UK Legitimate Expectations

7/28/2019 UK Legitimate Expectations

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Legitimate expectations revision

As Lord Scott has recently commented, the doctrine of legitimate expectation

remains much in vogue where allegedly unreasonable decisions of theexecutive are under challenge EB Kosovo.

Rowland v Environment Agency, May LJ referred to a developing, but at timesover-complicated, body of related jurisprudence, elements of which need

reconsideration.

One of impression per Lord Mustill in Matrix Investments.

WHAT IS THE UNDERLYING CONFLICT IN LEGITIMATE EXPECTATIONS

Conflict between principle of legal certainty and the principle of legality.

The first means that

Person StateLegal certainty

if an individual reasonably relies on an

assurance that power would be

exercised in a given way, in the interests

of certainty, the individual ought be able

to plan his or her actions on that basis.

Principle of legality

in the first sense, it refers to the fact

that the body has the right to alter its

policies, as long as the policies are

lawful in the sense of not being

irrational, or illegal.

Second sense means that

representations made outside of the

jurisdiction of the body should not

bind the body.Forsyth Public Trust in the Government

should not be left unprotected

Phillips and Sales. In granting

discretion to the DM P recognized

that it was not possible to cater for

every permutation arising under a

given scheme. Should not fetter the

discretion.

Urmaza presumption that government

will follow its own policy.

Nadarajah public bodies must deal

straightforwardly and consistently with

the public. Laws LJ.

Hughes v Department of Health and

Social Security. The liberty to make

changes is something that is inherentin our constitutional form of

government. Diplock.

par excellence central governmentwide discretion per NIazi.

The crucial point to appreciate is that accepting the relevance of both

general and specific trust to the doctrine of legitimate expectations helps

us to approach some of the thorny issues in this area. Once we understand

that trust must be relevant to the doctrine then we are provided with a

compass to help us navigate through these difficult issues. When we realisehow capable trust is of providing us with direction we see even more


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clearly the extent to which fairness, abuse of power, good administration

and legal certainty failed in this regard.

HOW ARE THEY CLASSIFIED AND HOW ARE THEY DIFFERENT

Divided further into situations that have

1. Actual retroactive effecta. Schwarze. Where a rule is enacted that pertains to past concluded

events and changes the substantive legal outcome thereof.

b. Autonomy argument per Raz. People ought to be able to regulate theirconduct in accordance with clear predetermined rules.

2. Apparent retroactivitya. Schonberg. This is a situation where there has been a change to the

administration of ongoing transactions in the course of completion.

b. Flexibility. Vs implications for private parties planned on the pre-existing legal regime.

Substantive vs Procedural Holman in Building Schools for the Future. Woolf in

Coughlan, Laws in Niazi

Procedural Ng Yuen Shiu. Secondary case.Greenpeace.o Easier to determine whether a public authority may lawfully resile

from a procedural legitimate expectation than whether it may resile

from a substantive legitimate expectation. Difficult to allege that there

are cogent reasons for not listening to the public.

o Luton Borough Councilthe Better Schools case, it was not possible toallege that the economic situation warranted not consulting those

schools who had been promised concrete renovation fund.o Moral expectation that one will be treated fairly in accordance with

the principles of the policies the body promulgates. Difficult to extend

this logic to require the substantive outcome to be awarded.

o The courts are simply guardians of fairness. No concerns about thesubstitution of discretion. (Forsyth)

Substantive: MFK. Sales suggests that the courts should be far more warywith substantive fucks. Only in cases where they have had the opportunity of

assessing the concrete repercussions of being bound by a given

representation, as in Coughlan.Paradigm case.

BUT The dichotomy between procedure and substance has nothing to say about

the reach of the duty of good administration

Kinds, not hermetically sealed per Begbie.

1. A general norm or policy choice replaced by anothera. no individual can expect the discharge of public duties to stand still

because of the individuals reliance. Hamble Fisheries.b. Hargreaves. The HS sought to change policy, unpon which the

applicant had relied and legitimately thought would not change,

relating to the discharge of prisoners on leave. On one reading there

was no substantive legitimate expectation, and, had there been, it

would have been lawful to frustrate unless unreasonable onwednesbury grounds.


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c. Bancoult. legitimate expectation per Lord Hoffmann as the expectationof being able to return to the Chagos islands was subject to its

feasibility. Therefore, there was no clear express and unambiguous

statement upon which the Chagossians could be said to rely

d. BAPIO the relevant ministerial guidance in the context of minoritynon-UK persons aiming to become doctors undermined theirlegitimate expectation of employment in the NHS per Mance.

e. Should be given effect to. No question of fettering but of when a policymay come into force. Also difficult boundary issues.

2. General norm or policy that has been departed from in the specific casea. Khan. HO wrote to the applicant concerning the adoption of a family

member abroad. Parker LJ held that they could only resile in the

particular case if they granted an oral hearing and then if there were

sufficient overriding justifications.

b. Rashidthe immigration officers departed (unwittingly) from thepolicy concerning the asylum status of Iraqi Kurds. This was held to be

an abuse of power frustrating the justified legitimate expectation per

Urmaza of assuming that he would be treated in accordance with the

appropriate policy.

c. Normally less drastic to require the court to apply their own policy tothe particular applicant.

3. Individual representation relied on by a person from which the decisionmaker wishes to resile from in the interests of a general policy shift

a. Coughlan4. Individual representation relied on by a person which the DM wishes to

defeat in the particular instances.

a. Strong moral arguments.b. Also little effect by way of countervailing public interest as the

individuals requiring the prefential treatment or outcome are very

limited.

c. Preston there was an individualized representation regarding taxinquiries if the claimant forfeited certain benefits. Although they could

not bidn themselves to not exercise statutory duties, (i.e. fialed on the

fact) they could not resile from such a case if it would amount to an

abuse of power.

d. MFK question of whether investments would be taxed as income orcapital. The IR later resiled on its decision. LAhtough Preston did not

apply as this was a case involving statutory discretion and not binding

oneself to not perform ones statutory obligtions, iot would be

unlawful to frustrate the expectation if it would cause unfairness and

if the conditions of reliance were present. They had to place all their

cards face up.

e. Must be entitled to present arguments as to why the given change isunlawful.

WHEN WILL THEY BE GIVEN EFFECT TO

Nature of the representation

a. Must be clear, unambigious and devoid of relevant qualification BinghamLJ in ex parte MFK Underwriting agencies.


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b. Inparents for legal action, it was found that the parents tdid not havelegitimate expectations based on a statement essentially issued to

schools. It was not an undertaking to the parents per Munby J.

2. Source and precisiona. pressing and focused, to use the language of Laws LJ in R (Niazi) v

Home Secretaryb. Corkteckpurely oral exchange with a tax official did not give rise to a

legitimate expectation.

3. Subject matter not amenable to LEa. Wheelerper Richardson LJ. So deep in the macroscopic field.b. Begbie. Peter Gibson LJ. Worried ot let pre and post electoral statements

give rise to LE

WHY WILL THEY BE GIVEN EFFECT TO

Arguments for

1. Fairness in public administrationa. Hamble Fisheries. Sedley J. the real question is one of fairness in

public administration

b. Includes an understanding that no individual can expect the dischargeof public duties to stand still because of the individuals realiance.

2. Reliance and trust in governmenta. Normative argument meaning that legal protection should be

accorded to representations individuals relied upon.

b. Watson. The very act of promising the entering into a relation withmorally-charged expectations of return. altered an individual

perception of the world

c. Schnberg refers to the moral harm. Detrimental impact on autonomy.3. Equality

a. In cases where the DM seeks to resile from a policy in the particularfacts but not defeat the entire policy is where this arises.

b. Like cases should be treated alike is undermined when legitimateexpectations are not fulfilled.

4. Rule of lawa. Raz in Ethics in the public domain. Notion of government often being

required to disregard the established fruits of long term tradition to

respond to urgencies, and the courts guarding the former.

Arguments against

Inflexibility (Watson, rejecting Mances approach in BancoultSales especially

since the very presence of discretion means that P recognized that it would not

be possible to cater for every single situation)

1. Right to change policy Hughes v Department of Health and Social Security. Theliberty to make changes is something that is inherent in our constitutional

form of government. Diplock.

2. It is a rare occurance anyway.i. Niazi


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1. both ... types of legitimate expectation are concernedwith exceptional situations such are generally entitled

to keep their own counsel

2. the simple fact a practice has occurred for anappreciable time is not enough.

ii. Lord Woolf in Coughlan there is no space for intervention ongrounds of abuse of power once a rational decision directed to

a proper purpose has been reached by lawful process

iii. Patelrecently in 2013. GMC not able to change their policywithout making transitional provisions for the mere

recognition of a certificate that they explicaitly stated that they

would recognize.

3. Policy making and discretion should therefore not be unduly fettered.a. Temporal limit of the claim. Ex parte Hargreaves. The minister is free

to determine, e.g. the abolishment of home leave from prision. The

doctrine simply questions when it can take effect.

b. Subtle approach. Sedley LJ in Niazi. Considered not simply whetherthere was a legitimate expectation to be treated fairly in terms of the

policy itself, but whether there was a legitimate expectation as to the

way in which the policy was changed. In other words, it is not the fact

but the manner in which the policy change occurred. Less scope to

fetter the DMs discretion.c. At any rate good administration does this anyway. Often pipe line

streaming.

2. Still need to prove the legitimate expectation.i. Lord Dyson in Paponette v. Attorney General of Trinidad and

Tobago The initial burden lies on the applicant to prove thelegitimacy of his expectation.This is a high preliminary hurdle.ii. Schiemann LJ in Bibi. Tripartite approach (have they

committed themselves, do they act unlawfully, what should the

court do?)

iii. Begbie per Peter Gibson LJ. He explicitly states that he acceptedPhillips Havers QCs submission that Mrs Begbie had anexpectation that her schooling would be funded. However, he

stresses that the question is whether the expectation was

worthy of protection by the law.

3. The more the decision challenged lies in what may inelegantly be called themacro-political field, the less intrusive will be the courts supervision. Laws in

Bibi. Further support from this may be garnered from Begbie. The

enforceability of pre-election promises is a matter for political accountability

and not legal sanction. Pandya deference.

4. And even then the courts will give regard to whether there was a valid reasonfor departing from it.

a. Steele the question of legitimacy is not conlusory, but is considered asa necessary, but not sufficient, prerequisite. Understanding that there

has to be scope for flexibility

5. Very flexible. Worthy of remedy but not of full protection.


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a. Bibi expressly recognizes that there may be a case where a breach of asubstantive legitimate expectation of a pratical outcome need not

always result in the substantive protection.

b. Sedley LJ in Niazi cushion those who would otherwise be unfairlyaffect by a change of policy:Jones v Environment Agency. Could

lawfully frustrate the claimants legitimate expectation but only if ayears notice was given.

c. Schmidt. Oral hearing had to be granted to the alien. Forsyth.. Effect on third parties: respecting an expectation may defeat anothers rights. Begbie Peter Gibson expressly considered the fact that to give effect to the

legitimate expectation would require significant expenditure and would

require kdslfadskljfh.

Each side exerts some pull on one's sense of fairness. Nadarajah. Laws LJ

WHAT IS THE STANDARD FOR REVIEW

Steele

by the decision-maker as to which interest must take priority or should it impose

its own view? The former position would make it impossible for an applicant to

succeed in establishing an abuse of power in any case where the body could

point to a countervailing public interest, while the latter position would cross the

sacrosanct line between review and appeal.

1. Coughlan. Woolf redivided the casesa. The court may decide that the public authority only needs to

bear previous policy in mind when seeking to alter, but need dono more.

i. The decision would only then be reviewable onWednesbury grounds. Finlay/Hargreaves were of this

type.

b. There was a legitimate expectation of consultation engenderedby the public authority (matter of procedural expectations)

c. A lawful promise induces a legitimate expectation..Unilever/Hamble Fisheries were cases of this kind

i. Breach amounted to an abuse of power2. Unresolved

a. How do you distinguish between a and c?i. Begbie pointed out that both categories involve the

deprivation of a substantive benefit. He went on to

observe obiter :

ii. [T]he first and third categories explained in theCoughlan case are not hermetically sealed THEN steer

the court to a more or less intrusive quality of review.

Don garb of policy maker = no no no.

b. What standard of review?i. Abuse of power? However, as Craig comments, it is not a

standard of review. Rather, although it is to welcomedfor recognizing that there is a normatively justified


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expectation and isolates a relevant rationale, it does not

explain what level of abuse is required.

ii. Carnwath in R(S) not a magic ingredient.3. Laws in Nadarajah. Suggests proportionality is always the test.

Problems

1. Moffetta. Difficult to equate LE with Convention rights. Perhaps

overstated (Stretch only in relation to A1P1)

b. Perhaps even more elevated.i. HR: As per Denbeigh and Miss Behavinit is clear that the

approach in HR contexts is on the substance and not the

form of the decision.

ii. LE a public authority is usually required to take theexistence of a legitimate expectation into account when

reaching its decision and, if decides to resile from it, to give

reasons for that decision.1 Accordingly, in a legitimate

expectation case a public authority would be faced with a

duty not only to achieve the correct substantive result, but

also to reach that result by the correct reasoning process.

This is potentially a more onerous duty than that imposed

by the Human Rights Act in relation to Convention rights.2

Sales

2. Proportionate to what? He criticises proportionality on the basis that it isdiffuse. However, arguably, this is the very virtue of the test. It forces the

decision maker to provide rational explanatations of its frustration of the

expectation.

3. A greater inroad. Makes sense when you are considering proceduralexpectations. After all there clearly is a duty and a concomitant

expectation that the bodies will deal consistently and straightforwardly

with the public. Difficult to see why the DM would refuse to listen to

people. However, if you then apply the standard to the substantive

decisions youre in trouble, especially if Laws suggests lowering the test4. The proportionality response means that there is a risk that the courts

will infringe on merits review. This is particularly acute in such cases as

there is critical scrutiny of the countervailing public interest. Must respect

weight given to the countervailing interest by DM. Steyn and Sales

suggests they got it wrong. Financial only? Yes, but since when have the

courts interfered in the distribution of wealth.

a. Pandya relies on Niazi. To show that the courts are verydeferential

b. The mere existence of government scheme was not by itselfsufficient to create a legitimate expectation that the scheme would

1ex parte Coughlan, para 57;Bibi, paras 39, 49-59;Rowland, para 67perPeter Gibson LJ (citing with

approval the judgment of Lightman LJ below at [2003] Ch 1, para 68).2

In some cases, of course, the fact that a human right is in play will afford greater protection than that

which would be accorded to a legitimate expectation by domestic law alone. For example, where a

legitimate expectation does constitute a possession for the purposes of article 1 of the First Protocol to

the Convention, the interpretative obligation imposed by s 3 of the Human Rights Act 1998 may makeit less likely that a claimant will come up against the obstacle of a public authority being prevented by

statute from giving effect to it.


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be contin- ued. Further, the minister was entitled to abolish it

without consultation or notice.

c. Pandya5.

Virtues1. Not Followed. Flexible test.

a. Coughlan. No one-size fits all approach. Disproval ofHargreaveswhich suggested thatwednesburywas the appropriate standard of

review for all LE cases.

b. The facts of the case, viewed always in their statutory context, willsteer the court to a more or less intrusive quality of review. Laws

in Begbie. Fairness is not a point, but a spectrum.

c. Steele. Crude Coughlan dichotomy to a scale of review.2. Proportionality only applied in the restricted field ofCoughlan. Small

group and where the DM has had the opportunity of considering the effect

of frustrating the LE.

a. General Policy departed from in specific case: Mullen. SimonBrown in CA ofMullen reported per Steyn in HoL As, however, is

there made plain, the question for the court is ultimately one of

reasonableness and fairness. Also clearly asserts he is dealing with

irrationality of HS. Wednesburystandard

b. Patel. Used wednesbury standard, albeit under critical analysisClayton suggests that policy type legitimate expectations may never amount to

substantive legitimate expectations.

WHY SHOULD THE LAW GIVE EFFECT TO ULTRA VIRES DECISIONS?

What is the position?

Two situations

1. Situations where the agent had no power to make the decision2. Situations where he did, but the result was that to give effect to the LE

would take the DM outside of their jurisdiction.

Bloggs 61. READ

Authority

1. Lever Finance. Stated that no further planning persmission would berequired, notwithstanding a minor change had been made. However,

subsequently retracted this statement. Lord Denning

a. If an officer makes a respresertnation within the scope of hisostensible authority upon which another acts, then the public

authority may be bound by it.

2. No per Western Fish per Megaw. The planning officer could not do whatstatute required the Council to do. and Keene LJ in Flanagan

3. Reprotech to the language of estoppel in such contexts. Although there isan apparent similarity that is all. In the context of LE it is necessary to also

have regard to the interests of the general public. Time has come for it tostand on its own two feet.


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However, the ECHR also comes in. Art 1 of protocol 1: Stretch. Breach of ECHR on

the basis that

1. Disproportionate intereference2. Only one person affected3. No interference with statutory function.4. The realization that the grant of the renewal of the lease was ultra vires

only arose when there was a legitimate expectation of its renewal.

So why not?

1. Jurisdictional principle. Pristine symmetry. Followed to its inexorablelogic. Why?

2. Lord Greene MR in Hulkin to find otherwise means the recognition thatofficials may readily increase their own jurisdiction

a. Intentional: how is fair that the innocent representee bear the lossb. More effective solutions may be proposed, such as actions against

the minister

c. Inadvertent extension. The deterrent effect is of dubious validity.Usually the inadvertence is not incompetence but a change of

policy in the high echalons.

d. a rule of such generality cannot be presumed, without more, to becorrect. It does not seem at all self-evident that the detriment to

the public interest would outweigh the harm to the individual. It is

certainly not clear that the harm to the public will be greater than

that to the individual in all areas.

3. Bridge in Thrasyvoulou Prejudice third parties.e. However, there will cearly be some situtations where a departure

form this strict principle is justified.

f. Robertson. Better if the losses were borne by the departemtn withminute effect on all those who draw a pension.

May LJ in Rowland I have already indicated my view that the law is defective and

that in consequence this court is obliged to uphold an unjust outcome.

Strategies for the future

1. Qualify the jurisdictional principlea. Government-proprietary distinctionb. Distinguishes situations where the body is acting in a

governmental capacity and in a proprietary capacity, where the

agent had the authority to make the representation.

c. BUT difficult to apply in practiced. Also does not address the cor root of the problem.e. Internal dealing distinguish between matters that are within the

power of the public body itself not prohibited expressly or

impliedly from doing so. Basically entitles an respresentee to

assume that appropriate internal measures have been carried out.

2. Balance the public and individual interesta. Ultra vires is the principle of legality. Recognises that in ultra viresrepresentations, there is a clash with the principle of legal


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certainty. When it is clear that the violation of the second to the

advantage of overall legal consistency and the detriment of an

individual without great effect on the public, then it should be

considered binding.

b. Rowland a balance between her legitimate expectation and thepublic interest, if it were permissible, might well fall on her side.

c. This would not be going too far. Not only would the public bodyhave to be bound by the statement, but the reliance thereupon

must also be reasonable so as to give rise to a justified SEL.

d. To claim that an expectation is not legitimate if it is founded on anunltra vires statement simply returns to the very issue in

question.

e. Even then this is not sufficient, Simply flags up that there is aconflict between the two. Balancing is then required.

f. CASE LAWg. City of Long Beach v Mansellgovernment may be bound by an

equitable estoppel if in the considered view of a court of equity

the injustice which would result from a failure to uphold an

estoppel is of f=sufficient dimension to justify any effect upon

public interests or policy which would result from the raising of

an estoppel

h. Denning MR in Laker Airways. General principle is that the Crowncannot be bound by an estoppel. However, it can be estopped

when the body is misusing its power in the sense that in the

circumstances it works an unfairness without countervailing

public benefit

i. Balancingii. But also recognizes that the principle is not a derogation

from the ultra vires principle but rather one stemming

therefrom. If the jurisdictional principle is the trump card,

then it is assumed within the perceived exception as

incorporating a notion of fairness which is manifested.

i. However, needs legislation or must be carried out by the house oflords.

j. OBJECTIONSi. Tends to merits review. If Parliament has laid down certain

limits to the powers of a body it might be felt that the curts

should not themselves balance the public versus the

individual interest.

ii. However, such balancing is already carried out in otherareas, such as in s31(6) of the Supreme Court Act in

relation to delay (cover some of the law on this in chapter

25 and 26)

1. Yeah but thats statutory. No, simply codifies thecommon law

2. Third parties? Evey bit as real n considering delay.3. Compensation

a. Tantamount to doing the same thing Robertson.


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b. Compensation will derive from public funds. In consideringwhether the harm done to an aggrieved individual at the expense

of the wider community, a similar balancing is undertaken as to

ascertaining whether the principle of legal certainty ought take

precedence over legality in the wider community interests.

c. The cases that are worthy of compensation are those whereWHAT ARE THE PROBLEMS

Incoherent soup. Recently, Forsyth. Epecially when giving effect ot

representations the individuals was not aware of.

Chundawara Pill LJ in Rashid. grossly unfair

This means it is denuded of any utility: legitimate expectations. NO

1. Re Findlay, SK (Zimbabwe) per Lord Hope in 2011 UKSC. Entitled toassume that he will be governed by the relevant policy.2. Forsyth claims that this is not to do with public trust in government. Not aquestion ofvertrauenschutzbut ofRechtsscherheit. (Reynolds).

3. The concerns are overstated. Rashidwas not a case of legitimateexpectations.

a. Moffett, relying on R(S) it was not treated as a legitimateexpectation case but rather a wednesbury one.

b. Pill LJ inZKclarified that it was only in rare cases thatRashidwould be applied.

c. ButLumba and MightyLord Dyson did not apply the concept oflegitimate expectations in the context of the decision to apply a

secret policy that was inconsistent with the published policyconcerning the detention of persons pending deportation. Instead,

he relied on proportionality.

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reliance or even appreciation of the policy. The principle of good administration

demands that public bodies adhere to the *CLJUK 103 policies they promulgate.

Equality of treatment requires that public bodies treat like cases equally,

irrespective of whether a particular claimant's state of mind. Clayton. Thus also

accords with the notion that substantive legitimate expectations may not arise

from policy reliance.

Coughlan had a whiff of private law.

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UK Legitimate Expectations