Discuss legitimate expectation in relation to the problem.

On the other hand, a policy is made to an unspecified amount of people and as policies are liable to change, the representation attached to it cannot be sufficiently relied upon.  It is far more difficult for a substantive legitimate expectation to be upheld on the basis of a policy as this could ultimately lead to the restriction of the policy or an abuse of power. The representation made to the town of Boswhellam was to everyone who had been affected by the storm, which is unlikely to be classed as a few individuals, therefore Jocasta must rely upon the representation as a policy.

Ultimately, there is a conflict between a public body acting in the best interests of the public and also trying to protect the individual who has relied upon a representation made by that public body.  

This conflict forces the recognition of the principles of legal certainty and legality, which are manifested into the doctrine of legitimate expectation.  The principle of legality is based upon the idea that public bodies should be free to change or amend policies in the interest of the public, as society changes will inevitably require this in the future.  It is also reliant on the doctrine of ultra vires to prevent any unlawful use of powers which would cause detriment to the individual. Jocasta’s minister acted under discretionary powers that are not governed by statute. This means that she cannot be deemed to be acting ultra vires and as BERS was set up under prerogative powers it cannot be subjected to judicial review.  This practice was recognised but not followed in the case of Council of Civil Service Unions v Minister for the Civil Service as it was held that “if the issue of the Instruction were treated as a direct exercise of prerogative power that of itself did not prevent judicial review”. Although this was the view cited by the court, the case failed on the balance of public interest.

Legality conflicts with the principle of legal certainty which acts on the behalf of the individual to ensure they are protected when relying upon a public body policy.  

As demonstrated, the conflicts that arise within administrative law could suggest that a conclusive outcome is hard to find. However, if the claimant is able to prove that they have a legitimate expectation which is worthy of protection then the process becomes clearer.

A legitimate expectation is the basic principle that if a public body has led the public to believe they can rely on a policy or promise; they should not deviate from it. The doctrine is based upon the principles of legal certainty due to it traditionally acting in favour of the individual, it is rooted in fairness and “can arise from past conduct, e.g. regularly granting a hearing before issuing licenses, or an assurance”.

When considering the lawfulness of Jocasta’s situation, it is useful to distinguish between the three categories of legitimate expectation.

The first category will arise when a public body makes an express representation to an individual which they then revoke.  For the representation to be express the public body must take some form of action which, in Jocasta’s case, is the creation of the Boswhellam Emergency Relief Scheme (BERS) which was subsequently revoked two weeks later.  The support for this category is strong but relies heavily upon Inland Revenue cases. This may prove disadvantageous for Jocasta as “while Ex parte Preston has been followed in tax cases, using the vocabulary of abuse of power in other fields of law…has not all been approached in the same way.”   The case of R v Inland Revenue Commissioners ex p. Preston found in favour of a legitimate expectation and held that “the courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness be such as to amount to an abuse of power”.

The second category will arise when a public body departs from a policy under certain circumstances or in response to a particular case. This raises the question of legality and the extent to which the courts will intervene. This situation occurred in the case of R v Secretary of State for the Home Department ex p. Ruddock in which it was held by Taylor J that “even where a person claiming some benefit has no legal right to it….the courts will protect his expectation by judicial review”.

The third category, and most controversial, will arise when one policy is replaced by another. In this situation it is arguable whether the claimant should be allowed to rely upon the policy that created their expectation or the current policy. This was the argument in R v Secretary of State for the Home Department ex p. Hargreaves which held “their case to be considered in the light of whatever the current policy was”.

 

The doctrine of legitimate expectation has been substantially enforced due to the recent case of Coughlan, concerning the closure of a nursing home promised as a home for life to the claimant.  This case clarified the role of the courts in legitimate expectation cases, as it had previously been suggested that the courts may only interfere if it could be shown that a public bodies decision was Wednesbury unreasonable and irrational, therefore they could not interfere on the basis of fairness. However, Coughlan identified three new possible roles the courts could play in the event of determining a legitimate expectation.

The first role allows the public body to merely bear in mind previous policies and enforce them to the extent they see fit. The second role allows the court to identify whether the representation initiated a legitimate expectation worthy of procedural benefit. Under this test Jocasta would be entitled to a review of her case by the courts who would ultimately decide whether the revocation of BERS was procedurally fair.  The third role played by the courts would be to establish whether the representation initiated a legitimate expectation worthy of a substantive benefit.

Conclusively, it was found in Coughlan that the main role of the courts in cases concerning frustration of alleged legitimate expectation is to achieve a balance between preventing an abuse of power by the public body, at the same time as protecting the interests of the public.  Whilst it remains up to the public body to make lawful policy amendments, it is for the courts to decide whether a violation of an individual’s expectation can be deemed so unfair as to constitute an abuse of power.  

A further area of uncertainty is the appropriateness of awarding procedural or substantive protection and in what situation each should arise. Whilst it has been recognised by the courts that an expectation of procedural protection should be fulfilled, the expectation of substantive protection in terms of the individual continuing to receive a benefit merely has to be considered and there is no obligation to award a substantive benefit.  This principle is recognised as a substantive legitimate expectation. This expectation may occur when “a favourable decision of one kind or another is expected, where the applicant seeks a particular benefit or commodity”.  

This has been regarded as an ambiguous principle due to some courts refusing to believe that it exists.  However, the case of Ruddock clearly demonstrated that substantive legitimate expectation exists as procedural protection was not appropriate. There is also a clear acceptance of the doctrine in the third role of the courts, identified in Coughlan as stated above, that a legitimate expectation of a substantive benefit could possibly give rise to protection of the benefit.  Furthermore, the principle was again recognised in R v Ministry for Agriculture, Fisheries and Foods, ex p Hamble in which Sedley J held that “it is for the courts to decide whether there is an overriding reason for frustrating the legitimate expectation”.  However, it was held in the case of Hamble that the legitimate expectation the claimant had that he may complete the transfer process, could not be relied upon as the policy only applied to those persons who had already completed when the policy came into action.  This is what happened to Jocasta who is clearly eligible to benefit from BERS, but the policy was revoked before her application could be processed.  Based upon the precedent of Hamble, Jocasta is unable to ask for her situation to be judicially reviewed. In addition, the Court of Appeal in Coughlan defines an enforceable substantive expectation as being “where the expectation is confined to one person or a few people, giving the promise or representation the characteristics of a contract”, which cannot apply to Jocasta because the minister presented a policy, not a promise.

Therefore, it is inconclusive whether Jocasta is eligible to seek judicial review, however, the evidence does suggest that it would not be available to her.  Whilst there is some evidence to prove that she could argue a legitimate expectation, it is debatable whether the courts would review it due to the representation being a policy rather than a promise.  However, her case does have the potential to be given reasonable consideration.  

Finally, this area of administrative law has presented the courts with many conflicting ideas, principles and cases, and the approach taken towards them sometimes lacks consistency.  The case of Coughlan has greatly improved the scope of the area but undoubtedly it will remain controversial.

                                                  BIBLIOGRAPHY

Books:

1. Allen, M and Thompson, B. (2003) Cases and Materials on Constitutional and Administrative Law. Oxford, 7th Edition
2. Marston, J and Ward, R. (1997) Cases and Commentary on Constitutional and Administrative Law. Pitman Publishing, 4th Edition
3. Jackson, P and Leopold, P. (2001) Constitutional and Administrative Law. Sweet and Maxwell, 8th Edition.
4. Barnett, H. (2004) Constitutional and Administrative Law. Cavendish, 5th Edition. (referenced only)

Case Law:

1. R v North and East Devon Health Authority, ex p. Coughlan (2000) 2 WLR 622
2. Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374
3. R v Inland Revenue Commissioners ex p. Preston (1985) AC 835
4. R v Secretary of State for the Home Department ex p. Ruddock (1987) 1 WLR 1482
5. R v Secretary of State for the Home Department ex p. Hargreaves (1997) 1 WLR 906
6. R v Ministry for Agriculture, Fisheries and Foods, ex p Hamble (1995) 2 All ER 714

Articles:

1. Roberts, M. (2001) ‘Public Law Representations and Substantive Legitimate Expectations’. Modern Law Review, no 64
2. Clayton, R. (2003) ‘Legitimate Expectations, Policy and the Principle of Consistency’, Cambridge Law Journal, no.62,

Websites:

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