LLB 1 2015-2016

LECTURE 5
GROUNDS FOR REVIEW (3): PROCEDURAL IMPROPRIETY
Aims and objectives
a) To introduce the courts approach to the breach of express procedural requirements
b) To indicate the development of the flexible principle of fairness
c) To indicate the judicial approach to fixing the proper level of procedural protection in given circumstances
d) To contrast the role of review in this area with review for illegality and unreasonableness
e) To introduce the doctrine of legitimate expectations
Learning outcomes
An attentive student should have acquired:
a) An understanding of the role of the courts within this area of the supervisory jurisdiction
b) Sufficient understanding of the judicial approach to fairness challenges to be able to research and analyse further
case law effectively
c) A grasp of the development and content of the doctrine of legitimate expectations and its leading cases

This lecture deals very briefly with the courts reaction to administrative failure to observe
legislatively expressed procedural safeguards.
That is followed by an explanation of the requirements of natural justice, and a survey of the
common law guidance on what natural justice or the duty of fairness may involve in specific
decision-making processes. There is then an introduction to the growth of review for breach of
legitimate expectation, and the main controversies to which its development has given rise.
The second main head of natural justice, the rule against bias, will be held over to the next
lecture.
Essential Reading: Elliott & Thomas, Public Law, pp. 460-482.

INTRODUCTION
The third main ground of judicial review is procedural impropriety or, more simply, unfairness.
This is an area in which the courts are and long have been the ultimate experts, since the whole
point of court procedure is to achieve fair adjudication. The approach of the courts to the
fairness of decision-making or adjudication by public authorities is therefore comparatively
invasive, because this is an area in which judges feel an understandable confidence.
The first, and more minor division of the subject, concerns the courts oversight of the
procedural protections provided by legislation. It equally covers the question of what should
happen when such requirements have been breached.

1.

Statutorily imposed mandatory and directory requirements

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First, what kind of requirements might typically be imposed? Examples might be that third
parties affected by an application or a decision should be notified, perhaps within a certain time.
There could be a requirement that they should be consulted. It may be necessary to notify a
right of appeal. It may be necessary to publish a decision.
The difficulty is this: while legislation frequently imposes requirements of this type, it rarely
says what should happen if they are breached. That has been left to the common law to
determine.
The common law has traditionally placed all legislatively-created procedural requirements in
either of two broad categories mandatory and directory requirements. If a mandatory
requirement is breached, that non-compliance will render the decision void; it will be ultra vires.
If a merely directory requirement has been breached, the decision affected will not be void. This
is not to say that merely directory requirements do not matter. They do, but, failure to observe
them will not undermine the validity of the decision-making process in question.
How is the distinction between mandatory and directory requirements established? Some
guidance is given in the following case:
Howard v Bodington (1877) 2 PD 203
In each case you must look to the subject-matter; consider the importance of the
provision that has been disregarded and the relation of that provision to the general
object intended to be secured by the Act. (Per Lord Penzance)
The starting point is therefore the context in which the decision-making process or
adjudication is taking place. The enabling legislation will be construed (just as it would be to
decide the propriety of a purpose or the relevance of a consideration), and then the court will
assess the consequences of the failure to comply.
However, it has been felt that a simple division between mandatory and merely directory
procedural requirements is too rigid. In the next case, the House of Lords rejected this simple
categorisation:
*London & Clydeside Estates Ltd v Aberdeen District Council [1979] 3 All ER
It may be that what the courts are faced with is not so much a stark choice of
alternatives but a spectrum of possibilities in which one compartment or description
fades gradually into another. (Per Lord Hailsham)
Lord Hailsham envisaged that at one end of the spectrum there might be the breach of a
procedural requirement so gross that the authoritys action would simply be void, with no need
for the individual affected even to go to court. The authoritys action would be automatically
void. At the other end of the spectrum a breach could be so minor that a complaint about it
would not be heard by the courts. Closer towards the centre of the spectrum would be cases in
which the matter would need to be brought to court, while the authority should do everything in
its power to remedy the defect.
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2.

Natural Justice and the duty to act fairly

Natural Justice is an extremely broad phrase which in fact has a surprisingly precise meaning. It
consists of two principles:
(a) that both sides of a case must be fairly heard; and
(b) that a judge must be impartial (the rule against bias)
These principles have been applied by the High Court for centuries in the course of its
supervisory jurisdiction over lower courts and tribunals. This lecture deals only with the first of
those two principles.
Which types of decision-making are subject to the rules of natural justice? Traditionally, natural
justice was applied to a wide range of decisions, and not only those of public or governmental
authorities (for example it could be argued as a breach of contract). However, in the early to
middle years of the last century, the courts developed the view that it would only apply to
judicial-style decisions. Its availability was therefore strictly limited, and some doubted its
continued relevance, or even its existence. The next case compared these restrictive authorities
with the older cases which had applied natural justice more broadly. It firmly repositioned
natural justice at the heart of judicial review and administrative law.
2.1

The revival of natural justice

Ridge v Baldwin (supra)

Overview
Ridge was the Chief Constable of Brighton. He and two other police officers were charged with
conspiracy to obstruct the course of justice. Ridge was acquitted, but the other two were
convicted. Remarks made by the trial judge in the course of sentencing the other two cast
aspersions on the character of Ridge, effectively suggesting that he should be replaced. The
Local Watch Committee in Brighton (Ridges employer) summarily dismissed him. He was
given no notice of the meeting at which that decision was taken, and no opportunity to make
representations. He brought an action for damages and for a declaration that the dismissal was
ultra vires and void. His contention as that the watch Committee was bound to observe the rules
of natural justice, and that they had breached those rules.
The Court of Appeal held that the rules of natural justice did not have to be observed, since the
decision to dismiss was administrative rather than judicial in character. It was not a dispute
between two parties. Ridge appealed to the House of Lords, which allowed his appeal by a
majority.
Lord Reid stated that had the case come before the court a few decades earlier, there would have
been no doubt but that natural justice applied and had here been wrongly disregarded. In
explaining why the law had wrongly shifted, he identified two causes. One was that the remarks
of Atkin LJ in the Electricity Commissioners Case (familiar from lecture 2) had been
misunderstood. The duty to act judicially arose whenever the rights of the subject were affected;
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it was not restricted to bodies which adopted court-like procedure. The other cause was that the
emergency conditions created by two world wars had been unfavourable to natural justice. He
added that the rules of natural justice were necessarily flexible and context-based, but that this
did not render them vague or meaningless.
Discussion
This very significant case, already mentioned in the earlier discussion of reviewability,
constitutes a major event in the development of administrative law. Ridges livelihood was at
stake. The notion that he required no procedural protection (for instance advance notice of the
meeting, the opportunity to be heard, etc.) was absurd. It rested on the formalistic treatment of
what Atkin LJ had said in the Electricity Commissioners case, as if it were legislation. The
more appropriate view was to consider the right put in jeopardy (here, livelihood), and the
procedural protection which fairness accordingly demanded.
The result of Ridge v Baldwin was that all courts were in future obliged to take natural justice
seriously.
2.2

The right to a fair hearing

Lloyd v McMahon [1987] AC 625

The principle of natural justice is nevertheless inherently flexible. Its rules will vary very
substantially according to the factual context. That is well explained in the following passage
from the speech of Lord Bridge in this case:
My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To
use the phrase which better expresses the underlying concept, what the requirements of
fairness demand when any body, domestic, administrative or judicial, has to make a
decision which will affect the rights of individuals depends on the character of the
decision-making body, the kind of decision it has to make and the statutory or other
framework in which it operates. In particular, it is well-established that when a statute
has conferred on any body the power to make decisions affecting individuals, the courts
will not only require the procedure prescribed by the statute to be followed, but will
readily imply so much and no more to be introduced by way of additional procedural
safeguards as will ensure the attainment of fairness.
Discussion
Notice an important point here. Lord Bridge clearly states that even if procedural protection has
been provided by legislation, the courts will assess it and will free to add to it. This makes it
impossible to argue that the full extent of desirable procedural protection has already been
legislatively considered, so that the courts have no business to be re-assessing the issue. The
courts will do precisely that; in this area, they are the experts and will have the final say.
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Valuing the protection which has been withheld

In connection with the right to be heard (perhaps the most central aspect of procedural
protection), it is quite common for decision-makers who have withheld it to argue that the
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individual has lost nothing as a result. The argument tends to be this: There is nothing the
individual could have said. There is nothing which would have made us change our minds.
The cogency of that argument is doubted in the next case:
Cooper v Board of Works for the Wandsworth District (1863) 143 ER 414
Overview
Early planning law required that a person intending to build a house should give 7 days notice
before beginning. Mr Cooper had admittedly given only 5 days notice. The Board of Works,
without notice to him, therefore sent a gang of workmen in the middle of the night and
demolished his half-built house. He sued for trespass. The Board of Works argued that it was
elected and therefore democratically (ie. not legally) accountable; that its power was arbitrary
and to be exercised without legal control; and, rather more tellingly, that there was nothing Mr
Cooper could have said if he had been given the opportunity to be heard.
HELD that there might have been a great many excuses for the failure to give notice. The Board
had had a discretion whether or not to demolish, and could scarcely have exercised it legally
without taking into account what Mr Cooper might have said (recall the importance of taking all
relevant considerations into account). The rule that a person should be heard before steps
adverse to his property rights were taken was fundamental. If the relevant legislation had not
made it clear, then the court would take it upon itself to do so.
Notwithstanding this robust statement of principle, it does seem that it is possible to lose the
protection of natural justice through bad behaviour. The next case makes that clear.
*Cinnamond v British Airports Authority [1980] 1 WLR 582
Overview
The Authority had exercised its power under byelaws to ban six mini-cab drivers from entering
Heathrow Airport until further notice. The drivers had a number of convictions under the
byelaws for ripping passengers off and other offences. They had been fined, and had failed to
pay the fines. The drivers argued that the ban was invalid because they should have been given
the opportunity to be heard in their own defence before it was imposed.
HELD that they had suffered no unfairness. They had been summonsed for offences in the past,
when they could have made their cases. They had failed to attend. They could be in no doubt
why the ban had been imposed. They could have made their representations as soon as the ban
had been notified to them, but had not done so. They could do so now. However, as Brandon
LJ stated, no one can complain of not being given an opportunity to make representations if
such an opportunity would have afforded him nothing.
Glynn v Keele University [1971] 1 WLR 487
The same attitude is taken in this case. A student had been suspended from university as a result
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of being caught sunbathing naked on campus. He claimed that he had been wrongly deprived of
the opportunity to be heard in his own defence. The court held that there was nothing which he
could conceivably have said.
Discussion
Cinnamond and Glynn may seem robust and sensible decisions. On the other hand, it is
necessary to remain aware that the true issue before the courts was not whether the mini-cab
drivers deserved to be banned, or Glynn suspended from University. Evidence going to those
matters was not fully before them. In taking the line that there was nothing that these claimants
could have said in their own defence, the court is arguably going beyond its supervisory
jurisdiction. It is deciding a matter on which is hasnt the available facts. Bear in mind also that
when a decision-maker maintains that nothing which could have been said would have made
any difference, that is a singularly self-serving argument. It should be treated with caution.
Commentators in these cases have noted two ways in which they could be viewed. The first is
that there is indeed no breach of natural justice. The second is that there is such a breach, but
that the court in its discretion withholds a remedy. You will remember from lecture 1 that all
judicial review lectures are indeed discretionary.
A corrective to these cases is provided by the following memorable pronouncement by Megarry
J (later Vice-Chancellor):
John v Rees [1970] Ch 345
As everybody who has anything to do with the law well knows, the path of the law is
strewn with examples of open and shut cases which, somehow, were not; of
unanswerable charges which, in the event, were fully answered; of inexplicable conduct
which was fully explained; of fixed and unalterable determinations which, by discussion
suffered a change. (Per Megarry J)
2.4 The contents of the rule
The following case gives useful guidance as to what actual level of procedural protection may be
required in differing cases:
*McInnes v Onslow-Fane [1978] 3 All ER 211
Overview
The claimant in this case had held a variety of licences in connection with the sport of boxing.
All of them had been withdrawn. He then applied for a managers licence, which he had not
previously had. He applied five times, being refused on every occasion. Finally, he made a
further application, also asking for notice of anything which might be preventing him gaining
the licence, and for an oral hearing. The Board of Boxing replied to say that his most recent
application had also been refused.
HELD that this claim failed. In Megarry Js judgment, three classes of case were identified.
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(1) Forfeiture cases. Here, the claimant stands to lose something a pre-existing right or
benefit. Fairness requires maximum procedural protection. Notice of the charges will
certainly be necessary, as will time to respond to them. Court-like procedure may even
be necessary, involving the right to call witnesses, and to cross-examine the other sides
witnesses. Legal representation may be required.
(2) Application cases. These are at the other end of the spectrum from forfeiture cases. The
applicant stands to lose nothing which she previously had. All that is required by way of
procedural protection here is that the ordinary cautions against abuse of discretion should
be observed. Thus, the use of discretion should be real: not biased, not dishonest, not
capricious, not based on improper purpose and not informed by irrelevancy.
(3) Expectation cases. Here, the applicant has reason to expect that the proceedings will go
his way. Examples would be the renewal of a licence, of the confirmation of a position
after a probationary period. In the view of Megarry J these are somewhere on the middle
of the spectrum but, as he helpfully points out, closer to the forfeiture end than to the
application end.
The next case is a minor one, and is cited as nothing more than an example of how a court in
fact reasons about whether a given type of procedural protection is required in a given case. The
question here is whether a prisoner appearing before a Board of Prison Visitors should have the
right to legal representation:
R v Secretary of State for the Home Department, ex p Tarrant [1985] QB 251
The decision in this case was that there was no such right, but that there was a discretion to
permit legal representation. The following factors were said to be the relevant ones in deciding
whether to permit legal representation. You will see that they are entirely a matter of common
sense and fairness:
(a)
(b)
(c)
(d)

The seriousness of the charge, and of the potential penalty;

Whether any points of law were likely to arise in the proceedings;
The capacity of the individual prisoner to present his own case;
Procedural difficulties which might face the prisoner acting in person (eg. difficulty
finding and interviewing witnesses, tricky if you are in a cell for 23 hours a day);
(e) The need for reasonable speed in making the decision;
(f) The need for fairness as between prisoners and prison officers.

LEGITIMATE EXPECTATIONS AN INTRODUCTION

Contents and references
1

ORIGIN AND RATIONALE

Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149

Attorney-General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629

HOW DO LEGITIMATE EXPECTATIONS ARISE?

CCSU v Minister for the Civil Service [GCHQ case, supra]

R v Swale Borough Council, ex p RSPB (1991) 3 JEL 135
R v Board of Inland Revenue, ex p MFK Underwriting (1992) Admin LR 77
3

PROCEDURAL AND SUBSTANTIVE EXPECTATIONS

R v Secretary of State for the Home Department, ex p Ruddock [1987] 2 All ER 518
4

THE LEGITIMACY OF EXPECTATIONS

Findlay v Secretary of State for the Home Department [1984] 3 All ER 801
R v Secretary of State for Health, ex p United States Tobacco [1992] 1 All ER 212
5

THE TEST FOR THE DECISION TO OVERRIDE AN EXPECTATION

R v North and East Devon Health Authority, ex p Coughlan [2000] 2 WLR 622
INTRODUCTION
We are considering the first of the two main rules of natural justice, namely that a case must
be fairly heard. That principle applies to all decision-making, although its precise
requirements will vary according to the circumstances.
The doctrine of Legitimate Expectations is an outgrowth from the duty to hear a case fairly.
It is important to be aware that unlike the principle from which it derives, it will not apply to
every case. Some facts give rise to legitimate expectations, while others do not.
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Origin and rationale

The expression legitimate expectation seems first to have been used in English public law
in 1969. It has some resemblance to estoppel in the law of contract (but there are also crucial
differences). The judge who first referred to legitimate expectation later claimed the doctrine
as his own invention, though in reality it was well established in some foreign jurisdictions
(eg. Germany) long before. You may not be surprised to hear that the judge in question was
Lord Denning.
Schmidt v Secretary of State for Home Affairs (1969)
Overview
Two students of Scientology (a religious sect) from the USA applied for an extension of their
stay in this country. It was refused the governments policy was to discourage the growth
of Scientology in the UK. They challenged the refusal on the basis that they had not been
given a hearing before the decision was taken.
HELD that there had been no requirement to hear them. Lord Denning said that a hearing
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would not be needed unless the individual had some right or interest or legitimate
expectation of which it would not be fair to deprive him without hearing what he had to say.
On the facts here, the claimants had no such right, interest or expectation. It would have been
otherwise is the claimants stay had been cut short.
Discussion
Notice precisely how legitimate expectation fits in here. Had there been such an expectation,
it would have secured the claimants a hearing, because fairness would have demanded it.
Legitimate expectation here is clearly within the familiar principle that a case should be heard
fairly.
The next decision goes more fully into the reasons which for legitimate expectations may
entitle individuals to the protection of a hearing.
Attorney-General for Hong Kong v Ng Yuen Shiu (1983)
Overview
Prior to 1980, the Government of Hong Kong had a policy of not deporting illegal
immigrants from mainland China once they had reached the urban area of Hong Kong the
so-called reached base policy. In 1980 the Government announced that this policy was to
be discontinued in favour of a general liability to deportation.
A group of illegal immigrants of Chinese origin from Macau approached the Government in
order to clarify their position. They were told that each of them would be interviewed in due
course, and that each case would be treated on its merits. Three days later, a deportation
order was made against the claimant. He challenged it on the basis that he had a legitimate
expectation of being heard before a decision was taken.
HELD by the Privy Council that this was correct. Lord Fraser, giving the opinion of the
Board of the Privy Council, stated that legitimate expectations could be created by some
statement or undertaking made by or on behalf of a public authority if as a result it had
become unfair or inconsistent with good administration for the expectation to be
ignored.
Discussion
Note the two rationales given above. One is fairness the first of the two main rules of
natural justice. The second is a concern for good administration. This is a departure for the
courts. They are naturally expert in what is fair, since the whole business of the courts is fair
adjudication. Here, they are expanding their role to pronounce on norms of good
administration.
Two further points need to be made about this case.
a

Lord Fraser very clearly specifies that a legitimate expectation only binds a public
authority to the procedure it has said it will follow to the extent that this does not
conflict with its duty. From this we see that legitimate expectations are not and
cannot be absolute. The authority is always able to argue that it is bound to override a
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legitimate expectation because its public duty requires it to do so. This is the main
distinction between legitimate expectation and estoppel. A public authority can never
be estopped from performing its duty.
The second point is that this case again envisages legitimate expectation as a means of
securing a right to a hearing. As in Schmidts case (above), legitimate expectation
seems to be tied to procedural protection. The question whether that limitation is
necessary, or whether legitimate expectations could be related to other benefits is one
of the major themes within the area, and we will return to it.

2. How do Legitimate Expectations arise?

CCSU v Minister for the Civil Service [GCHQ case]
Overview
You will be presumably be familiar with the facts of this case. Here, Lord Fraser suggested
that a legitimate expectation can arise from an express promise given on behalf of a public
authority or from the existence of a regular practice which the claimant can reasonably expect
to continue.
Discussion
What is the legitimate expectation in the GCHQ case? It varies from speech to speech. For
Lord Roskill, for instance, it is of a procedural benefit the right to be consulted before trade
union membership is banned. For Lord Diplock, it seems to be that trade union membership
will not be banned unless some rational ground for the ban has been announced. Is Lord
Diplock suggesting that legitimate expectation can secure a substantive benefit (here, the
conditional right to continued trade union membership), and not just a procedural protection
(the right to be consulted)?
R v Swale Borough Council, ex p RSPB (1991)
Overview
Here, the following question was answered. Could a legitimate expectation arise even though
the authority in question had not intended that it should? Simon Brown J observed that the
issue was not yet covered by authority. He proposed that the correct answer should be
reached by analogy with the law of contract. The existence and the content of an expectation
were to be judged objectively, and not from the standpoint of either of the parties.
The Swale case may fix the basic approach of the courts to the question whether a legitimate
expectation has arisen, but the readiness of the courts to recognise legitimate expectations
varies considerably according to the facts of cases.
R v Board of Inland Revenue, ex p MFK Underwriting (1992)
Overview
The issue here was whether the return on a certain type of investment would be viewed by the
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Revenue as taxable on a capital gains or an income basis. Banks had approached the
Revenue to find out, and on the basis of what they were told they had informed their clients
that taxation would be on the capital gains basis. In fact, the Revenue later decided to tax the
returns on the income basis.
HELD that no legitimate expectation had been created here. The Revenue had simply
indicated its likely approach. More would be needed before its reply could be taken to
require it to assess tax on the one basis rather than the other. The taxpayer would have had to
make it clear that a fully considered ruling was required, together with the use to which that
ruling would be put. Full details would have had to been provided. In the judgment of
Bingham LJ it was one thing to ask an official of the Revenue whether he shared the
taxpayers view of a legislative provision, but it was quite another to ask whether the
Revenue would undertake not to tax on any other basis.
Discussion
The principle to take from the case is this. Formality, clarity and precision will be needed
before the Revenue will be hampered in the way it approaches one of the most important of
public duties to assess liability to tax in accordance with the law.
However, you may note another issue lurking within these facts. Had a legitimate
expectation been found here, it would not have been an expectation of a merely procedural
benefit, such as a hearing or a right to be consulted. It would have been an expectation of a
substantive benefit to be taxed only in a certain way.
Will the law recognise an expectation of this type? The next case forced the courts to resolve
that issue.
3. Procedural and Substantive Expectations
R v Secretary of State for the Home Department, ex p Ruddock (1987)
Overview
The Secretary of State authorised the interception of the claimants phone calls (she was the
Chair of CND, the Campaign for Nuclear Disarmament). Earlier, he had announced in
Parliament the grounds on which he would permit phone-tapping. The grounds included and
required a belief that major subversive activity was taking place, and that normal methods of
investigation should have failed. The claimant submitted that these criteria were not satisfied
in her case, and argued that she had a legitimate expectation that her phone would not be
tapped unless the specified criteria were met.
A procedural expectation was obviously out of the question here, since the claimant could
hardly claim the right to be heard or consulted before her phone was tapped. Counsel for the
Secretary of State argued that if there was no procedural expectation then there was nothing
at all, because substantive expectations were not recognised by the law.
HELD that the claimant was correct. The reasoning of the court is significant, because it is
also found in the Datafin case (decided in the same year). Taylor J said in a case where,
ex hypothesi, there is no right to be heard, it may be thought the more important to fair
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dealing that a promise or undertaking given by a minister as to how he will proceed should be
kept.
4. The Legitimacy of Expectations
Does it add anything to the doctrine of legitimate expectations to include the word
legitimate in its title? It seems that it does, as the next two cases show.
Findlay v Secretary of State for the Home Department (1984)
Overview
In October 1983 the Home Secretary announced changes to the parole regime in prisons, with
the result that certain prisoners would now have to serve at least 20 years of their sentence
before becoming eligible for parole. The claimants asserted a legitimate expectation that the
previous policy (under which they might have expected parole earlier on) should continue to
apply to them.
HELD that they had no such expectation. Lord Scarman acknowledged that they
undoubtedly had expected earlier release under the previous policy, but he went on to ask
But what was their legitimate expectation? the most that a convicted prisoner can expect
is that his case will be examined individually in the light of whatever policy the Secretary of
State sees fit to adopt.
Discussion
So, in certain circumstances, an expectation as to future treatment may be present on the
facts, but devoid of legitimacy in the circumstances. The danger of this notion can be seen in
the next, much criticised, case.
R v Secretary of State for Health, ex p United States Tobacco (1992)
Overview
In 1985 the claimant company received a grant from government to open a new factory. The
factory was to produce oral snuff. The government was aware at the time of a proven link
between snuff and cancer. It negotiated a deal by which the company undertook not to
market its product to those aged less than 18, and to place a health warning on it. In 1988 the
Department of Health banned the manufacture of oral snuff. The claimant argued, among
other submissions, that it had a legitimate expectation that it would be permitted to continue
to manufacture as long as it kept to the deal.
HELD that the claimant succeeded on other grounds, but that it had no legitimate expectation.
Both members of the Divisional Court explained this decision on the basis that the claimant
could not have imagined that the Secretary of State could be prevented from performing his
public duty by any private undertaking.
Discussion
This reasoning is problematic. It is one thing to hold that no expectation has arisen in the
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context, as in Findlays case (above). It is a different matter to point to the authoritys

overriding need to perform its public duty as a reason for finding that no expectation ever
arose. Since an authority must always remain free to perform its public duties, this reasoning
leads to the conclusion that no expectation can ever arise. Taken to its logical conclusion, the
reasoning in this case would abolish the doctrine of legitimate expectations.
The proper and preferable analysis is in two parts. First, ask whether an expectation has
arisen on the facts. If it has, next ask whether the authoritys performance of its duty requires
it to override the expectation. The court in the US Tobacco case collapsed this into a onestage analysis: no expectation had arisen, because no public authority could ever be bound
not to perform its duty.
5. The test for the decision to override an expectation
If it is always the case that an expectation can be overridden, how is that need to be tested by
a court? Is the correct test one of fairness (a low threshold), or of irrationality (an infamously
high one)?
This question goes to the extent of the courts power to second-guess public authorities. The
two competing tests differ in terms of how invasive they are. A court deciding on the basis of
unfairness will act on its own judgment of what fairness required. A court deciding on the
basis of irrationality will do no more than to ask whether the authoritys decision was so
unreasonable that no reasonable authority could have come to it.
This issue was the scene of a sharp conflict of views between Sedley J and the Court of
Appeal. In the case of R v Ministry of Agriculture, Fisheries and Food, ex p Hamble
Fisheries, Sedley J said that the test was fairness. In R v Secretary of State for the Home
Department, ex p Hargreaves, the Court of Appeal said that the test was irrationality, and
described the approach taken by Sedley J in Hamble as heretical. The leading case on the
subject, vindicating Sedley J, is now the following.
R v North and East Devon Health Authority, ex p Coughlan (2000)
Overview
This case concerned a local authoritys decision to close a nursing home, when it had
previously assured certain severely disabled patients that it would be their home for life.
HELD that this legitimate expectation had been unfairly overridden. Three classes of
legitimate expectation were defined, together with the tests by which decisions to override
them would be judged:
1
2
3

Expectations of procedural benefits such as consultation. The decision to override

could be challenged on the ground of unfairness.
Expectations of substantive benefits. Here, too, the test was unfairness.
Expectations which an authority was merely required to take into account when
deciding whether to change its policies. The expectation in Findlays case had been
of this type. Here, the decision to override could only be challenged on the basis of
irrationality.
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Discussion
The reasoning in Coughlan is unfortunately not very helpful, so there is not a lot to be gained
by looking more closely at the case (eg. in a casebook). The three points listed above are best
simply learned.

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