Legitimate expectation


The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. It is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power.
The courts of the United Kingdom have recognized both procedural and substantive legitimate expectations. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken, while a substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of substantive benefit. In determining a claim for an alleged breach of a legitimate expectation, a court will deliberate over three key considerations:
  • whether a legitimate expectation has arisen;
  • whether it would be unlawful for the authority to frustrate such an expectation; and
  • if it is found that the authority has done so, what remedies are available to the aggrieved person.
Procedural legitimate expectations have been recognized in a number of common law jurisdictions. In contrast, notwithstanding their acceptance and protection in the UK, substantive legitimate expectations have not been universally recognized. For instance, they have been given effect in Singapore but not in Australia.

Introduction

Origins and basis of the doctrine

Since its inception, the doctrine of legitimate expectation has been viewed as an offshoot of natural justice. The duty to act fairly is a core tenet of administrative law and a predominant feature in the application of the rules of natural justice. With each individual's entitlement to natural justice and fairness, legitimate expectation reinforces the duty of public bodies to act fairly. It is this protection of fairness that made way for the courts' acknowledgement of legitimate expectations. In their elaboration of the doctrine, courts of the United Kingdom adopted other key aspects of judicial review such as Wednesbury unreasonableness, fairness, and abuse of power to justify the existence and the protection of legitimate expectations.
The term legitimate expectation was first used in the case of Schmidt v Secretary of State for Home Affairs, but was not applied on the facts. Subsequently, in O'Reilly v Mackman the doctrine of legitimate expectation was recognized as part of judicial review in public law, allowing individuals to challenge the legality of decisions on the grounds that the decision-maker "had acted outwith the powers conferred upon it". Although initially unclear, the nature and boundaries of the doctrine of legitimate expectation have been elucidated by seminal cases such as Council of Civil Service Unions v Minister for the Civil Service. and R v North and East Devon Health Authority, ex parte Coughlan. Notwithstanding efforts of the courts, some ambiguity as to when legitimate expectations arise persisted. In response, Lord Justice of Appeal John Laws proposed the aspiration of "good administration" as a justification for the protection of legitimate expectations.

Legal framework

A procedural legitimate expectation is created when a representation is made by a public authority that it will follow a certain procedure before making a decision on the substantive merits of a particular case. Examples of procedural legitimate expectations include an expectation to be consulted and to a fair hearing. A substantive legitimate expectation is formed where a representation is made by an authority as to the final decision and outcome that the authority will make in a particular case.
Upon reviewing a claim for the protection of a legitimate expectation against a public authority's decision, courts will deliberate over three key considerations:
  • The situations and circumstances in which legitimate expectations arise.
  • Instances in which it would be unlawful for the public authority to frustrate such an expectation.
  • The remedies that would be available to the aggrieved party if it is found that the public authority had unlawfully frustrated a legitimate expectation.

    When does an expectation become legitimate?

When determining if a legitimate expectation is present, the required conditions are as follows:
  • The representation must be clear, unambiguous, and not have any relevant qualification.
  • The expectation must be induced by the behaviour of the public authority.
  • The representation must have been made by someone who had actual or apparent authority.
  • The representation must be applicable to the aggrieved parties.
Courts take into account not only the reasonableness of the expectation but other considerations such as the nature of representation made. In the GCHQ case, Lord Diplock stated that a legitimate expectation is one which "has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a 'reasonable' man, would not necessarily have such consequences". It is a question of law, and has to be decided on an objective basis with full reference to the facts of the case.
Although the GCHQ case states that "effect will be given in public law" for a legitimate expectation, the legitimacy of an expectation is not meant to be a conclusory label assuring the court's provision of remedies, but rather to warrant prima facie protection only. It may be rebutted by countervailing public interests.

Nature of representation made

A legitimate expectation does not arise when it is made ultra vires of the decision-maker's statutory powers, that is, when the decision-maker lacked legal power to make the representation. Courts are reluctant to protect such an expectation that has been created. The rationale is undoubtedly clear and rests on the scope of the administrative authority's powers. It prevents public authorities from expanding their powers simply by making ultra vires representations. Secondly, allowing public authorities to be bound by their ultra vires representations may potentially prevent them from exercising their statutory powers or duties. Also, allowing a public authority to be bound could be unfair to third parties who are affected. However, courts may be obliged to protect legitimate expectations arising from representations by unauthorized officers of the public body.

''Ultra vires'' representations

Expectations are not legitimate when they require a public authority to act in breach of its statutory duty. This applies only when the statutory provisions diametrically conflict with the representation. In other words, the statutory provision will render the courts' fulfilment of the expectation impossible. However, a statutory provision which merely permits, but does not compel the public authority to breach the expectation will not necessarily justify any such breach.
An individual's human rights protected by the Human Rights Act 1998 may occasionally override arguments of legality. In Stretch v United Kingdom, the European Court of Human Rights declared that whether the legality of the authority's action should be ignored will be determined on a case-by-case basis, and in light of proportionality.

Statements by unauthorized officers

For an expectation to be legitimate, the individual making the representation must have actual or apparent authority to make it on the behalf of the public authority. Such representations would prima facie bind the public authority. Although representations made by an individual with apparent authority may have been made outside his or her powers, they are nevertheless legitimate as they fall within the scope of powers of the particular public body.
Representations will not lead to legitimate expectations when delegation of such power to the individual making the representation is forbidden by statute, or where the individual making the representation lacks actual or apparent authority. In the latter case, the applicant's expectation will lack legitimacy and thus would prima facie not be binding on the public authority.

Reasonableness of the expectation

In deciding whether the expectation held by the aggrieved party is legitimate, the courts will consider whether the expectation was, in all circumstances, reasonable when it was formed. The reasonableness test requires the court to assess the behaviour of the parties in the events which occurred prior to the making of the alleged representation, according to the following criteria:
  • The representation may arise from either the words used or the behaviour of the parties.
  • The aggrieved party must not have utilized fraudulent measures to obtain the representation, and must have disclosed all relevant information.
  • The representation must usually be "clear, unambiguous and devoid of all relevant qualification". However, this is not required to establish the existence of a legitimate expectation if the public authority acted so unfairly such that its conduct constituted an abuse of power.
The number of individuals affected may play a part, as courts have found a legitimate expectation to exist when the representation was "pressing and focused" and made to a small group of individuals. On the other hand, courts rarely find the existence of a legitimate expectation when the representation was one made in general terms to a large and diverse group of individuals. However, it may be noted that there are instances where an individual has successfully sought relief on behalf of a sizeable group of people.

Reliance and detriment as consideration for legitimacy

Courts have considered the applicant's reliance on the representation as a relevant consideration when determining the existence of a legitimate expectation. The role of reliance may be better assessed by distinguishing between "weak reliance" and "strong reliance". Weak reliance occurs when the applicant was made aware of and merely believed in the truth of the representation. Strong reliance, on the other hand, occurs where the applicant acted upon the representation and consequently faced detriment.
Weak reliance is not required where the authority failed to apply the general policy at the time to the individual case at hand. This exception is prompted by the overriding imperative of equality. Thus, the applicant need not have had detailed knowledge or the existence of the policy in order for a legitimate expectation to arise where the public authority had departed from the existing policy in deciding the individual case.
Strong reliance by the applicant is not compulsory to prove the existence of a legitimate expectation. In spite of this, Lord Justice of Appeal Peter Gibson stated in R v Secretary of State for Education and Employment, ex parte Begbie that "it would be wrong to understate the significance of reliance in this area of the law". Detrimental reliance is not indicative of whether the court should protect an applicant's legitimate expectation but usually furthers an applicant's case, and it is only in exceptional cases where courts will protect a legitimate expectation in which detrimental reliance is absent.