LEGITIMATE EXPECTATION

[6.29] The doctrine of legitimate expectation is based on the understanding that there are some instances in which the law should prevent public authorities making discre­tionary choices that are contrary to an individual’s expectation that the decision-maker will act in a particular manner.^[1256] Such expectations are typically recognised by the courts where a public authority has made a promise or a �clear and unambiguous’ representation to an individual,^[1257] although they may also be engendered by an author­ity’s practices or policies (see [6.34]-[6.35]).^[1258] In historical terms, the doctrine was limited to the recognition and protection of �procedural legitimate expectations’ (for example, of consultation in advance of a decision),^[1259] but it has long since developed to include �substantive legitimate expectations’ that the courts protect by assessing whether a discretionary choice should be allowed to frustrate an individual’s expecta­tion of a particular outcome or benefit.^[1260] While the courts will not at the same time enforce an expectation where this would require an authority to act in breach of its statutory duties^[1261] (but see too [6.31] and [6.41]-[6.45]), they will enforce an expectation where they consider that the principles of �fairness’ and the �rule of law’ require protec­tion of the individual.^[1262] For instance, it is well established that the principle of fairness has both a procedural and a substantive dimension^[1263] (albeit that the courts no longer emphasise the difference between the two^[1264]), and the case law has sought to use the principle to prevent the �abuse of power’ where individuals legitimately expect that decision-makers will follow a particular course of action.^[1265] This emphasis on preventing the abuse of power has, in turn, likewise informed judicial recourse to the rule of law principle and the understanding that there should be �regularity, predictability and certainty in [the] government’s dealing with the public’.^[1266] Although the rule of law may in other cases entail that decision-makers should not fetter their discretion^[1267]—a concern that has led the Court of Appeal to say recently that the legitimate expectation doctrine should be narrowly construed^[1268]—the case law still holds that there will be circum­stances in which authorities will be bound by their prior representations about how they will exercise their discretion in the future.

[6.30] Where an individual has a substantive legitimate expectation the central question for the courts is how that expectation is to be protected. The traditional approach has been to limit substantive review to that associated with Wednebsury unreasonableness; that is, to permit judicial intervention only where the public authority’s course of action is unreasonable within the umbrella sense of the Wednesbury principle or, alternatively, where it is so unreasonable that no reasonable authority could take it^[1269] (on Wednesbury see [6.05]-[6.11]). However, while the Wednesbury principle may remain relevant in some cases, the courts have developed a further standard of review that can result in a more intensive review of discretionary choices (see [6.38]-[6.40]). This latter standard was initially developed with reference to the language of �fairness’, �balance’, and �abuse of power’,^[1270] but the courts now accept that what is being used is the proportionality principle^[1271] (the case law had drawn in part on the CJEU’s use of the proportionality principle when protecting legitimate expectations in EU law^[1272]). While there was some judicial opposition to the standard for reasons associated with the separation of powers doctrine,^[1273] the revised standard has made the transition from �heresy to orthodoxy’ and is central to the case law.^[1274] Judicial use of the standard has therefore been germane to the more general debate about whether the proportionality principle should displace Wednesbury as the central principle of substantive review in domestic administrative law (on which see [6.27]-[6.28]). Its use has at the same time continued to raise ques­tions about how far the more intensive standard of review can be reconciled with traditional understandings of the role of the courts.^[1275]

[6.31] The clear majority of legitimate expectation cases will be concerned with public authority representations, practices, or policies that are lawful or intra vires the authority concerned (these may be described as �lawfully created expectations’: see [6.33]-[6.40]).

constitution’s historical emphasis on legislative supremacy,^[1277] the courts have tended to prioritise the latter at the expense of the former. However, while the logic of the ultra vires doctrine remains very much to the fore of some recent case law,^[1278] judicial recogni­tion that disputes should be resolved with reference to the legitimate expectation doctrine^[1279]5 now potentially requires a more elaborate process of judicial reasoning where an expectation is engendered by an unauthorised representation (any previous—and very limited—protection was achieved through use of the private law doctrine of estoppel^[1280]). The ECtHR’s understanding that arguments of legality should not auto­matically trump the rights of individuals likewise has implications where an individual claims to have a legitimate expectation as a result of an ultra vires representation and where that expectation can be translated into a right under the ECHR^[1281] (see [6.43]).

[6.32] It should finally be noted that legitimate expectation cases in which an authority has represented that it will act in a particular way are to be distinguished from cases in which an authority has already taken a lawful decision which it subsequently wishes to revoke. Cases of this latter kind are not concerned with statements and so on about what an authority will do but rather with the question whether an authority should be allowed to �unmake’ a decision that it has already taken.

Lawfully Created Expectations

When are they Recognised?

[6.33] The question whether an individual has a legitimate expectation—and what is its content—is a question of law that is answered objectively and with reference to the full legal and factual context of a case.^[1285] In the first instance, the courts look to the actions of the public authority, as legitimate expectations can only â€?be induced by the conduct of the decision-maker’.¹⁷² Where that conduct takes the form of a representa­tion made by way of a statement to an individual this will provide the strongest foundation for judicial recognition of a legitimate expectation.¹⁷³ Although it can be difficult to establish that a particular representation gives rise to a legally enforceable expectation,¹⁷⁴ the courts have said that they will recognise an expectation as having been created where there has been a promise or a â€?clear and unambiguous’ representa­tion to an individual, for instance a letter to the effect that the individual will be given a hearing or receive a particular benefit.¹⁷⁵ Under such circumstances, the courts accept that the specific and individualised nature of the representation can give the representa­tion â€?the character of a contract’¹⁷⁶ and that the need for â€?regularity, predictability and certainty in [the] government’s dealing with the public’¹⁷⁷ is at its most pronounced.

¹⁷² Re Treacy’s Application [2000] NI 330, 364, Kerr J. See also R (BAPIO) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC 1003, 1016—17, para 29, Lord Scott.

¹⁷³ Re Cullen’s Application [2005] NIQB 9, para 45, Weatherup J.

¹⁷⁴ Eg, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (no legitimate expectation arising from government statements that the Chagos Islanders would be allowed to return to their homeland: the statements, considered in context, were not clear and unambiguous); Re Loreto Grammar School’s Application [2012] NICA 1, [2013] NI 41 (no legitimate expecta­tion arising from departmental representations that a new building would be constructed on the applicant’s grounds: capital building projects of the kind at issue require detailed planning and assessment before they can be confirmed and it could not be said that the representations were devoid of qualification); Re McAllister [2006] NIQB 58, para 20 (no representation to a remand prisoner that he would be subject to a home leave scheme operated by the prison authorities as the home leave scheme did not apply to remand prisoners and it could not be assumed that remand prisoners would become sentenced prisoners); R v Magill [2006] NICC 13, para 52 (no evidence of a clear representation to the effect that criminal proceedings would be the subject of a committal hearing in the magistrates’ court); Re Mulhern’s Application [2004] NIQB 28, para 42 (con­sultation paper containing recommendations that subsequently were not adopted could not found an expecta­tion); Re Chan’s Application [1987] NI 13 (an internal staff instruction that was not addressed to the public could not found an expectation that an oral hearing would be given to an individual who was to be deported from the UK).

¹⁷⁵ Re Cullen’s Application [2005] NIQB 9, para 45, Weatherup J.

¹⁷⁶ Re Neale’s Application [2005] NIQB 33, para 34, citing R v North and East Devon Heath Authority, ex p Coughlan [2000] 2 WLR 622, 646, para 59. See too Re UK Waste Management’s Application [2002] NI 130, 142.

¹⁷⁷ Re Adams’ Application, 7 June 2000, unreported, Gillen J.

¹⁷⁸ Eg, Re Loreto Grammar School’s Application [2012] NICA 1, [2013] NI 41 (no legitimate expectation arising from departmental representations that a new building would be constructed on the applicant’s grounds: capital building projects of the kind at issue require detailed planning and assessment before they can be confirmed and it could not be said that the representations were devoid of qualification); Re McFad­den’s Application [2002] NI 183 (a criminal justice manager’s letter to the applicant had not given an uncon­ditional undertaking that the applicant would not be prosecuted as it had been made clear to the applicant that the direction of no prosecution was to be made on the basis of the evidence available).

¹⁷⁹ Re Rowsome’s Application [2004] NI 82 (applicant could have no legitimate expectation that the respondent’s preliminary opinion on a planning application would be the final opinion).

¹⁸⁰ Re Wright’s Application [2006] NIQB 90, para 51 (applicant could not have a legitimate expectation arising from government announcement that an inquiry into a controversial killing would be held within certain terms of reference: while the announcement of the inquiry was of particular interest to the immediate relatives of the deceased, it was a matter of wider public interest and it would be straining language to describe the announcement as a promise to a small number of people). But note that the ruling of the High Court was overturned, on other grounds, on appeal: [2007] NICA 24.

�act arbitrarily, capriciously or... abuse their powers’.^[1286] The case law has thus estab­lished that a clear and unambiguous representation to an individual can create a legitimate expectation even in the absence of detrimental reliance upon it^[1287] (although such reliance will, as a matter of fact, typically be present^[1288] and, where it is not, this may be relevant to the question whether the expectation should be protected—see [6.38]). The courts further accept that, where there is detrimental reliance, this need not always be monetary but may be moral in form.^[1289]

[6.34] Legitimate expectations may alternatively be grounded in the practices of a public authority.^[1290] For instance, an expectation of consultation may be engendered where an authority has previously consulted the affected individuals about decisions of the kind to be taken;^[1291] and a public authority cannot, without warning, change a long-standing practice that it is aware an individual has acted in the light of and derived a substantive benefit from.^[1292] In cases of this latter kind there will clearly be reliance on the practice, and the courts have held that it may amount to an abuse of power to allow the practice to be changed without giving the individual a corresponding oppor­tunity to prepare for the change.^[1293] On the other hand, the fact that an individual has previously received a grant or a licence from an authority cannot, of itself, give rise to an expectation that a future application for a grant or licence will be successful.^[1294] While the position may be different where an authority has made a clear and unambiguous representation to the effect that a grant will be paid, the fact that there will often be more applications for grants/licences than there are resources available to meet them entails that one individual cannot have a legitimate expectation of success.^[1295] Individuals can, instead, expect only that their application for a grant or licence will be determined in a procedurally fair manner.^[1296]

[6.35] Where a public authority has adopted a policy to guide it in the exercise of its discretion an individual may argue that they have a corresponding expectation that the policy will be applied to their specific circumstances.^[1297] Such arguments may arise (a) where the authority decides to depart from its existing policy vis-a-vis the individual or (b) where the authority changes its policy and the individual considers that the previous policy should still be applied to them. In respect of (a), it appears that an individual may legitimately expect that their circumstances will be dealt with in accord- ance with the policy of the respondent^[1298]—there is authority in England and Wales to suggest that this may be so even where the applicant was unaware of the policy^[1299]—and that any departure from the policy must be reasoned and conform with the principle of equal treatment^[1300] (on which see [6.50]-[6.51]). Case law under (b) likewise suggests that an individual can have a legitimate expectation of a particular outcome in the light of the original policy but that the weight of the expectation will vary according to the context to the dispute. Hence, where the operation of the original policy was accom­panied by a clear and unambiguous representation to the individual that the policy would be applied to them, the courts will be likely to recognise the expectation as having its greatest weight.^[1301] Where, in contrast, there was no promise or representation, the expectation will be weaker and the corresponding judicial protection less exacting (see [6.38]-[6.40]).^[1302]

[6.36] One final point about recognition of legitimate expectations concerns unin­corporated international treaties and conventions.^[1303] There have been several cases in which it has been argued that, where the government has signed and ratified an inter­national instrument, this creates a substantive legitimate expectation that ministerial decisions will be taken in accordance with the State’s obligations under the instru­ment.^[1304] The argument, which has been developed with reference to Australian authority and some related dicta in England and Wales,^[1305] has, however, failed for reasons of constitutional dualism. Although the courts accept that decision-makers and courts may take international instruments into account when making decisions,^[1306] they have emphasised that such instruments can have no domestic legal effect in the absence of national legislation enacted for that purpose.^[1307] In terms of substantive legitimate expectations, the courts have thus held that expectations cannot be created on foot of unincorporated treaties and conventions as this would result in incorporation by the �back door’.^[1308] The point has an added force where there is existing national legislation that prescribes precisely the opposite outcome to that argued for by the applicant.^[1309]

How are they Protected?

[6.37] The protection afforded to a legitimate expectation depends on the nature of the expectation at issue. For instance, where, as a result of a representation or a practice, the expectation is of consultation in advance of a decision, the court will require that there is an opportunity for consultation unless there is an overriding reason to deny the opportunity^[1310] (such as the interests of national security^[1311]). Cases of this kind have their origins in the common law rules of fairness,^[1312] and the courts delimit the corresponding standards of procedural fairness with reference to that con­sidered reasonable in the circumstances.^[1313] Such protection is, in turn, unproblematic in constitutional terms, as the courts are not concerned with the substantive outcome of the decision-making process but rather with how the outcome was reached. The courts, on this basis, have thus held that an asylum decision was unlawful because it was taken in breach of the applicants’ expectation that they would be able to make representations on whether they should be returned to a third country;^[1314] and they have also found that a decision not to grant a licence to an applicant was unlawful because it was taken in breach of the applicant’s procedural expectation of notice of adverse factors.^[1315] On the other hand, there have been cases where no remedy was granted in the face of insufficient consultation because the court was of the opinion, on the facts, that proper consultation would not have made a difference to the course of action that the applicants would have taken and that they had thereby suffered no significant unfairness.^[1316]

[6.38] Where the legitimate expectation is substantive in form, the corresponding protection depends on whether the expectation is based upon, at one end of the scale, a clear and unambiguous representation to an individual or, at the other end, the mere existence of a policy. Where the expectation is based upon the former (or a practice that an individual has benefited from^[1317]) this will give rise to more intensive levels of judicial scrutiny as the courts may here �[(weigh] the requirements of fairness against any overriding interest relied upon’^[1318] by the authority when reaching its decision.^[1319] This approach, which is now linked directly to the proportionality principle in the case law,^[1320] involves the courts in balancing competing interests for purposes of offsetting the �abuse of power’, and it thus takes judicial review far beyond the logic of orthodox Wednes- bury unreasonableness (on which see [6.08]). Case law on the test has, however, at the same time established that the courts will employ it only where the representation in question is made to

one or a few people giving the promise or representation the character of a contract... it is more likely to be held binding if made to a smaller number of people, on discrete facts, with no implications for an innominate class of persons.^[1321]

Case law has also established that, while reliance is not necessary for the purposes of recognising a legitimate expectation (see [6.33]), it will normally be required in order for an applicant to show that it would be unlawful to go back on a representation.^[1322] A court may finally consider that any public interest justification that a decision-maker offers for its decision to change course should, in any event, trump the interests of the individual and that it would therefore not be unlawful to frustrate the expectation^[1323] (albeit that it is for the public authority to adduce sufficient evidence to support its argument of public interest; should it fail to do so, the reviewing court may conclude that no such interest exists).^[1324]

[6.39] Where the substantive legitimate expectation is based upon the mere existence of a policy that an authority has since changed, the approach of the courts can be markedly different. Under such circumstances, the courts have typically adopted a position of self-restraint and emphasised that there is only very limited scope for judicial intervention with a decision-maker’s choices. The reason for this less intensive review lies in the fact that policies, in contrast to individualised representations, are of potential application to large sections of society (or even the public at large) and may be adopted in the light of, for instance, resource considerations and political priorities. Where an individual argues that they have a legitimate expectation of being treated in accordance with a prior policy but cannot adduce evidence of a clear and unambiguous representation to that effect, earlier case law has established that the courts should be �confined to reviewing the decision on Wednesbury grounds’^[1325] as any other approach might involve them in matters that belong in the political realm (the point had been made in the context of, for instance, challenges to prison policies^[1326]). While this approach does not preclude the possibility of �closer look’ review where fundamental rights are in issue—Wednesbury can be applied in a modified manner, and proportionality will apply in cases under the Human Rights Act 1998—it corresponds with a more general presumption in favour of judicial self-restraint where changes in policy are in issue. Indeed, if the policies in question are concerned with matters that could be deemed contentious in a party political sense, it is possible that the Wednesbury threshold will rise and take the form of �soft-edged’ review (9on the context sensitive nature of Wednebsury see [6.09]-[6.11]).

[6.40] The existence of different tests for the protection of substantive legitimate expectations depending on whether those expectations are engendered by representa­tions or policies has not escaped criticism, and the case law has since evolved. The core of the criticism has concerned the fact that the different types of cases are not �hermeti­cally sealed’^[1327] and that it is not always easy to decide whether a case should be resolved with reference to Wednesbury or with reference to the more intensive standard of review^[1328] (for instance, at which stage can a representation made to a �small’ group of individuals be said to become a representation with implications for an innominate class of persons? And does not the judicial scrutiny of representations entail at least some analysis of the reasons for a change in policy given that representations will typi­cally be made in the light of policy?). While it has, at the same time, been recognised that the courts should be free to adopt a more or less demanding approach to review depending on whether a case has implications for a few individuals as opposed to many,^[1329] it has also been said that the retention of two standards for review is both unnecessary and undesirable.^[1330] Given the point, the Court of Appeal in England and Wales has latterly stated that the task for the courts in all legitimate expectation cases is to safeguard the �requirement of good administration by which public bodies ought to deal straightforwardly and consistently with the public’.^[1331] Rejecting the need to place cases into different and potentially problematic categories, the Court considered that all cases should instead be resolved with reference to the question of what is proportionate in the circumstances of the dispute^[1332] (on the scope for variable applica­tion of the proportionality principle see [6.13]). This is thus one area of law in which the principle of Wednesbury unreasonableness might be said to have only a diminishing influence (see [6.27]-[6.28]).

Unlawfully Created Expectations

[6.41] Arguments about �unlawfully’ created expectations arise where an individual seeks to enforce the terms of (a) a representation that has been made to them but which is ultra vires the authority or (b) a representation that is intra vires the authority but which has been made by an unauthorised official (that is, an official who purports to exercise a power that has not, or cannot, be delegated to him or her). Each instance raises difficult questions about how to reconcile the requirements of fairness with the doctrine of legislative supremacy that underlies the ultra vires doctrine, as recognition and protection of an expectation would effectively entail that the courts allow an authority to redraw the boundaries of its power (as with an ultra vires representation) or be bound by the determination of an individual who is not the lawful recipient of the power in question (as with an unauthorised representation that is intra vires the authority). Given the UK constitution’s emphasis on legislative supremacy, the courts have historically limited the scope for protection of the individual by holding (a) that ultra vires representations cannot be binding and (b) that unauthorised representations that are intra vires the authority can be binding in only very narrow circumstances. However, while proposition (a) remains generally valid, it must now be read in the light of ECHR case law that holds that considerations of legality should not be allowed automatically to trump an individual’s legitimate expectations where those expectations fall within the ECHR.^[1333] Proposition (b) should likewise be read in the light of the fact that ongoing development of the legitimate expectation doctrine^[1334] may require the courts to reason differently when deciding whether an unauthorised representation should be considered binding.

Representations that are Ultra Vires the Authority

[6.42] The understanding that ultra vires representations cannot bind an authority rests upon UK constitutional orthodoxy and, in particular, the understanding that decision-makers may act only within the parameters of the powers that are granted to them, or the duties that are imposed upon them, by statute.^[1335] This position—which underlies illegality as a ground of review^[1336]—follows from the fact that a decision­making function will typically (though not exclusively^[1337]) be delegated to an authority under legislation enacted by the Westminster Parliament or, alternatively, the Northern Ireland Assembly.^[1338] While the extent of any statutory power or duty will depend upon judicial interpretation of the statute,^[1339] the basic understanding is that a decision-maker may do only that which the legislature has authorised. Should an authority state that it will do something that it cannot lawfully do, it will thereby have made an ultra vires representation and one that is unenforceable in law. This safeguards the doctrine of legislative supremacy, as any other outcome would entail that an authority had been able to redraw the parameters of its own power beyond those envisaged by the legislature.

[6.43] Where an ultra vires representation is made in circumstances that fall outside the Human Rights Act 1998, it appears that the demands of legality will be likely to trump any argued imperative of fairness towards the individual.^[1340] However, where the representation is made in circumstances that fall under the Human Rights Act 1998, the issue becomes more complex given the ECtHR’s understanding that considerations of legality should not automatically trump an individual’s rights. The point is most readily associated with the ECtHR’s judgment in Stretch v UK,^[1341] where the right at issue was a property right centred upon an (unlawful) expectation that the individual would have the benefit of a renewal of a lease. Although the ECtHR acknowledged the importance of arguments about legality and the rule of law, it stated that the question whether an individual’s rights should be overridden must be answered on a case-by-case basis and in the light of the proportionality principle. While the domestic courts have not, in turn, yet acted on this understanding to the extent of holding that the demands of legality should yield to a right, they have suggested that public authorities should seek to exercise their powers benevolently where a previous representation has given rise to an expectation of a particular outcome.^[1342] It has since also been suggested that the benevolent exercise of power might take the form of an award of compensation to an individual who has suffered loss^[1343] and that, where such an award is not made, the individual might alternatively seek redress in an action for negligent misstatement.^[1344]

Unauthorised Representations that are Intra Vires the Authority

[6.44] The limited scope for protecting individuals in the face of unauthorised repre­sentations that are intra vires the authority has similarly been justified with reference to the demands of legality, although the case law has also emphasised the importance of authorities being able to exercise their powers/perform their duties in the wider public interest. Protection of the individual here originally took form around the estoppel doctrine and the understanding that,

when government officers, in their dealings with a subject, take on themselves to assume authority in a matter with which [the subject] is concerned, the subject is entitled to rely on their having the authority which they assume... and he ought not to suffer if [the officers] exceed it.^[1345]

While such use of the estoppel doctrine clearly pursued the interests of fairness towards the individual, the greater weight of judicial opinion was nevertheless reluctant to allow a private law doctrine to be used to prevent authorities from exercising their powers and/or performing their statutory duties. This was not just because of the constitutional imperative of ensuring that lawful powers are exercised by those to whom they are entrusted, but also because it was thought that estoppel’s private law origins left it ill suited to the resolution of disputes involving public interest questions of the kind that authorities are often required to address^[1346] (as in, for instance, planning cases). The courts thus sought to limit the reach of estoppel by holding that ostensible authority on the part of a public officer was not enough to activate the doctrine and that there had to be some further evidence justifying the individual’s belief that the authority would be bound by the officer’s representation.^[1347]

[6.45] Given these reservations about the estoppel doctrine, in particular concerning the public interest, the courts have since stated that disputes about representations should instead be resolved with reference to the legitimate expectation doctrine.^[1348] This therefore means, at the level of recognising legitimate expectations, that an individual can argue that an unauthorised representation should bind an authority, albeit that the individual will still be required to adduce further evidence to support their belief that the officer in question was empowered to make the representation.^[1349] Should the courts, in turn, accept that an individual has a legitimate expectation, they must then consider how to protect the expectation, and it is here that the differences between the estoppel and legitimate expectation doctrines become apparent. While the doctrine of estoppel focuses on the interests of the two parties directly affected by a dispute, the legitimate expectation doctrine has evolved in the light of the need to reconcile individual interests with those of the wider public (see [6.38]-[6.39]). In assessing whether an unauthorised representation should be allowed to bind the authority, the courts will thus consider whether there would be merit, given the overall context to the case, in preventing the authority from exercising its powers/performing its duties in the public interest. The courts will here also give consideration to the related demands of the rule of law, although any corresponding arguments may have a variable force depending on whether the case falls within or outwith the Human Rights Act 1998 (see [6.43]).