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[2011] JR 429

Legitimate Expectations Revisited

Christopher Forsyth
Professor of Public Lazo and Private InternationalLaw, University of Carnbridge
Atlas Chamnbers

I Peterefonts

1. It is with some dismay that I realise that some 23 years have passed since I first set pen
to paper on the subject of legitimate expectations.' In those days it was possible to fit all
the legitimate expectation cases (including those from Commonwealth jurisdictions)
into one footnote and traverse the entire subject in one article. Today we are over-
whelmed by the decided cases - a BAILII search on 20 April 2011 for "legitimate expec-
tation" yielded 3,460 entries - as well as the scholarly writing. There are three books in
English devoted to the topic and innumerable learned articles.2 Any attempt to be com-
prehensive is bound to fail and sins of omission are inevitable. One I shall mention
immediately: many challenges based upon legitimate expectations fail because the
promise made was insufficiently clear and unconditional. But I shall not address this
question, not because it is not important but because I have nothing interesting to say
about it! All I will do is to mention the recent article by my student Jack Watson, entitled
"Clarity and Ambiguity: A New Approach to the Test of Legitimacy in the Law of
Legitimate Expectations",3 in which he addresses this issue insightfully.4

2. But I start with a further sombre reflection: notwithstanding those many judgments and
the acres of scholarly writing, we have made little progress. There is so much uncer-
tainty that there is a real danger that the concept of legitimate expectation will collapse
into an inchoate justification for judicial intervention. It sounds so benign - who could
be against the protection of legitimate expectations? However, it seems to me, as some-
times interpreted, that the concept often gives little guidance and plays at best a rhe-
torical role. The truth is that legitimate expectations are, as Lord Scott has said, "much
in vogue".- But following fashion can lead to error - rather like some of the hats at the
Royal Wedding - and this should be avoided. The point is that unless the concept is
clear it will be unable to do any of the hard work of deciding whether judicial interven-
tion is apt in any particular case. Another student of mine, Paul Reynolds, in "Legitimate
Expectations and the Protection of Trust in Public Officials",6 has spoken of the concept
being applied "in entirely inappropriate cases, thrown in alongside a soup of other
heads of review".

I "The Provenance and Protection of Legitimate Expectations" (1988) 47 CLJ 238.

2 Ioules, Actions against Public Officials: Legitinate Expectations, AIisstatements and Misconduct (Sweet& Maxwell,
2009); Thomas, Legitimate Expectations ad Proportionaliti in Adinistratie Law (Hart Publishing, 2000);
Schonberg, Legitinate Expectations in Adniinistrative Law (OUP, 2000).
1 Tis article was described as "illuminating" by Lord Brown in Papanetteand others v Attorney General qf7Tinidad
and Tobago (Trinidadand Tobago) [2010] UKPC 32 [2011] 3 WLR 219 at [61].
It will be noted that I have relied upon the work of several of my other students in this article. So I acknowledge
here, with gratitude, the extent to which I have learnt from them. Close readers will realise too that I have
relied here on the account of legitimate expectations I gave in Wade and Forsyth, Adninistrative Law, 10th edn
(2009).
EB (Kosovo) v Secretary of Statefor the Hoine Departmoent [2008] UKHL 41 [2009] 1 AC 1159 at [31].
6 [2011] PL 330 at 335.
430 Legitimate Expectations Revisited [2011] JR

3. Given this, it seems to me that the time has come to return to fundamentals. So we
should ask fundamental questions about the justification and the task of the concept of
legitimate expectations. That consideration of these fundamental issues leads me to
conclude that legitimate expectations will end up with a narrower but still vital role.

II Vertrauenschutz

4. The first fundamental question I ask is why it is that the law protects legitimate expecta-
tions. I argue (as I did in my first article in 1988) that the justification for the protection
of legitimate expectations is the simple idea that the law should protect the trust that
has been reposed in the promise made by an official. Good government depends upon
trust between the governed and the governor. Unless that trust is sustained and pro-
tected officials will not be believed and individuals will not order their affairs on that
assumption. And "government becomes a choice between chaos and coercion".7

5. Perhaps this is the moment to bring in Lord Denning. In my 1988 article I suggested that
the concept of Vertrauenschutz drawn from German Administrative Law - the protec-
tion of trust - might have played a part in the development of legitimate expectations in
English law; and that this was an example of cross-fertilisation of concepts from one
legal system to another. So I made the mistake of writing to Lord Denning and asking
whether Vertrauenschutz might have been some such influence on his judgment in
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 in which, for the first time,
legitimate expectations were introduced into English law - and without any citation of
authority.

6. He responded immediately to say that he felt "sure the idea came out of my own head
and not from any continental or other source". So the origin of the concept as far as
English law is concerned lies within Lord Denning's justly famed creative mind and not
elsewhere! This does not mean that trust is excluded as a justification but it was an
unpromising start.

7. Moreover, when one looks at the jurisprudence for the answer to this question one gets
several answers and these do not include the protection of trust. The protection of legit-
imate expectations is often considered to be required by fairness.' The advancement of
9
"good administration" is championed by Lord Justice Laws, who has also said that
abuse of power is the "root concept" justifying the protection of legitimate expecta-
tions.1 oAnd there is also a tendency to create a melange of several of these justifications.
It is commonplace for a judge to ask whether the dashing of a legitimate expectation
was "so unfair as to amount to an abuse of power".

7 Wade and Forsyth, Adrmnistrative L, 10th edn (2009), p. 447.

See, e.g. Rv Inland Revenue Contatssion ex p. MFK
11nderoriting[1990] 1 WLR 1545 at 1569H-1570A, per
Bingham L; CCSUv Minister of Civil Servants [1985] AC 374 at 415C-G, per Lord Roskill.
Particularly in Abdi v Scr!tc, of State for the Home Department [2005] EWCA Civ 1363.
0 The phrase comes from R v Secretary of State for Education ex p. Begbie [2000] 1 WLR 1115 at 1129, per Laws L.
Abuse of power is also much relied upon in R v North and East Devon Health Authority ex p. Cou ghlan [2000]
2 WLR 622 ("a distinct application of the concept of abuse of power").
R v Nortlh and East Devon Health Authority ex p. Coughlan [2000] 2 WLR 622 at [78], per Lord Voolf MR. In
R (Bancoult) v Secretary of State tr Foreign and Comnmonwealth Affairs (No. 2) [2008] UKHL 61 [2009] 1 AC 453 at
[135], Lord Carswell said 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".
[2011] JR Legitimate Expectations Revisited 431

8. The trouble with all these overarching and traditional justifications is not that they are
wrong but that they are unhelpful. Lord Justice Laws has remarked in this context
that: "Abuse of power . . . catches the moral impetus of the rule of law.... But it goes
no distance to tell you, case by case, what is lawful and what is not". 2 The same remark
could be made about fairness or for that matter the valuable but imprecise concept of
"good administration". Moreover, putting the focus back onto the "root concept" or an
amalgam of such concepts leaves the legitimate expectations redundant. For instance,
Lord Brown has recently said in the Privy Council in a case in which legitimate expec-
tations were much argued that all he needed to do was to address the composite ques-
tion: "was the imposition of reasonable charges here so unfair as to amount to an abuse
of power?"1 Here it is plain that the concept of legitimate expectations is playing no
useful role at all in identifying whether or not the court should intervene.

9. But it is a simple concrete question of fact whether trust has been reposed in an
official's promise, so this principle does go "some distance" to indicate what is lawful
and what is not. But also it captures precisely why legitimate expectations should be
protected. Thus it seems to me that the protection of trust in the promises or represen-
tations of the official is much to be preferred to reliance on overarching but rather
inchoate justifications. It is not, of course, the whole answer - there may be good rea-
sons in particular cases why trust should not be protected (e.g. where the promise
made is beyond the powers of the official to fulfil) - but it is a good starting point.
Perhaps it might be said that the reposing of trust in the promise of an official is a nec-
essary but not a sufficient condition for the protection of an expectation.

10. But there are some signs - outside England - that judicial attention is being paid to trust.
Bokhary PJ in the Hong Kong Court of Final Appeal concluded that the protection of
legitimate expectations "facilitates the task of governance" because "people feel able to
put their faith in what their government says and does". 4 In the Supreme Court of India
there has been approval of the concept of Vertrauenschutz and thus the conclusion was
reached that "the existence of a legitimate expectation may even in the absence of a right
of private law, justify its recognition in public law"." And in the Northern Irish High
Court McCloskey J has approved the words I used earlier: "Good government depends
upon trust between the governed and the governor. Unless that trust is sustained and
protected officials will not be believed and the government becomes a choice between
chaos and coercion" .6 In the ECJ there has been recognition by Advocate-General
Trabucchi that trust, as protected by legitimate expectations, is "one of the superior rules
of the Community legal order for the protection of individuals".'

III Legal certainty and Vertrauenschutz

11. Particularly in the European context "legal certainty", i.e. the idea that "the individual
ought to be able to plan his or her action on the basis [that the expectation will be
fulfilled]"" is also relied upon to justify the protection of legitimate expectations.

2 Abdi v Secretar, of Statefor the Hone Departinent [2005] EWCA Civ 1363 at [67].
1 Paponette and others v Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2010] UKPC 32 [2011] 3 WLR
219 at [61].
1 Ng Siu Tung v Director of Inniigration [2002] 1 HKLRD 561 at [349], admittedly dissenting.
Official Liquidator v Dayanand Civil Appeal No. 2985 of 2007, Singhvi I, para. 78.
1 Board ofGovernor of Loreto Grammar School, Re JudicialReview [2011] NIQB 30 at [95].
1 Deuka and others v Einfuhr- und Vorratastelle [1975] ECR 759 at 777; cited in Reynolds (n. 6 above), p. 342.
1s Craig, Adniiistrative Law, 6th edn (2008), para. 20-004.
432 Legitimate Expectations Revisited [2011] JR

Indeed, I wrote about "legal certainty" playing this kind of role in my 1988 article and
more recently. But Paul Reynolds has persuaded me otherwise. He writes (footnotes
omitted) that:
"It is natural that there should be a clear distinction between the principles of legal cer-
tainty and legitimate expectations in European law. Both concepts originate from German
Law and within German law they are perfectly separate. Legal certainty is based on
Rechtsscherheit: a principle which demands certainty of the content of law and is primarily
employed in cases concerning retroactive law. The protection of legitimate expectations is
derived from the principle of Vertrautensschutz, which seeks to ensure that 'everyone
who trusts the legality of a public administrative decision should be protected' [from
N Schroeder, "Administrative Law in Germany", in Seerden and Stroink (eds),
Adininstrative Law of the European Union (2005), para. 119]. The principle of Vertrauensschutz
seeks quite distinct objectives to legal certainty. It is concerned to promote confidence in the
public administration and trust in its decisions. . . . The European Court has explicitly
stated [in Case 52/72 Westzucker v Einfuhr [1973] ECR 723 at 729] that the principle of
Vcrtrauensshutz shaped legitimate expectations, so it is initially surprising that legal cer-
tainty has achieved such status in this area. The prominence of legal certainty (at the neglect
of a trust-based understanding of legitimate expectations) is probably best explained by
political considerations specific to the ECJ. The legal systems of the six founding members
of the EC all endorsed the principle of legal certainty. However, France in particular was
(and is) highly cautious and wary about the potential of the doctrine of legitimate expecta-
tions disturbing stability.... Rather than following the ECJ's unfortunate conceptualisation
of the doctrine, the English courts should enjoy their relative freedom to allow it to fulfil its
proper role: the promotion of fairness and non-abuse through the protection of trust.""

IV Scientia

12. But if the protection of trust is our starting point there are certain consequences. The
individual to whom a promise is made reposes trust in that promise, and consequently
expects the promise to be fulfilled. Whether that expectation exists is, self-evidently, a
question of fact. If the individual did not expect anything, then there is nothing that
the doctrine can protect. So a person unaware of an undertaking made by a public
authority to behave in a particular way cannot expect compliance with that under-
taking and there is no legitimate expectation to protect. For long this was considered
0
obvious and unexceptional.2 After all, where no trust has been reposed in the promise
or undertaking of the official there is no reason why any subsequently discovered
"expectation" should be protected.

13. But the Court of Appeal has disagreed in a leading case: R (Rashid) v Home Secretary
[2005] EWCA Civ 744 [2005] Imm AR 608.21 Here the Home Office had refused an Iraqi
Kurd's application for asylum on the ground that he might safely relocate to the
Kurdish Autonomous Zone. In so deciding, the policy of not relying on internal reloca-
tion in such cases (of which the Kurd was unaware) was inadvertently overlooked.

' Reynolds (n. 6 above), pp. 340-341.

2 R v Sec etar' of State for National Heritage ex p. J Paul Getty Trust [1997] EuLR 407 (statement of which Trust
was unaware could not found legitimate expectation) and Chundawoara v inmnigration Appeal Tribunal [1988]
Imm AR 161 (unincorporated but ratified treaty of which claimant unaware could not found legitimate expec-
tation). Cf the majority judgment in Minister of Ethnic Afairs v Tech (1995) 128 ALR 353 at 365: "It is not neces-
sary that a person seeking to set up such a legitimate expectation should be aware of the Convention [upon
which the expectation was founded] or should personally entertain the expectation" (contra, however,
McHugh I at 383). See Taggart (1996) 112 LQR 50; and see R v Homue Secretary ex p. Hindley [2000] 2 WLR 730 at
737 (mandatory life prisoner had no expectation that Home Secretary would not impose a "whole life" tariff,
since she was unaware of the provisional decision to that effect).
21 Discussed in Elliott [2005] JR 281 (another student of mine).
[2011] JR Legitimate Expectations Revisited 433

This was found to be "conspicuous unfairness amounting to an abuse of power" and

the challenge succeeded.22 However, Pill LJ also said (para. 25):
"there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State
will apply his policy on asylum to the claim. Whether the claimant knows of the policy
is not in the present context relevant. It would be grossly unfair if the court's ability to
intervene depended at all upon whether the particular claimant had or had not heard of a
policy, especially one unknown to relevant Home Office officials."

14. But to bring such "no expectation" cases under the rubric "legitimate expectation" is
to deprive that concept of clear meaning. If no trust has been reposed the concept has
nothing to add to an inquiry into what fairness requires in the circumstances or
whether the power concerned has been abused. As Reynolds has remarked:23 "This
concocted legitimate expectation expands the doctrine's boundaries to the point where
it simply collapses into an unrestricted principle of fairness; the doctrine ceases to add
anything in its own right - it is '[denuded] . . . of any utility"'.

15. But why should the curious individual who reads in the newspaper (or on a depart-
mental website) about a favourable policy have his/her expectation of the benefits of
that policy applying to him/her protected, while another individual in exactly the
same position expects that he/she, being less curious, does not read the newspaper
and so does not know of the policy? Surely both these individuals should be treated in
the same way? There has to be a good answer consistent with the trust-based approach
to expectations to this question.

16. Is the answer not the following? Elementarily (and without any reliance upon any idea
of legitimate expectation) the policies adopted by a decision-maker have to be consist-
ently applied. "The principle that policy must be consistently applied", said Lord
Dyson recently in the Supreme Court, "is not in doubt."24 And I would add this has
been well established for many years. 25 This does not depend upon any knowledge of
the policy by the individual. Nor does it depend upon any publication of the policy. It
is simply inherent in the idea of a policy as a guide to decision-making that it should
be used as a guide, with the decision-maker, of course, being free to depart from the
policy for good reason. Thus, policies have to be consistently applied.

17. None of this depends upon the concept of legitimate expectations at all. It is true that
an individual who knows of the policy and reposes trust in it may expect that it will be
applied to him/ her. But since the same protection will be available under the principle
just discussed, the concept of legitimate expectation has added nothing in these
circumstances and is redundant in this context.

22 R (Rashid) v Hone Secretary [2005] EWCA Civ 744 at [54], per Dyson LJ; and see also at [34], per Pill LJ. A decla-
ration that the claimant was entitled to indefinite leave to remain was made.
23 Reynolds (n. 6 above), p. 336. The quotation comes from Steele, "Substantive Legitimate Expectations: Striking
the Right Balance?" (2005) 121 LQR 300 at 309, n. 43
24 R (Kainbadzi) v Secretari of State for the Hone Departient [2010] UKSC 23 [2011] 1 WLR 1299 at [26]; and simi-
larly SK (Ziababwe) v Secretaryl of State for the Home,'Departtment [2011] UKSC 23 at [36], per Lord Hope (to simi-
lar effect). See now Secretar f t State tor the Honi Departnitv Rahnan [2011] 1 WLR 129 [2011] EWCA Civ 814
at [42], per Stanley Burton LI. See the same judge's view in Occant's Razor,AdmainistrativeLao and Hmnan Rights,
available at http://nwnw.adniinlaw org uk/library/mjpublications.pP.
2 See, e.g. R mFTrTthiSreiivee C oonm issiners ep-7istai[T985) AC 835 (complaint not made good); relying on
HTV Ltd v Price Coinnission [1976] ICR 170.
434 Legitimate Expectations Revisited [2011] JR

18. Consider the recent Supreme Court decision of Lumba and Mighty v Home Secretary
[20111 UKSC 12 [20111 2 WLR 671. The case concerned the detention of foreign national
prisoners under Sched. 3 to the Immigration Act 1971 pending their deportation. The
Home Secretary had a long-established and published policy that amounted to a pre-
sumption in favour of release pending deportation save in specified circumstances.
However, for a period (April 2006 to September 2008) the Home Secretary maintained
and operated a secret or unpublished policy which imposed "a near blanket ban" on
release of foreign national prisoners recommended for deportation. There seems not to
have been malice in the secret policy just "muddle galore". 26 This will not have sur-
prised seasoned observers of the Home Office.

19. Unsurprisingly, Lord Dyson, giving the lead judgment, found that the Home Secretary
"unlawfully exercised the statutory power to detain [the appellants] pending deporta-
tion because she applied an unpublished policy which was inconsistent with her pub-
lished policy" (para. 169). Now Lord Dyson does not rely upon legitimate expectations
at all in reaching this conclusion.27 And it is plain that it was unnecessary to do so.
There was a compelling strong case for the consistent application of the published
policy in these circumstances. Given that the liberty of the subject was engaged the
consistent application of the policies applicable was essential to ensure that people
were not arbitrarily detained.

20. But legitimate expectations that a policy be applied do feature prominently in Lord
Phillips' leading dissent. However, there is nothing in Lord Phillips' judgment that
shows what the concept of legitimate expectation brings to these facts. The learned
judge recognises that there is an overlap between "the question of the nature and effect
of a legitimate expectation" and the "effect of a decision to take action that falls within
a power conferred by statute but which conflicts with a published policy as to the
manner in which that power will be exercised" (para. 303). But nothing turns on this.
The doctrine of legitimate expectations does not assist in the analysis at all.

21. Few foreign national prisoners are au fait with the nuances of the Home Secretary's
policy of release pending deportation and clearly they could have no knowledge of the
secret policy. So the significant point of difference between the consideration of the
consistent application and the protection of a legitimate expectation, viz the applicant's
knowledge of the promise, did not arise. There was simply no legitimate expectation
here. Therefore, all the time and effort and money spent arguing over legitimate expec-
tations in the Ltunba litigation was wasted.

22. The concept of legitimate expectations brings nothing to the determination of whether
or not a policy has been consistently applied. Of course, if a specific promise has been
made to an individual that a particular policy will or will not be applied to particular
circumstances the law of legitimate expectations will protect the trust placed in that
promise. This would be not be on the application of the policy but upon the decision
whether or not in the particular case the policy should be applied. However, such situ-
ations aside, the overlap between legitimate expectations and the consistent applica-
tion of policy is best ignored. This conclusion contradicts the several prominent cases
discussing at great length how legitimate expectations that policies will be applied are

2 Lunba and Migity v Home Secretay [2011] UKSC 12 [2011] 2 WLR 671 at [318], per Lord Phillips.
There is only one, en passant, mention of legitimate expectations in his judgment (para. 69).
[2011] JR Legitimate Expectations Revisited 435

protected. But perhaps Lord Dyson's avoidance of legitimate expectations in Lumba

points the way to the future in this kind of case.

V Classic administrative law

23. I turn now to my second fundamental principle: that classic administrative law applies
to legitimate expectations as it does to other questions. So, for instance, since Parliament
is supreme, a legitimate expectation cannot stand against a statute. The ultra vires
expectation made contrary to a statutory limitation, for instance, cannot be protected
(although it may be an element in a tort remedy or human rights claim or an
Ombudsman's award). There can be no balancing of the protection of trust against the
principal of legality. This is relatively uncontroversial, although not everyone will
agree.

24. The point of classic administrative law at which I would pause is the no fetter princi-
ple, viz 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.2 Thus, unless there
is statutory warrant that power may not be fettered. This too is straightforward and
uncontroversial, but the logic of this classic administrative law principle has seldom
been followed through in the context of legitimate expectations. So let us turn to that
task, starting with the easy propositions.

25. Where one is dealing with an expectation that a particular procedure is to be adopted
there is little difficulty in most statutory contexts in concluding that the trust reposed
in that promise is protected by requiring, for a valid decision, that the promised proce-
dure be followed. The person affected is not entitled to a favourable decision, but the
trust which he has reposed in the decision-maker's undertaking should be protected.
The requirement of a fair procedure in such circumstances should not surprise. The
decision-maker must clearly make a proper decision before dashing the expectation;
and, elementarily, that requires procedural fairness. But no question of any fettering of
discretion arises. There is no doctrinal difficulty.

26. However, when one is dealing with a substantive expectation, i.e. one where some
boon or benefit is expected as the outcome to the decision-making process, different
considerations arise. But even here it is often possible to protect such expectations ade-
quately in non-controversial ways. For instance, in most statutory contexts there is
little difficulty in concluding that the substantive legitimate expectation should be
protected by requiring it to be treated as a relevant consideration to be taken properly
into account by the decision-maker in making a decision. The decision-maker deciding
to dash a substantive expectation must, again on elementary principles, take into
account all relevant considerations. One clear relevant consideration will be the exist-
ence of the legitimate expectation.3 1 There are several examples of this in the decided
cases.31 The court in these cases does not order the expectation to be fulfilled but it has

Rcland v Environnient Agency [2003] EWCA Civ 1885 [2005] Ch 1 at [102]: "English domestic law does not
allow the individual to retain the benefit which is the subject of the legitimate expectation, however strong, if
creating or maintaining that benefit is beyond the power of that public body".
2 Wade and Forsyth, 10th edn (2009) Ch. 10.
See Moules (n. 2 above), para. 1.106.
3R (Bibi) v Nehvamo London Borough Council [2001] EWCA Civ 607 [2002] 1 WLR 237. See also R (ABCIFER) v
Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 at [74]-[75].
436 Legitimate Expectations Revisited [2011] JR

to be properly taken into account. Such protection is unexceptional. However, no ques-

tion of any fettering of discretion arises. There is no doctrinal difficulty.

27. Similarly, the substantive expectation may be adequately protected by granting a hear-
ing. Schmidt v Secretary of State for HoIme Affairs [1969] 2 Ch 149 at 171 is the paradigm
example of this. There, Lord Denning said obiter that an alien who had been given
leave to enter the United Kingdom for a limited period had a "legitimate expectation
of being allowed to stay for the permitted time" and, hence, if that permission were
"revoked before the time limit expires, [the alien] ought to be given an opportunity of
making representations [to the Home Secretary]". But no question of any fettering of
discretion arises. There is no doctrinal difficulty.

VI The prism of private law

28. The crucial and difficult question is whether there are cases in which the courts should
take the further step of requiring the substantive protection of the substantive expecta-
tion. And we all know, they have in certain circumstances taken that further step. They
have required the fulfilment of the expectation unless an overriding public interest
ordains otherwise. I would like to acknowledge here the benefit I have gained from the
analysis of Tom Pascoe, another of my students, in his unpublished essay: "Substantive
legitimate expectations and private law estoppel: we meet again?" 32

29. In the leading case, R v North and East Devon Health Authority ex p. Coughlan [2000]
2 WLR 622, a health authority which, for practical and financial reasons, wished to
close a specially built home for very seriously injured long-term patients, in breach of
its promise to the residents that it was their "home for life", was prevented from doing
so.3 3 The Court of Appeal held that it was for the court to judge "whether there [was] a
sufficient overriding interest to justify a departure from what has previously been
promised".' It is clear that only exceptionally will such protection be afforded.3 s But
how is one to tell when such protection will be afforded and whether it is justified?

30. Substantive protection will, it seems, generally require that the promise is made only
to a small group (such as the residents of a care home). A general announcement made
to a large group (such as prisoners) is unlikely to be protected substantivelyV.\
2 Being a dissertation submitted in the Public Law Seminar of the Law Tripos, Part 11 in the 2010-2011 academic
year.
3 For criticism see Elliott [2000] JR 27.
A Lord Woolf; Sedlev and Mummery LJJ concurring.
3 Apart from Coughlan successful substantive protection has been very limited. See Rv Dea rtint of Education
and Einploynimt ex p. Begbie [2000] 1 WLR 1115 (no protection); R (Bibi) v NeWhaln London Borough Council [2001]
EWCA Civ 607 [2002] 1 WLR 237 (expectation considered mandatory relevant consideration); Henrty Boot
Honies Ltd v Bassetlaw DistrictCouncil [2002] EWCA Civ 983 [2003] 1 P & CR 23 (no protection; legitimate expec-
tation "very exceptional" in planning law); R (Bloggs 61) v Horne Secretary [2003] EWCA Civ 686 [2003] 1 WLR
2724 (no protection); R (Association of Britih Civilian Internees:! ar East Region v Secretary of Sate for Defence
[2003] EWCA Civ 473 [2003] QB 1397 (no "clear and unequivocal" undertaking); Rowland v Enviroinent Agencyi
[2003] EWCA Civ 1885 [2005] Ch I (no protection); R (Rashid) v Honie Scretary [2005] EWCA Civ 744 [2005]
Imm AR 608 (not true legitimate expectation case); R (Abdi ad Nadaraiah)v Homae Secretary [2005] EWCA Civ
1363 (no protection); R (Bancoult) v Secretary of State for Foreign and Coninionweath Affairs (No. 2) [2007] EWCA
Civ 498 [2008] QB 365 (appeal to House of Lords upheld); R (S) voe, Serietar, [2007] EWCA Civ 546 (case not
decided on legitimate expectation); R (BAPIO) Action Ltd) v Hoi Secretary [2007] EWCA Civ 1139 (legitimate
expectation upheld in the House of Lords); R (Niazi) v Hone Secretary'[2008] EWCA Civ 755 (no protection).
This note comes from Wade and Forsyth, 10th edn (2009), p. 456, n. 411.
36The size of the group affected also played a role in Ng Siu ung v DirectorofIninigration[2002] 1 HKILRD 561;
discussed in Forsyth and Williams (2002) 10 Asia Pacific Law Review 29.
[2011] JR Legitimate Expectations Revisited 437

Significantly, said the Court of Appeal in Coughlan, "the promise or representation

[would normally have] the character of a contract" (para. 59). In a later case the Court
of Appeal said that the assurance relied upon to found a substantive legitimate expec-
tation had to be "pressing and focussed" in nature.1

31. What is to be said about this? One would need a heart of stone not to sympathise with
Patricia Coughlan. But the decision in her favour does cause unease. The money that
would be saved by the closure of Mardon House was not to be frittered away on a tact-
finding trip to the Attic coast for the members of the authority or something similar. It
was to be spent on the health needs of others in the East and North Devon Health
Authority.

32. The task of finding the balance between the competing health needs of the residents of
a health authority area, especially when money is tight (as it always is), is unenviable
and very difficult. Moreover, it was given by Parliament to the health authority, not to
the court. Many conflicting factors will come into play in making that judgment and
the court is, it seems to me, and I use the word non-pejoratively, institutionally incom-
petent to make it.

33. The extent to which the court failed to appreciate the task it was undertaking was
shown by the fact that one of the factors which influenced it in deciding that
Ms Coughlan's case qualified for substantive protection was that the consequences of
a finding in her favour would be "be financial only" (para. 60).11 But the consequences
were not "financial only" for those other residents of North and East Devon whose
treatment was denied or delayed as a result of the money that had to be expended
fulfilling Ms Coughlan's substantive expectation. These voices were simply not heard
before the court.

34. This is a relatively well-established ground of criticism - the separation of powers

argument - of substantive protection. And prior to Coughian xwould have been consid-
ered unexceptional. In those days, for instance, Laws J held that substantive protection
would amount to an "unacceptable fetter" on the decision-maker's power and "would
imply that the court is to be the judge of the public interest in such cases"."

35. Are these criticisms of substantive protection simply to be dismissed, wrecked on the
normative rock of Coughlian? There is a subtler approach. The suggestion that the
promise should have the "character of a contract" brings the whiff of private law into
this drama. Indeed, through the prism of private law Coughlan is explicable as an
example of the health authority being held to a bad bargain as it would be held to any
unfavourable contract. Seen in this way the case raises no difficulties of principle
involving the allocation of resources or intruding into the merits.

36. That, it seems to me, is the crucial point. If we have crossed the conceptual barrier into
private law then substantive protection is unexceptional. The health authority which
foolishly agrees to buy a fleet of ambulances at a price greatly in excess of the market

3 R (Niazi) v Home Secretay [2008] EWCA Civ 755 at [41], per Laws LJ.
Sales and Steyn note the questionable nature of the "financial only" factor as a criterion for this exercise of
categorisation in "Legitimate expectations in English public law: an analysis" [2004] PL 564 at 591".
R v Secretary of State for Transport ex p. Richinond upon Thames London Borough Council [1994] 1 WLR 74 at 93.
438 Legitimate Expectations Revisited [2011] JR

cannot resile from its contract on the ground that the public interest requires the money
to provide for the health care of residents. It has made a bad bargain and must live
with it. This does not mean going so far as establishing a contract in every case - Tom
Pascoe argues that promissory estoppel will suffice - but clearly something excep-
tional is required.

37. If a private law analysis is capable of resolving the question of when expectations should
be substantively protected - when they are in effect contracts - it does throw into stark
relief a fresh doctrinal issue. Elementarily, where a public authority contracts in a way
that fetters its discretion it must show that it has the statutory power to do so or else the
contract is ultra vires and void. Here, well-known and classic principles of administrative
law come into play. The point is well put by Tom Pascoe (footnotes omitted): 40
"In Ayr Harbour Trustees v. Oswald [(1882-83) LR 8 App Cas 623] the public trustees of a
harbour sought to escape from a contractual obligation to maintain perpetual access
between that harbour and the respondent's land. Acceding to the request of the trustees,
Lord Fitzgerald held that [the appellants] have no power in law to preclude themselves or
their successors from the exercise of their statutory power'. In the subsequent case of
Birkdale Electricity Supply Co. v. Corporationof Southport [[1926] AC 355] Lord Earl reiterated
the proposition of law articulated in Ayr Harbourto the following effect: '[Public authori-
ties] cannot enter into any contract or take any action incompatible xwith the due exercise of
their powers or the discharge of their duties'."
Thus in order to bind itself by contract the public authority has to show that the power
to enter into that contract is within its statutory birthright. The question is therefore
whether the public authority had power to bind itself by the contract like legitimate
expectation.

38. But as Pascoe points out:41

"The imposition of a 'non-fetter' threshold is conspicuously absent from the analysis of
substantive protection proffered by the Court of Appeal in Coughlan. It is also disregarded
in the subsequent case law. As Craig has implicitly noted, substantive protection has
become a covert mechanism for the enforcement of promises against public authorities
who never had the competence to make them in the first place: 'The decision as to whether
legitimate expectations can or should ever have a substantive as opposed to procedural
impact is . . . simply another way of asking the question . . . as to whether an ultra vires
representation should ever be held to bind'. With respect, the courts appear to have strayed
awry. By failing to police the boundaries which delimit the legal capacity of public authori-
ties to bind themselves by means of an express undertaking, the courts are potentially
enforcing ultra vires representations."

VII Conclusions

39. This article argues that where an individual reposes trust in a promise made (expressly
or impliedly) by a decision-maker and consequently legitimately expects that the
promise will be fulfilled, that trust should be protected by the law. This approach,
while being sounder in principle, has the particular benefit of offering much more
precise guidance as to when judicial intervention is justified than the overarching
and imprecise justifications of fairness, abuse of power or the advancement of good
government.

Note 32 above, p. 13 of the manuscript.

Ibid, p. 14 of the manuscript. The quotation comes from Craig, "Legitimate expectations: a conceptual analy-
sis" (1992) 108 LQR 79 at 94.
[2011] JR Legitimate Expectations Revisited 439

40. Whether or not an individual has reposed trust in a promise is a simple question of
fact. This implies, at least, that the individual knew about the promise that was made.
Consequently, those cases which hold that an individual may legitimately expect ful-
filment of a promise of which he / she was unaware, are wrongly decided and based on
a misunderstanding of the true nature of legitimate expectations.

41. It follows that an individual who does not know about a particular policy adopted by
a decision-maker does not have a legitimate expectation that that policy will be applied
in his/her case. But on classic administrative law principle, policy must be applied
consistently (this seems well established in recent Supreme Court decisions); and the
individual, unaware of the policy at the time of the decision, may successfully chal-
lenge non-application of the policy once the truth emerges. The concept of legitimate
expectation has nothing to do with the resolution of these questions.

42. Procedural protection of expectations is straightforward and poses no difficult issues

of principle. But the substantive protection of expectations does raise difficult issues,
primarily that such protection fetters the discretion of the decision-maker, contrary to
the intent of Parliament that the decision-maker should freely judge where the public
interest lies. Thus, the seldom considered point is that for the expectation to be sub-
stantively protected, the decision-maker must have the power so to bind itself (as
when that decision-maker has power to enter into a contract). But that leads to the
second point. If the promise fulfils the requirements of private law either as a contract
or as a promissory estoppel then protection becomes unexceptional. Few indeed are
the expectations substantively protected that are not in effect private law claims. Once
the expectation has passed through the prism of private law the public law considera-
tions that support the free exercise of the decision-maker's discretion are squeezed out
and substantive protection is justified.

43. If these arguments are right the scope of legitimate expectations is much narrower
than is often supposed. But two things have been achieved: legitimate expectations
have been given a precise and well-defined purpose, so no longer does the collapse of
the concept into a rhetorical substitute for abuse of power or fairness threaten.
Moreover, a coherent explanation and justification for the rare case of substantive pro-
tection has been provided. These are not small matters and enable the concept to play
its proper and important role of protecting the trust placed in public officials.

* This article is the text of a paper given at the joint ALBA-BEG summer conference in
Athens, 29-30 May 2011.