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Legitimate Expectation (law)

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Lord Parker CJ in Re H.K. (1967) said that administrators have a duty to be fair. This decision and others opened the way for an expansion in the application of the rules of natural justice or fairness to administrative decision making. Searching for the touchstone that will bring these rules into play, the progression has been to an encompassing of ‘public law’ rights. This has given rise to a doctrine, concept or principle called ‘legitimate expectation’, which will give an applicant sufficient locus standi for judicial review.

It is necessary to look at the questions of what is legitimate expectation; the relationship between legitimate expectation, natural justice and estoppel; what satisfies a legitimate expectation; and an examination of the future of legitimate expectation alongside the evolution. An analysis of legitimate expectation was undertaken by Simon Brown LJ in ex parte Baker (1995), broadly categorising the cases where the concept might be relevant.

The doctrine refers to the idea that a person can expect to be treated in a particular way by a public body, arising because the body has made some sort of promise or undertaking to that person, or because it has acted in a certain way in the past and the person is expecting it to continue acting in this way. It will be unfair to go back on any promises made. Megarry V-C in McInnes v Onslow-Fane (1978) argued that legitimate expectation was mid-category between natural justice, the highest standard when you have actual rights or interests to protect, and fairness, the lowest, when you are only applying for a right. The lower standard provides very low protection; merely that you are going to be treated fairly where you don’t actually have a right already, but the right is something more than just a hope. This definition enables the court to distinguish different interests and apply different standards of procedural protection to each one. But legitimate expectation is not only about procedural protection and some cases suggest a more substantive nature.

Schmidt (1969) introduced doctrine, an obiter comment by Lord Denning. American students wanted to challenge a decision not to extend their visas to finish their studies and claimed breach of natural justice that they were not allowed a fair hearing. Denning said that the issue depended on whether they had rights or interests, or legitimate expectation, of which it would be unfair to deprive them without a right to stay for a hearing. The challenge failed on the facts because there was only an expectation that the visa wouldn’t be revoked before its expiry date. Here, legitimate expectation was used very restrictively. ‘Legitimate expectation’ has since been utilised as a basis for determining whether or not the courts should intervene on the grounds of breach of natural justice.

If a public body is fettered from operating its discretionary power, it is arguably acting illegally. To prevent this not every expectation will prevent a public body from going back on its promises or changing its policy, and will be allowed when the court thinks there are good public policy reasons to deny expectation. In O’Reilly v Mackman (1982), a prisoner based his argument on fairness and breach of natural justice. The decision had deprived him the promise of remission of his sentence, but interest was held not a right and thus he could only use public law Order 53. Ex parte Baker identified this legitimate expectation category as a more conventional interest in some ultimate benefit hoped to be retained, or even attained, which the law recognises as requiring the protection of ‘procedural’ fairness.

The decision in Hong Kong (1983) also helped to shape legitimate expectation; this relied not only on Schmidt but also on the decision and reasoning in R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association (1972). Lord Denning said that the public body ought not to depart from their undertaking except after the most serious consideration and hearing what the other party has to say, and only if they are satisfied that the overriding public interest requires a departure, to prevent fettering the discretionary power of the body; Birkdale (1926). The Corporation could not go back on its undertaking, however, without giving a right to be heard. This demonstrates the close relationship between legitimate expectation and estoppel. The link is demonstrated in Denning’s return to his older cases of estoppel stating public bodies must act in accordance with their promises, an underlying principle of fairness. The detriment question was left open because it seems that the Association had none. Legitimate expectation is also made more than just a label for the type of interest held by the applicant, and is being used to prevent public bodies from going back on their promises or policies.

In Hong Kong there was a general promise or undertaking to everyone in a category of illegal immigrants, generating an expectation, giving the applicant some rights or interests which he would not have otherwise. The appeal was considered without a hearing. It was held that in the light of the public statement he was entitled to a fair hearing, with general principles of good administration a central key, following Breen (1971). These cases summarise the Baker category of where a particular procedure must be followed consequent upon some express promise. The practice element is illustrated in the GCHQ (1984) case.

Ex parte Khan (1984) signifies a move away from procedural protection towards something more substantive, another Baker category; entitlement that the claimant asserts cannot be denied him. Certiorari was applied for and obtained to quash the Secretary of State’s decision, which had taken a factor into account that had not been published in a circular, arguing a legitimate expectation arising from the circular that the criteria listed there would apply in his case. The court found an unlawful decision. Khan’s attested right wasn’t however the right to be heard, but to be treated in the way provided in old circular, opening a distinction between substantive and procedural expectation. The court acknowledged overriding public interest situations where the public body is permitted to go back on its promises or undertakings. The Secretary will thus not always have to follow published policy. In ex parte Preston (1985), the Inland Revenue was prevented from abusing its powers to act unfairly towards a taxpayer where an undertaking had been relied on. The applicant actually failed on the case facts.

Cases following this judgement established a principle where a specific promise, undertaking or publication of a general promise or policy might generate an expectation that the individual will be treated in a certain way. Requirements have to be fulfilled. Ex parte MFK Underwriting Agencies Ltd (1990) said the representation must have been ‘clear and unambiguous’ to generate an expectation. The applicant had also to ‘lay all his cards on the table’. Ex parte RAM Racecourses Ltd (1993) added that the applicant, in reliance on the representation, must be detrimentally affected. Ex parte Matrix-Securities (1994) repeated the idea of ‘full disclosure of all relevant facts’, adding that if the applicant knew or ought to have known that there should be a certain procedure which wasn’t followed, or if the representation had to be made by a certain official and was not, then he could not rely it, repeated in ex parte Silva (1994).

These cases slightly restrict the range of legitimate expectation. Public body discretion is fettered, however, if they must stick with their undertakings and policies. This is of concern to the courts and a range of cases hold that there is an expectation but also public interest question, better served by allowing discretion and freedom of choice than by binding the body to a specific promise. In Re Findlay (1984), the Home Secretary was not forced to fetter his discretion by binding him to the previous parole policy. The court held he must have the ability to change policies as it is a public interest, political decision and not for the court to interfere. So a prisoner cannot demand a specific policy, only ask that his case will be examined on its own merits. In ex parte TSW Broadcasting Ltd, the House of Lords were reluctant to let legitimate expectation go too far and felt that it should not be applied to every case with possible promise or undertaking. An independent TV commission could possibly change its published criteria for granting franchises, or at least modify the application for those criteria, so long as they did it fairly. The courts thus balanced the individual interest in legitimate expectation to be treated in a particular way against the public interest of free exercise of discretion. The balance will be different according to the judge and the case.

The rulings allowing an applicant to ask entitlement to treatment according to an established practice mostly involve consultation of interested parties before the change takes place. GCHQ held that civil servants had a legitimate expectation that they would continue to enjoy benefit of trade union membership. If this was to be removed they had an expectation to be consulted, the way it was done in the past. ‘National security’ arose however, and the court could not declare an illegal act, but the principle laid down that established practice or habit of consultation might be enough to generate expectation to treatment in the same way in the future. Legitimate expectation was transformed from a convention to a legal right as such, with a public body bound through fairness. In ex parte Gunning (1985) it was held that the parents had a legitimate expectation to be consulted as they were very worried about the decision’s effect on the education of their children and because Local Education Authorities were in the habit of consulting in cases like this.

In Baker, the court said there might be an obligation to consult, even where not provided by statute, as there is a general duty to act fairly. If depriving a specific group of people a significant benefit, one ought to consult them. It’s possible to deduce from the cases that the law has not gone too far; not a general duty to consult, in the same way that there is not a general duty to give reasons. Reasons for this involve political issues about who to consult, who to involve in this and for how long, how much it will cost and more. Green light ideas about good government prevent the courts from actually saying there is a duty to consult in every case.

Further cases continued the substantive rather than procedural protection move. The applicant in ex parte Ruddock (1987) sought judicial review of a decision on the grounds that, inter alia, she had a legitimate expectation that the related published criteria would be followed when a decision was taken. Taylor J acknowledged the case was concerned with legitimate expectation and procedural fairness, but didn’t believe the doctrine should be so confined. Legitimate expectation can be applied to a much more substantive matter, not just a right to be heard. Also a claim that the minister could change the policy in future and discretion of the public body will not be fettered if it is necessary to change policy. Ruddock did not actually win; the court said that the published procedures had not actually been breached.

Ex parte Unilever (1996) helped to settle the issue to an extent, where it was held that the behaviour of a public body can give rise to a substantive legitimate expectation. Although it derives from a duty to act fairly, it may actually require the public body to act according to its policy. Baker preconditions were relaxed somewhat, the real issue relating to how the policy is changed and the reasons for so doing, with the legality judged according to the Wednesbury reasonableness criteria; Hargreaves (1997) also. However, this approach was still a problem as ‘reasonableness’ is itself subjective, making the whole legitimate expectation issue even more vague. The Unilever case also brings together the procedure or substantive entitlement distinction, putting it down to semantics. The issue to consider is simply fairness in the substantive sense.

This doctrine has rapidly extended; as Barwick CJ in Salemi (No 2) (1977) stated, the problem lies with the ‘precise meaning and the perimeter of its application’, which has led to inconsistencies. What started as a brief obiter comment by Denning in Schmidt has been adopted and extended by the courts through natural justice and the equitable doctrine of estoppel to a wide range of situations and become a hybrid flexible tool for judges when wanting to intervene in the decision of a public body. Rather than a catch-all concept for the judiciary or a fourth review avenue, a procedural foot in the judicial review door may be sufficient in many cases.

Laws LJ in ex parte Nadarajah (2005) stated that ‘the principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances’. Expounded further in Niazi (2008), proportionality is to be ‘considered amongst other things’; that is interests in legitimate expectation and fairness but with a proper adherence to discretionary statutory powers in policy operation.

The development of legitimate expectation is a means of enabling the courts to control government where it is felt on balance to be necessary. As Quin (1990) reiterated, legitimate expectation ‘ought not unlock the gate which shuts the courts out of review on the merits’, a principle at the heart of judicial review; that of keeping the floodgates closed to looking at the merits, and one of the restrictions placed on the application of the doctrine to the legal limitations. The substantive issue must therefore be considered carefully. Legitimate expectation is not there to control the creation of new policies and should be against the fettering of discretionary power. The ongoing refinement of the flexibility, creativity and adaptability of legitimate expectation is characteristic of the judicial review process and practice.

References

R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association (1972)

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