A Pluralist Account of Deference and Legitimate Expectations: The Pluralist Framework

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. In the third section of my draft I explain my pluralist approach. As always, comments are very welcome. Download the draft in its entirety here.

Justifying Legitimate Expectations: A Pluralist Approach

These competing values might seem to give rise to difficulties. Even the rule of law and good administration might be unruly bedfellows, for a breach of a promise may sometimes be very good administration indeed even if it undermines the dignity of the individual concerned. It may be that the judges have been lurching wildly from case to case with no guiding principle in mind, that these values are “little more than a smokescreen for an erratic and subjective assortment of judicial ideas”,^[1] in which case the better approach may simply be to concentrate on the individual strands of caselaw in isolation, allowing judges to refine them case-by-case with the incrementalism for which the common law is famous.

This, however, is an unattractive approach. As I suggested above, there is a common thread to the legitimate expectations cases: an expectation engendered by official action at Time X which is defeated by official action at Time Y. Moreover, jurists have spent decades searching for “more precise principles”[2] behind this common thread. As a branch of the law, legitimate expectations is relatively new; as a result, some confusion is surely unavoidable,[3] but surely not ineradicable: “it is all too easy to make separate compartments of the law where, in truth, different applications represent a single principle or at least interlocking principles”.[4]

Without doctrinal frameworks to guide the work of courts and commentators, the law will only become more confused. As Lord Scarman wisely put it, “The mark of the great judge from Coke through Mansfield to our day has been the capacity and the will to search out principle, to discard the detail appropriate (perhaps) to earlier times, and to apply principle in such a way as to satisfy the needs of their own time”.^[5] The law of judicial review has “evolved”,^[6] which – given that this is a field of human, not biological or divine, endeavour – suggests some sort of intelligent design; jurists may properly “shape the development…”[7] of the subject. Searching out principle and discarding detail may occasionally provoke criticisms that the author is rewriting history, but so far as legitimate expectations are concerned, all the values are found in judicial decisions that overtly seek to explain the law in terms of general principles or values. In any event, interpreting cases with a view to identifying a defensible general framework for judicial decision-making is a perfectly legitimate mode of scholarly inquiry.[8]

Faced with values found in the cases that are individually appealing but which may come into conflict with one another, one response is to adopt a pluralist approach. Rather than assigning priority to any one value – or casting about for an alternative meta-value that is not easily found in the cases[9] – the scholar attempts to accommodate them all, reconciling them where necessary.[10] The utility of this approach is best appreciated in the treatment of concrete problems, where the limits of the competing values can be better understood, but some preliminary comments are in order.

First, a pluralist approach is explicitly normative. It speaks to how jurists ought to think about legitimate expectations. It is descriptive only to the extent that it draws its values from sources of positive law. As a result, only values that are attractive on their own terms may be accommodated: hence the time I spent above in describing the values found in the caselaw and mounting a defence of each of them.

Second, if values are genuinely irreconcilable, one of them must yield. Should it prove to be the case, there would be reason to doubt the attraction of the pluralist approach based on the values found in the cases. However, declarations of irreconcilability should only be a last resort. Often, what seems to be an irreconcilable difference could be resolved by further study, especially by consideration of empirical evidence, for instance as to whether enforcement of legitimate expectations really increases trust in officialdom or the efficiency of public administration. Moreover, it may be possible to resolve any conflict by revising the values which, when applied to concrete problems, may provide to have been drawn too broadly in the abstract. Where this is the case, critics should not hastily blurt out declarations of irreconcilability but carefully consider whether the conflict might disappear on closer inspection.

Third, although it would be possible in theory to formulate priority rules to address conflicts these are unlikely to be appropriate. The rules would only operate in situations where one or more values come into conflict. If all values point to the same result, there is no conflict to resolve: indeed, that common law courts have “had little difficulty in recognising the existence of procedural legitimate expectations”,[11] which vindicate rule of law and good administration concerns without impinging on decision-makers’ autonomy on matters of substance, reflects the absence of any conflict. The difficulty with priority rules is that they may not take account of the strength of the competing values in more difficult areas. For instance, a plausible priority rule would be majoritarian. But even in a situation where three values are ranged against one, the one value may nonetheless be extremely strong, so much so that it could override the others. As a rule of thumb, a majoritarian preference might be useful, but it would be a dangerously facile priority rule if cast in absolute terms.

[1] Matthew Groves, “Substantive Legitimate Expectations in Australian Administrative Law” (2008), 32 Melbourne University Law Review. 470, at p. 487.

[2] Paul Reynolds, “Legitimate Expectations and the Protection of Trust in Public Officials”, [2011] Public Law 330, at p. 335.

[3] See Abrahamson v. Law Society of Ireland, [1996] 1 I.R. 403, at p. 422, per McCracken J.: “it is only to be expected that in an evolving concept there will be contradictory judgments”.

[4] R. (Nadarajah) v. Secretary of State for the Home Department, [2005] EWCA Civ. 1363, at para. 49, per Laws L.J.

[5] Gillick v. West Norfolk and Wisbech Health Authority, [1986] AC 112, p. 183.

[6] Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374, at p. 414, per Lord Roskill.

[7] Ibid, at p. 417, per Lord Roskill.

[8] Allan Beever and Charles Rickett, “Interpretive Legal Theory and the Academic Lawyer” (2005), 68 Modern Law Review 320.

[9] See e.g. Paul Reynolds, “Legitimate Expectations and the Protection of Trust in Public Officials”, [2011] Public Law 330, at p. 341, advocating for a meta-value of “trust in the public authority”.

[10] What follows owes a significant debt to Stephen R. Munzer, A Theory of Property (Cambridge University Press, Cambridge, 1990).

[11] Paul Craig, “Substantive Legitimate Expectations in Domestic and Community Law” (1996), 55 Cambridge Law Journal 289, at p. 290.

This content has been updated on September 12, 2015 at 20:08.