#2498 - Legitimate Expectations Revision - Administrative Law

LEGITIMATE EXPECTATIONS 1. Lawfully Created Expectations JR should lie where individual (Lord Diplock in GCHQ) (see new Article) * (i) Established practice: in past enjoyed something permitted by DM to enjoy and which he can legitimately expect to be permitted to continue to enjoy unless some rational grounds for withdrawing or * (ii) A promise: he has received assurance from DM he will not withdraw without giving him first opportunity of advancing reasons But this begs more questions than it answers: cannot allow LE to collapse into an inchoate justification for judicial intervention. Craig 1996 CLJ: "Natural role of legit exp is to reflect individuals perspective and value of legal certainty. While true what Sedley J points out in ex parte Hamble Fisheries, that legit ex aren't absolute. But this point is captured perfectly well by accepting that public interest should allow public body to resile from expectation. It does not demand that legality value should be incorporated within the phrase legitimate expectations itself." Craig's notion of legitimacy: reflect individual perspective and value of legal certainty. Sedley's J notion: its a term of art, 2. Why Protect Legitimate Expectations? I. To Prevent Abuse of Power ( per Laws LJ in R v SS for Education ex p Begbie 2000) (Coughlan) II. Allow individual to plan his life, legal certainty (Craig, Administrative Law, 2008) III. Idea of trust has been reposed in what citizen is told. Derived from German law concept of Vetrauensschutz ( (but overlaps with legal certainty). But trust idea has advantage that it is a simple concrete question of fact whether trust has been reposed in an official's promise, so helps us decide which expectations should be protected. IV. Schoenberg 2000: strong public, not just individual, interest in legal certainty.There is "red light" aspect of the rule of law justification. But also more: Admin power more likely to be perceived as legitimate authority if exercised in way which respects legit expectations. 3. Tension Within the Doctrine At heart of doctrine: tension between protection of Admin autonomy and legal certainty. * Hughes v Dep of H and SS 1985: Gov circular said that new retirement age is 60 although before claimants had heard that it was 65 in their situation. Lord Diplock at 788 anxious to ensure that expectations engendered by gov statements not be allowed to ossify policy, "Admin policies may change with changing circumstances." Forsyth in CLJ 1988 unhappy: "it would be monstrous if the executive could freely renege on its undertakings." 4. Some Examples of Doctrine at Work Promise AG of HK v Ng Yuen Shiu: Gov't of HK announced that certain illegal immigrants, who were liable to deportation, would be interviewed individually and treated on their merits. Thus, Lord Fraser (lead) quashed deportation order where immigrant from Macau had only been allowed to answer questions without being able to put his own case. (Note: must not be directed at individual specifically) 636 - 639: Lord Fraser * "No general right...only if he has a legitimate expectation". * "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 should implement its promise, so long as implementation does not interfere with its statutory duty. * The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct. R v Home Sec ex p Asif Mahmood Khan 1984: CA quashed refusal of Home Office to admit an immigrant when this was contrary to legit expectation created by one of its published circulars. Established Practice GCHQ: Civil servants employed in secret work in gov communications headquarters were prohibited from belonging to trade unions. Since there was a well-established practice of consultation in such matters, but not consultation had been offered, the HL held that the procedure would have been unfair and unlawful had there not been overriding considerations of national security. 5. "Legitimate": When is an Expectation Legitimate? 1. Must be founded upon promise or practice by PA not individual Minster R v DPP ex p Kebilne: Minister statement regarding future actions of DPP R v SS for EE ex parte Begbie 2000: Election promise made y shadow minister did not bind responsible minster after change of gov R (Bloggs 61) 2003: Prisoner was allegedly promised he would be held in protected witness unit, but that unit was part of Prison Service and Police had no authority to bind Prison Service. *R (BAPIO Action Ltd) v SS Health 2008: HL divided if Min of Health could issue guidance to NHS employers (denying employment to international medical graduates unless there were no suitable resident candidates) which severely restricted the benefits of the Home Secretary's Highly Skilled Migrant program to IMGs. Lord Scott (the ass) held that existence of the Highly Skilled program could not fetter Minister of Health's freedom to issue guidance to NHS Employers. But Majority (Lord Scott you goofball) held that both ministers were 'formulating the policies of a single entity, the Government, thus guidance was unfair as not consistent with legitimate expectations derived from HS scheme.