Public Law Representations and Substantive Legitimate Expectations

Date01 January 2001
DOIhttp://doi.org/10.1111/1468-2230.00312
Published date01 January 2001
Public Law Representations and Substantive Legitimate
Expectations
Melanie Roberts*
Members of the public seek and rely on advice and acts of public bodies and their
officials, yet to what extent can public bodies and their officials be held to their
representations?
1
The type of problem that can arise is where a public body has made
a representation, which is within its powers to make, but it later seeks to resile from it.
Or, where a public body has set out policy criteria for dealing with a particular area of
decision-making, and an individual has relied on these criteria and legitimately
expects a favourable decision based on these criteria, and then the public body
changes its mind and seeks to apply different policy criteria to the particular area and
so dashes the expectations of those affected. Can the individual obtain the substantive
benefit which would be forthcoming if the public body was held to the representation
or the original policy criteria was still the public body’s chosen option? Is a legitimate
expectation aroused in the applicant, and if so, does it give rise only to a procedural
protection:
2
a right to be heard as to whether the original policy criteria or
representation should apply? Or does it give rise to substantive protection: the
original criteria will be applied or the representation adhered to? This question has
generated a considerable amount of debate in the courts
3
and amongst commentators.
4
The recent Court of Appeal decision in RvNorth and East Devon Health Authority,
ex p. Coughlan
5
has brought the doctrine of substantive legitimate expectation back
into the spotlight, having had a shadow cast over it by a differently constituted Court
of Appeal in RvSecretary of State for the Home Department, ex p Hargreaves.
6
The doctrine of substantive legitimate expectations
The courts have accepted that procedural protection should be given where an
individual has a legitimate expectation of procedural protection such as a hearing
ßThe Modern Law Review Limited 2001 (MLR 64:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
112
*School of Legal Studies, University of Sussex.
1 ‘Representations’ include promises, assertions, acts, practices, policy statements.
2 It is established that the principle of legitimate expectation can give procedural protection, see
Schmidt vSecretary of State for Home Affairs [1969] 2 Ch 149; RvLiverpool Corporation, ex p
Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299; AG of Hong Kong vNg Yuen Shiu
[1983] 2 AC 629; Council of Civil Service Unions vMinister for the Civil Service [1985] AC 374. See
C. Forsyth, ‘The Provenance and Protection of Legitimate Expectations’ (1988) 47 CLJ 238; P. Craig,
‘Legitimate Expectations: A Conceptual Analysis’ (1992) 108 LQR 79.
3RvMinistry for Agriculture, Fisheries and Foods, ex p Hamble (Offshore) [1995] 2 All ER 714; Rv
Secretary of State for Transport, ex p Richmond upon Thames BC [1994] 1 All ER 577; RvSecretary
of State for the Home Department, ex p Hargreaves [1997] 1 All ER 397; RvInland Revenue
Commissioners, ex p Unilever plc [1996] STC 681.
4
n 2 above; Craig, ‘Substantive Legitimate Expectations in Domestic and Community Law’ [1996] CLJ
289; Singh and Steyn ‘Legitimate Expectation in 1996: Where Now?’ [1996] JR 17; R. Gordon and T.
Ward, ‘The Billowing Fog’(1996) NLJ 1663; Foster, ‘Legitimate Expectations and Prisoners’ Rights: The
Right to Get what you are Given’, [1997] MLR 727; Bamforth, ‘Fairness and Legitimate Expectation in
Judicial Review’ [1997] CLJ 1; T. R. S. Allan, ‘Procedure and Substance in Judicial Review’, [1997] CLJ
246; Craig, ‘Substantive Legitimate Expectations and the Principles of Judicial Review’ in M. Andenas
(ed), English Public Law and the Common Law of Europe (London: Key Haven Publications plc, 1998).

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