Legitimate Expectation

Question 1

Grounds of JR: Legitimate Expectation I

Introduction

Answer 1

The most recent ground of challenge to be developed in judicial review is that of legitimate expectation.
Legitimate expectation relates to the concept that an expectation of either a procedure or a benefit, arising from a representation or promise made by a public body - or even an established practice carried out by a public body – may be protected in law.
The doctrine emerged as a derivative of the duty to act fairly, discussed in the previous topic. The phrase was first introduced in the UK by Lord Denning in Schmidt v Secretary of State for Home Affairs [1969] 2 CH 149 when he stated that:
‘… an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.’

Question 2

Types of legitimate expectation

Answer 2

Legitimate expectations comprise two primary forms:
• A) Procedural legitimate expectation
• B) Substantive legitimate expectation
Procedural legitimate expectations were the first to be recognised in UK law but subsequently the concept of a substantive legitimate expectation has been developed too.

Question 3

A) Procedural

Answer 3

Procedural legitimate expectations can arise when either:
• a public body has promised or represented that a particular procedure will be followed before a decision is made.
For example, in R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299, the Town Clerk of Liverpool Corporation had assured the Association that it would not increase the number of licensed taxis without hearing representations from the Association. The Court of Appeal held that it was unlawful for the Corporation to have departed from this undertaking.
• Where there has been an established practice for the public body to use a particular procedure.
For an example of an expectation of this kind, arising from established past practice, see the GCHQ case, which is discussed later in these slides.

Question 4

B) Substantive

Answer 4

In more recent years, the courts have accepted that substantive legitimate expectations can arise in some circumstances, where an assurance or promise has led a person to believe that they will receive a particular, tangible benefit. Unlike a procedural legitimate expectation, a substantive legitimate expectation, if upheld by the court, will entitle the person to the actual benefit itself.
This extension emerged from two lines of authority. The first concerned assurances given by the Inland Revenue in respect of tax affairs (R v IRC, ex parte Preston [1985] AC 835). The other concerned criteria in a Home Office circular regarding overseas adoption (R v Secretary of State for the Home Department, ex parte Asif Khan [1985] 1 All ER 40).
Following these cases, a period of disagreement ensued within the judiciary as to whether or not these cases suggested that an expectation of a substantive benefit could be enforced, or whether the cases were really dealing with procedural irregularities. It was the Court of Appeal in R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622 which finally put the matter beyond doubt by bringing the strands of authority together and enforcing a substantive legitimate expectation.

Question 5

Courts’ approach to assessing legitimate expectation

Answer 5

The courts adopt the following approach to assess legitimate expectation claims
(Note: issues 1. and 2. are considered in this element; issue 3. is examined in the next element):
• 1. Has an expectation arisen?
• 2. If so, is the expectation legitimate?
• 3. Has the public body lawfully frustrated the legitimate expectation?

Question 6

1. Has an expectation arisen?

Answer 6

In the GCHQ case, Lord Fraser stated that:
‘Legitimate … expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.’
As this indicates, a legitimate expectation can only be generated by or on behalf of a public authority. Therefore, in R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, Peter Gibson LJ held that a legitimate expectation was not created by the spokesman of an opposition political party, including the leader of that party, as such a person did not speak on behalf of a public authority. This was notwithstanding that the party leader and other members subsequently formed the new Government following a general election.
Lord Fraser’s statement also highlights that there are two broad ways in which a legitimate expectation can arise: express promise or regular practice.

Question 7

(a) Express promise

Answer 7

Specific representation
An expectation can be generated by a specific representation, as seen for example above, in the case of Liverpool Taxi Fleet Operators’ Association. See also ex parte Coughlan in which a substantive legitimate expectation was created when several severely disabled patients were promised by the Health Authority that they would be able to live at a purpose-built residential facility for as long as they chose.
A representation can also be contained in a policy. This was established by the Privy Council in AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 where it was held that the Hong Kong government had to honour the terms of its original policy to allow Chinese nationals, who were the subject of repatriation to China, to put forward a case to remain in Hong Kong.
See also the case of R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin), where the courts enforced the promise to hold “the fullest possible consultation” in an Energy White Paper. Note that, legitimate expectations arising from policies are controversial, because public bodies must be allowed to change their policy, otherwise they could fetter their discretion. This is discussed further in the next LE element.

Question 8

(b) Established past practice

Answer 8

An expectation can also arise from an established practice or settled course of conduct by the public body towards the claimant/ a class of persons to which the claimant belongs.
This follows from the GCHQ case, which concerned a long-standing and settled practice for trade unions to be consulted by government before the service conditions of staff at GCHQ were altered. The House of Lords held that this had generated a legitimate expectation that they would be consulted before a ban on trade union membership was introduced. (However, you will recall that the law lords went on to hold, on the facts, that it had not been unlawful for the government to have frustrated this legitimate expectation, given the overriding considerations of national security that had to be taken into account. Refer back to your studies on prerogative power for more information about this case).
See also the case of R v IRC, ex parte Unilever plc [1996] STC 681. In this case the Inland Revenue had accepted late ‘loss relief claims’ from Unilever on 30 occasions over a 20-year period. Then, without warning, the IRC refused to accept further late claims. The Court of Appeal held that, whilst there had not been an express promise or conscious practice by the IRC, there had been a clear and consistent pattern of conduct by the IRC upon which Unilever could rely.

Question 9

2. Is the expectation legitimate?

Answer 9

An expectation will only be enforceable if it is ‘legitimate’. The legitimacy of the expectation will depend upon a variety of factors. As the Court of Appeal explained in the Coughlan case:
‘This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.’
The same applies to expectations based on past practice.
Relevant factors, sometimes referred to as ‘criteria’, can include the following: clarity, legality, agency, knowledge and reliance. It is important to appreciate that the significance and application of these factors will vary, depending on the context within which the expectation has arisen.

Question 10

Clarity: promises and policies

Answer 10

The following are key cases on the issue of the clarity of a promise or policy:
In R v IRC, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545 it was stated that a promise had to be: ‘… clear, unambiguous and devoid of relevant qualification.’
The Privy Council has added, in Paponette v Attorney-General for Trinidad and Tobago [2010] UKPC 32, that the question to be asked is: ‘… how on a fair reading of the promise it would have been reasonably understood by those to whom it was made.’
See also the case of R (Patel) v General Medical Council [2013] EWCA Civ 327 where the court held that a legitimate expectation had arisen through a promise. This was because the appellant had asked for a number of very specific assurances and tried to obtain a clear unequivocal response to his question concerning the ‘promise’ which arose in an educational context.

Question 11

Clarity: Past practices

Answer 11

In R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs [2011] UKSC 47, Lord Wilson held that, in order to establish that the HMRC had a settled practice in respect of the claimant taxpayers, there would need to be:
‘… evidence that the practice was so unambiguous, so widespread, so well-established and so well recognised as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it.’
On the facts, the taxpayers’ evidence was far too thin and equivocal to establish such a practice.

Question 12

Legality

Answer 12

A representation must be legal in the sense that it would be within the powers of the public authority to fulfil the ‘promise’ in question. Therefore, a LE can only arise on the basis of a lawful promise or practice. The following cases exemplify the point:
In R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, an undertaking that any children already on a government-funded scheme at an independent school would be able to continue on that scheme was held not to have generated a legitimate expectation. One of the reasons given by Peter Gibson LJ was that it would have been contrary to the requirements of statutory provisions - the Education (Schools) Act 1997.
In Rowland v Environment Agency [2003] EWCA Civ 1885, the claimant sought a declaration against the Environment Agency, after it changed its position on ownership of a stretch of waterway. For some years the waterway had been treated as a private right of way attached to the claimant’s property. However, the Agency later decided that it had always provided for public access. The Court of Appeal held that, as there had been no statutory power to extinguish the public access rights, the claimant could not rely upon the Agency’s past conduct to found a legitimate expectation.

Question 13

Legality

Answer 13

Two further points are worth noting on the requirement of legality:
• The promise giving rise to the alleged legitimate expectation does not in all circumstances necessarily have to have been made by the person or body who may be bound by it.
For example, in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27 Lords Mance and Rodger, in the majority, held that a promise made by one government department (the Home Office) was binding upon another government department (the Department for Health).
• An expectation can still be legitimate where the public authority made a promise in the mistaken belief it was under a statutory duty to do what it had promised to do.
In R (Bibi) v Newham LBC [1996] EWHC Admin 4 the Court of Appeal held that, even though it had become apparent to the local authority that they did not have a statutory duty to provide permenant housing to the applicant, ‘it lay within the powers of the local authority both to make the representation and to fulfil it.’

Question 14

Agents

Answer 14

An agent is someone who is authorised to act on behalf of another person or body. The Court of Appeal in South Buckinghamshire District Council v Flanagan [2002] EWCA Civ 690 established that a public body will not be bound by a representation of one of its agents where the agent acted outside his authority in making the representation.
Facts: A solicitor had been appointed by the District Council to prosecute the defendant for breaching enforcement notices. The solicitor reached a settlement with the defendant’s lawyer, under which he agreed to the withdrawal of the enforcement notices.
Held: The court held that the solicitor had not been given actual authority by the council to do so. Neither did he have ‘ostensible authority’, as it did not lie within the usual authority of a solicitor acting in these circumstances. Therefore, the Council was not bound.

Question 15

Knowledge

Answer 15

The question here is whether a person can claim they had a legitimate expectation when they had no knowledge of the representation, or past practice, at the relevant time (before the action, decision etc.)
The accepted position had been that knowledge was an essential prerequisite. In R v Ministry of Defence, ex parte Walker [2000] 1 WLR 806, the House of Lords held that the applicant did not have a legitimate expectation because he had no knowledge of the original criteria in the armed forces compensation scheme that he was trying to rely upon. His beliefs concerning compensation were not derived from the scheme.
However, knowledge has not always been required to found a legitimate expectation. While considering whether a legitimate expectation could be generated by signing a treaty, Hobhouse LJ opined in R v Secretary of State for the Home Department, ex parte Ahmed and Patel [1998] INLR 570 that: ‘[T]he principle of legitimate expectation … is a wholly objective concept and is not based upon any actual state of knowledge of individual immigrants or would-be immigrants

Question 16

Rashid

Answer 16

In an interesting development of the courts’ approach to knowledge in the context of asylum and immigration policy, it was held in the case of R (Rashid) v Secretary of State for Home Department [2005] EWCA Civ 744 that the applicant could benefit from a policy of which he had no knowledge.
Pill LJ accepted in his judgment that this was not a typical legitimate expectation case. Even so, the recognition of a legitimate expectation in the absence of knowledge in Rashid has divided opinion among legal commentators and has certainly not been met with universal acceptance amongst the judiciary.
In_Secretary of State for the Home Department v Rahman_ [2011] EWCA Civ 814, Stanley Burnton LJ remained of the view that legitimate expectation as a concept normally served no purpose in cases where there had been no representation, by words or conduct, by the public authority to the claimant seeking to rely on it. It followed that the applicants in that case could not rely upon a policy they had no knowledge of.

Question 17

Knowledge and ‘good administration’

Answer 17

A common argument in favour of the doctrine of legitimate expectation applying absent knowledge is that the principle of ‘good administration’ requires public authorities to apply their own internal policies consistently to all cases.
However, there is already a principle of administrative law that a policy adopted by a public authority must be consistently applied and can only be departed from with good reason. It was first outlined by R v Secretary of State for the Home Department, ex parte Urmaza(1996) The Times 23 July, and was later endorsed by Lord Dyson in Lumba v Secretary of State for the Home Department [2011] UKSC 12.
The current consensus is, therefore, that there are essentially two doctrines at play in this area: the more established doctrine of legitimate expectation, which, in the policy field, logically and intuitively requires an individual to know about a policy line on which they are seeking to rely; and a parallel, but different, doctrine of consistency in application of policy. (This approach has been reinforced in cases such as R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23 and Mandalia v Secretary of State for the Home Department [2015] UKSC 59).

Question 18

Reliance

Answer 18

Is it necessary for a party to have relied on an expectation for it to be deemed legitimate?
Early case law suggested that anyone seeking to benefit from a substantive expectation would have to demonstrate that they had relied upon that expectation to their detriment. This assumption has been eroded in subsequent cases.
In R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, Peter Gibson LJ accepted that detrimental reliance was not essential, but concluded that:
‘… it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation.’

Question 19

Reliance - cases

Answer 19

The Court of Appeal in R (Bibi) (discussed above) adopted the view that detrimental reliance should normally be required, but not where, for example, a public body seeks to depart from an established policy. The court added that, in its judgement:
‘… the significance of reliance and of consequent detriment is factual, not legal … In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation.’
The current approach has evolved to one where reliance is a non-determinative factor, albeit one that the court must consider. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453, Lord Hoffmann observed that:
‘It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power.’

Question 20

Summary

Answer 20

In this element we have considered aspects of legitimate expectation, including:
-The two types of legitimate expectation:
• Procedural: where a public body has either promised that a particular procedure will be followed, or past practice indicates that it should be followed.
• Substantive: where a public body makes an assurance or a promise that has led a person to believe they will receive a particular, tangible benefit.
- The courts’ approach to assessing legitimate expectation:
Has an expectation arisen? An expectation could arise in the context of an express promise (in a specific or policy representation), or through established past practice. Is the expectation legitimate? Factors to consider may include clarity, legality, agency, reliance and knowledge.
[The crucial third question of whether the public body has lawfully frustrated the expectation is examined in the next element.]

Question 21

Grounds of JR: Legitimate Expectation II

Context

Answer 21

In the last element we considered the types of legitimate expectation that can arise, and the courts’ approach to assessing whether expectations are legitimate.
In this element we will examine the third limb of the courts’ approach: whether the public body has lawfully frustrated the legitimate expectation. We will also consider the standards of review applied by the courts and the influence of proportionality in this area.
• 1. Has an expectation arisen?
• 2. If so, is the expectation legitimate?
• 3. Has the public body lawfully frustrated the legitimate expectation?

Question 22

3. Frustrating legitimate expectations

Answer 22

Although a legitimate expectation may have arisen in a particular case, this does not necessarily mean that the court will ultimately protect the expectation; its frustration can be deemed not to have been unlawful by the court in certain circumstances.
It is notable that the courts impose the burden of proof in establishing that a frustration was lawful on the public body seeking to defend itself in this way.
Lord Dyson made the following point in the Paponette case:
‘The critical question in this part of the case is whether there was a sufficient public interest to override the legitimate expectation to which the representations had given rise. This raises the further question as to the burden of proof in cases of frustration of a legitimate expectation.’

Question 23

Procedural legitimate expectations

Answer 23

In this area, the courts have generally concluded that the importance of fairness will dictate that the expectation be fulfilled. The case of the Liverpool Taxi Fleet Operators’ Association provides a good example. (See your slides for the last element for more details on this case).
However, the courts will accept that the frustration of a procedural legitimate expectation was not unlawful when there are compelling public interest reasons. This was the final result of the GCHQ case, where the law lords accepted the government’s argument that it had been necessary to frustrate the expectation of consultation, because significant national security interests dictated the need for speedy, executive action.
In such situations, the court will essentially consider the adequacy of the reasons advanced, taking into account what fairness requires.

Question 24

Substantive legitimate expectations

Answer 24

Assessing the lawfulness of the frustration of a substantive legitimate expectation has proved more problematic. This has been because of judicial caution about fettering the ability of public authorities to change policy and more general concerns about the degree of appropriate judicial intervention in decisions made by the executive (in the wider context of the separation of powers balance). Competing judicial approaches, based on rationality and fairness, emerged and the evolution of the law in this area has not always been clear and consistent.
Re Findlay [1985] AC 318 concerned the introduction by the Home Secretary of a new policy to deny parole to certain classes of prisoners unless there were exceptional circumstances. This adversely affected the four applicants, who all had excellent prison records and had expected parole to be granted within the following year under the previous policy. The law lords approached the matter with what could be called a more cautious and deferential take on policy change.

Question 25

Re Findlay

Answer 25

In a unanimous decision of the House of Lords, Lord Scarman reached the following conclusion: 'It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy.'

Question 26

Development of case law

Answer 26

In R v Ministry of Agriculture, Fisheries and Foods ex parte Hamble Fisheries [1995] 1 All ER 714 Sedley J re-emphasised the importance of fairness. He denied that the decision in Re Findlay meant that no expectation, however reasonable, could survive a change in policy. He maintained that bare rationality, with reference to the Wednesbury standard, was not the only criterion, and that there was also a duty to exercise powers fairly. Judicial debate continued, and in R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 WLR 906, the Court of Appeal criticised the approach in Hamble Fisheries and stated that, whilst a court could inquire into the fairness of the procedure followed, it could only interfere in a substantive decision if it was Wednesbury unreasonable. This decision in Hargreaves was viewed by some commentators as virtually undermining the whole doctrine of substantive legitimate expectation, but the law moved on reasonably quickly thereafter, and the Court of Appeal provided further guidance in the important case of R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622.

Question 27

Ex parte Coughlan

Answer 27

In ex parte Coughlan the Court of Appeal held that the assessment of whether a legitimate expectation could be lawfully frustrated depended on the nature and context of the particular legitimate expectation. Lord Woolf MR described three categories: a) Where the legitimate expectation is only that the public authority should bear in mind its previous policy or other representation, the court is confined to reviewing it on grounds of Wednesbury unreasonableness. (This is what happened in Re Findlay and Hargreaves.) b) Where there is a procedural legitimate expectation, the court will require the procedure to be complied with, unless there is an overriding reason to resile from it. The adequacy of the reason will be assessed on the basis of fairness. c) Where there is a substantive legitimate expectation, the court can now also decide whether the frustration of the expectation was so unfair as to amount to an 'abuse of power'. The court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.

Question 28

Abuse of power?

Answer 28

The approach taken in Coughlan itself was determined under Woolf's third category. In the case the applicant had been left severely disabled after a car accident. She had moved to Mardon House, a purpose-built facility for young, long-term, severely disabled residential patients in 1993 with a number of residents from a hospital, after they had been promised that they would be able to live there for as long as they chose. By 1998, however, only three patients remained at Mardon House, and the health authority decided to close it for financial reasons. The Court of Appeal held that the decision was unlawful. Coughlan had been clearly promised a home for life at Mardon House. The health authority had not treated its promise to provide a home as distinct from its duty to provide care or funding for care. It had not even sought to offer the applicant a reasonably equivalent facility to replace what was promised to her. It was unfair for the health authority to have resiled from its promise in these circumstances – this amounted to an abuse of power.

Question 29

Developments after Coughlan

Answer 29

The reasoning in Coughlan was applied and developed in R v Secretary for Education and Employment, ex parte Begbie[2000] 1 WLR 1115. Laws LJ stated that the categories in Coughlan were not 'hermetically sealed' and each represented a point on a scale. He suggested that decisions that lie within the 'macro-political' field should attract a less intrusive approach by the courts (i.e. a Wednesbury standard of review), and those lying outside that field a higher intensity of review. The discussion relating to the 'macro-political' context reflects a continuing general wariness in the courts about interfering too deeply in areas which are constitutionally seen as the province of the executive and where the courts do not possess particular competence or expertise. In R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, (a case considered in the context of prerogative power), the Court of Appeal held that a legitimate expectation arising out of government policy concerning diplomatic relations, whilst not inherently unjusticiable, would attract a particularly light intensity of review.

Question 30

The influence of proportionality

Answer 30

The courts’ approach to the question of the lawfulness of the frustration of a legitimate expectation has subsequently developed further to incorporate the concept of proportionality. This development forms part of a trend towards the adoption of proportionality as a more structured form of review in domestic cases generally. It is reflected by parallel developments in the other main area of substantive judicial review, unreasonableness, as evidenced most recently in the cases of Pham v Secretary of State for the Home Department [2015] UKSC 19, and Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3. (Refer back to the elements on unreasonableness). In the context of legitimate expectation, the case of R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363 is an important one. In obiter, Laws LJ said that a proportionality approach should be adopted to determine whether both procedural and substantive legitimate expectations can be lawfully frustrated.

Question 31

Nadarajah and Abdi

Answer 31

In an influential policy speech in this case Laws LJ explained: ‘Accordingly, a public body's promise or practice as to future conduct may only be denied, where to do so is… a proportionate response … having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances. This approach makes no distinction between procedural and substantive expectations.…the question in either case will be whether denial of the expectation in the circumstances is proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus, where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure… On the other hand, where the government decision-maker is concerned to raise wide-ranging or "macro-political" issues of policy, the expectation's enforcement in the courts will encounter a steeper climb.’

Question 32

Further cases

Answer 32

Proportionality has been used as the standard of review in a number of subsequent cases of differing complexions. In R (Fingle Glen Junction Business and Community Action Group) v Highways Agency [2007] EWHC 2446 the decision to implement a road scheme, which failed to follow the past practice of consultation, was held to be proportionate because of the need to deliver the scheme as soon as possible in order to avoid more fatal or serious accidents on that road. The order to implement the scheme was only temporary and would allow enough time for a public inquiry before a decision was made on whether or not to make it permanent. Similarly, see R (W) v Secretary of State for Education [2011] EWHC 3256 Admin where the decision by the Secretary of State to prevent a teacher from working with children, despite a promise that no further action would be taken against him, was considered a proportionate response. This was because of the important public interest in protecting children from abuse by people in positions of trust; there was evidence against him, and there was an appeal process available.

Question 33

Finucane

Answer 33

It is important to note that, in high policy or macro-political contexts, where the court does not feel equipped or entitled to apply the more intrusive proportionality standard of review, it will revert to a rationality (i.e., Wednesbury) approach. In Re Finucane’s Application [2019] UKSC 7, the applicant had been given an undertaking by the Secretary of State for Northern Ireland that a public inquiry would be held into allegations of collusion by the security forces in the murder of her husband, a prominent lawyer in Northern Ireland, by loyalist paramilitaries. Following a general election, a new government decided not to hold a public inquiry on the ground that it would be potentially lengthy, costly and procedurally difficult and might be unworkable in light of national security issues. It decided to hold a paper-based review by an independent person instead. The Supreme Court held that, where a decision concerning macro-political issues was made in good faith on genuine policy grounds, it would be very difficult for a person to enforce compliance with a legitimate expectation. The decision not to hold the public inquiry was held to be lawful on this basis.

Question 34

Summary

Answer 34

We have considered the courts’ approach to assessing whether a public authority has lawfully frustrated a legitimate expectation in the context of: - Procedural legitimate expectations: • The interests of fairness will usually require procedural legitimate expectations to be fulfilled, unless there is a compelling public interest reason not to (see e.g., GCHQ). -Substantive legitimate expectations: • The decision in Coughlan is important to understand the courts’ approach. • The proportionality standard has increasingly influenced the courts’ assessment of the frustration of legitimate expectations.