Legitimate Expectation

When public bodies make unclear, unambiguous statements that common people rely on,
legitimate expectation arises.

The term ‘legitimate expectation’ was introduced in the year 1959. And now, legitimate
expectation acts as a firm principle of UK’s administrative law.

The courts of the UK have recognised both procedural and substantive legitimate expectation.
A procedural 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 or continue to
receive some substantive benefit. In determining a claim for an alleged breach of legitimate
expectation, the courts will deliver it over 3 key conditions.
1. Whether a legitimate expectation has arisen
2. Whether it would be unlawful for the authority to frustrate such an expectation
3. If it found that the authority has done so, what remedies are available to the aggrieved
person

4 conditions for an “expectation” to be “legitimate”

- 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 has actual or apparent
authority
- The representation must be applicable to aggrieved parties

A legitimate expectation will arise in the mind of the complainant wherever he/she has been
led to understand by words/actions of the decision maker that certain procedures will be
followed in reaching a decision. Complainant may have been led to believe for example that
there would be an oral theory or that he would be able to make a formal representation.
Where such expectations have been created, the decision maker is not free simply to ignore the
procedures which have been indicated. Two considerations apply to legitimate expectations –

1. Where an individual or a group has been led to believe that a certain procedure shall
apply
2. Where an individual or a group relies upon a policy or guideline which has previously
governed an area of executive actions.

(R v Liverpool ex p Liverpool Taxi Fleet Operations): The local authority decided that it would
issue a number of new taxi licenses. This was a breach of assurance that for the time being, the
number of licenses issues would be capped. The court issued a prohibiting order preventing the
council from implementing its decision, pending consultation with existing license holders. On
account of this public representation, the association was justifiably aggrieved by the council’s
subsequent unfair conduct. In applying the principle of LE here, it was the duty of the council to
hear the taxi cab owner’s association because their members will be greatly affected by the
reversal of their undertaking.

The concept is one which has given rise to judicial disagreement. The central difficulty with LE is
whether an individual affected by an administrative decision has a legitimate expectation that
the correct procedure would be followed or whether the expectation to be protected can also
be substantive. The debate whether le is confined to procedure and od not extend to substance
was considered in R v Ministry of Agriculture ex parte Hamble Fisheries, in which Sedley J stated
that the applicants had an le on the basis of the ministry’s previous policy and accepted that
substantive as well as procedural legitimate expectation could be protected. Conversely, in ex
parte Hargreaves, the CA rejected Sedley j’s approach that in matters of subtstantive scenarios
the test was that of wednesbury unreasonableness and not legitimate expectation.

Re HK: Immigration officers refused HK entry into the UK after interviews failed to satisfy them
that the information on his documents was true. The Court held that the rules of natural justice
applied to any decision-making process whether or not the officers were exercising a judicial
function. Without a hearing, such a decision on refusal of entry was unlawful.

Schmidt v Secretary of State for Home Affairs: Due to a change in government policy,
application for an extension of his entry permit to study was revoked. P said decision was void
and against natural justice.

Green v AEU: B’s union after giving B no reason for a decision which adversely affected him. The
Court held that the statutory body must act fairly regardless of its functions and must take into
account only relevant circumstances and only relevant considerations when making a decision
and must give a right to be heard to be heard where appropriate.

R v Liverpool Taxi Owner’s Association: The decision was a matter of policy with which the court
could not interfere but the Council in light of its undertaking should have acted fairly in deciding
the policy.

Ex Parte Hook: A market committee decided to revoke H’s license and the market committee
were biased when giving a decision against him. Courts stated the committee breached natural
justice.

Mcinnes v Onslow: M was repeatedly refused an application without a hearing or a reasoning.

Courts stated it was the duty to act fairly without any bias.

O’Riley v Mackman: The Court held that if a board acted unfairly and against natural justice by
not giving a fair hearing, they would be breaching legitimate expectation.
AG of Hong Kong v NG Yuen Shui: Yuen Shui was deported without being given a hearing as
was promised in the immigration policy. The body was bound by its undertaking; thus, the court
quashed the decision of the body as the immigration body failed to keep the promise.

The GCHQ case: It is the procedural or substantive expectation arising from the promise or
practice of a decision maker that justifies judicial intervention.

Subject guide cases:

R v Liverpool Corporation, ex parte Taxi Fleet (1972)

Attorney General for Hong Kong v Ng Yuen Shiu (1983)
R (on the Application of Greenpeace) v Secretary of State for Trade and Industry (2007)
Geraldine Finucane for Judicial Review (Northern Ireland) (2019)

Further reading
  Craig,P.P.andS.Schønberg‘SubstantivelegitimateexpectationsafterCoughlan’ (2000)
Public Law 684.
  Sales,P.andP.Steyn‘LegitimateexpectationsinEnglishpubliclaw:ananalysis’ (2004)
Public Law 564.
  Steele,I.‘Substantivelegitimateexpectations:strikingtherightbalance’(2005) Law
Quarterly Review 300.
Bell,J.‘Thedoctrineoflegitimateexpectations:power-constrainingorright- conferring legal
standard?’ (2016) Public Law 437.

R v Secretary of State for Home Department, ex parte Ruddock (1987)

R v North and East Devon Health Authority, ex parte Coughlan (2000)
R (on the Application of Bibi) v Newham LBC (No.1) (2001)
R v Inland Revenue Commissioners, ex parte Unilever (1996)
R v Secretary of State for the Home Department, ex parte Adimi (2001)
R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble (1995)
R v Secretary of State for Education and Skills, ex parte Heather Charis Begbie (By Her Mother
and Litigation Friend Rachel Begbie)(1999)
R (on the Application of Niazi) v Secretary of State for the Home Department (2008)