The Unity of Legitimate Expectations?

One of the panels at the inaugural Public Law Conference last week (see my previous post) was on legitimate expectations. I was keenly interested, as I have agreed to contribute a chapter to a forthcoming (early 2016) collection on legitimate expectations in the common law world.

Cora Hoexter was sympathetic to legitimate expectations as she walked us through an intricate South African case, but her colleagues were much more sceptical. Matthew Groves and Greg Weeks used the UK Supreme Court’s recent decision in Osborn to discuss the basis of fairness in administrative law; in their view, legitimate expectations are difficult to ground in the traditional justifications for fairness. Rebecca Williams presented a paper entitled “The Multiple Doctrines of Legitimate Expectations”, a taxonomy of the subject; as her title suggests, she was dubious about the existence of an organizing principle holding together the law on legitimate expectations.

There was some resistance from the audience. Christopher Forsyth wondered whether trust in government was an important underlying principle of public law (an idea recently pursued eloquently and at length by Evan Fox-Decent) and Nigel Pleming asked if the general rule was simply that government should be held to its promises unless it has a good reason to depart from them.

I joined the resistance. We could probably formulate a general principle along these lines: officials should not change their positions without giving an explanation and providing appropriate procedural protections. Now, difficult doctrinal questions will inevitably abound. Who is an “official”? When is a “position” established? Can an ultra vires representation, or a representation that fetters discretion, constitute a “position”? When is an “explanation” satisfactory? The current state of the law in England seems unsatisfactory and is certainly sufficiently confused that the claim of “multiple doctrines” is at least plausible.

But there is a risk of over-complicating matters at a theoretical or conceptual level. Most jurisdictions impose some restrictions on officials’ ability to change positions, either by a test of abuse of discretion (as in the United States) or a general reasonableness test (as in Canada). At some points the lofty doctrine of legitimate expectations is indistinguishable from a principle of administrative consistency.

That the doctrine may not map clearly onto various justifications for the duty of fairness is not a great surprise. The doctrine is of recent provenance and, as is often the case with the common law, its development does not follow from an agreed set of first principles. More generally, a doctrine that imposes constraints on officials’ freedom of action has necessarily both substantive and procedural aspects and may draw on different rationales in different circumstances. Some underlying theory is needed to assist in answering the difficult doctrinal questions. Different values may assist in answering the different doctrinal questions that arise.

All of which leads me to entitle this post provocatively and suggest that there may be a unity to legitimate expectations after all, as one core idea held together by several rationales or values depending on the legal and factual context. But these are preliminary thoughts, prompted by a most interesting set of papers and discussion.

This content has been updated on September 25, 2014 at 21:04.