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THE COHERENCE OF THE DOCTRINE OF LEGITIMATE EXPECTATIONS

  • Farrah Ahmed and Adam Perry
Abstract

The doctrine of legitimate expectations is a developing area of administrative law, and many issues remain outstanding. Promises, practices, and policies generate legitimate expectations, but what is special about them? Why do they and only they generate legitimate expectations? The lack of an obvious answer has led some commentators to claim that the doctrine is ultimately incoherent and should be disaggregated. In this paper, we challenge this claim by arguing, first, that promises, practices, and policies each comprise or make applicable a certain type of rule, and second, that having a legitimate expectation is a matter of such a rule binding a public body to act in some way. This rule-based account gives the doctrine of legitimate expectations both coherence and distinctiveness.

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Corresponding author
*Address for Correspondence: Melbourne Law School, University of Melbourne, Victoria 3010, Australia. Email: farrah.ahmed@unimelb.edu.au.
**Address for correspondence: School of Law, Taylor Building, University of Aberdeen, Old Aberdeen, AB24 3UB. Email: aperry@abdn.ac.uk.
References
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1 Elliott, Mark, “Legitimate Expectations, Consistency, and Abuse of Power: the Rashid Case” (2005) 10 J.R. 281, 283.

2 Christopher Forsyth, “Legitimate Expectations Revisited” (ALBA Summer Conference, 29 May 2011) available at: http://www.adminlaw.org.uk/library/publications.php.

3 Elliott, Mark, “Legitimate Expectations: Procedure, Substance, Policy and Proportionality” [2006] C.L.J. 254, 255.

4 Clayton, Richard, “Legitimate Expectations, Policy, and the Principle of Consistency” [2003] C.L.J. 93.

5 Ibid. at p. 104.

6 See, e.g., R (Bibi) v London Borough of Newham [2001] EWCA Civ 607 and R v Secretary of State for Education, ex p Begbie [2000] 1 W.L.R. 1115.

7 R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 A.C. 521; Wheeler v Office of the Prime Minister [2008] EWHC 1409. See also: Timothy Endicott, Administrative Law, 2nd ed., (Oxford 2011), 285–286: ‘There is no legitimate expectation, unless a court is in a position to decide that it would be an abuse of power to disappoint the expectation’.

8 Craig, Paul, “Substantive Legitimate Expectations in Domestic and Community Law” [1996] C.L.J. 289. We follow Craig's approach because it seems conceptually clear and consistent with the recent case law. An alternative perspective is that you have a legitimate expectation only if the law will offer you its protection. See, e.g., R v. Ministry of Agriculture, Fisheries and Food, ex p. Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, 732 (Sedley J.) and Sales, Philip and Steyn, Karen, “Legitimate Expectations in English Public Law: An Analysis” [2004] P.L. 564. Someone who prefers this alternative should treat our project as an attempt to determine the other conditions for having a legitimate expectation.

9 R v Secretary of State for Education, ex p Begbie, note 7 above, at [69].

10 Williams, Rebecca and Forsyth, Christopher, “Closing Chapter in the Immigrant Children Saga: Substantive Legitimate Expectations and Administrative Justice in Hong Kong” (2002) 10 Asia Pacific Law Review 43; R (Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, ex p. Begbie, note 7 above.

11 R (Abdi & Nadarajah) and ex p. Begbie loc.cit.

12 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 401: 2 The next question, therefore, is whether it has been shown that consideration of national security supersedes the expectation.”

13 See, e.g., Paul Craig and Soren Schønberg, “Substantive Legitimate Expectations after Coughlan” [2000] P.L. 684 and Craig, “Substantive Legitimate Expectations in Domestic and Community Law”, op cit.

14 Endicott, op. cit., pp. 283, 285.

15 For example, the reasonableness of an expectation (in an ordinary sense) could count as evidence of the existence of one of the grounds of a legitimate expectation, such as a promise. We thank Paul Craig for mentioning this possibility to us.

16 Endicott, op. cit., pp. 296–297; R (Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, [38]; Clayton, Richard, “Legitimate Expectations, Policy, and the Principle of Consistency” [2003] C.L.J. 93. This was not always the case. It was only recently, in R (Rashid) v Home Secretary [2005] EWCA Civ 744 that the Court of Appeal held that the doctrine had developed to the point that a public body could be obligated to treat a claimant in a way he or she had no prior expectation of being treated. In that case, an Iraqi Kurd's asylum application was rejected because he could safely relocate to the Kurdish autonomous zone. Unbeknownst to the applicant, the Home Office had a policy against basing asylum decisions on this ground. The decision to reject the application violated the applicant's legitimate expectations, notwithstanding he had no actual expectation that the policy would be applied to him. See also Minister of State for Immigration and Ethnic Affairs v. Teoh [1995] HCA 20; R v Secretary of State for Wales, ex p. Emery [1996] 4 All ER 1, 16–17; R v Secretary of State for the Home Department, ex p. Ahmed and Patel [1998] I.N.L.R. 570, 591.

17 For criticism of the lack of a knowledge requirement, see Elliott, Mark, “Legitimate Expectations and the Search for Principle: Reflections on Abdi & Nadarajah” (2006) 11 J.R. 281; Elliott, Mark, “Legitimate Expectations, Consistency, and Abuse of Power: the Rashid Case” (2005) 10 J.R. 281; William Wade and Christopher Forsyth, Administrative Law, 10th edn, (Oxford 2009) 452; Re Minister for Immigration and Multicultural Affairs ex p. Lam (2003) 214 C.L.R. 1 at [43].

18 Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374.

19 Ibid., at p. 401B (emphasis added); also 408–409 (Lord Diplock). For a similar statement, see Re Westminster City Council [1986] A.C. 668, 692.

20 Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, 401B.

21 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 A.C. 629 (P.C.).

22 R v North and East Devon Health Authority, ex p. Coughlan [2001] Q.B. 213 (C.A.).

23 See, generally, Baldwin, Robert and Houghton, John, “Circular Arguments: The Status and Legitimacy of Administrative Rules” [1986] P.L. 239; Clayton, Richard, “Legitimate Expectations, Policy, and the Principle of Consistency” [2003] C.L.J.; Dotan, Yoav, “Why Administrators Should be Bound by Their Own Policies” (1997) 17 O.J.L.S. 23.

24 R v Home Secretary, ex p. Khan [1984] 1 W.L.R. 1337 (C.A.).

25 Ibid., at p. 1352.

26 Sometimes they are both treated as representations: R v North and East Devon Health Authority, ex p. Coughlan [2001] Q.B. 213 (C.A.) [57]; R v Devon County Council, ex p. Baker and another [1995] 1 All E.R. 73, 88. The three grounds – promises, policies, practices – are mentioned separately in other cases, e.g., R v. Ministry of Agriculture, Fisheries and Food, ex p. Hamble (Offshore) Fisheries Ltd. [1995] 1 C.M.L.R. 533 at [42].

27 See text at note 77 below.

28 For example, policies are themselves rules, whereas a promise is a means of making applicable a rule. See text at notes 40–46 below.

29 See notes 13 above.

30 R (Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 [68]: “[W]here a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is a good reason not to.” See also: R v Ministry of Agriculture, Fisheries and Food, ex p. Hamble (Offshore) Fisheries Ltd [1995] 2 All E.R. 714 at [42]–[43].

31 R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (CA), [57]; R v Devon County Council, ex p Baker and another [1995] 1 All ER 73, 88. See also: Jack Watson, ‘Clarity and Ambiguity: A New Approach to the Test of Legitimacy in the Law of Legitimate Expectations’ 30 Legal Studies 633, 634, 637.

32 Home Secretary v Rashid [2005] EWCA Civ 744.

33 Regarding the unpublicized nature of the policy, see: ibid., at para [2]: There was in existence – it is too much to say that there had been promulgated – a policy of the Secretary of State which … should have been applied to the claimant.”

34 Clayton, note 4 above.

35 R. v I.R.C. ex parte MFK Underwriting [1990] 1 All E.R. 91, 111.

36 Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, 415.

37 R (Anufrijeva) v Home Secretary [2004] 1 A.C. 604, [30].

38 A point well made by Reynolds, Paul, “Legitimate Expectations and the Protection of Trust in Officials” [2011] P.L. 330.

39 R v Secretary of State for Education, ex p Begbie [2000] 1 W.L.R. 1129 (Laws L.J.).

40 See, e.g., Joseph Raz, “Promises and Obligations” in Peter Hacker and Joseph Raz (eds.), Law, Morality and Society: Essays in Honour of H.L.A. Hart (Oxford 1977), 219 ff. and Rawls, John, “Two Concepts of Rules” (1955) 64 Philosophical Review 3, 13.

41 As we discuss later, this rule-based requirement is not absolute: see text at note 78 below and section G, ‘Discretion and Exclusionary Reasons’.

42 Scott Shapiro, Legality (Cambridge, Mass. 2011), 41. See also: Robert Baldwin, Rules and Government, 2nd edn. (Oxford 1995), 6–7; Frederick Schauer, Playing by the Rules (Oxford 1991), 2.

43 The constraining effect of policies is, in part, what explains the tension between the doctrine of legitimate expectations and the rule against fettering discretion. See text at note 86–88 below.

44 See, e.g., Dotan, Yoav, “Why Administrators Should be Bound by Their Own Policies” (1997) 17 O.J.L.S 23, 26 (“policies are rules which are developed by authorities in areas in which discretionary powers are exercised”); Joseph Raz, Practical Reason and Norms, revised edn. (Oxford 1990), 71–72; Shapiro, Legality, pp. 127–128.

45 R v Home Secretary, ex p. Khan [1984] 1 W.L.R. 1337 (C.A.), 1352.

46 Baldwin, Robert and Houghton, John, “Circular Arguments: The Status and Legitimacy of Administrative Rules” [1986] P.L. 253, 254.

47 R v Ministry of Agriculture, Fisheries and Food, ex p. Hamble (Offshore) Fisheries Ltd [1995] 1 C.M.L.R. 533, 550.

48 Jaconelli, Joseph, “The Nature of Constitutional Conventions” (1999) 19 Legal Studies 24. See also Dennis Lloyd, The Idea of Law, (London 1964), pp. 247–248 and Woozley, A.D., “The Existence of Rules” (1967) 1 Nous 63.

49 H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford 1994), 8–10, 55–57, 255–256.

50 Ibid., pp. 9, 55.

51 Ibid., pp. 56–57, 256.

52 Some of the best-known criticisms were made by Ronald Dworkin in his ‘Model of Rules I’ and ‘Model of Rules II’, both in Taking Rights Seriously (London 1978), and by Joseph Raz in Practical Reason and Norms, 2nd ed. (Princeton 1990), 49–58.

53 R v Brent L.B.C., ex p. Gunning [1985] 84 L.G.R. 168 (Q.B.).

54 Ibid., at p. 179.

55 Does the fact that the rule was not followed in Gunning indicate a lack of commitment to continue the pattern of consultation? Not necessarily, because social rules can be broken, even by those who contribute to the rule's internal aspect.

56 R v Inland Revenue Commissioners, ex p. Unilever plc [1996] STC 681 (C.A.).

57 Ibid., at p. 691.

58 Ibid., at p. 691.

59 Ibid., at p. 696.

60 Ibid., at p. 696.

61 R v British Coal Cpn., ex p. Vardy [1993] I.C.R. 720 (Q.B.).

62 Ibid., at p. 758 (Glidewell L.J.).

63 Ibid., at p. 758 (Glidewell L.J.).

64 Ibid., at p. 763 (Hidden J).

65 Ibid.

66 Ibid., at p. 764 (Hidden J).

67 Ibid.

68 R (Bibi) v London Borough of Newham [2001] EWCA Civ 607 [19]; R (Davies and Gaines-Cooper) v H.M. Revenue and Customs [2011] UKSC 47 [2011] 1, [49].

69 See, e.g., Geoffrey Marshall's discussion of the evolution of the constitutional conventions regarding individual ministerial responsibility and the entitlement to request a dissolution of parliament: Constitutional Conventions, (Oxford 1984), chs. 3–4.

70 We thank Jan van Zyl Smit and Paula O'Brien for alerting us to this implication of our argument.

71 Green, Leslie, “Law, Legitimacy, and Consent” (1989) 62 S. Cal. L. Rev. 795.

72 Joseph Raz, “Promises and Obligations”, note 40 above, at p. 224 .

73 R v Inland Revenue Commissioners, ex p. Unilever plc [1996] S.T.C. 696 (C.A.).

74 R v British Coal Cpn., ex p. Vardy [1993] I.C.R. 729 (Glidewell L.J.).

75 Raz, op. cit., p. 223; Green, op. cit., pp. 798–799.

76 Raz, op. cit., p. 224.

77 Raz, ibid. (“[v]oluntary obligations are the one exception to the rule that rules facilitating realization of the agent's goals do not impose obligations”).

78 R (Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 [69]; see also Laws L.J.'s statements at 69 that under some circumstances the ‘denial of the expectation is likely to be harder to justify’ and ‘the expectation's enforcement in the courts will encounter a steeper climb’ (emphasis ours).

79 Ibid., at para. [69]; Peter Gibson L.J. in R v Secretary of State for Education, ex p. Begbie [2000] 1 WLR 1124: “it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation” (emphasis ours).

80 Dicey was of the view that all conventions were “rules for determining the mode in which the discretionary powers of the Crown … ought to be exercised”. A.V. Dicey, An Introduction to the Study of the Law of the Constitution 10th ed. by E.C.S. Wade (London 1959), 423. That this ignores the diversity of conventions is well-known. See Marshall, op cit., pp. 4–5.

81 By which we mean there is no law that requires constitutional actors to do just what constitutional conventions require. The two kinds of requirement may, of course, coincide in particular cases. Indeed, if Dicey is to be believed, the breach of a convention always leads one to violate some legal requirement: Dicey, ibid., pp. 296ff.

82 Clayton, note 4 above; R v North and East Devon Health Authority, ex p. Coughlan [2001] Q.B. 213 at [56], [57].

83 Joseph Raz, The Authority of Law (Oxford 2009), 216. This is also described as the principle of legal certainty: Craig, Paul, “Substantive Legitimate Expectations in Domestic and Community Law” [1996] C.L.J. 304.

84 R (Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [68].

85 Craig, Paul and Schønberg, Soren, “Substantive Legitimate Expectations after Coughlan” [2000] P.L. 697.

86 Timothy Endicott, Administrative Law, 2nd ed., (Oxford 2011), 294–296. When the public body follows its self-prescribed rules at least certain types of misbehavior incompatible with its public role are not open to it. (While we use this definition of “abuse of power”, there is reason to doubt that it is a justification rather than a doctrine and to doubt whether it gives enough guidance to be useful as either: R (Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [67]; R (Bibi) v London Borough of Newham [2001] EWCA Civ 607.

87 Elliott, Mark, “Legitimate Expectations: Procedure, Substance, Policy and Proportionality” [2006] C.L.J. 254 on the importance of the non-fettering rule in this context.

88 Raz's account is set out in the first two chapters of his Practical Reason and Norms, 2nd ed., (Princeton 1990). In drawing on Raz account of rules and reasons, we do not mean to endorse it in its entirety. We assume only that Raz's rules affect reasoning in something like the way Raz claims. Whether this effect is best explained through the notion of exclusionary reasons we leave for another occasion.

89 Ibid., pp. 58 ff.

90 This is, of course, a very rough approximation of the complex position on fettering discretion. M. Elliott, J. Beatson and M. Matthews, Administrative Law (Oxford, 2011), 167–175.

91 Paul Craig, Administrative Law, 5th edn. (London 2003), 650, 667.

92 Clayton, “Legitimate Expectations, Policy, and the Principle of Consistency”, p. 96.

93 Dotan, Yoav, “Why Administrators Should be Bound by Their Own Policies” (1997) 17 O.J.L.S. 23, 38: “[courts] refrained from developing a general principle under which in any case of a change of administrative policy some procedural measures (such as publication or consultation prior to the change) are compulsory. But they used the concept of legitimate expectations as vehicle to impose such measures on specific occasions, in particular where the situation involved some factual elements additional to the change of policy” (emphasis added).

94 Ibid., p. 457 (emphasis added).

95 [1985] A.C. 776.

96 Ibid., p. 788.

97 [1985] A.C. 318, 338 (emphasis added).

98 R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 W.L.R. 906, 918 (Hirst L.J.).

99 Dotan, op. cit, pp. 38–39. See also Laws L.J. in Niazi v The Secretary of State [2008] EWCA Civ 755 at [29], [41]–[43]. Craig also suggests that a “representation[s] flowing from things said or done under the old policy”, is required for a claim based on a change in policy to be successful (Administrative Law, p. 667).

100 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 A.C. 629.

101 Dotan, op. cit., p. 37.

102 Ibid., pp. 23, 37.

103 Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374.

104 [2008] UKHL 61, [2009] 1 A.C. 453.

105 Craig, Administrative Law, pp. 667–668.

106 A point that Craig acknowledges: ibid., p. 668.

107 R v Rochdale Metropolitan BC, ex p. Schemet (1992) 1 F.C.R. 306 is an example. In Schemet a public body was required to follow a former policy (and so provide a hearing) even in the absence of a promise or practice. The case was presented as falling under the doctrine of legitimate expectations. But it is better classed under the doctrine of procedural fairness. As Simon Brown L.J. said in R v Devon County Council, ex p. Baker and another [1995] 1 All E.R. 73 at 91, ‘… the concept of legitimate expectation when used … in [this] sense seems to me no more than a recognition and embodiment of the unsurprising principle that the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage….’ The decision in Schemet could also be explained on “relevant considerations” grounds (see Schemet 324D – E). Further, the outcome in the case is attributable to the fact that the policy in question was found to be in breach of the council's statutory duties. Other potential counterexamples can probably be explained in a similar manner.

108 R v Ministry of Agriculture, Fisheries and Food, ex p. Hamble (Offshore) Fisheries Ltd. [1995] 2 All E.R. 714 at [47].

109 Niazi v The Secretary of State [2008] EWCA Civ 755 at [35]: “The establishment of any policy, new or substitute, by a public body is in principle subject to Wednesbury review.”

110 See ex p Schemet, note 107 above.

For their help we are grateful to Paul Craig, Alison Duxbury, Deirdre Dwyer, Leslie Green, Tarunabh Khaitan, Paula O'Brien, Michael Phillis, and Jan van Zyl Smit.

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