TOPIC 7

The Doctrine of Legitimate

Expectation
 By the end of this
chapter, you would be
able to:

Explain the concept of

legitimate expectation.

Distinguish between
Substantial and
Procedural Legitimate
THE LOS Expectation.
THE CONCEPT OF THE DUTY TO ACT
FAIRLY AND LEGITIMATE
EXPECTATION
Protection of legitimate expectations is often
considered to be required by fairness.

Abuse of power has been considered the ‘root

concept’ justifying protection of legitimate
expectations.
It is the protection of trust that has been reposed by
the citizen in that he has been told or led to believe
by the official.
Good governance depends upon trust between the
governed and the governor.
HOW IS A LEGITIMATE
EXPECTATION
Promises
CREATED?
• R v Secretary of State for the Home Department, ex parte Ruddock [1987] 1 WLR 1482 – promise by the
secretary of state.
• R v North and East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850 (CA) – clear and
unambiguous promise by the decision-maker.
• R (on the Application of Bibi) v Newham LBC (No. 1) [2001] EWCA Civ 607 – representation made by
local authority.
Practices
• R v Inland Revenue Commissioners, ex parte Unilever [1996] STC 681 – ‘Course of dealing’, where
Unilever had been permitted to pay corporation tax in instalments.
• R v Secretary of State for the Home Department, ex parte Adimi [2001] QB 667 – UK’s adherence to the
principles of the Geneva Convention (and the fact that it was ratified by the UK) in its treatment of asylum
seekers.
Policy statements
• R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble [1995] 2 All ER 714 – policy on the
reallocation of fishing licences between boats gives rise to a legitimate expectation for those who rely on it.
• R v Secretary of State for Education and Skills, ex parte Heather Charis Begbie (By Her Mother and
Litigation Friend Rachel Begbie) [1999] EWCA Civ 210 – a political manifesto promise on funding for
private school places does not give rise to a legitimate expectation.
• R (on the Application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755 –
policy on support for those making appeals against wrongful conviction while in prison may give rise to a
legitimate expectation.
 For the expectation to be
legitimate it must be
founded upon a promise /
practice by the public
authority that is said to be
bound to fulfill that
expectation.
The expectation is either:
- Procedural
- Substantive
THE CONCEPT OF THE
DUTY TO ACT FAIRLY AND
LEGITIMATE EXPECTATION
 The concept of substantive legitimate
expectation

Expectation in the form of a particular or

favourable decision by the authorities.

The Court of Appeal rules in R (Bibi) v

Newham LBC (2001) that a local authority
which made promises which gave rise to
legitimate expectations that the applicants
would be provided with accommodation
with security of tenure had to be honoured
to the extent that the expectation was taken
into account when allocating the
applicants’ position on the housing list.
The applicants were refugees and accepted
by the authority as homeless. The authority
wrongly thought that it was under a duty to
provide accommodation with security of

SUBSTANTIVE tenure. However, the promise that such

accommodation would be provided
founded a legitimate expectation which
LEGITIMATE had to be considered.

EXPECTATION
SUBSTANTIVE LEGITIMATE
EXPECTATION
R v North and East Devon Health Authority, ex parte Coughlan [2001]
Claimant seriously injured in a road traffic accident in 1971 and became a long-
term patient at Newcourt Hospital. In 1993, defendant’s predecessor, Exeter
Health Authority, moved the claimant and several other residents to Mardon
House, a new purpose-built facility.
The Newcourt residents consented to this because they had been assured that
they would be able to remain at Mardon House ‘for as long as they wished to
stay there’. It would be their ‘home for life’. In 1998, defendants resolved to
close Mardon house, asserting that it had become ‘prohibitively expensive’ to
run.
Claimant argued successfully at first instance, that the ‘home for life’ promise
gave rise to a substantive legitimate expectation which should be protected
substantively.
SUBSTANTIVE LEGITIMATE
EXPECTATION
R v North and East Devon Health Authority, ex parte Coughlan
[2001]
Held – Court considered whether the lawful promise or practice has
induced a legitimate expectation of a benefit which is substantive –
the court will in a proper case decide whether to frustrate the
expectation is so unfair that to take a new and different course will
amount to an abuse of power. Here, once the legitimacy of the
expectation is established, the court will have the task of weighing
the requirements of fairness against any overriding interest relied
upon for the change of policy.
SUBSTANTIVE LEGITIMATE
EXPECTATION
British Oxygen Co Ltd v Minister of Technology [1971]
S.1 of the Industrial Development Act 1966 provided that the Board of
Trade ‘may make to any person carrying on a business in Great Britain a
grant towards approved capital expenditure incurred by the person in
providing new machinery / plant. The Board adopted a policy of denying
grants of any item of a plant costing less than 25 pounds and in pursuance
to that policy rejected an application for a grant in respect of gas cylinders
costing just under 20 pounds each of which the claimant had, in the 3 years
following the entry into force of the Act purchased 4 mil pounds worth.
Had the Board properly exercised its discretion?
 British Oxygen Co Ltd v Minister of Technology [1971]

SUBSTAN
TIVE House of Lords upheld the right of the Board of Trade to have a
general policy, provided that the policy did not preclude the

LEGITIMA Board from considering individual cases. Lord Reid considered

the scope of discretion, asserting that:

TE
EXPECTA There are two general grounds on which the exercise of an
unqualified discretion can be attacked. It must not be exercised in

TION bad faith, and it must not be so unreasonably exercised as to show

that there cannot have been any real or genuine exercise of the
discretion. But, apart from that, if the minister thinks that policy
or good administration requires the operation of some limiting
rule, I find nothing to stop him… What the authority must not do
is to refuse to listen at all.
SUBSTANTIVE LEGITIMATE
EXPECTATION
R. (on the application of RD (A Child)) v Worcestershire CC
[2019] EWHC 449 (Admin)
A local authority which made a decision to withdraw portage services,
by which it provided educational support to pre-school children with
developmental delay, had made a clear representation to the parents
affected that it would devise and implement transitional arrangements
to mitigate the impact of the withdrawal. Its failure to do so
unlawfully frustrated the families' legitimate expectation.
SUBSTANTIVE LEGITIMATE
EXPECTATION
A public body cannot give undertaking which conflict with its
statutory duty.
R v Inland Revenue Commissioners ex parte Preston (1985), the
House of Lords ruled that if it should do so, it was in principle
entitled to go back on its undertaking. However, if the authority made
an assurance and then exercised its statutory power in a manner
which caused unfairness, that exercise could be viewed as an abuse of
power and the undertaking upheld by the courts.
 Irrespective of the labeling attached to a body, there
exists a duty to ‘act fairly’.
The principle of fairness can be clearly seen in the case
of Re HK (An Infant) (1967), wherein it was held that,
whilst immigration officers were not obliged to hold a
hearing before deciding an immigrant’s status, they
were nevertheless under an obligation to act fairly.
A legitimate expectation will arise in the mind of the
complainant whenever he or she has been led to
understand – by the words or actions of the decision
maker – that certain procedures will be followed in
reaching a decision.
Two considerations apply to legitimate expectations:
1. Where an individual or group has been led to
PROCEDURAL believe that a certain procedure will apply.

LEGITIMATE 2. Where an individual / group relies upon a policy

or guidelines which have previously governed an area

EXPECTATION
of executive action.
The Council of Civil Service Unions’ legitimate expectation was that they should have
been consulted before any changes were to have been made to their conditions of
service. The PM had issued a directive (under a prerogative power) to ban membership
of trade unions at GCHQ without consulting the employees. The House of Lords
recognized the legitimate expectation of consultation but held that this was overridden
by the issues of national security involved in the case.

PROCEDURAL
LEGITIMATE
EXPECTATION: CASES
R v Secretary for the Home Department ex parte Behluli (1998)
The Home Secretary had ordered the removal of the applicant to Italy under section 2 of the
Asylum and Immigration Act 1996. The applicant argued that he had a legitimate expectation that
his case would be dealt with in accordance with the Dublin Convention. The Court of Appeal ruled,
however, that the statements relied on by the applicant fell short of the requirements necessary to
establish to the requisite degree of clarity and certainty that the Secretary of State would deal with
all applications for asylum in accordance with the Convention and not in accordance with the
Asylum and Immigration Act 1996 and rules made there under.

PROCEDURAL
LEGITIMATE
EXPECTATION – CASES
PROCEDURAL LEGITIMATE
EXPECTATION – REPRESENTATION
BY AUTHORITY
In Attorney for Hong Kong v Ng Yuen Shiu (1983), the applicant had been
an illegal immigrant for some years. He was eventually detained and an
order was made for his deportation. The Director of Immigration had given
a public undertaking that illegal immigrants such as Ng Yuen Shiu would
not be deported without first being interviewed.
The assurance was also given that ‘each case would be treated on its merits’.
Lord Fraser of Tullybelton in the Privy Council ruled that there was no
general right in an alien to have a hearing in accordance with the rules of
natural justice. Nevertheless, a ‘legitimate expectation’ had been created in
the mind of the immigrant and, accordingly, breach of the requirement of
fairness justified the order for his removal from Hong Kong to be quashed.
 PROCEDUR Fairness may involve the
AL due consultation of
LEGITIMAT interested parties before
E their rights are affected
by decisions. For
EXPECTATI example, in R v
ON – Liverpool Corporation
REPRESENT ex parte Liverpool Taxi
ATION BY Fleet Operators
AUTHORITY Association (1972)
PROCEDUR R. (on the application of Greenpeace Ltd) v
Secretary of State for Trade and Industry [2007]
AL EWHC 311
LEGITIMA A consultation process carried out by the Secretary of
State for Trade and Industry on the future production
TE of electricity in the United Kingdom in so far as it
EXPECTAT related to the use of new-build nuclear power plants
for electricity production was procedurally unfair and
ION – a breach of a legitimate expectation that there would
be the fullest consultation on that particular matter, so
FULLEST that the secretary of state's statement in support of
nuclear new build as part of the UK's future electricity
CONSULTA generating mix fell to be declared invalid.
TION
CAN THIS BE CONSIDERED
FULLEST CONSULTATION?
Secretary of state issued a consultation document or paper for an energy review on the securing of long-
term affordable energy in the UK including the use of electricity generated from nuclear power new build.

Responses on energy policy were sought from all interested parties including members of the general
public.

A consultation period of 12 weeks was provided for.

Role of the consultation paper in the consultation process was that of an "Issues Paper" seeking consultees
views on which issues should be addressed when deciding whether or not the nuclear new build option
should be taken up

No consultation on the substantive issue, namely whether nuclear new build should be
supported.
PROCEDURAL LEGITIMATE
EXPECTATION – RELIANCE ON
POLICY
The courts have held that it is
in the interest of fairness for
decision-makers to honour
promises, representations and
established practice.
However, if the decision-
maker proposes to change the
policy on which someone is
relying, the affected person
should be given the
opportunity to make
representations stating why
the policy should not be
altered.
PROCEDURAL LEGITIMATE
EXPECTATION
E.g.:- R v. Secretary of State for the Home Department, ex parte Asif
Mahmood Khan [1984]
The Home Office had issued a circular setting out the criteria for adopting a
child from outside the UK. The applicant, who wished to adopt his nephew
in Pakistan, went to great lengths to satisfy all of the criteria only to find that
his application had been refused on the grounds that he had not satisfied
further criteria which had not been mentioned in the Home Office circular.
He argued successfully that he had a legitimate expectation that his
application for adoption should be considered on the basis of the criteria that
he had relied upon, unless he was offered a fair hearing and given the
opportunity to argue his own case for adoption.
 Acting in a manner so as to create an expectation:

PROCED R (Patel) v General Medical Council (2013)

URAL Under the Medical Act 1983 the General Medical Council
(GMC) was responsible for registering and regulating doctors

LEGITIM
within the UK. The claimant had undertaken a long course of
study at an overseas university. He had sought, and had been
given assurances from GMC that he would be entitled to
ATE registration on completion of all clinical requirements. The
GMC later changed its policy and refused to register the

EXPECTA claimant.
COA – accepted that the GMC was entitled to change its policy.
TION However, the claimant had been given ‘a clear, unequivocal and
unqualified assurance’, and was not now open to the GMC to
refuse to recognize his qualification.
 W had worked as a teacher. After two pupils made allegations against W

ANALYSE of assault and indecency, W received cautions for common assault. W was
later charged with indecently assaulting another child, but the case was

THIS CASE
stayed. W was informed by letter that the secretary of state would not take
action against him under the Education Act, under which she could bar or
restrict his employment, but that his details would remain on record and
– HOW DO might be taken into account in the event of further misconduct.

YOU
Subsequently, as part of an historical cases review intended to identify
persons who might pose a risk to children, an expert panel referred W's
case to the secretary of state to consider making a barring order against
THINK him. W made representations to the panel and was assessed. The secretary
of state barred W, who by then lived in Hong Kong, pursuant to s.142. W's

THE CASE appeal against that decision to the Care Standards Tribunal was stayed. It
was common ground that there was no evidence or allegation of any
misconduct by W since he received the letter from the secretary of state. W
WAS submitted that (1) the decision to bar him was taken in breach of a
substantive legitimate expectation that no further action would be taken

DECIDED? in the absence of further misconduct and that he had relied on that
expectation, adversely impacting on his health; (2) the decision breached
his rights under the ECHR – Art 6&8.
R. (on the application of W) v Secretary of
State for Education [2011] EWHC 3256 

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