A Pluralist Account of Deference and Legitimate Expectations: The Many Forms of Legitimate Expectation

Paul Daly October 2, 2015

I will be contributing a chapter, with the working title, “A Pluralist Account of Deference and Legitimate Expectations” to a forthcoming Hart Publishing collection edited by Matthew Groves and Greg Weeks. Here is the first section of my draft. As always, comments are very welcome. Download the whole paper here.

Introduction

Legitimate expectation, Lord Fraser of Tullybelton said in the early 1980s, is an “apt” term to “express the underlying principle”, but “it is somewhat lacking in precision”.[1] Decades later it is described as “a relatively young doctrine” [2] that is “still developing”.[3] Authors have questioned the status of the doctrine of legitimate expectations. Courts are said to have “experienced some difficulty in producing a coherent body of law”,[4] because “[i]t has never been precisely clear what jurisprudential basis has been adopted” for the development of legitimate expectations.[5] A period of “rapid growth” has occurred “without proper exploration as to why legitimate expectations ought to be protected”.[6] As a result, the doctrine is “highly uncertain”.[7] In short, “many questions about it remain unanswered”.[8]

Such a crescendo of criticism may cause one to doubt the existence of any coherent doctrine of legitimate expectations. In my view, however, coherence can be attained. That the doctrine may not map clearly onto the various justifications offered for it from time to time is not a great surprise. The doctrine is of recent provenance and, as is the case with the common law, its development has not followed inexorably 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 values in different circumstances. Some underlying theory is needed to assist in answering the difficult doctrinal questions.

In the pages that follow, I will set out a pluralist account of legitimate expectations, building on the apparently diverse values found in decided cases.[9] I begin with an overview of the different values provided in the case law, some which support judicial enforcement of legitimate expectations, some which seem to counsel against it. I then proceed to outline how these values should be meshed together by focusing on the contentious areas of knowledge reliance, substantive legitimate expectations and enforcement of ultra vires legitimate expectations, explaining along the way the role that deference ought to play.

The Plurality of Legitimate Expectations

Legitimate expectations may “take many forms”.[10] A distinction is typically drawn between procedural and substantive legitimate expectations.[11] An individual with a procedural legitimate expectation will benefit from procedural protection – such as notice and an opportunity to comment – before a decision can lawfully be made against her. A substantive legitimate expectation prevents an administrative decision-maker from resiling from a promise or changing a policy without good reasons for doing so. Accordingly, a substantive legitimate expectation represents a much greater interference by the courts with the administration, for it reduces the range of options available to a front-line decision-maker, whereas a procedural legitimate expectation simply imposes a procedural barrier without reducing the range of options. But this dichotomy should not be over-emphasized. The line between procedure and substance is a notoriously slippery one.[12] Moreover, “[i]t is difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision-maker than it is to frustrate a legitimate expectation that the applicant will be listened to before the decision-maker decides whether to take a particular step”.[13]

Drilling further down into this distinction, Paul Craig has suggested that there are four very different ways in which a legitimate expectation might arise:

  1. A general norm or policy choice, which an individual has relied on, has been replaced by a different policy choice.
  2. A general norm or policy choice has been departed from in the circumstances of a particular case.
  • 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.
  1. There has been an individualised representation that has been relied on. The administrative body then changes its mind and makes an individualised decision that is inconsistent with the original representation.[14]

One of the frustrations for the academic who wishes to synthesize the learning on legitimate expectations is that relevant materials may be found in many different places, layered by many different concerns. Indeed, at times the language of legitimate expectations may seem inapposite. For instance, where an individual holds a protected interest[15] accorded by an administrative decision-maker, courts will impose procedural protections should the administrative decision-maker seek to withdraw the interest; but this is part of the general administrative law requirement of fairness,[16] to which legitimate expectation seems not to add a great deal. Similarly, where an administrative decision-maker seeks to change a policy, constraints of rationality or reasonableness[17] will be imposed independent of the existence of any legitimate expectation.[18] In short, “[l]egitimate expectation may play different parts in different aspects of public law”.[19] Nonetheless, each of the situations Craig enumerates has an important common feature: an expectation[20] engendered by official action at Time X which is defeated by official action at Time Y.[21] Anxious to resist the “lure of over-classification”,[22] I will concentrate on this common feature.

[1] Attorney-General of Hong Kong v. Ng Yuen Shiu, [1983] 2 A.C. 629, at p. 636.

[2] Mark Elliott, “Legitimate Expectations and the Search for Principle”, [2006] Judicial Review 281, at p. 282.

[3] R. (Niazi) v. Secretary of State for the Home Department, [2008] EWCA Civ. 755, at para. 3.

[4] Iain Steele, “Substantive Legitimate Expectations: Striking the Right Balance?” (2005) 121 Law Quarterly Review 300, at p. 303.

[5] C.J.S. Knight, “Expectations in Transition: Recent Developments in Legitimate Expectations”, [2009] Public Law 15, at p. 17.

[6] Paul Reynolds, “Legitimate Expectations and the Protection of Trust in Public Officials”, [2011] Public Law 330, at p. 330.

[7] Jack Williams, “Clarity and Ambiguity: A New Approach to the Test of Legitimacy in the Law of Legitimate Expectations” (2010), 30 Legal Studies 633, at p. 633.

[8] Farrah Ahmed and Adam Perry, “The Coherence of the Doctrine of Legitimate Expectations” (2014), 73 Cambridge Law Journal 61, at p. 61.

[9] I refer throughout to values. One could equally refer to justifications, rationales or reasons, but as I explain, some of the values found in the case law mitigate against recognition of legitimate expectations, such that it may be misleading to refer to them as justifications, rationales or reasons. See generally Paul Daly, “Administrative Law: A Values-Based Approach” in John Bell, Mark Elliott, Philip Murray and Jason Varuhas eds., Process and Substance in Public Law Adjudication (Hart, Oxford, 2015).

[10] Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374, at p. 415, per Lord Roskill.

[11] Mark Elliott, “Legitimate Expectations and the Search for Principle”, [2006] Judicial Review 281, at p. 285.

[12] See generally David Dyzenhaus and Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001), 51 University of Toronto Law Journal 193.

[13] R. v. Minister for Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd., [1995] 2 All E.R. 714, at p. 724, per Sedley L.J. See also Geneviève Cartier, “A ‘Mullanian’ Approach to the Doctrine of Legitimate Expectations: Real Questions and Promising Answers” in Grant Huscroft and Michael Taggart eds., Inside and Outside Canadian Administrative Law: Essays for David Mullan (University of Toronto Press, Toronto, 2006), at p. 185.

[14] Paul Craig, Administrative Law, 7th ed. (Sweet and Maxwell, London, 2012), at pp. 679-680.

[15] Interest here is shorthand for a longer list of triggers for judicial review, for example, “the rights, privileges or interests of an individual”: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at para. 14.

[16] For example, Denning L.J. employed the terminology of “legitimate expectation” in a sense related purely to the overall fairness of the administrative process in Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149, at p. 170. See also Gutrani v. Minister for Justice, [1993] 2 I.R. 427, at p. 436, per McCarthy J.; Minister for Immigration and Multicultural Affairs, ex parte Lam (2003), 195 A.L.R. 502, at p. 510, per Gleeson C.J.; Minister for Immigration and Ethnic Affairs v. Teoh (1995), 128 A.L.R. 353, at p. 381, per McHugh J. More interestingly, he distinguished between a “right” and a “legitimate expectation” (ibid., at p. 171), thereby suggesting that a legitimate expectation could be understood as grounding a judicial review application even in the absence of a concrete right. See similarly Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374, at p. 401, per Lord Fraser of Tullybelton. Compare Minister for Immigration and Multicultural Affairs, ex parte Lam (2003), 195 A.L.R. 502, at p. 537, per Callinan J.

[17] Attorney General of New South Wales v. Quin (1990), 93 A.L.R. 1, at pp. 10-11, per Mason C.J.

[18] For a recent example, see Altus Group Limited v Calgary (City), 2015 ABCA 86, where a municipality’s change of position in respect of a taxing by-law was quashed as unreasonable, a notable decision given that Canada does not officially protect substantive legitimate expectations. See generally, Canada (Attorney General) v. Mavi, [2011] 2 S.C.R. 504.

[19] R. v. North and East Devon Health Authority, ex parte Coughlan, [2001] Q.B. 213, at para. 71.

[20] It is difficult to improve upon Lord Diplock’s suggestion that the term “legitimate expectation” simply means “consequences to which effect will be given in public law…” Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374, at p. 408.

[21] See also Laws L.J.’s formulation in R. (Nadarajah) v. Secretary of State for the Home Department, [2005] EWCA Civ. 1363, at para. 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”.

[22] R. (Nadarajah) v. Secretary of State for the Home Department, [2005] EWCA Civ. 1363, at para. 49, per Laws L.J. Compare Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, at para. 27, per Binnie J.: “it is inevitable that sub-classifications must be made to differentiate the situations which warrant highly intrusive relief from those which do not”.

 

This content has been updated on September 12, 2015 at 20:06.