MA PUBLIC LAW: JUDICIAL REVIEW

FRUSTRATION OF SUBSTANTIVE LEGITIMATE EXPECTATIONS

(1) The distinction between substantive and procedural legitimate expectations

 The basic distinction: the applicant is asking not that some procedure should be
followed but that some benefit should be given or continued, as promised.

 Distinction between (a) procedural protection of substantive expectations and

(b) substantive protection of substantive expectations.

 We have covered (a) before: e.g. in GCHQ the applicants had a substantive
expectation – that trade union membership would not be withdrawn – and it
was protected procedurally: by saying that there should have been consultation
before any withdrawal. Similarly, R v Devon County Council ex parte Baker;
Durham County Council ex parte Curtis (1995) – closure of care homes. We are
here concerned with (b).

(2) An example: R v Secretary of State for the Home Department ex parte Khan [1985]
1 All ER 40
The applicant sought to adopt his brother's child from Pakistan. The Home Office had
published general criteria which would be applied to decide whether to allow the
child to come into the UK, including whether they would be likely to be able to adopt
it once it was in the UK, that its welfare in the UK was assured etc. The applicants
appeared to satisfy all the criteria, but when the application was made, it was
refused and it was evident that different criteria had been applied, in particular the
HO appeared to have decided that because the child was living in good conditions
with his mother, entry to the UK should not be allowed.

(3) Why is this type of review controversial? It risks fettering of discretion

"such a doctrine would impose an obvious and unacceptable fetter upon the
power (and duty) of a responsible public authority to change its policy when it
considered that that was required in fulfilment of its public responsibilities". (R
v Secretary of State for Transport ex parte Richmond upon Thames LBC [1994] 1
All ER, per Laws J)

(4) But: it does not necessarily prevent the public body from changing its policy:
it may require simply that it does not do so without notice to those relying on
the old one.
(5) Note Paul Craig’s classification (discussed on p 725 of Fenwick et al):

(i) A general norm or policy choice which an individual has relied on has been
replaced by a different policy choice;
(ii) A general norm or policy choice [upon which an applicant has relied], is
departed from in the circumstances of a particular case (e.g. ex parte Khan);
(iii) There has been an individual representation relied on by a person which the
administration seeks to resile from in the light of a shift in general policy
(iv) There has been an individual representation which has been relied upon. The
administration then changes its mind and makes a different individualised decision
[the original representation may have been that certain criteria will be used to
make a decision or simply that a particular benefit will be granted or will not be
withdrawn as in Coughlan]

Comment: It is clear that it is only cases in categories (i) and (iii), in particular the former,
that would impose a real restriction upon public bodies; and in fact, as appears below,
restrictions based on substantive expectations are far less likely to be imposed in such cases.
Conversely, it is clear that the individual will have the strongest claim in category (iv) cases.
Appreciating the critical importance between these very different categories is probably the
only way of making sense of a body of case law that often does not itself keep them distinct.

(6) The two basic issues:

 When will a person have a legitimate expectation?

 When may a decision-maker frustrate such an expectation?

(7) When will a person have a legitimate expectation?

 The nature of the representation

R v Devon County Council ex parte Baker; Durham County Council ex parte Curtis
(1995), Simon Browne LJ: there must he said be "a clear and unambiguous
representation upon which it was reasonable for him to rely" (at p. 88, emphasis
added);

But regular practice may suffice: R v IRC ex p Unilever plc [1996] IRC had for over 20
years allowed Unilever to claim relief for trading loss even though the relief was not
properly sought, being out of time. It then revoked this practice, with no notice,
costing Unilever millions.

 Policy considerations may prevent an expectation arising: unreasonable for

promisee to believe that policy will not change: Findlay v Secretary of State
for the Home Department (1985) AC 318 HL
The Minister announced changes to parole policy, motivated by public concern
about prisoners obtaining parole seemingly too soon into their sentences and
also of prisoners committing offences while on parole. The changes meant that,
amongst other things, life prisoners would have to serve much longer sentences

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 than they had been lead to believe under the old policy. They claimed a
legitimate expectation that the old policy would be applied to them.

Lord Scarman: "but what was their legitimate expectation? Given the
substance and purpose of the legislative provisions governing parole, the most
that a convicted prisoner can legitimately expect is that this case will be
examined individually in the light of whatever policy the policy the Secretary of
State sees fit to adopt [provided the new policy] is a lawful exercise
of...discretion...Bearing in mind the complexity of the issues which the
[Minister has to consider and the importance of the public interest in the
administration of parole I cannot think that Parliament intended the discretion
to be restricted in this way."(at p. 388).

(8) There can be no legitimate expectation if the expectation would be

inconsistent with a statutory duty: R v Secretary of State for Education and
Employment ex parte Begbie [2000] 1 WLR 1115

(9) And no legitimate expectation if the expectation would be inconsistent with

the body’s own policies: R (Gallaher Group Ltd) v Competition and Markets
Authority [2018] UKSC 25. Note that in this case the claimant’s position was
weak in that no assurance had been given to them; they were rather relying on
how other companies being investigated for price-fixing had been treated.

(9) If a public body simply fails by mistake to apply its existing policy then
knowledge of that policy by the applicant may not be needed:

Instead courts treat this is a seemingly separate ground concerning the consistent
application of policy: In R (Rashid) v Secretary of State for the Home Department
[2005] EWCA Civ 744 and Mandalia v Home Secretary [2015] UKSC 59, in which an
applicant won a judicial review against the UK Border Agency on the basis that it
had failed to give him the benefit of its own policy to allow him to submit certain
information in support of his visa-extension application. Lord Wilson, giving the
sole judgment of the court, quoted Laws LJ’s dicta in In R (Abdi and Nadarajah) v
Home Secretary [2005] EWCA Civ 1363 at [68]:

Where a public authority has issued a promise or adopted a practice which

represents how it proposes to act in a given area, the law will require the
promise or practice to be honoured unless there is good reason not to do so.
[This] is said to be grounded in fairness, and no doubt in general terms that is
so. I would prefer to express it rather more broadly as a requirement of good
administration, by which public bodies ought to deal straightforwardly and
consistently with the public.

Lord Wilson also noted that the Supreme Court had endorsed his principle in n R
(Lumba) v Secretary of State for the Home Department [2011] UKSC 12, in which
Lord Dyson said [at para 35]

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 The individual has a basic public law right to have his or her case considered under
whatever policy the executive sees fit to adopt provided that the adopted policy is a
lawful exercise of the discretion conferred by the statute.

(10) It is not necessary for there to have been detrimental reliance by the claimant
on the promise – but such reliance may strengthen the claim.

Geraldine Finucane [2019] UKSC 7: ‘I would disagree with any suggestion that it must
be shown that the applicant suffered a detriment before maintaining a claim
for frustration of legitimate expectations’ (para 72, per Lord Kerr). See also
Lord Dyson Paponette v Attorney General of Trinidad and Tobago [2010]
UKPC 32 at para 37 to like effect.

(11) If a legitimate expectation is found to have arisen, what is the test for
deciding whether it may be overridden?

 Depending on its importance, it may only be treated as a consideration, which

should be considered by the decision-maker, but to which s/he can give as
much or little weight as s/he pleases – likely to apply where a general policy is
being changed: R v Secretary of State for the Home Department ex parte
Hargreaves [1997] 1 WLR 906; see also Niazi v Secretary of State [2008] EWCA
Civ 755 – successful SLE claims likely to arise only where there has been ‘a
specific undertaking, directed at a particular individual or group’.

 In some cases, courts will find that only an overriding public interest justified
frustration of the expectation: this is likely to happen only in cases in which an
individualised promise is broken

ex p Coughlan [2000] 2 WLR 622

The applicant was a severely disabled woman as a result of a road accident, some
years earlier. In 1993 she and seven comparably disabled patients were moved with
their agreement from Newcourt Hospital, which it was desired to close, to a purpose-
built facility, Mardon House, on the clear understanding that Mardon House would be
their home for life. The patients were consulted over the facilities and layout of Mardon
House and individual flatlets were specifically tailored to their needs; they were assured
by the then General Manager of the Health Authority, as follows “I confirm…that the
Health Authority has made it clear… it expects to continue to provide good quality care
for you at Mardon House for as long as you choose to live there.” The case concerned a
challenge to the subsequent decision of the Health Authority to close Mardon House.

Held that in order to decide which approach to take, courts should use the
following criteria:

1) whether ‘the expectation is confined to one person or a few people,

giving the promise or representation the character of a contract’ (that is,
category (iv) cases);
2) the importance of the promise to the individual;

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 3) the level of detriment to the public authority of being forced to
honour the promise

 R. (on the application of Bancoult) v Secretary of State for Foreign and

Commonwealth Affairs, CA [2007] 3 W.L.R. 768

The Crown in 2004 had forbidden the return of the Chagossians to the Chagos
islands which they or their forebears had inhabited – the Islands had been ruled
as a colony, the British Indian Ocean Territory. Under an Immigration Ordinance
made in 1971 pursuant to the British Indian Ocean Territory Order 1965, the
inhabitants of the Chagos Islands were compulsorily removed, mainly to
Mauritius, because Diego Garcia, the principal island in the archipelago, was
required for use as a United States military base. The 1971 Ordinance was
quashed by the Divisional Court on the ground that the exclusion of an entire
population from its homeland lay outside the purposes of the 1965 Order. The
then Government at the time (Nov 2000) stated that it accepted the court's
ruling and would not appeal. However, the government later decided that
resettlement was not feasible and that the territory was still wanted for defence
purposes and made two Orders in Council which had the effect of preventing the
Chagossians from returning home.

(12) Some public interest ground must be provided for departing from a LE
While the general approach to weighing up the broken promise against the public
interest in departing from it is not settled, clear that, once a legitimate expectation is
found to have arisen, the decision-maker must provide some public interest ground
to justify departing from it: Paponette v Attorney General of Trinidad and Tobago
[2010] UKPC 32.

(13) Where matter is seen as one for political judgment – easier to justify
overriding a legitimate expectation: Geraldine Finucane [2019] UKSC 7

Was there a legitimate expectation that an inquiry would be held into the death of
the applicant’s husband, a Belfast solicitor who had been murdered in 1989 by three
terrorists? Lord Kerr found it ‘quite clear’ that those assurances, ‘individually and
cumulatively, … amount[ed] to an unequivocal undertaking to hold a public inquiry
into Mr Finucane’s death.

Note: some ambiguity in the judgment as to whether this was seen as case of
procedural or substantive expectations.

Held: the Government was justified in departing from the expectation by deciding
not to hold the enquiry.

…where a clear and unambiguous undertaking has been made, the authority
giving the undertaking will not be allowed to depart from it unless it is shown
that it is fair to do so (para 62)

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Where political issues overtake a promise or undertaking given by
government, and where contemporary considerations impel a different
course, provided a bona fide decision is taken on genuine policy grounds not
to adhere to the original undertaking, it will be difficult for a person who
holds a legitimate expectation to enforce compliance with it (para 76, Lord
Kerr).

‘[t]he decision as to whether a public inquiry into Mr Finucane’s death should

take place was a matter of considerable political importance’ and hence for
‘political judgment’ (para 81).