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Legitimate Expectations, Policy, and the Principle of Consistency

Published online by Cambridge University Press:  27 June 2003

Richard Clayton*
Affiliation:
Centre for Public Law, University of Cambridge
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Extract

In R. v. North and East Devon HA ex p. Coughlan the Court of Appeal significantly clarified the doctrine of substantive legitimate expectations. The facts of the case are familiar. The applicant had been very severely disabled in a road traffic accident in 1971 and was subsequently placed in the care of a local area health authority. In 1993 she and seven other seriously disabled patients were moved by the health authority with their consent to a new facility at Mardon House after receiving an assurance that they could live there “for as long as they chose”. Following a public consultation in 1998, the health authority decided to close Mardon House and transfer the applicant to a local authority home.

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Copyright © Cambridge Law Journal and Contributors 2003

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Footnotes

This article is based on a paper given to the Cambridge University Public Law Discussion Group and I am grateful for the suggestions made. I would also like to thank Frederic Reynold Q.C. and Javan Herberg for their comments. The responsibility for errors and omissions that remain is my own.

References

1 [2001] Q.B. 213.

2 At para. 52 the Court of Appeal stated:

It has been common ground throughout these proceedings that in public law the health authority could break its promise to Miss Coughlan that Mardon House would be her home for life if, and only if, an overriding public interest required it. Both [counsel] adopted the position that, while the initial judgment on this question has to be made by the health authority, it can be impugned if improperly reached. We consider it is for the court to decide in an arguable case whether such a judgment, albeit properly arrived at, strike a proper balance between the public and the private interest.

3 See his submissions as Counsel for the Home Office opposing Stephen Sedley Q.C. in R. v. Secretary of the Home Office ex p. Ruddock [1987] 1 W.L.R. 1482; sceptic in R. v. Secretary of State for Transport ex p. Richmond LBC [1996] 1 W.L.R. 1460; contrast his concurring judgment in R. v. Secretary of State for Education ex p. Begbie [2000] 1 W.L.R. 1115.

4 R. v. Inland Revenue Commissioners ex p. MFK Underwriting [1990] 1 W.L.R. 1545, 1570 per Bingham L.J.; in CCSU v. Minister for the Civil Service [1985] A.C. 374, 415 Lord Roskill described legitimate expectation as a “manifestation of the duty to act fairly”.

5 See e.g. R. v. Secretary of State for the Home Department ex p. Khan [1984] 1 W.L.R. 1337. In R. v. Inland Revenue Commissioners ex p. Unilever [1996] S.T.C. 681, 695 where Simon Brown L.J. suggested “I regard [abuse of power cases exemplified by R. v. Inland Revenue Commissioners ex p. MFK Underwriters [1990] 1 W.L.R. 1545] as essentially but a head of Wednesbury unreasonableness, but not essentially exhaustive of the grounds upon which a successful substantive unfairness challenge may be based.”

6 See e.g. R. v. Metropolitan Police Commissioner ex p. P (1996) 8 Admin. L.R. 6 where a caution issued by the police was quashed on the basis that it was issued in breach of the relevant guidelines.

7 CCSU v. Minister for the Civil Service [1985] A.C. 374.

8 See e.g. Boddington v. British Transport Police [1999] 2 A.C. 143, 152 where Lord Irvine L.C. said

Challenge to the lawfulness of subordinate legislation or administrative decisions and acts may take many forms, compendiously grouped by Lord Diplock in CCSU v. Minister for the Civil Service [1985] A.C. 374 under the headings of illegality, procedural impropriety and irrationality. Categorisation of types of challenge assist in an orderly exposition of the principles underlying our developing public law. But these are not watertight compartments because the various grounds for judicial review run together. The exercise of a power for an improper purpose may involve taking irrelevant circumstances into account, or ignoring relevant considerations; and either may lead to an irrational result. The failure to grant a person affected by a decision a hearing, in breach of principles of procedural fairness, may result in a failure to take into account relevant considerations.

9 [2001] Q.B. 213, at para. 82; see also R. v. Inland Revenue Commissioners ex p. Unilever [1996] S. T.C. 681, 690 per Sir Thomas Bingham M.R.: “The categories of unfairness are not closed, and precedent should act as a guide and not a cage.”

10 [1984] 1 W.L.R. 1337, 1352.

11 [1985] A.C. 374, 410.

12 C. Forsyth, “Wednesbury protection of legitimate expectation” [1997] P.L. 375.

13 P. Craig, “Substantive Legitimate Expectations in Domestic and Community Law” [1996] C.L.J. 291.

14 R. v. Devon County Council ex p. Baker [1995] 1 All E.R. 73, 88 per Simon Brown L.J.

15 See A-G of Hong Kong v. Ny Yuen Shiu [1983] A.C. 629 at 636 per Lord Fraser: ‘“legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see R. v. Criminal Injuries Compensation Board ex p. Lain [1967] 2 Q.B. 864.”

16 P. Craig and Soren Schonberg, “Substantive legitimate expectation after Coughlan” [2000] PL. 684. In Legitimate Expectations in Administrative Law (Oxford 2000) Schonberg identifies a further category of revocation of administrative decisions which I do not propose to discuss.

17 [1985] A.C. 835.

18 [1990] 1 W.L.R. 1545.

19 [1994] 1 W.L.R. 354.

20 [1996] S.T.C. 681.

21 [1984] 1 W.L.R. 1337.

22 [1987] 1 W.L.R. 1482.

23 [1995] 1 All E.R. 714.

24 Ibid., at p. 731.

25 [1997] 1 W.L.R. 906.

26 Ibid., at p. 918. The court applied the dictum of Lord Scarman in Re Findlay [1985] A.C. 318, 338 in relation to prisoners affected by a change of parole policy:

But what was their legitimate expectation? … [T]he most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State feels fit to adopt provided always that the adopted policy is a lawful exercise of discretion conferred on him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy.

27 [2001] Q.B. 213, at paras. 56, 57.

28 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.

29 [1985] A.C. 318.

30 [1997] 1 W.L.R. 906.

31 See A-G of Hong Kong v. Ng Yuen Shiu [1983] A.C. 629.

32 [2001] Q.B. 213, at paras. 56, 57 (emphasis in original).

33 [2001] Q.B. 213, at para. 59.

34 Nevertheless, as Simon Brown L.J. stressed in R. v. Inland Revenue Commissioners ex p. Unilever ([1996] S.T.C. 681, 695):

“Unfairness amounting to an abuse of power” as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power. As Lord Donaldson MR said in R. v. ITC ex p. TSW-. “The test in public law is fairness, not an adaptation of the law of contract or estoppel.”

35 [2001] Q.B. 213, at para. 60.

36 [2001] Q.B. 213, at para. 71: “Legitimate expectations may play different roles in different aspects of public law. The limits to its role have yet to be determined by the courts. Its application is still being developed in a case by case basis.”

37 [2000] 1 W.L.R. 1115, 1130.

38 Ibid., at pp. 1130, 1131; see also the remarks of Sedley L.J. at pp. 1133, 1134: “It may be, as Laws L.J. suggests, that the distinction drawn in … Coughlan between the first and third categories of legitimate expectation deserve further examination.”

39 Ibid.

40 Ibid., at p. 1131.

41 10 January 2002.

42 See e.g. [2001] Q.B. 213, at para. 82.

43 As Lord Diplock put it in Hughes V. Department of Social Security [1985] A.C. 776, 788: “Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government.”

44 R. v. Secretary of State for the Home Department ex p. Khan [1984] 1 W.L.R. 1337, 1347, per Parker L.J.; 1352, per Dunn L.J.; R. v. Inland Revenue Commissioners ex p. Unilever [1996] S.T.C. 681, 690, 691, per Sir Thomas Bingham M.R.; 693, 695 per Simon Brown L.J.

45 [2001] 1 W.L.R. 1115, 1130.

46 e.g. R. v. Secretary of State for the Environment ex p. Hammersmith and Fulham LBC [1991] 1 A.C. 521.

47 [1997] 1 W.L.R. 906.

48 Ibid., at p. 921.

49 [1995] 1 All E.R. 714.

50 [1997] 1 W.L.R. 906, 924, 925.

51 [2001] Q.B. 213, at para. 77.

52 See T.R.S. Allan, “Procedure and Substance in Judicial Review” [1997] C.L.J. 246 “In a constitutional state in which the executive is responsible to Parliament for the wise pursuit of public policy, it is surely in guaranteeing the fairness of a policy's application to particular individuals that judicial review finds its primary justification.”

53 In Lloyd v. MacMahon [1987] 1 A.C. 625, 714 Lord Templeman remarked:

[Counsel] urged that although the appellants did not request an oral hearing, they were deprived of a “legitimate expectation” of being invited to an oral hearing. [Counsel] does not allege that the appellants in fact expected to be invited to an oral hearing and does not speculate on whether they would have accepted an invitation. [Counsel] submits that a legitimate expectation of being invited to an oral hearing is an objective fundamental right which, if not afforded, results in a breach of law or breach of natural justice which invalidates any decision based on written material. This extravagant language does not tempt me to elevate a catch-phrase into a principle.

See e.g. R. v. Minister of Defence ex p. Walker [1999] 1 W.L.R. 1209, 1221; R. v. Secretary of State for the Home Department ex p. Zeqiri The Times, 15 February 2002.

54 C. Forsyth, “Wednesbury Protection of Legitimate Expectation” [1997] P.L. 375.

55 See, generally, N. Bamforth, “Legitimate Expectation and Estoppel” [1998] J.R. 196.

56 See generally, Y. Dotan, “Why Administrators should be Bound by their Policies” (1997) 17 O.J.L.S. 23.

57 R. Singh and K. Steyn. “Legitimate Expectations in 1996: Where now?” [1996] J.R. 17.

58 See e.g. the decision of the High Court of Australia in Ministry of Immigration and Ethnic Affairs v. Teoh (1995) 128 A.L.R. 353; R. v. Secretary of State for Wales ex p. Emery [1996] 4 All E.R. 1, 16, 17; and contrast the more complex approach taken by Sedley L.J. in Begbie [2000] 1 W.L.R. 1115, 1133.

59 [1998] 1 F.L.R. 762.

60 Hirst L.J. at 770 held in favour of “the approach of Auld J. in [R. v. Secretary of State for the Home Department ex p. Ozminnos [1994] Imm A.R. 287 (where he took the view that it was a matter for the Home Secretary to construe his own policy and to apply it, subject always to the power of the court to intervene on Wednesbury grounds)] rather than that of Sedley J. in Urmaza in so far as the latter may have tended to suggest that the court's role is now more closely supervisory than hitherto.”

61 [1996] C.O.D. 479, 483 where Sedley J. stated:

This throws up a fundamental question about the reach of the jurisdiction of a court of judicial review when asked to enforce adherence by the executive to a department policy. There is a coherent line of authority to the broad effect that policy means what it says, and that its meaning can ordinarily be established by the court and the decision-maker be held to it: see R. v. Criminal Injuries Compensation Board ex p. Lain [1967] 2 Q.B. 864, per Diplock L.J. at p. 866; R. v. Criminal Injuries Compensation Board ex p. Schofield [1971] 1 W.L.R. 926; R. v. Secretary of State for the Home Office ex p. Lancashire Police Authority [1992] C.O.D. 161; and Gransden v. Secretary of State for the Environment [1986] J.P.L. 519. It will accordingly be subject to the applicable principles of public law. In some cases this means that regard must be had to the policy as a material factor; in other cases, that discretion must not be exercised arbitrarily or partially (which is why policies are needed); in other cases, that policy must not be applied with such rigidity as to exclude consideration of special cases (in other words, so as to forfeit all discretion); and in yet other cases, that effect is to be given to legitimate expectations which policy or practice have generated. These legal controls upon the deployment of discretion and the implementation of policy demonstrate that the court does not limit itself to a bare rationality test.

62 M. Elliott, “Coughlan: Substantive Protection of Legitimate Expectations Revisited” [2000] J.R. 27.

63 See e.g. R. v. Ministry of Defence ex p. Smith [1996] Q.B. 517.

64 See e.g. K. Steyn, “Consistency—a Principle of Public Law?” [1977] J.R. 22.

65 Per Sedley J. in R. v. Secretary of State for the Home Department ex p. Urmaza [1996] C.O.D. 479, citing Kruse v. Johnson [1898] 2 K.B. 91 and De Smith, Woolf and Jowell, Judicial Review of Administrative Action, paras. 13-036 to 13-045.

66 See e.g. HTV v. Price Commission [1976] I.C.R. 170.

67 [1999] 1 A.C. 98, 109.

68 C. Forsyth, “The Provenance and Protection of Legitimate Expectations” [1998] C.L.J. 238, 241 note 17, which quotes Lord Denning in a letter to the author writing he felt “sure it came out of my own head and not from any continental or other source”.

69 [1969] 2 Ch. 149.

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