#15597 - Legitimate Expectations - Administrative Law

LEGITIMATE EXPECTATIONS

A ‘legitimate expectation’ refers to the effect on a person of a change in policy by a DM: the law tries to delineate between mere hopes (law should not protect) and expectations (law should protect). There is a tension between legality (rule of law means people should be able to plan their lives around the law) and the need for change (it would be unsatisfactory for a DM to be unable to change its policy).

Also public interest in legal certainty, as the community is able to repose trust and confidence in public institutions. Schonberg: “Administrative power is more likely to be perceived as legitimate authority if exercised in a way which respects legitimate expectations. Perceived legitimate authority is more efficacious because it encourages individuals to participate in decision making processes, to co-operate with administrative initiatives … greater compliance will in turn improve the administration’s ability to solve co-ordination problems and that may actually make its exercise of authority more legitimate.”

English law currently protects both procedural and substantive legitimate expectations: traditionally C could only expect to have their procedural legitimate expectations protected, but was expanded to substantive grounds in Coughlan.

PROCEDURE

A court may protect C’s expectations by requiring a fair procedure to be followed before the public authority makes a decision. There is a relationship with natural justice and fair process here —a legitimate expectation may entitle C to be treated in a particular procedural way when —absent the expectation —no such entitlement would arise. For example:

• Ng Yuen Shiu [1983]: Hong Kong adopted a policy that if illegal immigrants came forward, they would be allowed to make representations as to why they should be allowed to stay. C came forward, but the authorities attempted to deport without giving C a hearing. PC: quash the deportation order:

• Lord Fraser: “Where a public authority… has promised to follow a certain procedure, it’s in the interests of good administration that it should act fairly and implement that promise, as long as that implementation doesn’t interfere with its statutory duty.”

• R (Greenpeace) [2007]: white paper provided that the government would not produce nuclear power stations without full public consultations, but the government then sought to do so regardless, with minimal consultation. Sullivan J: the in-principle decision to build a nuclear power station was quashed. “There was procedural unfairness, and a breach of the claimant's legitimate expectation that there would be "the fullest public consultation".

• ex p Liverpool Taxi Fleet Operators [1972]: city council had a statutory power to set the number of taxi licenses in Liverpool. It made a public undertaking that it would not increase the number without consultations, but did so anyway. CA (Denning): court should intervene to ensure that the council acted fairly in deciding the policy “So long as the performance of the undertaking is compatible with their public duty, they must honour it.”

In Greenpeace and Liverpool Taxi, the legitimate expectation grants a right C would not otherwise have (no general right to consultation).

SUBSTANCE

This area of the law is more controversial and the case law is less clear. There are concerns here about fettering discretion, such that public bodies cannot do their jobs.

• Constitutional legitimacy of judicial intervention: problematic for the court to intervene where Parliament has conferred discretion on the DM.

• Inability to respond: can make it difficult for DMs to respond to changing situations:

  • Hamble Fisheries: if unable to make change the fishing licence policy, there could be a shortage of fish.

  • Ex p Richmond [1994]: SS exercised statutory powers to introduce a quota system for aircraft usage (limiting the use of noisier aircraft). One argument was a consultation exercise with LAs about proposed changes led to a legitimate expectation alternative measures would be introduced. Laws J: although the scheme is unlawful for non-compliance with the statute, he denies there is any authority for substantive legitimate expectations: “such a doctrine would impose an obvious and unacceptable fetter on the power, and duty, of a responsible public authority to change its policy when it considered that it was required in fulfilment of its public responsibilities.”

• Appeal/Review distinction: if substantive legitimate expectations are protected, there is a risk of the court substituting its view of the merits of the case for that of the public authority.

These problems do not arise to the same extent in cases of procedural legitimate expectations —they only limit how the decision must be made not whether it can be made at all.

Substantive expectations pre-Coughlan

Prior to Coughlan there had been a sharp disagreement:

• Pro- substantive legitimate expectations

  • ex p Hamble Fisheries Ltd [1995]: Minister had statutory power to change the licensing regime for fishing of pressure stocks. Did C have a legitimate expectation that his licence would not be revoked? Sedley J: difficult to see why it is less unfair to frustrate a substantive expectation than a procedural one, “such a doctrine does not risk fettering a DM… because no individual can legitimately expect the discharge of public duties to stand still or be distorted because of that individual’s peculiar position.” What matters is whether C can show “an expectation worthy of protection.” Advocates for a balancing test between C’s expectation and “policy considerations which militate against its fulfillment”—while this is for the DM to strike, the court is not limited to “bare rationality” in reviewing his decision. It would be “wrong to allow changes of policy to be unduly fettered.” But “there is the value of legal certainty.”

• Against substantive legitimate expectations:

  • ex p Hargreaves [1997]: prisoners who had served 1/3 of their sentence could apply for parole. Policy changed, could only apply if they had served 1/2 of the sentence. CA: the court could not consider substance, only procedure. Here there was no such expectation, the Home Secretary had legitimately exercised his discretion and no individual representations were made to Cs. Hirst LJ:“Mr. Beloff characterised Sedley J.'s approach as heresy, and in my judgment he was right to do so. On matters of substance… Wednesbury provides the correct test.”

It is clear the concern in Hargreaves is that Sedley is using JR of substantial legitimate expectations to undercut the high threshold of Wednesbury unreasonableness—Hirst thinks substantive expectations would: (i) fetter discretion; (ii) asked the court to weigh the merits of the decision.

Establishment of legitimate expectations in Coughlan

Coughlan established review for substantive LEs is permitted. Three grounds for review in this area:

1. Wednesbury unreasonableness: appropriate for full-on substantive review of discretion

2. Procedural legitimate expectations: to be decided with reference to procedural fairness rules

3. Substantive legitimate expectations: is it unlawful for a DM to go back on the substance of its promise? These situations are characterized by: (i) very specific representations, analogous to contract; (ii) frustration of the expectation that would amount to an abuse of power.

ex p Coughlan [2000]: C, a long term care patient, agreed to be moved to a purpose-built facility from a hospital, on the condition it would be “a home for life” — however, D resolved to close the facility as it was prohibitively expensive. CA (Lord Woolf): On the facts, the financial arguments in favour of the policy change were insufficient to justify dashing the LE.

• Where there is no legitimate expectation, the court is confined to Wednesbury grounds. However, where there is a substantive LE “the court will … decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.”

• There may be difficulty in deciding whether a given case can be reviewed as a substantive LE, or just on Wednesbury grounds —normally the former will be cases “where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract.”

• Two stages: (i) establish the “legitimacy of the expectation”; (ii) “weigh the requirements of fairness against any overriding interest relied upon for the change of policy.” Relevant factors will be terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.”

Note: Hargreaves was interpreted narrowly so as to avoid a direct clash. But does mean that it’s hard to draw the boundaries between categories substantive LEs and Wednesbury unreasonableness.

Elliott: the review under Coughlan is intense. The way in which this test operated in Coughlan itself suggests that there is a real risk of the distinction between appeal and review dissolving:

• Sales & Steyn [2004]: unclear from reasoning in Coughlan why C’s expectation outweighed financial reasons of the LA. “Constitutionally, discretionary decisions as to the allocation of finite resources subject to many competing individual demands are generally left to bodies subject to democratic accountability and with a complete view of all the claims upon those resources, not the courts.”

Intensity of review: two variables: legitimacy and protection

Two key inquiries are: (i) whether the expectation was ...