Legitimate Expectations
Can we sustain the distinction between procedural and substantive legitimate expectations?
- Should we collapse procedural and substantive into one so that one set of tests apply?
- What is the test that applies when considering a substantive legitimate expectation?
o First stage is one of clarity – MFK.
Has the applicant established that the LE has in fact arisen? Insists on a high
level of clarity.
MFK – only recognise a LE if an assurance is “clear, unequivocal, and devoid
of relevant qualification.”
This is a difficult test to overcome – cannot be any kind of ambiguity
in phrasing or caveating e.g., “normally” or “generally”.
o Second stage relies on justification.
Can be hands off in macro.
Authority for two different approaches:
Coughlan – asked whether disappointing the expectation was so
unfair as to amount to an abuse of power.
Nadarajah – proportionality.
R v Education and Employment Secretary, ex parte Begbie – Gov issued a
whole series of promises that it would continue to fund places in grammar
schools to people who had those places funded in primary school and going
into secondary schools – but misread statute and turns out they didn’t have a
power to do this.
Case failed because can’t have LE of something Gov can’t deliver.
BUT – court goes on to say that even if LE had arisen, question of
when Gov should fund these places is so in macro political sphere
that degree of scrutiny that courts should apply should be much
lighter touch – polycentric.
Macro/micro = proxy for varying standard of review that depends on
context of case.
- The existence of a strict distinction between procedural and substantive LE was questioned in
Nadarajah.
o Laws LJ stated that “the dichotomy between procedure and substance has nothing to
say about the reach of the duty of good administration” and that “the difference
between the two is not a difference of principle.”
o BUT – this argument is dubious:
Elliott – looking at procedural and substantive LE as closely related aspects
of a single doctrine is wrong.
Procedural LE are seen as extensions or offshoots of the CL duty to
act fairly.
If this is how procedural legitimate expectations are understood, then
the place of substantive legitimate expectations needs to be
considered separately, given that it cannot itself be characterised as
nothing more than a further extension of the CL duty to act fairly.
- Distinction between procedural and substantive:
o Both easy and hard to draw.
Easy – clearly legitimate expectations which relate to process.
Fair hearing – legitimate expectation to be given notice/make
representations.
Consultation before a big shift in policy takes place.
Hard – there are cases that sit in grey area:
Badger Trust – promise that a pilot of badger culling would not be
extended beyond initial pilot region without independent board
approving of extension.
Can we sustain the distinction between procedural and substantive legitimate expectations?
- Should we collapse procedural and substantive into one so that one set of tests apply?
- What is the test that applies when considering a substantive legitimate expectation?
o First stage is one of clarity – MFK.
Has the applicant established that the LE has in fact arisen? Insists on a high
level of clarity.
MFK – only recognise a LE if an assurance is “clear, unequivocal, and devoid
of relevant qualification.”
This is a difficult test to overcome – cannot be any kind of ambiguity
in phrasing or caveating e.g., “normally” or “generally”.
o Second stage relies on justification.
Can be hands off in macro.
Authority for two different approaches:
Coughlan – asked whether disappointing the expectation was so
unfair as to amount to an abuse of power.
Nadarajah – proportionality.
R v Education and Employment Secretary, ex parte Begbie – Gov issued a
whole series of promises that it would continue to fund places in grammar
schools to people who had those places funded in primary school and going
into secondary schools – but misread statute and turns out they didn’t have a
power to do this.
Case failed because can’t have LE of something Gov can’t deliver.
BUT – court goes on to say that even if LE had arisen, question of
when Gov should fund these places is so in macro political sphere
that degree of scrutiny that courts should apply should be much
lighter touch – polycentric.
Macro/micro = proxy for varying standard of review that depends on
context of case.
- The existence of a strict distinction between procedural and substantive LE was questioned in
Nadarajah.
o Laws LJ stated that “the dichotomy between procedure and substance has nothing to
say about the reach of the duty of good administration” and that “the difference
between the two is not a difference of principle.”
o BUT – this argument is dubious:
Elliott – looking at procedural and substantive LE as closely related aspects
of a single doctrine is wrong.
Procedural LE are seen as extensions or offshoots of the CL duty to
act fairly.
If this is how procedural legitimate expectations are understood, then
the place of substantive legitimate expectations needs to be
considered separately, given that it cannot itself be characterised as
nothing more than a further extension of the CL duty to act fairly.
- Distinction between procedural and substantive:
o Both easy and hard to draw.
Easy – clearly legitimate expectations which relate to process.
Fair hearing – legitimate expectation to be given notice/make
representations.
Consultation before a big shift in policy takes place.
Hard – there are cases that sit in grey area:
Badger Trust – promise that a pilot of badger culling would not be
extended beyond initial pilot region without independent board
approving of extension.
