Legitimate Expectation - Emerging Principles

Emerging Principles

In procedural terms, a person is entitled to a fair hearing before a decision is taken if he or she has a legitimate expectation of being heard. But the fact that a person is entitled to make representations does not, of itself, constrain public bodies which, subject to a duty not to abuse their power, are entitled to change their policies to reflect changed circumstances even though this may involve reneging on previous undertakings. If there is a substantive limitation on this right to make changes, it lies in a test of fairness where the public bodies are equivalent to a breach of contract or there have been representations that might have supported an estoppel and so caused legitimate expectations to arise. It is, of course, difficult to prove such a legitimate expectation unless fairly specific representations as to policies affecting future conduct have been made. The form of generalised understandings that ordinary citizens might have will not be sufficient for this purpose. And, even if there are legitimate expectations, there is no absolute right to have those expectations met. Fairness may require no more than a hearing or consultation before any change is finally decided and, if the citizen's expectation is real, the courts might require the public body to identify an overriding public interest to trump the particular expectation.

This supplements the Wednesbury approach but it may not be advancing judicial review very far since, even in cases where an estoppel might otherwise have arisen, it will be difficult to convince a court that going back on a specific representation relied on to produce detriment will be unreasonable, unfair or irrational.

The idea of legitimate expectation has received sufficient mention both academically and in case law so as to effectively merit being referred to as the doctrine of legitimate expectation. Legitimate expectation has been said to be a new category of fairness, with the dicta of Bingham MR is Ex Parte Unilever stating ' the categories of unfairness are not closed, and precedent should act as a guide not a cage' thus the principle idea behind it, is that once a public authority makes a promise, it effectively amounts to a contract and to go back upon it is thus a breach and unfair for a public authority to do so, with Legitimate expectation thus being the public law equivalent to the doctrine of estoppel. The case of R v North and East Devon Health Authority, Ex parte Coughlan (2000) showed that legitimate expectation is recognized in cases where the relevant authority had made an unequivocal promise to provide the pensioner with a home for life on which she subsequently relied on that promise and sold her house. Thus the court specifically made reference to the parallel with contract and the doctrine of estoppel. The clearest mention of the doctrine of legitimate expectation comes from the Dicta of Laws LJ in the case of R (Nadarajah) v Secretary of State for the Home Department (2005) in which he stated that 'the principle of good administration required public authorities to be held to their promises would be undermined if the law did not insist that any failure of refusal to comply is effectively justified as a proportionate measure in the circumstances' with proportionality depending on the interests being balanced on each case. the important thing to note from Laws LJ dicta is that he is effectively recognizing the doctrine of estoppel as a legitimate grievance on its own.

Reference to legitimate expectation is also made in the early and famous GCHQ case by Lord Frasier who briefly sums up the courts decision in O'Reilly v Mackman in regard to legitimate expectation as being 'Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or the existence of a regular practice which the claimant can reasonably expect to continue'