A Pluralist Account of Deference and Legitimate Expectations: Competing Underlying Values

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 second section of my draft I focus on the sometimes confusing values that appear in the cases. As always, comments are very welcome. Download the draft in its entirety here.

Justifying Legitimate Expectations: Judicial Perspectives

“Perhaps unhelpfully”, many different bases for legitimate expectations can be found in the caselaw.[1] Abuse of power figures prominently, as do the rule of law and good administration. These are often tempered, however, by reference to the democratic decision to vest power in a decision-maker other than a court, an idea with overtones of a separation of powers between the legislative, executive and judicial branches. My goal in this section is descriptive and normative, to demonstrate that the values of good administration, the rule of law, democracy and separation of powers have and ought to have a role in the development of the law of legitimate expectations.

Abuse of power is a term found in some foundational cases on legitimate expectations.[2] However, abuse of power is probably better understood as an overarching principle of judicial review of administrative action in general, a “rationale” rather than a free-standing rule.[3] It is a “conclusory statement”[4] that “goes no distance to tell you, case by case, what is lawful and what is not”.^[5] It may be significant that abuse of power first came to prominence during a period of rapid development in administrative law. One might suggest that judges were casting around for a general term that would capture their new responsibilities: abuse of power fulfils that function admirably. But it does not provide much in the way of concrete guidance to judges charged with determining whether an expectation is legitimate or whether it can be overridden by a subsequent administrative decision.

Good administration features regularly in the jurisprudence.[6] Christopher Forsyth suggests that the term is as vague as abuse of power.^[7] Properly understood as a concern with the efficient attainment of statutory objectives, however, good administration is neither a hopelessly general term nor beyond the ken of judges. While generalist judges are not well-equipped, by reason of evidentiary limitations and a relative lack of institutional competence, to impose abstract norms of best practice on specialist administrative decision-makers, they may properly take some account of the effect of judicial review doctrine on the administrative process. For instance, it is surely reasonable for judges to suggest that participation by affected individuals prior to an administrative decision being taken is likely to increase the accuracy of outcomes.[8] And in the context of legitimate expectations, judges may reasonably take the view in the absence of empirical evidence to the contrary that holding officials to published policies would further the ends of effective administration.[9] It is true that reference to “good administration” alone will not resolve all of the difficult questions that arise in administrative law cases. Nevertheless, reminding judges to focus on the efficient and effective achievement of statutory goals by administrative decision-makers can assist in resolving these questions.

Reference is often also made to unfairness operating against an individual or group of individuals. The formulation in Attorney-General of Hong Kong v. Ng Yuen Shiu is especially telling because it came so early in the evolution of the law of legitimate expectations: “expectations may be based upon…[action] that would make it unfair or inconsistent with good administration…”^[10] Good administration has not been the only driver of the judicial imagination.

In its evident concern with fairness to individuals – that “holding government to a procedural undertaking that was solemnly given on its behalf to an individual is more a matter of individual justice”[11] – unfairness in this context plays a role distinct from the general common law guarantee of fair procedures. Clear examples can be found in Ex parte Unilever plc, where Simon Brown L.J. commented that a legitimate expectation will be enforced where “it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power”;[12] in R. (Bibi) v. London Borough of Newham, where Schiemann L.J. for the Court of Appeal invoked the “moral detriment” suffered by a refugee family that sought enforcement of a legitimate expectation to secure housing;[13] and in Webb v. Ireland, where Finlay C.J. noted that it would be “inequitable and unjust” for the State to “repudiate” an assurance that individuals who had handed over valuable treasure to the state would be honourably treated.[14] Similarly, in explaining the foundations of legitimate expectation, Bingham L.J. invoked the inter-personal relationship created by the law of contract: “If in private law a body would be in breach of contract in so acting or estopped from so acting [contrary to a legitimate expectation] a public authority should generally be in no better position”.[15] This is surely quite telling: when a public body makes a representation to an individual, it finds itself in a domain where promises may be enforced.

Judicial concern for the dignity and autonomy of individuals in their dealings with administrative decision-makers evokes the rule of law, as a principle of “institutional morality”.[16] A cautious reader would no doubt protest that the rule of law has an ‘all things to all people’ quality that reduces its value as a tool of analysis; indeed, it may be an “essentially contested concept” that means different things to different judges.[17] What is true of “abuse of power” may be equally true, if not more so, of the “rule of law”. From the cases, however, the core sense of the rule of law as applied to legitimate expectations is relatively stable and readily comprehensible. Underpinning all conceptions of the rule of law is a concern for human autonomy and dignity. Even so-called “formal” conceptions of the rule of law[18] which emphasize that laws should be published, accessible and clear respond to the needs of humans as autonomous agents capable of planning their lives to achieve personal goals:[19] “observance of the rule of law is necessary if the law is to respect human dignity”.[20] In legitimate expectations cases where the rule of law is invoked, courts are typically concerned by the effect on individuals of promises being broken or settled expectations disrupted. As Schiemann L.J. put it, for the Court of Appeal in R. (Bibi) v. London Borough of Newham, “there is value in holding authorities to promises which they have made, thus upholding responsible public administration and allowing people to plan their lives sensibly”.^[21] Where individuals use official action to plan their affairs, their autonomy is very much in play, and it is impinged upon when officials go back on their word or change a policy. The human dimension of a case like R. v. North and East Devon Health Authority, ex parte Coughlan[22] cannot be overstated: promising a home for life was an important engagement by the state towards the severely disabled applicant; departing from the promise was a significant blow to her dignity and autonomy.

My cautious reader might next object that good administration and the rule of law are simply two sides of the same coin: is it not always good administration to respect the rule of law and, in particular, enforce promises made to individuals; indeed, does not holding decision-makers to their promises increase trust in government thereby enhancing good administration?[23] In many cases, no doubt, good administration and the rule of law will point to the same outcome. But not always.[24] A representation might have been mistaken, in which case, “the court should be flow to fix the public authority permanently with the consequences of that mistake”.[25] Or giving effect to a representation made to an individual or group of individuals might have negative wider consequences: “Seen from the point of view of administrators focusing on the problem immediately before their eyes a promise seems reasonable…[b]ut when they, or their superiors, focus on a wider background it appears that the making of the promise was unwise or that, in any event, its fulfilment seems too difficult”.[26]

Good administration and the rule of law serve primarily to underpin the legitimacy of expectations. But establishing a legitimate expectation is not the end of the analysis. As courts repeatedly emphasize, invoking concerns for democracy and separation of powers, an expectation can be overridden by the decision-maker in appropriate circumstances. Where decision-making authority has been granted by the legislature to an administrative decision-maker, it would be inappropriate for a court to step into the other body’s shoes and take the decision it ought to have taken: “to do so would be to assume the powers of the executive”.[27] On occasion, indeed, a statutory provision may shut the door to the recognition of a legitimate expectation.[28] Moreover, the administrative decision-maker cannot, by adopting a decision or policy at Time 1 bind itself; it must remain free at Time 2 to depart from the earlier decision or policy:[29] “To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law”.[30] Performance of an undertaking must be “compatible with their public duty”:[31]

Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel.[32]

As Lord Templeman explained in In re Preston, a case in which a taxpayer complained of a change of policy by the Inland Revenue Commissioners,

[A] taxpayer cannot complain of unfairness, merely because the commissioners decide to perform their statutory duties…to make an assessment and enforce a liability to tax. The commissioners may decide to abstain from exercising their powers and performing their duties on grounds of unfairness, but the commissioners themselves must bear in mind that their primary duty is to collect, not to forgive, taxes. And if the commissioners decide to proceed, the court cannot in the absence of exceptional circumstances decide to be unfair that which the commissioner by taking action against the taxpayer have determined to be fair.[33]

I quote this passage from Lord Templeman’s speech at length because it helpfully illustrates two related ideas. First, an administrative decision-maker must act pursuant to the mandate given to it by the legislature. A democratic choice made by a parliamentary majority ought to be respected. Second, judges should not second-guess the merits or wisdom of courses of action taken by administrative decision-makers. There is a separation of powers between them. A separation of powers rather than the separation of powers. The distinction is subtle but important: the separation of powers implies to the legal mind the Montesquian distinction between legislative, executive and judicial branches, whereas a separation of powers implies only some separation of functions between different bodies. The difference is between assuming that some functions are magically “legislative”, “executive” or “judicial” in nature and should be assigned accordingly and understanding simply that distinct parts of the governmental apparatus should exercise distinct functions, leaving the precise allocation to be worked out by an appropriate theory. The latter type features often in the legitimate expectations cases.

Accordingly, respect for legislative choice and a concern to ensure that some sort of distinction can be drawn between legislative, executive and judicial power underpins arguments for judicial restraint in the enforcement of legitimate expectations.[34]

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

[2] See e.g. In re Preston, [1985] 1 A.C. 835, at p. 851 (Lord Scarman), p. 864 (Lord Templeman); R. v. North and East Devon Health Authority, ex parte Coughlan, [2001] Q.B. 213, at para. 71. See also Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C.R. 264, at para. 123, per Evans J.A.

[3] R. v. Department of Education and Employment, ex parte Begbie, [2000] 1 WLR 1115, at para. 76.

[4] Paul Reynolds, “Legitimate Expectations and the Protection of Trust in Public Officials”, [2011] Public Law 330, at p. 333.

[5] R. (Nadarajah) v. Secretary of State for the Home Department [2005] EWCA Civ. 1363, para. 67, per Laws L.J.

[6] See e.g. Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C.R. 264, at para. 123; R. v. North and East Devon Health Authority, ex parte Coughlan, [2001] Q.B. 213, at para. 71; R. (Bibi) v. London Borough of Newham, [2001] EWCA Civ. 607, at para. 24; R. (Nadarajah) v. Secretary of State for the Home Department, [2005] EWCA Civ. 1363, at para. 68é

[7] Christopher Forsyth, “Legitimate Expectations Revisited” (ALBA Summer Conference, 29 May 2011).

[8] See generally Matthews v. Eldridge, 424 U.S. 319 (1976). See also Paul Craig, “Legitimate Expectations: A Conceptual Analysis” (1992), 108 Law Quarterly Review 79, at p. 85: “Giving a person a hearing of some kind can help to ensure that the desired end is attained; the procedural rights perform an instrumental role in the sense of rendering it more likely that there will be an accurate decision on the substance of the case”.

[9] Though equally, “[t]o hold that…pre-election promises bound a newly elected Government could well be inimical to good government” (Bebgie, [2000] 1 WLR 1115, at para. 56, per Peter Gibson L.J.).

[10] [1983] 2 A.C. 629, at p. 637. Emphasis added. See also ibid., at p. 638 where good administration is said to be “primarily” the justification for enforcing legitimate expectations.

[11] Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C.R. 264, at para. 121, per Evans J.A.

[12] [1996] S.T.C. 681, at p. 695.

[13] [2001] EWCA Civ. 607, at para. 55.

[14] [1988] I.R. 353, at p. 379.

[15] R. v. Inland Revenue Commissioners, ex parte MRK Underwriting Agents Ltd., [1990] 1 W.L.R. 1545, at pp. 1569-1570.

[16] Jeffrey Jowell, “The Rule of Law” in Jeffrey Jowell, Dawn Oliver and Colm O’Cinneide eds., The Changing Constitution, 8^th ed. (Oxford, Oxford University Press, 2015), p. 11 at p. 27.

[17] Jeremy Waldron, “Is the Rule of Law an Essentially Contested Concept (In Florida)?” (2002), 21 Law & Philosophy 137. At the very least it is a “highly textured expression”: Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at pp. 805‑6

[18] Paul Craig, “Formal and Substantive Concepts of the Rule of Law: An Analytical Framework”, [1997] Public Law 467.

[19] Paul Craig, “Substantive Legitimate Expectations in Domestic and Community Law” (1996), 55 Cambridge Law Journal 289, at p. 304.

[20] Joseph Raz, “The Rule of Law and its Virtue” (1977), 93 Law Quarterly Review 195 at p. 220.

[21] [2001] EWCA Civ. 607, at para. 24. See similarly Glenkerrin Homes Ltd. v. Dun Laoghaire-Rathdown Corporation, [2007] IEHC 298, per Clarke J.: “where third parties reasonably arrange their affairs by reference to…a practice…[they] are entitled to rely upon an expectation that the practice will not be changed without reasonable notice being given”.

[22] [2001] Q.B. 213.

[23] See e.g. Christopher Forsyth, “The Provenance and Protection of Legitimate Expectations” (1988), 47 Cambridge Law Journal 238, at p. 239; Søren J. Schønberg, Legitimate Expectations in Administrative Law (Oxford University Press, Oxford, 2000), at p. 25.

[24] Iain Steele, “Substantive Legitimate Expectations: Striking the Right Balance?” (2005) 121 Law Quarterly Review 300, at p. 301.

[25] R. v. Department of Education and Employment, ex parte Begbie, [2000] 1 WLR 1115, at para. 61.

[26] R. (Bibi) v. London Borough of Newham, [2001] EWCA Civ. 607, at para. 36.

[27] R. (Bibi) v. London Borough of Newham, [2001] EWCA Civ. 607, at para. 41. See also Thames Valley Electric Power Board v. NZFP Pulp & Paper Limited, [1994] 2 N.Z.L.R. 641, at p. 653; Minister for Immigration, Local Government and Ethnic Affairs v. Kurtovic (1990), 92 A.L.R. 93, at p. 111, per Gummow J.

[28] See e.g. Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, at para. 30, per Binnie J. : “The expectations must not conflict with the public authority’s statutory remit”.

[29] See e.g. David Gwynn Morgan and Gerard Hogan, Administrative Law in Ireland, 4th ed. (Roundhall, Dublin, 2010), at p. 1033: “This bar on the fettering of future executive action is part of a wider principle that statutory powers must be freely exercised”.

[30] Minister for Immigration and Ethnic Affairs v. Teoh (1995), 128 A.L.R. 353, at p. 365, per Mason C.J. and Deane J.

[31] R. v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association, [1972] 2 Q.B. 299, at p. 308, per Lord Denning M.R. See also Laker Airways v. Department of Trade, [1977] 1 Q.B. 643, at p. 707, per Lord Denning M.R. :

The underlying principle is that the Crown cannot be estopped from exercising its powers, whether given in a statute or by common law, when it is doing so in the proper exercise of its duty to act for the public good, even though this may work some injustice or unfairness to a private individual…

[32] R. (Niazi) v. Secretary of State for the Home Department, [2008] EWCA Civ. 755, at para. 41.

[33] [1985] 1 A.C. 835, at p. 864.

[34] See similarly Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, at paras. 47-51.

This content has been updated on October 9, 2015 at 10:48.