This essay will discuss ‘Legitimate Expectations Revisited’ [2011] Judicial Review 429, especially focussing on the position taken by Forsyth. Following this, it will compare Forsyth’s position on legitimate expectations, with Hughes and Tomlinson. This paper will conclude by proposing Forsyth’s ideas on how the law can alter its stance on the matter.
To provide a clear description of Forsyth’s position, I will briefly outline what is understood by the term legitimate expectation; the doctrine of legitimate expectation was founded in English law as the basis of judicial scrutiny to protect a procedural or substantive interest, when a public authority frustrates their promise to an individual.
The first fundamental question raised in the article, is why “the law protects legitimate expectations”? Forsyth’s justification is that the law should “protect the trust”1, that has been resided in the government and public authorities when promises are made; without this protection, citizens will cease to adhere to government policies as there is nothing to secure promises made by authorities.
In his article, Forsyth discusses the principle behind the concept of legitimate expectations which was first introduced in to English administrative law by Lord Denning in Schmidt v Secretary of State for Home Affairs, although there was no “citation of authority”1 in the aforementioned case. Forsyth suggests the principle of Vertauensschutz, originating from German Administrative law, and meaning “the protection of trust”1 may have assisted in the development of English law, although Lord Denning insists that this is not the case, but rather it was his own idea.
In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2), Lord Carswell says that the “basis of the jurisdiction [to protect legitimate expectations] is abuse of power and unfairness to the citizen on the part of a public authority”. Furthermore, Lord Justice Laws has also reiterated this point as stating the abuse of power is the “root concept” to justify the protection of legitimate expectations. Here, we see that often the several different justifications are collaborated, and these are the main reasons for the courts intervening in such cases.
Whether trust was instilled in a promise is a “simple question of fact”1, which contributes at least somewhat to the suggestion of what is lawful and what is not, as it accurately records why legitimate expectations should be protected. On the other hand, there may be “good reasons”1 why trust should not be protected. Therefore, although Forsyth appears to prefer the Vertrauensschutz principle, due to the fact there may also be times that the principle is not appropriate, this may not be the only principle behind legitimate expectations, and hence this could be an area which Forsyth feels needs expanding.
Legal certainty can be defined as when “the individual ought to be able to plan his or her action on the basis [that the expectation will be fulfilled]”, which can also be used as a justification for the protection of legitimate expectations.
Paul Reynolds, explains that both concepts of legal certainty and legitimate expectations “originate from German law” and that “[Vertrauenschutz] is concerned to promote confidence in public administration and trust in its decisions…English courts should…allow [the doctrine] to fulfil its proper role” In his article, Forsyth appears to agree with Lord Carswell in R (Bancault) regarding the foundation of the jurisdiction.
As mentioned above, whether there is an expectation for a promise to be fulfilled exists, is a matter of fact, so a person unaware of a formal pledge by a public authority “cannot expect compliance with that undertaking and there is no legitimate expectation to protect”1.
However, the Court of Appeal (CoA) in the leading case of R (Rashid) v Home Secretary disagreed when it held: “it would be grossly unfair if the court’s ability to intervene depended…upon whether the…claimant had or had not heard of a policy”, thus supporting the idea that because a policy must be “consistently applied”, there are no exceptions for legitimate expectation cases.
This position is reiterated in Minister of Ethnic Affairs v Teoh whereby the majority judgement said “it is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention [upon which the expectation is founded] or should personally entertain the expectation”.
Following these cases, however, Forsyth goes on to say that because the same protection is available whether trust was reposed in the promise or not, the “concept…has added nothing…and is redundant in this context”1.
His use of terms like “redundant” and “added nothing”1, implies that he sees little use in the current doctrine due to the ambiguity within the concept.
Forsyth considers the case of Lumba and Mighty v Home Secretary, whereby following a well-established policy in favour of release pending deportation, the Home Secretary “operated a secret or unpublished policy which imposed “a near blanket ban”11 on their release”1. Lord Dyson, giving the lead judgement found that the Home Secretary “unlawfully exercised the statutory power to detain pending deportation because she applied an unpublished policy which was inconsistent with her published policy”10. As part of this judgement, Forsyth states that Lord Dyson “does not rely on legitimate expectations”1.
The point to be made here, and which will be examined further in this essay, is that one cannot make a promise, which has trust resided in it, which is beyond their statutory power, or which contradicts a currently published policy.
The second “fundamental principle”1 that is raised is that “classic Administrative law applies to legitimate expectation as it does to other questions”1. Because Parliament is supreme, “a legitimate expectation cannot stand against a statute…the ultra vires expectation made contrary to a [statute] cannot be protected”1.
A further point made by Forsyth is that “the decision-maker entrusted with a power by law must remain free to exercise that power as he/she judges the public interest requires”1. This expands on his point made later in the article, that “[the money to distribute health resources (with regards to Coughlan11)], was given by parliament to the health authority, not to the court…[and] the court is…institutionally incompetent to make [the decisions]”1. Here Forsyth makes it clear that he does not agree with the current levels of judicial intervention in these cases, because he believes the judiciary are acting outside of their legal capacity and knowledge.
Similarly, with regards to procedural expectations, the trust is protected by ensuring that “the promised procedure be followed”1. “Procedural fairness”1 is required for a decision to frustrate the expectation, however the appellant is not entitled to a sympathetic verdict; all that is required is that it is reasonably considered by the decision-maker.
The preceding question is whether there are cases “in which the courts should take the further step of requiring the substantive protection of the substantive expectation”1. There is case law which suggests completion was required, “unless [there was] an overriding public interest [which would suggest otherwise]”1.
In the leading case of R v North and East Devon Health Authority ex p. Coughlan, the CoA held that it was for the court to judge “whether there [was] a sufficient overriding interest to justify…a departure from [the]…promise” – however this would only be applicable in unique cases.
The CoA went on to say that “the promise [would normally have] the character of a contract”, and that the confidence relied upon to establish a substantive legitimate expectation (SLE) had to be “pressing and focussed” in its nature.
Here we are beginning to have guidance from the court with regards to the judgement of SLE cases, a point with Forsyth earlier raised as lacking within English Administrative law.
Forsyth does go on to discuss his “unease”1 with the decision in Coughlan, arguing that if there is an overarching public interest, namely that hundreds of other people would receive delayed/fail to receive treatment if Miss Coughlan can stay in her housing due to funding issues, then this should be favoured over the individual. As Parliament, who is supreme, allocated the money to the health authority to distribute, not to the court, Forsyth argues that it should be kept this way, and there are numerous contradictory factors which will be part of the decision-making process, so “the court…is institutionally incompetent to make it”1.
In Coughlan the issue of the judiciary’s role in allocating scarce health resources is raised clearly, however this decision differs with the CoA’s view of what the role of the judiciary is within such cases, as mentioned above. This is supported by Forsyth’s dismay in the CoA’s decision to favour Miss Coughlan over the public within the local area. He goes on to demonstrate the polycentricism of legitimate expectation cases due to the courts “failing to appreciate the [numerous] tasks”1 which is resulting in unjust decisions being made. His concern with this further supports his notion that fairness and abuse of power form the bases of the justifications of legitimate expectations.
Lord Justice Laws held that substantive protection would lead to “unacceptable fetters”11 on the decision-maker’s powers and “would imply that the court is to be the judge of the public interest”.
Again, the issue of the court’s role in such issue is raised as Lord Justice Laws implies that it should be the decision-maker’s power to judge the public interest and not the court.
Kirsty Hughes writes, in ‘Coughlan and the Development of Pubic Law’ that the reason why the SLE was enforced in Paponette and others v. Attorney General of Trinidad and Tobago was because the authority had not provided any evidence of an overarching public interest not because they convinced the court that the promise should be held over that public interest. Since Coughlan12 there have only been two cases where the courts have upheld a SLE in face of a competing public interest, namely R (on the application of HSMP Forum (UK) Ltd) v Secretary for the Home Department and R (Patel) v General Medical Council.
In HSMP Forum (UK) Ltd, the judge’s referral to the need for a “sufficient public interest” may be read that she accepts there was one, but it was not enough to override the expectation.
Similar to Coughlan, and consistent with what Forsyth appears to disagree with, is that the public interest ought to be prioritised over a small group of individuals.
Hughes can be seen to favour looking on a case-by-case basis and accepting that sometimes the individual should be favoured for reasons of “fairness”13, rather than principally just favouring the public’s interest, as Forsyth may argue.
In Patel, the CoA held that the General Medical Council (GMC) “had made an individual clear and unambiguous assurance that [applicant] had relied upon…to his detriment”16. CoA said that there was “no doubt that there was a legitimate expectation”16, and the GMC should have contemplated if it was essential to introduce rules with immediate effect which they “failed to do”16.
The CoA also held that the public interest in “changing the policy immediately could not defeat [the legitimate expectation]”16.
Here Hughes appears to agree with Forsyth’s “further step”1 concept that the substantive expectation should be fulfilled, which goes further than simply considering it in making their decision, as this is one of few cases in which it occurs.
Those cases mentioned are still important although “limited”13 which would suggest that Hughes sees a purpose in protecting an individual’s legitimate expectation, when it is just to do so. It may be argued that to not do so, and to always favour the public’s interest, would potentially lead to an exploitation of power as the courts would simply be doing so out of principle, rather than merits-based.
Lord Justice Laws suggests that individual promises, like those in Coughlan, raise no extensive issues of policy and are an impractical distinction; however, this ceases to be the case as there would be numerous repercussions for the allocation of health resources, if the home were to stay open. Here, Hughes makes it clear that she appreciates the “complexity of the issues” which are no less noteworthy than other cases which have similarly been considered by Lord Justice Laws. Thus, this further supports her agreement with Forsyth’s notion that no interest of an individual should overarch that of the public.
Joe Tomlinson, in his article, begins by suggesting that the “trust conception…is somewhat artificial”17 for a few reasons: firstly, that it does not require definite trust to be reposed in the authority, but rather the trust which “ought”17 to exist to be protected.
The second point he makes is that it “ought”17 to be a rule that for a SLE expectation claim to be valid, the claimant has truly reposed trust in the promise. The problem though, is that it creates a difference between those who placed trust in a public authority, and those who “merely had an expectation”17.
Here, Tomlinson appears to identify an issue with Forsyth’s views as previously mentioned, that by giving the same potential for a claim to those who have “reposed trust”17 or not, this leaves the concept superfluous.
With regards to how this would influence the law, Forsyth says that after the CoA in Coughlan, who said that the promise would normally have the “character of a contract”11, this introduces Public law in to the equation. He says that when you look at Coughlan from this perspective showing the authority “being held to a bad bargain as it would be held to any unfavourable contract”11, it does not question the principle.
To follow from this critical point, if this stance was to be adopted by Parliament and we were to move to Public law then substantive protection is undistinguished; once you have entered in to a contract there is no turning back as a contract is an “agreement giving rise to obligations which are enforced…by law”. Forsyth would argue that this position should not be adopted within English law, as this is not a Public law matter, and there should be exceptions, for example when there is an overriding public interest.
Tom Pascoe26 argues that promissory estoppel will suffice, which can be defined as “a legal principle that a promise is enforceable by law, even if made without formal consideration, when a promisor has made a promise to a promise who then relies on that promise to his subsequent detriment”. Pascoe appears to have sided his argument more towards Forsyth, by suggesting that adopting a Public law view is not appropriate, as a contract is defined as being an “agreement of the contracting parties”24 but this is not always the case, when for example a policy is broken by an official; this was not necessarily an agreement between that official and the individual, but it is still a valid claim.
Therefore, for reasons mentioned above this could indicate that Forsyth’s disagreement with the current direction of the law is more appropriate, along with Pascoe, because by looking at the promises as contracts, we are setting boundaries around the possible claims in this field, which arguably should not be there.
On the other hand, the Public law stance may be preferred because it can resolve the issue of at what point expectations should be substantively protected; Pascoe speaks of Lord Fitzgerald who held that “[the appellants] had no power in law to preclude themselves or their successors from the exercise of their statutory power”. Also, he refers to Lord Earl who, in a separate case, reiterated that “[public authorities] cannot enter in to any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties”. This shows that there are times where exceptions apply, but the adoption of this stance would mean it is without exception, and “to bind itself by contract…[they] have to show that the power to enter in to [it] is within the statutory birth right”22.
To conclude this essay, it has been argued that where an individual has entrusted in a promise made by a public authority, and consequently legitimately expects that promise to be fulfilled, then it should be protected.
If the conclusions drawn are correct, that a Public law perspective is inappropriate, and there should be a bigger focus on the concept of promissory estoppel, then the boundaries of the doctrine are more narrow than first thought.
This approach more accurately defines legitimate expectations rendering it more coherent and preventing its demise in to a doctrine which is no longer coherent.
Bibliography
C. Forsyth, Legitimate Expectations Revisited, [2011] Judicial Review 429, p. 430
2 Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 at 171
3 R (Bancoult) v Secretary of state for Foreign and Commonwealth Affairs [2008] UKHL 61 [2009] 1 AC 453 at [135]
4 Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363
5 Craig, Administrative Law, 6th edn (2008), para. 20-004
6 Paul Reynolds, Legitimate Expectations and the Protection of Trust in Public Officials, [2011] PL 330 at 335
7 R (Rashid) v Home Secretary [2005] EWCA Civ 744 [2005] Imm AR 608
8 Lord Dyson, R (Kambadzi) v Secretary of State for the Home Department [2010] UKSC 23 [2011] 1 WLR 1299 at [26]
9 Minister of Ethnic Affairs v Teoh (1995) 128 ALR 353 at 365
10 Lumba and Mighty v Home Secretary [2011] UKSC 12 [2011] 2 WLR 671
11 R v North and East Devon Health Authority ex p. Coughlan [2000] 2 WLR 622 at [78]
12 R v Secretary of State for Transport ex p. Richmond upon Thames London Borough Council [1994] 1 WLR 74 at 93
13 University of Cambridge August 2016, Paper No. 36/2016
14 Paponette and others v Attorney General of Trinidad and Tobago [2010] UKPC 32; [2012] 1 A.C. 1
15 R (on the application of HSMP Forum (UK) Ltd) v Secretary for the Home Department [2009] All ER 60
16 R (Patel) v General Medical Council [2013] EWCA Civ 327; [2013] 1 WLR 2801
17 https://ukconstitutionallaw.org/2016/07/22/joe-tomlinson-the-problem-with-the-trust-conception-of-the-doctrine-of-legitimate-expectations-in-administrative-law/
18 Trietel, The Law of Contract, 12th edn.
19 http://www.investopedia.com/terms/p/promissory_estoppel.asp
20 Pascoe, “Substantive legitimate expectations and private law estoppel: we meet again?”, 2010-2011
21 Ayr Harbour Trustees v Oswald [1882-83] LR 8 App Cas 623
22 Birkdale Electricity Supply Co. v Corporation of Southport [1926] AC 355