Substantive legitimate expectation:

The doctrine of Legitimate expectation (LE) is mainly based upon the idea of fairness and
enforcement of promises or representations along with no abuse of powers, as it is considered
unlawful for the governmental body to backoff from their promise or representation. However,
the promise must not be illegal and the courts should protect the individual’s expectations, their
expectations from the government. As Lord Fraser stated in the GCHQ case that if an
individual has a legitimate expectation, ‘the courts should protect his expectation by judicial
review as a matter of public law’.

Furthermore, the reason that the courts should protect the individual’s expectation is due to the
fact that the people should have confidence in their government (Reynolds) and as ‘every human
has a moral duty to fulfill his promises and so does the government’ (Professor Joseph Raz).
Moreover, this concept also upheld the rule of law but undermines the separation of power in the
UK as the courts interfere in the matters of decision-makers.

We know that the doctrine of Substantive legitimate expectation gives substantive protection as
follows from the case of Wednesbury, that it is unlawful to disappoint an individual’s
expectations. Under Substantive legitimate expectation (SLE), an individual's substantive
interests have been given protection. It is a concept which came from the private law concept of
estoppel but, unlike estoppel, SLE does not make the law binding as it leads to undermining
government’s lawful discretion. Also SLE has been developed over time and we will discuss its
development.

Moreover, for the SLE to arise the legitimate expectation must be created and it can be created
through ‘the existence of a regular practice which the claimant can reasonably expect to
continue’ (Lord Frasher in GCHQ case) that is through practice and it can also be created
through promise. However, they must be ‘clear, unambiguous and devoid of relevant
qualification’ as stated by Lord Bingham in MKF Underwriting Agents and an example of a
legitimate expectation can be seen in the cases like Ruddock, where LE was arisen due to
promise, and Unilever, where it was arisen due to practice which lead to the abuse of power.
Moreover, the policy statement can also give rise to SLE as seen in the case of Hamble and
Naizi.

Furthermore, detrimental reliance, unlike estoppel, is not necessary in SLE but in some cases like
Bibi and Begbie it was given importance as reliance was necessary but as Lord Justice Peter
Gibson stated ‘it is very much the exception, rather than the rule’ and it just makes the argument
strong (Ruddock). Lord Justice Sales in Oxfam recently stated that ‘in certain cases
detrimental reliance is essential to a claim for the protection of LE’. However, in cases where
there is an abuse of power (Coughlan) and it is arbitrary for the governmental bodies to change
its decision (Rashid case name) then reliance is not necessary. Also, if the policy is changed
because it was unlawful or the action was ultra vires, then the LE cannot be raised even if the
claimant has expectations and they are reasonable. As Lord Tylor in Ruddock stated that while
generating a policy, it ‘must not conflict with his statutory duty or his duty, as here, in the
exercise of a prerogative power’. In order words the claimant cannot expect the public body to
do something unlawful.

However, if the policy was lawful and the assurance was given by the government to individuals
then if the policy changes, SLE will be breached (Hamble Fisheries Ltd), unless a warning or a
notice was given by the government before changing the policy (Unilever). In such a case as
Lord Justice Laws in Naizi said ‘the claimant will have to show a specific undertaking directed
towards a particular individual or group by which the policy’s continuance was assured’.
Furthermore, in cases where the change in policy leads to descreminination then the policy can
only be changed if there was reasonable and justiciable grounds to change it (Ruddock) or the
hearing was granted prior to the change of policy (Khan).

Regarding the change of policy Lord Justice Stanley Burton in Rahman said, ‘A minister is
entitled to review, to change and to revoke his policy whenever he considers it to be in the public
interest to do so’, however, it should be noted that any public authority should not abuse its
powers. This principle of ‘abuse of power’ came from the case of Coughlan, where Miss
Coughlan won the case not only because there was an expectation from Miss Coughlan but also
because there was an abuse of power from the health authority, thus relying upon the orthodox
application from the case of Kruse v Johnson (1898). In this case it was suggested that the
courts should decide the lawfulness on the basis that it was so unfair that it led to an abuse of
power.

The Hargreaves view that the Wednesbury test for substantive protection of LE is correct was
certainly rejected in the case of Coughlan and the right test was suggested by the courts, which
is ‘to ask not whether the decision is ultra vires in the restricted Wednesbury sense but whether,
for example through unfairness or arbitrariness, it amounts to an abuse of power’. However, this
concept is similar to substantive fairness but under substantive fairness, an abuse of power arises
without the expectation (Roncarelli). Moreover the difference between SLE and estoppel was
also blurred in Coughlan as it makes the promise in SLE binding just like estoppel.

Furthermore, in Hamble Fisheries Ltd, Justice Sedley held that the courts should ‘protect the
interests of those individuals whose expectation of different treatment has a legitimacy which in
fairness outtops the policy choice which threatens to frustrate it’. However this approach was
overruled in Hargreaves as it was considered to be ‘heresy’ by Lord Hirst because the word
‘outtops’ suggested that Lord Sedley took it upon himself to decide whether the decision is
lawful or not. But in the case of Niazi, the Hamble Fisheries approach was still considered a
good law by Lord Sedley
Notwithstanding, relying upon the case of Coughlan, in Rahman there was no expectation from
the claimant because he did not know the certain policy but since he had LE with the Home
Secretary's policy and there was also an abuse of power, so Coughlan was applicable. Here, LE
was a ‘pseudo-expectation’ and the same was seen in the case of R (S) v Home Secretary.

However, prior to the approach given in the case of Coughlan. Procedural mannar was the only
approach used to protect the SLE, where the policy or the promise was never made binding and
for undertaking the government must consider the breach of SLE before changing the policy and
must grant a hearing (Khan), also the written notice must also be given by the government. So,
after Coughlan the courts have the option to follow either substantive protection or procedural
protection of SLE.

Moving further, in the Nadarajah case it was decided that the government can change its policy
if it is justified to change. It was held in that case that the change in policy was justiciable, thus
there was no abuse of power. This case also makes the promise binding just like estoppel, if the
reason to depart from the policy was not justiciable and makes it more similar to the concept of
estoppel. Similar happened in the case of Bibi where the house was later given to another needy
person and the policy changed by the government was justice.

As we have seen that the issue arises that the difference between SLE and estoppel is now not
that much, there are still some differences between the two of them which makes them different
from each other. In estoppel the promise is always binding whereas in the SLE the promise is
only binding on the basis of proportionality and the detrimental reliance in SLE, as discussed
above, is only important in certain cases (Bibi), unlike estoppel where detrimental reliance is
essential. Moreover, SLE is only application when there is an intra vires action but estoppel does
not care about intra vires or ultra vires actions.

In conclusion, we understand that the SLE has been developed over a period of time but it still
has some uncertainty as Joanna Bell stated that ‘a number of ambiguities about the doctrine of
LE remains unsolved’. Moreover, it was influenced by estoppel but is different from estoppel
because the public and private law matters must be different. In the case of Reprotech, Lord
Hoffman stated, ‘it seems to me that in this area, public law has already absurd whatever is
useful from the moral values which underlie the private law concept of estoppel and the time has
come for it to stand upon its two feet’.