SLE Uncertain;

‘The legitimate expectation principle is replete with uncertainties.’

Discuss

The aforesaid question demands a discussion that, Legitimate Expectation, has created uncertainty in its
application. The legitimate expectation principle is a doctrine which protects individuals expectations
arising from a public authority’s promises, practices, or representations. While it serves as a crucial
safeguard against arbitrary or unfair actions of government. I disagree with the statement stated above.
In the below, submissions, I will explain and justify that my stance on this statement is different.
Legitimate expectation can be sometimes considered as subjective.

As we know, in the case of “Schmidt v Secretary of State for Home Affairs”, the modern doctrine of
legitimate expectation in English and Welsh in admin law was emerged. The doctrine has been, and still
to be, on the sharp edge of some academic and less occasionally judicial barbs. Among the voices of
dissatisfaction, there has been a determined strand of criticism, that this doctrine has suffered from
absence of a clear conceptual footing. Legitimate expectation has some conditions such as that the
representation made must be clear and unambiguous and the expectation corresponds to the promise.
The expectation needs to be legitimate, and the individual must be aware of the expectation. The
legitimate expectation concept mainly focuses upon the idea of fairness and the implementation of
representations or promises. The concept of legitimate expectation is developed in the law and judges
have expressed a number of views on why it has been developed. In “R v. Ministry of Agriculture,
Fisheries and Food, ex parte Hamble”, Sedley J expressed his view that “the real question is one of
fairness in public administration. It is difficult to see why it is any less unfair to frustrate a legitimate
expectation that something will or will not be done by the decision maker than it is to frustrate a
legitimate expectation that something will or will not be done by the decision maker than it is to frustrate
a legitimate expectation that the applicant will be listened to before the decision maker decides to take a
particular step”.

It is said that, the law on procedural legitimate expectation is well developed. It is unsurprising that the
courts have been more willing to implement procedural rather than substantive legitimate expectations
because it does not bind a public authority to a course of action, it only demands that the public
authority hears those to whom it has promised a hearing before making a decision.

Primarily, the concept of JR is to review the legality of governmental action means to check whether the
government is acting ultra vires or not. Courts should not review intra vires action of the government
because this would create an unbalance in separation of powers. However, there is a strong point that
Courts should make the promise binding upon the government or at least protect the individuals whose
expectations have been violated. Why is it important for government to be bound by their own
statements? There are couple of reasons which require government to be bound by their promises.
Fairness in public administration will be more efficient, as Sedley J, in “Hamble Fisheries” stated that SLE
leads to fairness in public administration protection of SLE is equally important as procedural legitimate
expectation i.e. Natural justice. There will be more reliance and trust in government. Protection should
be given to individuals who have relied on governmental promises. If protection is not rendered people
will lose confidence in the government “Reynolds 2011” which would also lead to government’s business
becoming inefficient. Rule of law will be upheld, protection of SLE will create predictability and certainty
which are the main ingredients for Rule of law. If the government is making a policy, the equality
principle dictates that such policy shall be followed in all cases and there should be no discriminatory
departure from the policy. Prof Raz said that every human being, has a moral duty to fulfil his promises
and so does the government and this is how they can make sure that moral duty is being followed.

The legitimate Expectation is similar to concept of estoppel. The estoppel concept is an English law
concept which makes a promise binding upon the promisor if the promise has relied on it and had faced
detriment. However, the estoppel concept is not recognized in English administrative law. The courts
have rejected the concept of estoppel as it binds the statement in administrative law, the reason behind
not accepting this concept is that, it will lead to undermining government’s lawful discretion i.e. the
government’s ultra vires promise will also be considered binding and this would lead to uncertainty in
law and indirectly the law will be lawful. In order to restrict this, they had not incorporated this concept.
However, estoppel is not recognized in English Admin law, but it does have the concept of SLE which also
gives some protection to the expectations of the individuals.

SLE will arise once these requirements have been met. The government should have made a clear and
unequivocal representation “Bancoult”, the government’s representation was unclear and ambiguous.
Therefore, SLE was not arisen. In “Finucane”, the government’s promise was considered to be clear and
this gave rise to SLE. The government representation needs to be intra vires, because ultra vires promise
does not give rise to SLE. Representation can be found in the government’s circular, statement, policy,
contract and even conduct will suffice. Representation needs to be done by words or conduct or
combination of both “Unilever”. Representation must be specifically directed towards the individual. The
more general the representation is, the lesser the chances are of it giving rise to substantive legitimate
expectation. Detrimental reliance is not a compulsory requirement for proof of SLE but it overall
strengthens the argument of SLE “Ruddock”. These are some of the requirements of SLE.

As the question above states that the application of legitimate expectation is stuffed with uncertainties.
The procedural legitimate expectation is not that uncertain and it is easy to be followed. However, the
doctrine of substantive legitimate expectation is more controversial because it emphasizes the tension
between the need to broaden legal certainty and fairness and the need for flexibility on the part of
public authorities. Moreover, some assume that the court’s enforcement of SLE might constitute an
infringement of the separation of powers, as it would be assumed that court is interfering in executive
matters more than usual.

Once the legitimate expectation has been created then it will be seen whether, the Court should enforce
the expectation. In “R v. The London Borough of Newham” Schiemann LJ said “in all legitimate
expectation cases, whether substantive or procedural, three practical questions arise. The first question
is to what has the public authority, whether by practice or by promise, committed itself, the second is
whether the authority has acted or proposes to act unlawfully in relation to its commitment, the third is
what the Court should do”. There is a strong argument that departure from policy in cases where
individuals are concerned leads to inequality and discrimination, and in this case, it is easy to prove a
breach of SLE. In “Ruddock” it was held that the government can only depart from a policy in a specific
case if it has reasons which justify the departure. The government must weigh the interest of the those
who have been affected from the departure and the need to depart from the policy “Taylor J”. In “Khan”,
it was held that public authority can only go back from its policy after granting a hearing and that only if
the overriding public interest requires.

Chirstopher Forsyth depicted how trust in government is essential and the, then new, doctrine of
legitimate expectation was concerned with ensuring that trust was maintained. To Forsyth, the
justification for the doctrine is that those “who have placed their trust in the promises of officials, should
not find, when that trust is betrayed, that the law can give no remedy.” This citation can be understood
as that, those who have relied on the promises of officials, should get something after knowing that their
trust is betrayed, and now law does not offer any remedy. This sort of thing makes no sense of
availability of legitimate expectation. In his leading administrative discussion with Professor Wade,
Forsyth further said that trust “captures precisely why legitimate expectations should be protected.” As
the dissertation on legitimate expectation grew, more references to the concept of trust appeared.
Robert Thomas, noted trust as a “justification” for the principle and Soren Schonberg argued that
“effective administration is impossible without trust”. In addition to it, the concept is now beginning to
be referred to in judgments. Maybe the most notable example of this to date, is how the trust’s concept
has entered into the jurisprudence of the Upper Tribunal Immigration and Asylum Chambers. In
“Mehmood (Legitimate Expectation) 2014, the President of the Immigration of Assylum Chamber,
McCloskey J, affirmed Prof Forsyth’s statement that “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”. McCloskey J further stated “The two
basic ingredients of what the law has come to recognize as a substantive legitimate expectation are
satisfied where there is an unambiguous promise or assurance by a public official in which the affected
citizens reposes trust.” This statement was again confirmed by the President in “Iqbal, Immigration Rules
2015”.

This was the criticism on the doctrine of legitimate expectations and they believed that this law should
be made more certain because trust is involved in this doctrine and it must be respected. However, every
coin has two sides, now we will see the other side. In “Coughlan” the judgment states that in SLE, the
courts can make the promise of government binding upon the government, if the breach of promise or
change of policy is such that it amounts to abuse of power. After this judgment, the courts have two
options. For procedural protection of SLE, notice, consultation and consideration are the elements that
will be looked at that whether government had fulfilled the requirements or not. For SLE’s protection, a
promise will only be binding, only where abuse of power is proven. Coughlan also blurs the distinction
between SLE and Estoppel. Now, SLE can make the promise binding. In “Nadarajah”, the government
held that it can only change the policy or go back on its proportionate reasons which means they have
justifiable reasons in order to depart from promise/policy. This case also makes the decision more similar
to estoppel, now more cases will make the promise binding upon the government. In “Bibi 2006” the
government was permitted to go back on their promise because the government was able to show that
they had a proportionate reason to go back on its promise. These cases show that government cannot
depart from their promises without proportionate reasons. This demonstrates, that the law is not that
uncertain because government’s discretion is also a thing which will be considered.

If we take a hypothetical example, that government announces a scholarship program for those who are
studying law. Many people in search for scholarship taken law as their degree but government said now,
we cannot give scholarships to everyone and limited the number of scholarships. The reason is when
they announced about scholarships, they had adequate funds but unfortunately, they faced recession
and funds cannot be given to everyone for scholarships. Now, considering the trust element, they must
stick to their words but they had a proportionate reason not to give scholarships. In this sense, the
government can depart from its promise. So, the reasons to give example was to clear my stance on this
law that it is not that uncertain and government in the greatest number of cases does fulfil their
promises.

In conclusion, it can be said that the law on this doctrine is quite clear and certain. It is working well;
courts take adequate measures to make it clear whether the departure of government from its promise
is proportionate or not. Hence, it can be said we do not live in an ideal world as said by Lord Bingham,
there is some lacking in legitimate expectation’s doctrine but overall, it is fine and it is not stuffed with
uncertainties.