consistently across similar cases — Mandalia; Finucane

Where does the phrase 'legitimate expectation' originate?

From Lord Denning in Schmidt v Home Secretary, drawing from Ridge v Baldwin.

What definition of LE did Lord Denning provide?

A person may have a legitimate expectation that should not be denied without a hearing — Schmidt v Home Secretary

What are the facts and decision in Schmidt v Home Secretary? (2)

1. Facts = Alien was refused leave to remain without fair hearing.

2. HELD = Alien had no right to fair hearing as no right to enter UK. → Thus no PLE arose.

What was the pre-SLE position?

Only the Wednesbury rationality review applied to policy changes. — ex parte US Tobacco

What case first recognised SLE?

Hamble Fisheries — it is no less unfair to frustrate a substantive LE than a procedural one, and that the standard of review must be higher than bare rationality.

What are the facts and decision in Hamble Fisheries? (2)

1. Facts = Fishing licenses transfer policy changed.

2. HELD = Claim failed but SLE recognised in principle.

In Hamble Fisheries, what did Sedley J say about the standard of review for SLE?

Must be higher than bare rationality.

How did Hirst LJ in Hargreaves respond to the doctrine of SLE?

Rejected SLE as “heresy” and “wrong in principle”.

What did Coughlan establish about SLE and LE?

Confirmed validity of SLE and structured LE into 3 categories.

What are the 3 Coughlan categories?

1. No LE ⇒ Wednesbury review

2. PLE ⇒ Court assesses for itself whether there was procedural fairness (full review).

3. SLE ⇒ Court decides whether frustrating the SLE would be so unfair as to amount to an “abuse of power”.

What did Begbie clarify about Categories 1 and 3 from Coughlan? (3)

• The categories are not “hermetically sealed”.

• Category 3 (SLE/abuse of power) — if the facts affect only a few persons and are “discrete and limited, having no implications for an innominate class of persons”.

• Category 1 (bare rationality) — if it falls into the “macro-political field”.

When does a case fall into SLE category?

Where it affects a small, discrete group.

When does a case fall into rationality category?

Where it involves macro-political issues.

Is detrimental reliance required for SLE and PLE?

Relevant but not necessary.

Can SLE claims result in procedural remedies?

YES, if substantive remedy would be too intrusive.

What principle did Lord Wilson lay down in Mandalia and how does it relate to LE? (2)

• A free-standing principle of “good administration” requiring public bodies to “deal straightforwardly and consistently with the public”.

• Basis for Category 3 — Principle of Consistency.

What is the principle of consistency concerned with?

Equal treatment across cases rather than consistency over time.

What distinction does Rebecca Williams draw between LE and Consistency? (2)

• LE = legal certainty (time-based consistency)

• Consistency = legal equality (case-based consistency)

What is the key method courts use in LE cases?

A balancing exercise between individual fairness and public interest.

What is balanced in SLE cases?

Unfairness of denying the LE of individuals (esp when there is detrimental reliance) vs Public interest in policy change. — Coughlan

Why must public authorities retain flexibility?

To respond to changing circumstances.

What balancing exercise do courts conduct in PLE cases?

Procedural fairness caused to individuals vs Public interests (e.g. national security)

Give a case example of when national security overrode LE

CSSU

On whom does the burden of proof lie in LE cases to establish an overriding public interest?

Public body — Paponette v AG of Trinidad and Tobago

What is the standard of review in SLE cases? (2)

• Standard is higher than Wednesbury — Court should only substitute its judgment where denying the LE is so unfair as to amount to an “abuse of power”. — Coughlan

• “Abuse of power” is not an objective threshold, but is assumed to be more intense than bare Wednesbruy review.

What does “abuse of power” imply?

A higher intensity than Wednesbury, though not precisely defined.

When is SLE review less intense?

In macro-political cases or where representation affects large groups — Begbie

Give a case comparison illustrating intensity differences

• Strict = Coughlan

• Less strict = Begbie and Bibi

What did BAPIO say about parliamentary scrutiny?

If the change of policy was subject to parliamentary scrutiny, it is less likely to be unfair.

What is the standard of review for PLE claims? Why? (3)

• Full merits review (Court substitutes its judgment for that of the Executive). — Coughlan

• Because matters of procedural impropriety fall squarely within the institutional competence of the Judiciary.

• BUT decisions on national security grounds remain non-justiciable even in PLE cases. — CCSU

Why is full merits review justified in PLE?

Procedural fairness lies within judicial competence.

When will courts defer even in PLE?

National security cases — CCSU

What did Laws LJ suggest in Nadarajah about the standard of review for LE cases? (4)

• Proportionality is the right test for LE cases.

• Proportionality “makes no distinction” between PLE and SLE because that distinction “has nothing to say about the reach of the duty of good administration.

• Under proportionality, a measure is harder to justify where there is an unambiguous promise, detrimental reliance, and the promise was made to an individual or specific group.

• Easier to justify where macro-political policy issues are engaged.

What 3 factors strengthen LE under proportionality?

1. Clear promise

2. Detrimental reliance

3. Specific individual/group

What factors weaken LE under proportionality?

Macro-political policy decisions

Has proportionality been widely adopted in LE?

NO, limited support.

What forms can representations take?

Explicit promises or conduct — Coughlan

Can one public body's undertaking bind another public body? (2)

• Lords Mance and Roger in BAPIO argued YES — undertaking of one public body can bind another because Crown is an indivisible body and the LE arises from the undertaking.

• Lord Scott disagreed.

What standard of clarity must a promise meet to give rise to a legitimate expectation?

Promise must be “clear, unambiguous, and devoid of relevant qualification” — Bancoult (No 2)

What are the facts and decision in Bancoult (No 2)? (2)

1. Facts = Foreign Secretary made a ministerial statement pledging to honour a court ruling that the govt had no right to displace residents from the Chagos Islands. → Govt subsequently obtained new orders in council. → Residents argue that the statement created a LE to return.

2. HELD = HOL majority held that the statement was not clear and unambiguous enough to give rise to LE.

Why is the scale of representation important?

Smaller groups more likely to generate enforceable LE.

Do political or legislative promises create LE?

NO — Wheeler

What are the facts and decision in Wheeler? (3)

1. Facts = PM Blair promised a constitutional referendum on ratification of EU Constitutional Treaty. → After Treaty was rejected by other EU countries, Lisbon Treaty was introduced without a referendum. → C argued an implied promise to hold a referendum on the Lisbon Treaty.

2. HELD = No implied promise, no LE. → Even if there had been, it lay “so deep in the macro-political field that the court should not enter the relevant area at all”.

3. Ordering the govt to introduce a Bill into Parliament would intrude on parliamentary privilege.

Name 2 cases that support the protection of ultra vires representations

1. Stretch v UK

2. Rowland

What caution did Peter Gibson express in Rowland?

Courts should not bind authorities to mistaken unlawful promises.

Is detrimental reliance required?

Normally required but not strictly necessary.

What did Begbie say about detrimental reliance?

Relevant to establishing LE but not a necessary requirement in every case.

What did Finucane clarify about detrimental reliance? (2)

• Never necessary for PLE cases.

• Obiter — Lord Kerr said it should not be necessary generally, even in SLE cases, because principle of good administration requires consistent treatment regardless of detirmetnal reliance.

What did Lord Kerr say about reliance?

Good administration requires consistency regardless of reliance.

What lesser form of reliance did Bibi suggest could suffice in LE claims?

“Moral detriment from prolonged disappointment” or Reliance without a change of position, like omitting to seek out alternatives.

What are the facts and decision in Bibi v Newham? (2)

1. Facts = Local authority mistakenly promised security of tenure to homeless persons in public accommodation, believing it was legally obliged to do so, before reneging.

2. HELD = CA held the local authority acted unlawfully for failing to consider the applicants’ LE. → Even though applicants had not changed their positions, they had relied on the promises and suffered “moral detriment” through prolonged appointment and not seeking alternative housing.

When is reliance less important?

In consistency cases — Mandalia

When is reliance more important?

When promises are made to individuals rather than the public.

How do courts decide between procedural and substantive remedies?

Based on the nature of the decision-making fields.

When are procedural remedies preferred?

In macro-political contexts

What did Schiemann LJ say about remedies in Bibi?

Even where Court finds C has LE of some benefit, it will not order the authority to honour its promise where doing so would be to assume the powers of the Executive.

When are substantive remedies more likely?

When there is strong detrimental reliance.

Give a case comparison on detrimental reliance and remedies

• No detrimental reliance: Bibi and Begbie ⇒ procedural remedy

• Significant detrimental reliance: Hamble Fisheries (purchase of 2 fishing vessels to transfer licences) and BAPIO (Cs had relocated to UK for resident training) ⇒ substantive remedy more likely

When is detrimental reliance not required in principle of consistency cases? (2)

• Schiemann LJ in Bibi — Detrimental reliance not necessary where there is a departure from policy in relation to a particular person, since consistency and equality are at stake.

• Confirmed in Mandalia, where C had no knowledge of the policy direction until after the adverse determination, so there could be no detrimental reliance.

What was the result of the balancing exercise in CCSU?

National security considerations outweighed the PLE because national unions could have launched disruptive strikes detrimental to national security.

Can ultra vires representations give rise to LE, and what is the tension in the case law? (3)

• Coughlan — representation must not be ultra vires (i.e. it must not have been illegal for the public authority to act according to the representation).

• BUT later case law suggests ultra vires representations can be protected under ECHR.

• Peter Gibson in Rowland — cautioned that courts should be slow to fix a public authority permanently with the consequences of a mistake, particularly when doing so would deprive the public of their rights.

How does the scale (number of people) to whom a representation was made affect LE claims? (2)

• Coughlan — a key factor identified by Laws LJ in Begbie was the limited number of individuals affected by the promise.

• Representation made to a large section of the public attracts less intense review than one made to a small, identifiable group.

When does the standard of review for SLE reduce to something equivalent to Wednesbury? (3)

• When case is in macro-political field.

• When representation was made to a large section of the public.

• Illustrated by the contrast between the stricter review in Coughlan (closure of a nursing home for a small, identified group) versus the looser review in Begbie (state funding for students in private schools) and Bibi (public housing allocation).

How does the nature of the audience (public at large vs specific individuals) affect the relevance of detrimental reliance?

Detrimental reliance is less relevant when the case deals with statements affecting the public at large.

What is the public interest in allowig public authorities to change their policies? (2)

• So that the Executive retains flexibility to respond to changing circumstances.

• Overzealously enforcing LE could dissuade govt from adopting consistent policy.

What is Craig's general position on detrimental reliance in LE claims? (3)

• Detrimental reliance will normally be required for C to show it would be unlawful to go back on a representation.

• If the individual has suffered no hardship, there is no reason based on legal certainty to hold the agency to its representation.

• BUT it should not be necessary to show any monetary loss or equivalent.

What is the quote of Lord Kerr in obiter about detrimental reliance in Finucane?

“It cannot conduce to good standards of administration to permit public authorities to resile at whim from undertakings which they give simply because the person or group to whom such promises were made are unable to demonstrate a tangible disadvantage'“.

What form can the representation take to give rise to an LE?

Explicit promise by the public authority or from present conduct. — Coughlan

How do courts decide whether to grant a substantive or procedural remedy in LE cases? (3)

• Court considers the nature of the field of decision-making.

• The more the decision lies in the macro-political field, the more likely the decision will be remitted to the decision-maker and procedural safeguards ordered.

• Substantive remedy is more likely where there was detrimental reliance.