Professional Documents
Culture Documents
Topic 7 (LE)
Topic 7 (LE)
Topic 7 (LE)
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.
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
TE
EXPECTA There are two general grounds on which the exercise of an
unqualified discretion can be attacked. It must not be exercised in
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.
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
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