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Do we need a theory of legitimate expectations?

Published online by Cambridge University Press:  20 January 2020

Joe Tomlinson Open the ORCID record for Joe Tomlinson [Opens in a new window]
Joe Tomlinson*
Affiliation:
University of York, York, UK; Research Director, Public Law Project
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*Author email: [email protected]
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Abstract

In recent years, it has become common to see claims that the doctrine of legitimate expectations has no sufficiently defined purpose, and that administrative law scholars should do more theoretical work to bring coherence to this area of law. In this paper, I suggest this ‘conceptual critique’ of legitimate expectations is misplaced and that, instead, it reveals a much wider failing of contemporary administrative law scholarship. First, I show how there has not yet been, and is unlikely to be, a satisfactory answer to the conceptual critique. Following on from this premise, I suggest that the assumptions underlying the conceptual critique are faulty and, administrative lawyers need to fundamentally alter and expand how they study legitimate expectations. The aim now, I argue, must be to move towards providing an account of the practice of legitimate expectations in the wider context of public administration. My specific argument in this paper is thus a case for a significant reorientation and an expansion of the study of how law protects legitimate expectations, but the wider suggestion is that the same shift is required in administrative law scholarship generally.

Keywords

public lawlegitimate expectationsconceptual foundationsadministrative lawadministrative justicejudicial review
Type
Research Article
Information
Legal Studies , Volume 40 , Issue 2 , June 2020 , pp. 286 - 300
Copyright
Copyright © The Society of Legal Scholars 2020

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Footnotes

†

Much of the research underpinning this paper was undertaken as part of a project funded by a University of Manchester President's Scholarship. I am very grateful to Robert Thomas for many extensive and helpful discussions on this topic, as well as Javier Garcia Oliva. I am also grateful to Adam Tucker, Adam Perry, Paul Daly, Graham Gee, and Richard Kirkham for valuable comments on various drafts. The usual disclaimers apply.

References

1 P Reynolds ‘Legitimate expectations and the protection of trust in public officials’ (2011) PL 330; C Forsyth ‘Legitimate expectations revisited’ (2011) JR 429; Watson, J ‘Clarity and ambiguity: a new approach to the test of legitimacy in the law of legitimate expectations’ (2010) 30(4) Legal Studies 633CrossRefGoogle Scholar.

2 This label is used as shorthand for the particular critique elaborated by these scholars as the core concern seems to be lack of a guiding concept.

3 In this context, a ‘meta-value’ is a sole value that represents the overarching and distinct purpose that the doctrine serves within public law – a value which can also offer guidance as to how difficult questions concerning the doctrine ought to be resolved. The term is referred to in Daly, P ‘A pluralist account of deference and legitimate expectations’ in Groves, M and Weeks, G (eds) Legitimate Expectations in the Common Law World (Oxford: Hart Publishing, 2016) p 111Google Scholar.

4 The claim substantiated fully here pertains to legitimate expectations specifically. While it is suggested that this is indicative of a wider pattern of thought in administrative law scholarship, a much wider argument would be necessary to substantiate that claim fully.

5 See generally M Elliott ‘From heresy to orthodoxy: substantive legitimate expectations in English public law’ in Groves and Weeks, above n 3; Tomlinson, J ‘The narrow approach to substantive legitimate expectations and the trend of modern authority’ (2017) 17(1) Oxford University Commonwealth Law Journal 75CrossRefGoogle Scholar.

6 United Policyholders Group v Attorney General for Trinidad and Tobago [2016] UKPC 17 at [79]–[81].

7 C Forsyth ‘Legitimate expectations revisited’ (2011) JR 429 at 429–430.

8 Daly, above n 3, p 101.

9 R (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [67].

10 Ibid, at [67].

11 Ibid, at [67].

12 Reynolds, above n 1, at 335.

13 Taggart, M ‘Prolegomenon to an intellectual history of administrative law in the twentieth century: the case of John Willis and Canadian administrative law’ (2005) 43(3) Osgoode Hall Law Journal 223 at 230Google Scholar.

14 These points can all be inferred from Reynolds, above n 1, and Forsyth, above n 7.

15 This set of criteria are similar to the criteria set out in Smith, SAContract Theory (Oxford: Oxford University Press, 1993) ch 1CrossRefGoogle Scholar (discussing the criteria of fit, coherence, morality, and transparency).

16 Attorney General of Hong-Kong v Ng Yuen Shiu [1983] 2 AC 629; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 415 (Lord Roskill), 412 (Lord Diplock).

17 For instance see R v Inland Revenue Commissioners, ex p MFK Underwriting Agents [1989] STC 873.

18 Eg R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213.

19 Woolf, H et al. de Smith's Judicial Review (London: Sweet and Maxwell, 7th edn, 2013) p 662Google Scholar.

20 Coughlan, above n 18, at [57]; R v Inland Revenue Commissioners, ex p Preston [1985] AC 835 at [71]; R v Secretary of State for Education, ex p Begbie [2000] 1 WLR 1115 at 1129; Nadarajah, above n 9, at [52].

21 This was the question asked in Coughlan, above n 18, at [78] (Lord Woolf MR). See also R (Parents for Legal Action Ltd) v Northumberland County Council [2006] EWHC 1081 (Admin) at [68]; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 at [135]; Paponette & Others v Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2010] UKPC 32 at [32]. The implication of these dicta, on a plain language reading at least, appears to be that the abuse of power account of the doctrine presents a higher threshold for claimants than unfairness. It would seemingly follow from this that the abuse of power account is somehow narrower than the fairness account. There is, however, no clear dicta on this point.

22 Nadarajah, above n 9; Ng Yuen Shiu [1983] 2 AC 629; Council of Civil Service Unions [1985] AC 374 at 401; R (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755; Bancoult (No 2), above n 21, at [182]; R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at [311]–[312]; R (on the application of British Medical Association) v General Medical Council [2008] EWHC 2602 (Admin).

23 Nadarajah, above n 9, at [68].

24 Ibid, at [68].

25 Moules, R, Actions against Public Officials: Legitimate Expectations, Misstatements and Misconduct (London: Sweet & Maxwell, 2009) p 49Google Scholar. See also Elias, P ‘Legitimate expectations and judicial review’ in Jowell, J and Oliver, D (eds) New Directions in Judicial Review (London: Stevens, 1988) pp 40–42Google Scholar.

26 Paul Daly describes ‘mission statements’ as attempts ‘to formulate a general principle that unifies disparate strands of case-law’, a practice that he sees as ‘attractive’ but ‘facile’: see Daly, P ‘The language of administrative law’ (2016) 94 Canadian Bar Review 519Google Scholar.

27 This complaint is well articulated by Reynolds, above n 1.

28 Ahmed, F and Perry, A ‘The coherence of the doctrine of legitimate expectations’ (2014) 73(1) CLJ 61 at 69CrossRefGoogle Scholar.

29 Reynolds, above n 1, at 335. This point is well demonstrated by Elliott's study of the deployment of the phrase ‘abuse of power’ in the case law, in which he identifies five distinct uses: M Elliott ‘Legitimate expectations and the search for principle: reflections on Abdi & Nadarajah’ [2006] JR 281 at 284.

30 R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25, [2018] 2 WLR 1583 at [41]. For wider discussion on the remarks on language in this case, see S Daly and J Tomlinson ‘Administrative inconsistency in the courts’ [2018] JR 190.

31 Nadarajah, above n 9, at [67].

32 Begbie, above n 20, at [67].

33 Reynolds, above n 1, at 332; Forsyth, above n 7, at 431; Schønberg, SLegitimate Expectations in Administrative Law (Oxford: Oxford University Press, 2000) p 8CrossRefGoogle Scholar.

34 Reynolds, above n 1, at 333. See further how Knight observed, ‘[w]hether one thinks about legitimate expectations in terms of fairness [or] abuse of power… it is extremely unlikely that it will provide the answer to the case at hand’: CJS Knight ‘Expectations in transition: recent developments in legitimate expectations’ [2009] PL 15 at 18.

35 Those considered here are those most frequently referred to, explicitly or implicitly, in English legal jurisprudence and scholarship.

36 A similar inquiry, albeit within different terms, was undertaken in Schønberg, above n 33, ch 1.

37 On the ‘connected’ principles of legal certainty and legitimate expectations in EU administrative law see Craig, PEU Administrative Law (Oxford: Oxford University Press, 2012) ch 18CrossRefGoogle Scholar.

38 Schwarze, JEuropean Administrative Law (London: Sweet & Maxwell, 1st (English) edn, 1992) p 872Google Scholar.

39 Eg Salumi v Amministrazione delle Finanze [1981] ECR 2735.

40 Begbie, above n 20, at [29].

41 M Fordham ‘Legitimate expectation II: comparison and prediction’ (2001) JR 262 at 263 (emphasis added).

42 P Popelier ‘Legitimate expectations and the law maker in the case law of the European Court of Human Rights’ (2006) EHRLR 10. There are clear links between the concept of legal certainty and the concept of the Rule of Law here; see for example the role of legal certainty in Raz, JThe Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 2009) ch 11Google Scholar. On the general concept of legal certainty see further Wade, HWR ‘The concept of legal certainty: a preliminary skirmish’ (1941) 4(3) MLR 183CrossRefGoogle Scholar; Lord Mance ‘Should the law be certain?’ (The Oxford Shrieval Lecture, 11 October 2011).

43 Reynolds, above n 1, at 339–41.

44 Thomas, RLegitimate Expectations and Proportionality in Administrative Law (Oxford: Hart Publishing, 2000) pp 45–46Google Scholar.

45 The principle of stability of legal issues/legal certainty.

46 Schwarze, above n 38, p 869.

47 R Errerra ‘Legitimate expectation – principle of law to be applied only in relation to the implementation of EC Law – legal certainty’ (2006) PL 858; Schwarze, above n 38, p 938.

48 Schroeder, M ‘Administrative law in Germany’ in Seerden, R and Stroink, F (eds) Administrative Law of the European Union, Its Member States and the United States – A Comparative Analysis (Antwerp: Intersentia Uitgevers Antwerpen, 2005) p 119Google Scholar.

49 Eg Craig, P ‘Substantive legitimate expectations and the principles of judicial review’ in Andenas, M (ed) English Public Law and the Common Law of Europe (London: Key Haven, 1998) p 23 at pp 45–47Google Scholar; Woolf et al, above n 19, pp 563–64.

50 For example see Raz, above n 42, ch 11.

51 Some other possible criticisms of the Rule of Law account are discussed at length in Schønberg, above n 33, pp 12–24.

52 Waldron, J ‘Is the rule of law an essentially contested concept (in Florida)?’ (2002) 21(2) Law and Philosophy 137Google Scholar.

53 Shklar, JN ‘Political theory and the rule of law’ in Hutchinson, AC and Monahan, P (eds) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) p 1Google Scholar.

54 For an overview of the debate concerning the concept of the Rule of Law see Waldron, J ‘The rule of law’ in Zalta, EN (ed) The Stanford Encyclopedia of Philosophy (Fall 2016 edition)Google Scholar.

55 On this distinction, see PP Craig ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) PL 467 at 467.

56 It could be said that there are two main forms of detriment: concrete detrimental reliance, such as the expenditure of money pursuant to a representation, and moral detriment, where the harm may be, for instance, emotional suffering. I refer at this point only to the former.

57 Barak-Erez, D ‘The doctrine of legitimate expectations and the distinction between reliance and expectation interests’ (2005) 11(4) European Public Law 583Google Scholar.

58 A clear account of this idea is provided in Schønberg, above n 33, pp 9–11. This idea is also visible in GT Pagone ‘Estoppel in public law: theory, fact, and fiction’ (1984) University of New South Wales Law Journal 267 at 275–76; Cranston, R ‘Reviewing judicial review’ in Richardson, G and Genn, H (eds) Administrative Law and Government Action: The Courts and Alternative Mechanisms of Review (Oxford: Clarendon, 1994)Google Scholar.

59 Schønberg, above n 33, p 10.

60 R (Bibi) v Newham LBC [2001] EWCA Civ 607 at [55]. See also Bancoult (No 2), above n 21, at [60] (Lord Hoffmann), where it is stated that ‘[i]t is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration’.

61 In the matter of an application by Geraldine Finucane for Judicial Review [2019] UKSC 7 at [62] (Lord Kerr); [156]–[160] (Lord Carnwath).

62 Forsyth, C ‘The provenance and protection of legitimate expectations’ (1988) 47 CLJ 238CrossRefGoogle Scholar.

63 Wade, HWR and Forsyth, CFAdministrative Law (Oxford: Oxford University Press, 11th edn, 2009) p 447Google Scholar.

64 Thomas, above n 44, p 45.

65 Schønberg, above n 33, p 25.

66 Mehmood (Legitimate Expectation) [2014] UKUT 469 (IAC) at [13]–[16].

67 Ibid, at [15], quoting Wade and Forsyth, above n 63, p 447.

68 Ibid, at [15] (emphasis added).

69 Iqbal (Para 322 Immigration Rules) [2015] UKUT 00434 (IAC) at [11] (McCloskey J).

70 Reynolds, above n 1.

71 The idea that general public trust in government institutions is a virtue is itself a highly controversial claim. In an authoritative work on the topic, Hardin advanced the thesis that ‘[t]rusting institutions makes little sense for most people most of the time’: see Hardin, R ‘Do we want trust in government?’ in Warren, ME (ed) Democracy & Trust (Cambridge: Cambridge University Press, 1999) p 23Google Scholar.

72 Reynolds, above n 1, at 343–47.

73 Ibid, at 343.

74 Ibid, at 346–47.

75 Ibid, at 344.

76 For Reynolds, ‘receipt’ of the representation will ‘necessarily require that the applicant understands the representation to the extent necessary to form a true legitimate expectation (that is one based on specific trust). This will not require the comprehension of complex policies but simply basic comprehension of the decision-maker's representation regarding the claimant (individually or as a class)’, see ibid, fn 99.

77 Ibid, at 348.

78 Oxford English Dictionary and Thesaurus (Oxford: Oxford University Press, 2007) p 1107Google Scholar.

79 Reynolds, above n 1, at 358.

80 Coughlan, above n 18.

81 Reynolds, above n 1, at 343–47.

82 Ibid, at 343.

83 Ibid, at 330.

84 Daly, above n 3.

85 Ibid, p 111, citing the influence of Munzer, SRA Theory of Property (Cambridge: Cambridge University Press, 1990)CrossRefGoogle Scholar. The concept of ‘pluralism’ is much-debated within legal theory. Here, however, it is simply a term used, as Daly uses it, to refer to the presence of more than one normative value.

86 Daly, above n 3, p 101.

87 Cane, P, Administrative Law (Oxford: Oxford University Press, 5th edn, 2011) pp 9–11Google Scholar; AXA General Insurance Ltd v HM Advocate [2011] UKSC 4 at [170] (Lord Reed).

88 Rowland v Environment Agency [2003] EWCA Civ 1885 at [100] (May LJ).

89 Council of Civil Service Unions [1985] AC 374 at 414 (Lord Roskill).

90 Daly, above n 3, p 102.

91 Ibid, p 102.

92 Craig, P ‘Substantive legitimate expectations in domestic and community law’ (1996) 55 CLJ 289 at 290CrossRefGoogle Scholar.

93 G Richardson and H Genn ‘Tribunals in transition: resolution or adjudication?’ (2007) PL 116 at 118–19.

94 For an overview of initial decision-making volume and trends see Thomas, R and Tomlinson, J ‘Mapping current issues in administrative justice: austerity and the “more bureaucratic rationality” approach’ (2017) 39(3) Journal of Social Welfare & Family Law 380CrossRefGoogle Scholar.

95 There has been much more work on this in the US than UK, eg Mashaw, JL ‘Between facts and norms: statutory interpretation of agency norms as an autonomous enterprise’ (2005) 55 UTLJ 497CrossRefGoogle Scholar. The core observations are not new, though: see B Wyman The Principles of the Administrative Law Governing the Relations of Public Officers (1903).

96 Thomas and Tomlinson, above n 94, at 389–92.

97 Thomas, R ‘Current developments in UK tribunals: challenges for administrative justice’ in Nason, S (ed) Administrative Justice in Wales and Comparative Perspectives (Cardiff: University of Wales Press, 2017)Google Scholar.

98 There are, of course, some important exceptions, eg Rawlings, R ‘Modelling judicial review’ (2008) 61(1) Current Legal Problems 95CrossRefGoogle Scholar; Sunkin, M and Bondy, VThe Dynamic of Judicial Review Litigation (The Public Law Project, 2009)Google Scholar; R Thomas ‘Mapping immigration judicial review litigation: an empirical legal analysis’ (2015) PL 652.

99 S Nason ‘Regionalisation of the Administrative Court and the tribunalisation of judicial review’ (2009) PL 440.

100 For which I am partly responsible, see JW Rylatt and J Tomlinson ‘Something new in substantive review’ (2016) JR 204. For an exasperated overview of the debate see Lord Carnwath ‘From judicial outrage to sliding scales – where next for Wednesbury?’ (ALBA Lecture, 12 November 2013).

101 Lots of discussion has focused on the Human Rights Act 1998 and hard cases such as R (Evans) v Attorney General [2015] UKSC 21, where fundamental constitutional norms are said to be engaged, but there has been little said about routine cases involving statutory interpretation.

102 This is commonly observed. For a good account see Gee, G and Webber, G ‘Rationalism in public law’ (2013) 76 MLR 708CrossRefGoogle Scholar.

103 Taggart, above n 13, at 229.

104 Loughlin, M ‘The functionalist style in public law’ (2005) 55 UTLJ 361CrossRefGoogle Scholar.

105 Gee, G and Webber, G ‘A grammar of public law’ (2013) 14 German Law Journal 2137CrossRefGoogle Scholar. I have built on similar themes in an administrative justice context: see Tomlinson, J ‘The grammar of administrative justice values’ (2017) 39(4) Journal of Social Welfare and Family Law 524CrossRefGoogle Scholar.

106 Gee and Webber, above n 105, at 2137.

107 Gee and Webber, above n 102.

108 Oakeshott, MRationalism in Politics and Other Essays (Indianapolis: Liberty Fund, 1991)Google Scholar.

109 Gee and Webber, above n 102. See also Harlow, C ‘Politics and principles: some rival theories of administrative law’ (1981) 44 Modern Law Review 113 at 117Google Scholar.

110 There have now been at least five full-length books on legitimate expectations.

111 At least in the English and Welsh jurisdiction. See generally R Thomas ‘Legitimate expectations and the separation of powers in English and Welsh administrative law’ in Groves and Weeks, above n 3.

112 The best analysis of alternative systems is contained in a practice text, see Moules, above n 25, chs 1, 9, 10.

113 Moules, above n 25, ch 10.

114 Eg Clayton, R ‘Legitimate expectations, policy, and the principle of consistency’ (2003) 62 CLJ 93CrossRefGoogle Scholar.

115 Eg Groves and Weeks, above n 3; Sperr, AK and Hohenlohe-Oehringen, D (eds) The Protection of Legitimate Expectations in Administrative Law: A Comparative Study (Oxford: Hart Publishing, forthcoming)Google Scholar.

116 Eg Forsyth, above n 7; Stewart, C ‘Substantive unfairness: a new species of abuse of power?’ (2000) 28 Federal Law Review 617CrossRefGoogle Scholar.

117 Eg J Varuhas ‘In search of a doctrine: mapping the law of legitimate expectations’ in Groves and Weeks, above n 3.

118 There are some notable but very rare exceptions, eg Thomas, above n 111.

119 Eg Forsyth, above n 7. On the idea of the courts having constitutional and institutional limitations see Jowell, J ‘Of vires and vacuums: the constitutional context of judicial review’ in Forsyth, C (ed) Judicial Review and the Constitution (Oxford: Hart Publishing, 2000) p 330Google Scholar.

120 Varuhas, above n 117, p 18.

121 R Williams ‘The multiple doctrines of legitimate expectations’ (2016) LQR 639 at 639.

122 See eg P Craig ‘Taxonomy and public law: a response’ (2019) PL (forthcoming).

123 Some attempts are made to connect with public administration, but they are fleeting. For instance see Williams, above n 121, at 652–53.

124 The suggestion here is that the example of legitimate expectations is representative of administrative law scholarship more generally. As noted above, a much broader study would be required to systematically demonstrate that thesis.