RESILING FROM LEGITIMATE EXPECTATIONS
JONATHAN MOFFETT, 4-5 GRAY’S INN SQUARE
INTRODUCTION
1.
As Lord Scott has recently commented, the doctrine of legitimate expectation remains
“much in vogue” where allegedly unreasonable decisions of the executive are under
challenge.1 Since the landmark case of ex parte Coughlan,2 the Court of Appeal has
had cause to consider the doctrine in detail on no less than eleven occasions.3
2.
The basic features of the doctrine of legitimate expectation are well-known. Where a
public authority represents (either by way of an express promise or implicitly by way
of past practice) that it will conduct itself in a particular way, that representation may
give rise to a legitimate expectation on the part of the representee that the public
authority will so act, and the public authority may have to give effect to that
expectation. Such legitimate expectations are commonly divided into procedural
legitimate expectations, where the expectation is of a procedural benefit such as
notice or consultation before any change of tack on the part of the public authority,
and substantive legitimate expectations, where the expectation is that the public
authority will act in accordance with its representation as a matter of substance.
3.
However, despite (or perhaps because of) its continuing fashionableness, the
application and the boundaries of the doctrine are still being explored. It is indicative
of this ongoing exploration of the scope of the doctrine that the courts have repeatedly
1
EB (Kosovo) v Secretary of State for the Home Department [2008] 3 WLR 178, para 31 per Lord Scott.
R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213.
3
In chronological order: R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR
1115; R (Bibi) v Newham LBC [2002] 1 WLR 237; Henry Boot Homes Ltd v Bassetlaw District Council [2003]
1 P&CR 372; R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence
[2003] QB 1397; Rowland v Environment Agency [2005] Ch 1; R (Rashid) v Secretary of State for the Home
Department [2005] Imm AR 608; Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ
1363; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] QB 365; R (S) v
Secretary of State for the Home Department [2007] EWCA Civ 546; R (BAPIO Action Ltd) v Secretary of State
for the Home Department [2007] EWCA Civ 1139; R (Niazi) v Secretary of State for the Home Department
[2008] EWCA Civ 755.
2
1
found it necessary to re-visit the well-trodden ground at the foothills of the doctrine in
order to find the path further up.4 At the risk of stretching the metaphor too far, the
authorities often seem to re-start each exploratory expedition from base camp,
repeatedly returning to the conceptual foundations in the hope of finding a guide for
the journey.
4.
This approach to legitimate expectation has not necessarily had the desired effect. In
Rowland v Environment Agency, May LJ referred to a “developing, but at times overcomplicated, body of related jurisprudence, elements of which need reconsideration”.5
Such a body of jurisprudence may be the inevitable result of the case-by-case
development of a doctrine which on occasion jars with the familiar administrative law
principles of not permitting public authorities to fetter their own discretions and of the
courts not putting themselves in the position of having to exercise those discretions.
5.
One area where the doctrine of legitimate expectation potentially jars with these
principles, particularly the latter one, is that of the approach of the courts to an
assertion by a public authority that it is entitled to resile from a legitimate expectation.
This area was touched on by the recent decision of the Court of Appeal in R (Niazi) v
Secretary of State for the Home Department,6 where the Court once again explored
various aspects of the doctrine.
6.
Niazi concerned a challenge to the decision by the Home Secretary to withdraw the
non-statutory discretionary scheme for the payment of compensation to victims of
miscarriages of justice, and to the simultaneous decision of the Independent Assessor
responsible for the statutory compensation scheme to reimburse the legal costs of
making a claim at a less generous level than had previously been the case. Both
decisions were taken without consultation or notice. The claimants comprised
individuals who claimed to have suffered miscarriages of justice which would have
qualified them for compensation under the discretionary scheme only, but who had
yet to make an application for compensation under that scheme by the time it was
4
A metaphor borrowed from R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755,
para 27 per Laws LJ.
5
[2005] Ch 1, para 100. In Niazi, para 27, Laws LJ referred to the fact that “the path falters a little further up”
from the foothills of the doctrine.
6
[2008] EWCA Civ 755.
2
withdrawn, and firms of solicitors who undertook work on behalf of applicants for
compensation. In essence, the individual claimants challenged the decision to
withdraw the discretionary scheme on the basis that to do so breached their
substantive legitimate expectations, and the solicitor claimants challenged the
decision to alter the basis on which their costs would be reimbursed on the basis that
to do so without notice or consultation breached their procedural legitimate
expectations.
7.
The Court considered the circumstances in which the mere fact of a settled policy or
practice could give rise to a legitimate expectation. In relation to procedural legitimate
expectations, Laws LJ drew a distinction between what he referred to as “the
paradigm case” of procedural legitimate expectation, where a public authority has
provided an unequivocal assurance of giving notice or consulting before it changes an
existing substantive policy,7 and what he called “the secondary case” of procedural
legitimate expectation, where the procedural legitimate expectation arises out of a
benefit or advantage that the claimant has in the past enjoyed.8
8.
Laws LJ went on to hold that substantive legitimate expectations and secondary cases
of procedural legitimate expectation are concerned only with “exceptional
situations”.9 In relation to substantive legitimate expectations, he held that such a
legitimate expectation will only arise where there has been a specific undertaking,
which is “pressing and focussed” in nature and which is directed at a particular
individual or group, by which the continuation of the relevant policy is assured. 10 In
relation to secondary cases of legitimate expectation, he held that for such a legitimate
expectation to arise, the impact of the public authority’s past conduct on the claimant
must be similarly “pressing and focussed”, such that the relevant individual or group
could in reason have substantial grounds to expect that the substance of the policy will
continue to inure for their particular benefit.11
7
Ibid, para 29.
Ibid, paras 37-39. This is the second category of legitimate expectation referred to by Simon Brown LJ in R v
Devon County Council, ex parte Baker [1995] 1 All ER 173, 88-89.
9
Niazi, para 41.
10
Ibid, paras 43, 46.
11
Ibid, para 49.
8
3
9.
Applying this approach to the facts in Niazi, it was held that neither the individual
claimants nor the solicitor claimants had the legitimate expectations claimed.
However, despite the fact that the issue of when a public authority is entitled to resile
from a legitimate expectation did not therefore arise for consideration on the facts,12
Laws LJ nevertheless touched on this topic,13 referring to his earlier obiter remarks in
Nadarajah v Secretary of State for the Home Department.14 Sir Anthony Clarke MR
and Sedley LJ agreed with Laws LJ.15 However, Sedley LJ put what he described as
“a gloss” on Laws LJ’s judgment,16 recognising that the outcome of the appeal did not
depend upon it, a gloss that may also have some relevance to the issue of when a
public authority is entitled to resile from a legitimate expectation.
RESILING FROM LEGITIMATE EXPECTATIONS: GENERAL POINTS
10.
It must be recognised at the outset that to hive off entirely the issue of the
circumstances in which a public authority may lawfully resile from a legitimate
expectation is to a certain extent an artificial exercise. The courts have warned against
over-compartmentalisation and over-classification in legitimate expectation cases and
such cases are often considered in the round.17 However, the courts have also
approached legitimate expectation cases on the basis that the determination of
whether the public authority may lawfully resile from a legitimate expectation can be
carried out separately from the determination of whether a legitimate expectation
exists in the first place.18 This latter approach has some attraction, as it tends to instil
an element of discipline and structure into the analytical process that is sometimes
lacking where the “in the round” approach is adopted. In the light of this, whilst
recognising that the factors in play when determining whether a legitimate
expectation arises are likely to have a bearing on whether or not it is lawful to resile
12
Ibid, para 22.
Ibid, para 51.
14
[2005] EWCA Civ 1363, paras 67-60.
15
Niazi, paras 71, 72.
16
Ibid, para 71. The Master of the Rolls expressly declined to express a view on Sedley LJ’s “gloss” because it
was not necessary to do so in order to decide the appeal.
17
Nadarajah, para 49; R (Begum) v Tower Hamlets London Borough Council [2006] LGR 674, para 45 per Sir
Anthony Clarke MR. These warnings against over-compartmentalisation are presumably directed at avoiding
what Sedley LJ memorably referred to as the “classic learnt response” of lawyers “to fit given shapes into preformed slots like toddlers in a playgroup” (R (Wooder) v Feggetter [2003] 1 QB 219, para 42).
18
For a recent example of this approach, see R (HSMP Forum Ltd) v Secretary of State for the Home
Department [2008] EWHC 664 (Admin).
13
4
from it, there is some worth in a discrete consideration of the issue of the
circumstances in which a public authority may lawfully resile from a legitimate
expectation.
11.
In general terms, there are two broad bases on which it will be lawful for a public
authority to resile from a legitimate expectation.19 First, where it would be unlawful
for the public authority to give effect to the legitimate expectation.20 Secondly, where
other public interest factors justify not giving effect to the legitimate expectation.
12.
The approach to the first basis would appear to be the same whether a procedural or a
substantive legitimate expectation is in play, and therefore the consideration of it
below does not differentiate between procedural and substantive legitimate
expectations.
13.
However, the position is not quite so straightforward when considering the second
basis. Despite the fact that the courts have warned that the categories of procedural
and substantive legitimate expectations are not hermetically sealed, 21 the law has long
recognised differences between procedural and substantive legitimate expectations.22
In the light of this, whilst bearing the warnings in mind, it is helpful to differentiate
procedural and substantive legitimate expectations when considering the second basis
for resiling from them. Apart from anything else, it is likely to be 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.23
This is because it is likely to be harder for a public authority to justify resiling from a
procedural legitimate expectation than from a substantive legitimate expectation:
usually, it will be harder to establish a policy imperative for not listening fairly to
19
Niazi, para 30 per Laws LJ.
Although sometimes this is treated as a basis for finding that a legitimate expectation does not arise in the first
place.
21
See, for example, R v Secretary of State for Education, ex parte Begbie [2000] 1 WLR 1115, 1130 per Laws
LJ, 1133-1134 per Sedley LJ. In Nadarajah, para 69, Laws LJ commented that his preferred approach to
assessing the lawfulness of resiling from a legitimate expectation “makes no distinction between procedural and
substantive expectations. Nor should it. The dichotomy between procedure and substance has nothing to say
about the reach of good administration.”
22
See, for example, ex parte Baker, pp 88-89 per Simon Brown LJ; ex parte Coughlan, para 57.
23
R (National Association of Guardians ad Litem and Reporting Officers) v Children and Family Court
Advisory and Support Service [2002] 1 FLR 255, para 45 per Scott Baker J.
20
5
what those affected by a decision have to say about it than to establish one for not
reaching a particular decision.24
14.
Despite Laws LJ’s distinction in Niazi between “paradigm” and “secondary” cases of
procedural legitimate expectations, there does not appear to be any suggestion that
these two types of cases should be treated differently when considering the issue of
whether a public authority may lawfully resile from a procedural legitimate
expectation. Accordingly, procedural legitimate expectations are considered below
without distinguishing between the two types.
RESILING FROM A LEGITIMATE EXPECTATION ON GROUNDS OF UNLAWFULNESS
15.
It is uncontroversial that the courts will only give effect to a legitimate expectation
within the statutory context in which it has arisen25 and any expectation must yield to
the terms of the statute under which the decision maker acts.26 Accordingly, where a
public authority makes a representation that it has no power to honour or which would
lead to a conflict with its statutory duty,27 absent a human rights element, that
representation will not generate an enforceable legitimate expectation.28 In this
context, however, the public authority will normally only be absolved from giving
effect to the legitimate expectation if it is required by statute to act contrary to the
legitimate expectation.29 This rule has been the subject of judicial criticism and may
yet be revisited in the future.30
24
R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139, para 24 per
Sedley LJ.
25
R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1573H per
Judge J; ex parte Coughlan, para 82.
26
ex parte Begbie, p 1125D per Peter Gibson LJ.
27
Such representations are commonly referred to as ultra vires representations, but use of that term risks
confusion, as it implies that the representation itself is unlawful rather than the future conduct to which the
representation relates.
28
See, in the context of procedural legitimate expectations, Attorney-General of Hong Kong v Ng Yuen Shiu
[1983] 2 AC 629, 638, and in the context of substantive legitimate expectations, ex parte MFK Underwriting
Agents Ltd, p 1573 per Judge LJ; ex parte Begbie, p 1125 per Peter Gibson LJ; R (Bibi) v Newham London
Borough Council [2002] 1 WLR 237, para 21; F&I Services Ltd v Customs and Excise Commissioners [2001]
STC 939, para 71 per Sedley LJ; Rowland, para 81 per Peter Gibson LJ, para 102 per May LJ, para 152 per
Mance LJ.
29
R (X) v Head Teacher and Governors of Y School [2008] 1 All ER 249, para 115 per Silber J.
30
Rowland, paras 103 and 114-120 per May LJ. For further discussion, see Hannett and Busch, Ultra Vires
Representations and Illegitimate Expectations [2005] PL 729.
6
16.
At least in practical terms, the rule is likely to have more relevance to cases involving
substantive legitimate expectations than procedural legitimate expectations. Situations
where a public authority’s statutory duty would be interfered with by providing the
subject of its decision with an opportunity to be heard before the relevant decision is
reached are difficult to envisage,31 the courts often being prepared to supplement a
statutory scheme of decision-making in order to ensure fairness.32
RESILING FROM A PROCEDURAL LEGITIMATE EXPECTATION ON GROUNDS OF
PUBLIC INTEREST FACTORS
17.
It has been said that a procedural legitimate expectation may only be resiled from
where there is an “overriding reason” justifying such a departure.33 The court itself
will judge whether or not a reason is capable of providing such justification when
balanced against what fairness requires.34
18.
The classic example of a public authority being entitled to resile from a procedural
legitimate expectation is the GCHQ case,35 where it was held that considerations of
national security entitled the government to prohibit staff at GCHQ from belonging to
trade unions without any prior consultation. However, although there is reference in
GCHQ to considerations of national security “outweighing” the procedural legitimate
expectation of the staff,36 because of the fact that national security was in play, little
guidance can be derived from that case as to how the balancing exercise is to be
conducted.37
31
For an example of a case where the courts rejected a contention that to follow a certain procedure would
amount to a breach of the decision-maker’s statutory duty, see R v Falmouth and Truro Port Health Authority,
ex parte South West Water Ltd [2001] QB 445, 460 per Simon Brown LJ.
32
Lloyd v McMahon [1987] AC 625, 702-703 per Lord Bridge. See, for example, R v Enfield London Borough
Council, ex parte TF Unwin (Roydon) Ltd (1989) 1 Admin LR 50, 63 per Glidewell LJ. Cf. BAPIO, para 58 per
Maurice Kay LJ, para 65 per Rimer LJ.
33
Coughlan, paras 57, 71; Niazi, para 30 per Laws LJ.
34
Coughlan, para 57.
35
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
36
Ibid, 403D-E per Lord Fraser;
37
For example, Lord Fraser said (at p 402C) that “the decision on whether the requirements of national security
outweigh the duty of fairness in any particular case is for the Government and not for the courts; the
Government alone has access to the necessary information, and in any event the judicial process is unsuitable
for reaching decisions on national security”; see also p 406H per Lord Scarman, pp 412E-413C per Lord
Diplock, 420D-F per Lord Roskill, 423G per Lord Brightman.
7
19.
In Niazi, Laws LJ referred to public authorities being entitled to resile from
procedural legitimate expectations where “the want of notice or consultation is
justified by…[a] countervailing public interest such as the imperative of national
security”.38 This could, perhaps, imply that in order for the courts to accept a reason
as justifying a departure from a legitimate expectation, it must be a similar order of
importance as one based on national security. Such a strict approach to justifying
departures from a procedural legitimate expectation would be consistent with the
point made above, i.e. that it will usually be difficult to justify not listening fairly to
what those affected by a decision say about it. However, there have been cases where
the courts have not adopted such a strict approach.
20.
For example, in R v The Lord Chancellor, ex parte The Law Society,39 the Divisional
Court held that a failure to give effect to a procedural legitimate expectation was
justified in circumstances where urgency meant that there was insufficient time to
consult.40 In R (BAPIO Action Ltd) v Secretary of State for the Home Department, it
was held at first instance that “good administrative reasons”, to the effect that any
consultation would have risked defeating the object of the decision in question, were
sufficient to justify a departure from a procedural legitimate expectation. 41
21.
These latter two decisions perhaps indicate that in any case involving a procedural
legitimate expectation, the question of whether the public authority may lawfully
resile from that expectation will be particularly fact-sensitive, depending on factors
such as the strength of the expectation, the subject matter to which it relates, and the
consequences of giving effect to it. In this way, the role of the court in such cases is
not so very different from the role it plays in other cases involving procedural
fairness, where it is uncontroversial that the requirements of fairness vary from case to
case.42
38
Niazi, para 30.
(1993) 6 Admin LR 833.
40
Ibid, p 865 per Neill LJ.
41
[2007] EWHC 199 (Admin), para 59 per Stanley Burnton J. However, on the facts, it was held that no
procedural legitimate expectation had arisen. An appeal the Court of Appeal was dismissed on different
grounds: [1007] EWCA Civ 1139.
42
Lloyd v McMahon [1987] AC 625, 702-703 per Lord Bridge; R v Secretary of State for the Home Department,
ex parte Doody [1994] AC 531, 560 per Lord Mustill.
39
8
22.
It is perhaps for this reason that the question of when a public authority may resile
from a procedural legitimate expectation on grounds of public interest factors has not
attracted a great deal of attention: the courts are not seen as doing anything more than
performing their traditional role of being the guardians of fairness and, as such,
neither imposing a fetter on the decision-making discretions of public authorities nor
putting themselves in the position of having to exercise those discretions.
RESILING FROM A SUBSTANTIVE LEGITIMATE EXPECTATION ON GROUNDS OF
PUBLIC INTEREST FACTORS
23.
The issue of when a public authority is entitled to resile from a substantive legitimate
expectation is more controversial. The fundamental question is whether or not it
would be an abuse of power for the public authority to resile from the substantive
legitimate expectation.43 However, as has been recognised, whilst this concept of
abuse of power provides the theoretical underpinning for the power to intervene to
prevent breaches of legitimate expectations, in that respect the doctrine of legitimate
expectation may be no different from other, less controversial, grounds of illegality:
abuse of power is not “a magic ingredient able to achieve remedial results which other
forms of illegality cannot match”.44 In addition, the concept does not provide a guide
as to how to approach individual cases.45
24.
The courts have variously stated that before a public authority may lawfully resile
from a substantive legitimate expectation, there must be “a sufficient overriding
interest” that “outweighs” the representation relied upon or which justifies the change
in policy;46 there must be “relevant and overriding policy imperatives”,47 or there
must be “sufficiently powerful supervening factors”.48 Plainly, by importing relative
concepts such as “overriding” and “outweighing”, the court arrogates to itself at least
43
In re Preston [1985] AC 835, 851H per Lord Scarman, 864G, 867A-C per Lord Templeman; ex parte
Coughlan, paras 67-71.
44
R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546, para 39 per Carnwath LJ.
45
ex parte Begbie, pp 1129F-H per Laws LJ; Bibi, para 34; Nadarajah, para 67 per Laws LJ; S, para 40 per
Carnwath LJ.
46
ex parte Coughlan, paras 52, 57, 58, 83; R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 2) [2008] QB 365, para 100 per Waller LJ, para 121 per Sir Anthony Clarke MR.
47
Ibid, para 73 per Sedley LJ.
48
Niazi, para 69 per Sedley LJ.
9
an element of the decision-making function that is normally the preserve of the public
authority.
25.
Unsurprisingly, in the light of this, much of the case law disavows the appropriateness
of applying a Wednesbury-type test in the context of deciding whether it is lawful for
a public authority to resile from a substantive legitimate expectation. The difficulty
with applying such a test, it is said, is that it will rarely, if ever, result in a public
authority being prevented from resiling from a substantive legitimate expectation.
However, it is perhaps worth noting the courts have not universally shied away from
applying an ordinary Wednesbury-type test in substantive legitimate expectation cases
in the post-Coughlan world.
26.
For example, in R (Bibi) v Newham London Borough Council,49 it was suggested that
the role of the court when a substantive legitimate expectation is in play is no
different from that in any other case where the lawfulness of a public authority’s
actions is called into question, particularly bearing in mind the fact that only part of
the material that would have to be considered by the public authority may be before
the court, and that the court will only compel a public authority to honour a
substantive legitimate expectation if there can only be one lawful ultimate answer to
the question of whether it should do so.50
27.
Bibi concerned a promise by a local authority to provide secure accommodation to the
claimants which was held to give rise to a legitimate expectation that they would be
provided with such accommodation in the relatively near future. The Court of Appeal
recognised the fact that invidious choices in the field of social housing were
essentially political rather than judicial and that the appropriate body to make that
choice was the local authority, albeit that it had to do so in the light of the legitimate
expectations of the claimants.51 In particular, it referred to the comments of Sir
Thomas Bingham MR in R v Cambridge Health Authority, ex parte B,52 recognising
the difficulty that public authorities would often face in demonstrating to the courts
the exact knock-on effects of having to take particular decisions in a particular way.
49
[2001] 1 WLR 237, paras 40-43.
Ibid, paras 40-43.
51
Ibid, para 64.
52
[1995] 1 WLR 898, 906.
50
10
28.
The only relief granted by the Court of Appeal in Bibi was a declaration that the local
authority had to take into account the claimants’ legitimate expectations when
considering their applications for housing.53 Although it went to some lengths to draw
the relevant local authority’s attention to the sort of factors that it should be taking
into account on any reconsideration,54 the Court did not attempt to conduct that
reconsideration itself.
29.
An approach similarly founded on the ordinary Wednesbury test can also be discerned
in R (S) v Secretary of State for the Home Department.55 That case concerned an
asylum-seeker from Afghanistan. As a result of an unlawful administrative policy, the
claimant’s application took some years to determine. Had it been determined earlier,
an application of the policy then applicable to Afghan asylum-seekers would have led
to him being granted exceptional leave to remain, which would in turn have been
likely to lead to a grant of indefinite leave to remain. However, as a result of a change
in the applicable policy during the intervening period, by the time that the claimant’s
application was determined he could no longer benefit from it.
30.
The facts under consideration were not dissimilar to those in R (Rashid) v Secretary of
State for the Home Department,56 and the court in S subjected that earlier decision to a
rigorous, and at times critical, analysis. At the time of the decision in Rashid, it was
widely thought significantly to expand the doctrine legitimate expectation,57 in part
because it appeared to confirm that where a public authority has a policy, an
individual can have a legitimate expectation that it will be applied to his case even if
he was totally unaware of its existence,58 but more importantly because it seemed to
indicate that the courts would intervene to correct “conspicuous unfairness” even
where such unfairness did not fall within the types of illegality contemplated by the
traditional heads of review.
53
Bibi, para 67.
Ibid, paras 51-59.
55
[2007] EWCA Civ 546.
56
[2005] Imm AR 608.
57
See, for example, Elliott, Legitimate Expectation, Consistency and Abuse of Power [2005] JR 281.
58
Such a proposition is perhaps not controversial: see Ahmed v Secretary of State for the Home Department
[1999] Imm AR 22, 40 per Hobhouse LJ; S, para 34 per Carnwath LJ; Niazi, para 30 per Laws LJ. Cf. R v
Ministry of Defence, ex parte Walker [2000] 1 WLR 806, 813 per Lord Slynn.
54
11
31.
In S, however, the Court of Appeal extracted a much narrower ratio from Rashid. It
held that the true basis for the decision in Rashid was that a legally material factor in
the exercise of the decision-making discretion in that case was the correction of
injustice and that, in an extreme case, the court can hold that the unfairness is so
obvious and the remedy so plain that there is only one way in which the discretion can
reasonably be exercised.59 On the face of it, this reference to there being only one way
in which the discretion could normally be exercised would seem to accord with the
ordinary Wednesbury approach to decision-making discretions.
32.
The inference that the Court of Appeal in S was referring to a Wednesbury-type test is
supported by Carnwath LJ’s reference back to the decision of the Court of Appeal in
R v Inland Revenue Commissioners, ex parte Unilever Plc.60 In that case, Simon
Brown LJ held that the principle of fairness underpinning legitimate expectation was
connected with the fact that “it is illogical or immoral or both for a public authority to
act with conspicuous unfairness and in that sense abuse its power”.61 As Carnwath LJ
pointed out in S,62 this harks back to the classic formulation of the Wednesbury test
articulated by Lord Diplock in GCHQ.63
33.
Whilst S did not itself engage the concept of legitimate expectation, Rashid plainly
did (the Court in S accepted that Rashid involved “a textbook example” of a
legitimate expectation64). Further, whilst both S and Rashid involved consideration of
two decisions, i.e. an unlawful earlier decision followed by a second decision where
there was an opportunity to correct the injustice caused by the earlier decision, the
approach of the Court could equally apply in more typical cases. Thus, where a
legitimate expectation has arisen, a legally material factor in the exercise of the
decision-making discretion will be the avoidance of the injustice that resiling from
that expectation would occasion and, in an extreme case, the court can hold that the
59
Ibid, para 46 per Carnwath LJ.
[1996] STC 681. ex parte Unilever is now recognised as one of the foundation stones of the doctrine of
substantive legitimate expectation: see, for example, the Court of Appeal’s reliance on ex parte Unilever in ex
parte Coughlan: [2001] QB 213, paras 78-81.
61
ex parte Unilever, p 695a-b.
62
S, paras 41-43.
63
GCHQ, p 410G.
64
S, para 34.
60
12
unfairness is so obvious and the remedy so plain that there is only one way in which
the discretion can reasonably be exercised. Again, this would amount to something
approximating an ordinary application of the Wednesbury test.
34.
Both Bibi and S were relatively easy cases on their facts, something that may explain
why in both cases the Court of Appeal followed what might be seen as the route of
least resistance. In Bibi, the Court was able to impugn the local authority’s actions on
the basis that it had failed to take into account the legitimate expectations of the
claimants and, therefore, it was unnecessary for it to go any further than it did in order
to afford the claimants at least some relief.65 Similarly, in S, the fact that there were
no “countervailing considerations”66 meant that the Court was not confronted with the
prospect of having to conduct any difficult balancing exercise itself.
35.
Bibi and S do not, therefore, provide support for a return to no more than a
Wednesbury-type test. However, they do perhaps illustrate that such a test is not
inapposite per se in cases of substantive legitimate expectation, but rather that it may
be inapposite in hard cases.
36.
In the search for a means of dealing with such hard cases, it has been recognised that,
when judging whether there are interests that “override” or “outweigh” a legitimate
expectation, the standard of review that the courts apply will vary according to the
facts of particular cases, and the more a decision lies within the macro-political field,
the less intrusive will be the standard of review applied by the court. 67 For example, if
the change of approach by the decision-maker involves questions of policy affecting
the public at large or a significant section of it, or involves social and political value
judgments such as those as to priorities of expenditure, then the court may do no more
that inquire whether the decision-maker has acted rationally. However, where a case
is discrete and limited, with no wide-ranging issues of general policy or none with
multi-layered effects, and where the court can envisage clearly what the full
65
However, it is not apparent from the judgment that this was the reason why the Court of Appeal did not go
any further. In particular, had it gone further and conducted a balancing exercise itself, that may have resulted in
a materially different form of declaration.
66
S, para 54. The Court was able to conclude that such considerations were similarly absent in Rashid: para 45,
per Carnwath LJ.
67
ex parte Begbie, p 1131 per Laws LJ; Nadarajah, para 69 per Laws LJ.
13
consequences of its intervention will be, the court may itself judge whether there is an
overriding public interest sufficient to justify the change of approach.68
37.
Of course, Bibi and S may not sit very comfortably with this analysis of there being a
varying standard of review. It could be said that those two cases fell at different ends
of the spectrum, but in both the courts applied a Wednesbury-type test.
38.
In any event, although this varying standard of review may help to set the parameters
for the court’s task in individual cases, in many cases it will provide little guidance as
to how the task itself should be performed, particularly in cases falling between the
two ends of the spectrum. In such cases, the risk is that falling back on the relative
concepts of “outweigh” and “override” will result in the adjudicative exercise
becoming purely subjective. If this problem of purely subjective adjudications is to be
avoided, there is a need for a more structured form of merits-based review.
39.
It was towards a more structured form of merits-based review that Laws LJ sought to
direct the development of the law in Nadarajah v Secretary of State for the Home
Department.69 He did so by suggesting that in order for a decision to resile from a
legitimate expectation70 to be lawful, it must be “a proportionate response to a
legitimate aim pursued by the public body in the public interest”,71 thereby importing
the approach adopted by the courts when considering whether an interference with a
qualified right under the European Convention on Human Rights is lawful.72
40.
The attraction of Laws LJ’s “proportionality” test in this context is to a certain extent
self-evident. By virtue of the Human Rights Act 1998, the courts have become wellused to applying such a test in cases involving qualified Convention rights across a
68
ex parte Begbie, pp 1130-1131 per Laws LJ. For an example of a case where a less intrusive standard of
review was adopted, see R (Ooi) v Secretary of State for the Home Department [2007] EWHC 3221 (Admin),
paras 50, 53 per Mitting J.
69
[2005] EWCA Civ 1363.
70
Laws LJ did not restrict his analysis in this respect to substantive legitimate expectations (see para 69),
although it is perhaps more readily applicable in cases of substantive legitimate expectations.
71
Nadarajah, para 68, Laws LJ.
72
In the Convention context, the proportionality test requires (i) that the objective of the action must be
sufficiently important to justify limiting a fundamental right; (ii) that the action designed to meet the objective
must be rationally connected to that objective, and not arbitrary, unfair or based on irrational considerations; and
(iii) the means used to impair the right must be no more than is necessary to accomplish the legitimate objective,
and the more severe the deleterious effects of an action, the more important the objective must be if the action is
to be justified: see Lester and Pannick, Human Rights Law and Practice (2nd ed, 2004), para 3.10.
14
wide spectrum of factual and policy contexts. The test is a familiar one and, at least on
the face of it, imports something more sophisticated than the simple balancing
exercise referred to above. Indeed, whilst his suggestion of this test was, as Laws LJ
himself recognised, obiter, it has been expressly adopted in at least one subsequent
case73 (although not in others74) and he appears to have endorsed it in Niazi.75
41.
The route by which, in both Nadarajah and Niazi,76 Laws LJ arrived at the
proportionality test was via the observation that the principles of fairness and good
administration (in the form of public authorities dealing straightforwardly and
consistently with the public) in which the concept of legitimate expectation is rooted
are akin to those found in the Convention, such as the right to a fair trial and no
punishment without law. In the light of this similarity, he said, resiling from a
legitimate expectation should be subjected to the same scrutiny as an interference with
Convention rights.
42.
However, questions arise as to whether this conceptual route to a proportionality test
is the correct one. Equating legitimate expectations (as a manifestation of fairness and
good administration) to Convention rights perhaps elevates them above their proper
status. The early cases on legitimate expectation recognised the fact that legitimate
expectations fall short of (at least private law) rights, characterising them more as
“moral obligations”.77 That approach to legitimate expectations may to a certain
extent be anachronistic in the context of modern public law, but there must be some
pause before elevating concepts such as good administration to the same level as
human rights enshrined by constitutional legislation78 that entrenches fundamental
73
See, for example, R (X) v Head Teacher and Governors of Y School [2008] 1 All ER 249, 113-129 per Silber
J.
74
For example, despite the fact that Nadarajah was cited to the Court of Appeal in Bancoult, it was not referred
to in any of the judgments, despite the fact that the Court considered the question of whether the departure from
the legitimate expectation in that case was justified.
75
Niazi, para 51. In Niazi, however, Laws LJ only went so far as to say that “any departure from [the principle
of good administration which commends the doctrine of legitimate expectation] must therefore be justified by
reference among other things to the requirements of proportionality” (emphasis added).
76
Nadarajah, para 68; Niazi, para 51.
77
See, for example, O’Reilly v Mackman [1983] 2 AC 237, 275D-F per Lord Diplock; Attorney-General of
Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 636E-F; GCHQ, p 401A per Lord Fraser; R v Secretary of State
for Health, ex parte United States Tobacco International Inc [1992] 1 QB 353, 369G-H per Taylor LJ.
78
Thorburn v Sunderland City Council [2003] QB 15, para 62 per Laws LJ.
15
rights.79 To do so would certainly go well beyond the approach adopted by the
European Court of Human Rights itself, which has to date recognised only legitimate
expectations attaching to real property as being capable of constituting possessions for
the purposes of article 1 of the First Protocol to the Convention.80
43.
Further, there is a risk that an application of the proportionality test would in some
respects accord legitimate expectations a more elevated status than the Convention
rights incorporated by the Human Rights Act. When the courts consider whether or
not an interference with a qualified Convention right is proportionate, they are not
concerned with whether or not the relevant public authority reached its decision by
the correct route, but rather they are concerned to ensure that the right result has been
achieved.81 However, in the case of legitimate expectations, a public authority is
usually required to take the existence of a legitimate expectation into account when
reaching its decision and, if decides to resile from it, to give reasons for that
decision.82 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.83
44.
These issues indicate that at least some further thought may be required before the
conceptual route to the proportionality test proposed by Laws LJ can be accepted as
the correct one. However, if it is necessary, as Laws LJ anticipates, to avoid the risks
of subjective adjudication by moving to a more structured form of merits-based
review in order, on what other basis could this be achieved?
79
See, for example, Craig and Schønberg, Substantive Legitimate Expectations after Coughlan [2000] PL 684,
699.
80
See, for example, Pine Valley Developments Ltd v Ireland (1993) 16 EHRR 379; Stretch v United Kingdom
(2003) 38 EHRR 196.
81
R (SB) v Denbigh High School [2007] 1 AC 100, paras 26-31 per Lord Bingham, para 68 per Lord Hoffmann;
Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420, paras 12-15 per Lord Hoffmann, paras 43-45 per
Lord Mance, para 90 per Lord Neuberger.
82
ex parte Coughlan, para 57; Bibi, paras 39, 49-59; Rowland, para 67 per Peter Gibson LJ (citing with
approval the judgment of Lightman LJ below at [2003] Ch 1, para 68).
83
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 make it less likely that a claimant
will come up against the obstacle of a public authority being prevented by statute from giving effect to it.
16
45.
It may be that it is time to widen the focus. Cases involving substantive legitimate
expectation are not the only ones where the Wednesbury-type test has difficulty
coping with hard cases and, in this respect, substantive legitimate expectation cases
are not unique. It may simply be that the competing factors typically in play in
substantive legitimate expectation cases make it more likely that hard cases will arise.
If the difficulties that arise in substantive legitimate expectation cases are not unique,
but are merely symptomatic of a broader problem, this perhaps indicates that the
solution is not necessarily to be found uniquely within the context of legitimate
expectation cases, and it might be artificial to attempt to do so.
46.
The most coherent, if potentially the most obstacle-strewn,84 route to a more
structured form of merits-based review in substantive legitimate expectation cases
may be a general re-examination of the scope of the courts’ jurisdiction to review the
merits of executive decision-making and the recognition of proportionality as a freestanding ground of review. That, however, is a debate for another occasion.
RESILING FROM A SUBSTANTIVE LEGITIMATE EXPECTATION ARISING OUT OF A
POLICY
47.
As noted above, the main focus in Niazi was on the situation where a legitimate
expectation is said to arise out of the operation of a policy. Sedley LJ’s “gloss” on
Laws LJ’s judgment dealt mainly with the question of the type of substantive
legitimate expectation that can arise in such a situation. In doing so, he continued the
rehabilitation of his own decision in Hamble Fisheries,85 once criticised by the Court
of Appeal as “heretical”.86
84
Despite recognising that the case for recognising proportionality as a free-standing ground of review is a
strong one, the Court of Appeal has held that it will be for the House of Lords to perform the Wednesbury test’s
burial rites: R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence
[2003] QB 1397, paras 32-37. The House of Lords recently avoided having to consider an invitation to do so:
Somerville v Scottish Ministers [2007] 1 WLR 2734, para 56 per Lord Hope, para 147 per Lord Rodger.
85
R v Ministry of Agriculture Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd [1995] 2 All ER
741.
86
R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 WLR 906, 921 per Hirst LJ,
924-925 per Pill LJ. Previous steps towards the rehabilitation of Hamble Fisheries were taken in ex parte
Coughlan, paras 75-77.
17
48.
Sedley LJ’s gloss chimes with the important principle that the executive’s power to
make and to change policy should not generally be restricted by the courts.87 As such,
if an individual relies upon a legitimate expectation that is said to arise out of the
application of a general policy, it will usually have arisen in a context where the
general policy itself may change.88 Some earlier cases suggested that the effect of this
is that, provided the public authority acts rationally when changing its policy, it is
entitled to do so and a legitimate expectation cannot fetter that discretion.89
49.
However, in Niazi, Sedley LJ adopted a slightly more nuanced approach. He
contemplated that in addition to a having legitimate expectation that the policy as it
stands will be fairly applied to his particular case, an individual may also have a
legitimate expectation that if the policy is changed to his disadvantage, the alteration
must not be effected in such a way that unfairly frustrates any reliance he has
legitimately placed on it.90 As such, the focus should be on the manner, rather than the
fact, of the change of policy. There is some support for this approach in Hamble
Fisheries, Coughlan and elsewhere.91 In essence, it involves considering matters such
as whether notice of the change of policy was given, whether it was cushioned by
transitional provisions and whether any exceptions to it were made.
50.
Whilst Sedley LJ’s approach primarily involves a narrowing of the scope of any
substantive legitimate expectation in a relevant case, by doing so it is likely also to
impact upon the consideration of whether any such substantive legitimate expectation.
It narrows the parameters of that inquiry, potentially in a way that will make it more
difficult to demonstrate that to resile from the expectation is unlawful, by limiting the
87
Hughes v Department of Health and Social Security [1985] AC 766, 788 per Lord Diplock.
Hamble Fisheries, p 729; Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308, para
2 per Buxton LJ.
89
In re Findlay [1985] AC 318, 338 per Lord Scarman; R v Secretary of State for the Home Department, ex
parte Ruddock [1987] 1 WLR 1482, 1497; R v Secretary of State for Health, ex parte United States Tobacco
International Inc [1992] 1 QB 353, 369, per Taylor LJ, 372 per Morland J; R v Torbay Borough Council, ex
parte Cleasby [1991] COD 142; R v Secretary of State for Transport, ex parte Richmond-upon-Thames London
Borough Council [1994] 1 WLR 74, 93. Cf. R v Jockey Club, ex parte RAM Racecourses Ltd [1993] 2 All ER
225, 236-237 per Stuart-Smith LJ, where it appears to have been envisaged that in certain circumstances a
decision-maker would be precluded from altering its policy to the detriment of the individual.
90
Niazi, para 68.
91
Hamble Fisheries, pp 731-732; ex parte Coughlan, para 82; R (X) v Head Teacher and Governors of Y School
[2008] 1 All ER 249, paras 122-123 per Silber J. See also R v Secretary of State for the Home Department, ex
parte Asif Mahmood Khan [1984] 1 WLR 1337, 1347 per Parker LJ, where it was suggested that a new policy
could only be implemented in the case of such an individual after “full and serious consideration whether there
is some overriding public interest which justifies” doing so.
88
18
scope of the expectation against which any countervailing public interest
consideration must be judged. In this context, it is perhaps notable that Sedley LJ
himself seems to have envisaged that it will be difficult for an individual successfully
to assert an unlawful breach of a substantive legitimate expectation if the public
authority has itself already provided for transitional provisions or exceptions.92
CONCLUSION
51.
It is perhaps surprising that when the courts have considered the issue of whether a
public authority may lawfully resile from a legitimate expectation, that consideration
has been either brief or it has been obiter. Indeed, given the frequency with which the
Court of Appeal has had to grapple with the doctrine of legitimate expectation in
recent years, it is also perhaps surprising that the House of Lords have not recently
considered any aspect of the doctrine in any detail.93 The result is that there remains
an element of uncertainty as to how the courts will approach the issue of whether a
public authority may lawfully resile from a substantive legitimate expectation. Whilst
Laws LJ’s suggested approach undoubtedly assists in moving towards a resolution of
that uncertainty, further thought may be needed before it can be fully accepted as the
correct approach.
52.
It has been said that “the protection of legitimate expectations is at the root of the
constitutional principle of the rule of law, which requires regularity, predictability,
and certainty in the government’s dealings with the public”.94 However, if those
desiderata are to be achieved, both individuals and public authorities need to be able
to predict not only when legitimate expectations are likely to arise, but also when they
may be resiled from. In order to do so, they need to know how the courts will
approach the task of determining whether a public authority may lawfully resile from
a legitimate expectation. The difficulty with the position as it currently stands is that,
despite all of the jurisprudential traipsing over the ranges of legitimate expectation in
92
See, for example, Hamble Fisheries Ltd, p 735; BAPIO, para 19 per Sedley LJ; Niazi, para 70.
Although the House of Lords did apply the doctrine of substantive legitimate expectation in BAPIO [2008] 2
WLR 1073, there was no detailed discussion of it in that case (cf. paras 35-36 per Lord Rodger, paras 59-63 per
Lord Mance).
94
DeSmith’s Judicial Review (6th ed, 2007), para 12-001. See also Craig and Schønberg, Substantive Legitimate
Expectations after Coughlan [2000] PL 684, 696-697.
93
19
the last decade, the current test in this context may still be little more than “one of
impression”.95
23 JULY 2008
95
R v Inland Revenue Commissioners, ex parte Matrix-Securities Ltd [1994] 1 WLR 334, 358B per Lord
Mustill.
20