#16702 - Legitimate Expectations Problem Question Notes - Administrative Law

Adopt a multi-factorial approach. The following fall to be considered:

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.

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.

In PQs, 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). 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.

However, there is a trend towards a less strict approach than Bancoult. 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. In PQs, mention Bancoult (No. 2) but follow Paponette.

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

• 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.”

• 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.

• 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”.

This asks if the claimant can have a LE that he will be treated in a particular way if he was not aware of the public authority’s statement or practice indicating how it intended to act.

The position of English law was traditionally that no knowledge is required: R (Rashid) v Secretary of State for the Home Department (2005).

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.

Mandalia: there has been some departure from the ascription of the legal effect of policy to the doctrine of legitimate expectation. 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]: “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.”"

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.”

However, the existence of this free-standing doctrine has been doubted 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]).

So now, in PQs, mention Mandalia and Gallaher, and then just apply ordinary principles of LE and irrationality.

Not a prerequisite: Begbie.

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).

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.

(See later on protecting LE for how DR may be relevant)

A procedural LE may lead to procedural protection. Two examples:

• 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...