clarity and ambiguity: a new approach to the test of legitimacy in the law of legitimate...

Clarity and ambiguity: a new approach tothe test of legitimacy in the law oflegitimate expectationslest_177 633..652

Jack WatsonEmmanuel College, Cambridge

This paper examines the legitimacy element of the doctrine of legitimate expectations inEnglish administrative law. It argues that the underlying principle is the voluntaryassumption of responsibility that comes from analysing a promise as a social convention.From this underlying principle, it argues that the current ‘clear unambiguous represen-tation’ test is insufficiently certain and instead advocates a three-stage test centred roundthe courts’ ability to make an order, the objective construction of the promise and thedecision makers’ intent. This test, it is argued, explains the decided cases, as well asproviding a robust structure for future decisions.

INTRODUCTION

Given the substantial focus that has been directed at the courts’ protection of legiti-mate expectations since the decision in Coughlan,1 it is surprising that more atten-tion has not been directed at what makes an expectation legitimate in the first place.Why is it that when an applicant has a legitimate expectation, a far higher standardof review will be employed by the courts? The answer is not immediately obvious.The standard justifications for legitimate expectations, abuse of power, good admin-istration and fairness do not justify the unique intensity of this common law head ofreview. Just because a decision is unfair does not normally mean that the courtswill condemn it. What is meant by legitimacy that justifies a higher standard ofreview?

The lack of a clear justification is problematic from a normative and, more signifi-cantly, from a practical point of view. It is not clear when a legitimate expectation willarise. The courts have articulated a number of factors that may be relevant: the smallgroup to whom the promise was made, whether full disclosure was made, etc.However, without a clear underlying principle, there is no guidance as to what weightshould be given to these various factors or how they interact with one another. Itappears at the moment that we are very much in the territory of ‘recognise it when wesee it’ when it comes to finding legitimate expectations. We are therefore in a situationwhere the existence of these expectations is highly uncertain. This may lead toarbitrary and inconsistent results. Equally problematically, the law gives no clearguidance to applicants and public authorities alike as to when there will be a legitimateexpectation on the facts. The corresponding lack of legal certainty means that vulner-able applicants do not know when they should incur considerable expenditure inmaking a claim. Similarly, under this regime, a public authority does not know what

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

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© 2010 The Author. Legal Studies © 2010 The Society of Legal Scholars. Published by Blackwell Publishing, 9600Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

it has irrevocably committed itself to, until judgment is handed down. This severelyrestricts the discretionary autonomy of the decision maker.

The aim of this paper is therefore twofold. It is first to examine the decided cases,arguing that the underlying principle for the doctrine of legitimate expectations is thatthe decision maker has incurred a greater level of responsibility to the individual bymaking a promise. Such a principle provides a justification for a greater intensity ofreview, as well as explaining why a clear unambiguous representation is required. Thesecond aim is to demonstrate the inadequacy of the current, vague approach andinstead to articulate a new, three-stage test that both explains the current requirementsand provides a clearer, more certain approach to legitimacy. We must first of alldetermine what the scope, if not the test, of legitimacy should be.

1. A QUESTION OF FACT OR EVALUATION?

What is meant by a legitimate expectation? It is trite law to say that the courts will notprotect any and every expectation that an individual has in relation to what a publicbody will or will not do. The law is concerned, not simply with what the applicantexpected, but with what they were entitled to expect. In this sense, the courts will onlyprotect a legitimate expectation.2

A debate therefore arises as to whether legitimacy is purely a question of fact orwhether it has a normative, evaluative element. The view advanced by ProfessorCraig3 would deny that an expectation is legitimate where there exists an overridingpublic interest. For Craig, ‘expectations . . . are not merely a matter for factual analy-sis. They will depend on a normative view of the expectations which an individual canbe said to derive from the original policy, combined with an interpretative judgment asto whether the legislative framework will be jeopardised by holding the administrationto the original policy’.4 Craig’s view therefore is that in order for an expectation to belegitimate, two elements must be satisfied. The first element is that the expectationmust be derivable from the text of the policy. The second element is that it must notrun contrary to the legislative framework to hold the decision maker to this policy. Putanother way, holding the decision maker to her decision must not frustrate thepurposes for which Parliament conferred the power upon the decision maker. Thissecond element is a normative evaluative element. His view finds support in thedissent of Lord Scott of Foscote in BAPIO.5 Here his lordship stated that, to say thatthe applicant had a legitimate expectation, would have the effect of depriving theDepartment of Health of flexibility in the light of the Secretary of State’s ‘sensibleand . . . well justified guidance’. Craig’s view is also reflected to some degree in thetreatment of legitimate expectations in the law of the European Community. In anumber of cases, the European Court of Justice (ECJ) has denied legitimacy to anexpectation where to hold otherwise would run against the purpose of the community

2. See Re Findlay [1985] AC 318 at 338 per Lord Scarman: ‘But what was their legitimateexpectation?’.3. P Craig ‘Contracting out, the Human Rights Act and the scope of judicial review’ (1992)108 LQR 79 at 91.4. Ibid.5. R (BAPIO) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC1003.

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activity. Thus, in Mackprang,6 the ECJ rejected a legitimate expectations claimbecause the expectation claimed ran contrary to the general scheme of the CommonAgricultural Policy.

The better view, however, is that legitimacy should be a question of fact. Thenormative view ignores the fact that just because an expectation is legitimate, it doesnot follow that its frustration will always be unlawful. A legitimate expectation isprima facie entitled to legal recognition and protection. It may, however, still beoverridden by some countervailing public interest.7 Approaching legitimacy as aquestion of fact makes the delineation of legitimate (in contrast to non-legitimate)expectations both clear and certain. Campbell8 notes that the normative view renderslegitimacy ‘less an ascertainable product of the interaction between the promisor andpromisee and more the consequence of circumstances entirely extraneous to therelationship between the parties – wholly unforeseeable, unpredictable and unreli-able’.9 The question of whether or not a legitimate expectation exists must be ascertain as possible. The need for certainty is made all the more pressing when oneconsiders that it is an error of law to ignore a legitimate expectation.10 A publicauthority must know what it is they are required to consider. To require a normativeelement in assessing whether such an expectation exists makes ascertaining andcomplying with the law almost impossible. Ultimately, acknowledging the legitimacyof an expectation as a question of fact and dealing with the question of protectionseparately is preferable. As Elliott11 notes, this approach ‘allow[s] for greater analyti-cal clarity by enabling courts to acknowledge openly that even though a claimant isentitled to expect a given outcome, countervailing public interests may exert a strongerpull’.12

The problem is terminological. The word legitimate in the abstract appears tosignify a conclusion about the status of an expectation. It appears to suggest thatbecause an expectation is legitimate, the discretion of the decision maker should befettered in some way. The confusion is avoidable. Perhaps instead of talking about thelegitimacy of an expectation, it might be better to talk of the reasonable expectation,or the expectation legitimately derived from the authority’s promise. By doing so, weavoid the implicit evaluative notion of a legitimate expectation, allowing us to separateout properly the preliminary question of whether a legitimate expectation exists andwhether it is to be protected. Having said that, for our purposes reference to legitimacywill be made, rather than the alternative terms. Legitimacy is the term used in thecases. It is important to note, however, that this term refers merely to the question offact of whether the expectation exists, rather than expressing a conclusion as to itsultimate protection.

6. Case 2/75 Einfur-und Voratsstelle für Getreide und Futtermittel v Firma C Mackprang[1975] ECR 607; see also Case C-179/00 Wiedacher v Bundesminister für Land- undForstwirtschaft [2002] ECR I-501.7. I Steele ‘Substantive legitimate expectations: striking the right balance’ (2005) 121 LQR300 at 304–305.8. J Campbell ‘Legitimate expectations: the potential limits of substantive protection inSouth Africa’ (2003) 120 South African Law Journal 292.9. Ibid, at 305.10. R (Bibi) v Newham BC [2001] EWCA Civ 607, [2002] 1 WLR 237.11. M Elliott ‘British jobs for British doctors: legitimate expectations and inter-departmentaldecision making’ (2008) 67(3) CLJ 453.12. Ibid, at 454.

Law of legitimate expectations 635


We must therefore consider what it is, and should be, that renders an expectationreasonable or legitimate.

2. CLEAR AND UNAMBIGUOUS

A legitimate expectation can only arise where there has been a ‘clear and unambigu-ous representation’ as to the decision maker’s future conduct.13 The term ‘represen-tation’ is, however, apt to mislead, for in a number of the modern cases, such asNadarajah, Abdi v Secretary of State for the Home Department14 and R (BIAPO) vSecretary of State for the Home Department,15 the courts have been willing to entertainclaims for legitimate expectations arising from the stated policies of the decisionmaker. Indeed, in R v Barnet London Borough Council, ex p Pardes House School,16,Farquharson J recognised that the applicant had a legitimate expectation that it wouldhave a further opportunity to tender for certain school buildings, having ‘plainly beenleft with that impression’ by the council. In none of these cases can there be said to bea representation in the literal sense. What we mean by a representation is that therewas a clear indication of the decision maker’s intentions regarding the applicant’sentitlement.17 In his seminal articulation of the principles of administrative law inCouncil for Civil Service Unions v Minister for the Civil Service,18 Lord Diplocksuggested that in addition to a legitimate expectation arising through assurances by thedecision maker, where an applicant was previously allowed to enjoy a benefit, he maylegitimately expect it to continue until rational reason for withdrawing it has beencommunicated to him. Equally, Lord Fraser in the same case stated that a legitimateexpectation may arise either from an ‘express promise given on behalf of a publicauthority or from the existence of a regular practice which the claimant can reasonablyexpect to continue’.19

To this end, Dyson LJ, handing down the decision of the Court of Appeal in R(Association of British Civilian Internees: Far East Region) v Secretary of State forDefence (ABCIFER), stated that:20

‘[I]t will be only in an exceptional case that a claim that a legitimateexpectation has been defeated will succeed in the absence of a clear and unequivo-cal representation. That is because it will only be in a rare case where, absent sucha representation, it can be said that a decision maker will have acted with con-spicuous unfairness such as to amount to an abuse of power.’

13. Attorney General for Hong Kong v Ng Yuen Shiu [1983] 2 WLR 735, R (Bancoult) vSecretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2008] 4 All ER1055.14. [2005] EWCA Civ 1363.15. Above n 5.16. [1989] COD 512.17. It is conceivable that there might be other methods giving clear indications of the decisionmaker’s intentions regarding the applicant’s entitlement; see e.g. R v Inland Revenue Commis-sioners, ex p Unilever plc [1996] STC 681.18. [1985] AC 374.19. Ibid, at 401.20. [2003] EWCA Civ 473, [2003] QB 1397 at [72].



This is a helpful, if over-simplified statement of the general position that a represen-tation will be required.21 We may however question when the decision maker’s actionmight be so conspicuously unfair as to amount to an abuse of power in the absence ofsuch a representation. Dyson LJ himself tentatively suggested that one possibleinstance of this might have been the decision in R v Inland Revenue Commissioners,ex p Unilever plc.22 In this case, certain claims for tax relief were required to be madewithin 2 years of the end of the accounting period in which losses were incurred.However, over a period of 20 years the Inland Revenue Commissioners had acceptedclaims out of time. The Revenue then sought to enforce the time limit withoutwarning, leaving Unilever open to potential liability of £17 million. The Court ofAppeal held that this course of conduct was insufficient to constitute a representationin order to found a legitimate expectation. However, the claim that this was so unfairas to amount to an abuse of power was upheld. The Court of Appeal in ABCIFERstated that:23

In the Unilever case, the taxpayer had, in effect, been lulled into a false senseof security, and had regulated its tax affairs in reliance on the revenue’s course ofconduct, and thereby acted to its detriment. In those circumstances, and in the lightof the revenue’s acceptance of its duty to act fairly and in accordance with thehighest public standards, it is not surprising that the court felt able to treat this asa wholly exceptional case.

This is a misinterpretation of the Unilever case. Legitimate expectations received briefmention in counsel’s submissions. Sir Thomas Bingham MR did not mention them atall. Simon Brown LJ, offering the only other substantive judgment, expressly dis-missed the idea that a legitimate expectation could arise on these facts, precisely dueto the absence of a clear representation.24 The reason that the claim was upheld wasthat the decision was irrational on conventional Wednesbury principles. Indeed, SimonBrown LJ conceived of ‘legitimate expectation as essentially but a head of Wednes-bury unreasonableness’. It is a mistake to conceive of this case as an exception to therequirement of a clear and unambiguous representation. We should instead say that, inall cases, only the ‘clearest of assurances’ can give rise to legitimate expectation;25

however what constitutes a representation will be context-sensitive. That this state-ment represents the position of the law, and that the test is a strict one, is demonstratedby the following authorities.

(a) A strict test

The strictness of the ‘clear and unambiguous representation’ requirement was dem-onstrated by Wheeler v Prime Minister,26 where Richards LJ held that a promise tohold a referendum on the Lisbon Treaty did not contain an implied promise to hold a

21. The term representation must here be interpreted to include representation by conduct,policy, etc.22. Above n 17.23. Above n 18, at above Para ref?24. Though his analysis turned on an estoppel analysis rejected by the House of Lords in R(Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8, [2002] 4 All ER 58.25. R v Falmouth and Truro Port Health Authority, ex p South West Water Ltd [2001] QB 445per Simon Brown LJ and Pill LJ.26. [2008] EWHC 1409 (Admin), [2008] AC 70.



referendum on any Treaty having equivalent effect. In cases of macro-political deci-sion making, he said, the requirement of a clear and unambiguous representationwould be very strictly enforced.

This strict approach is also reflected in the majority approach of the House of Lordsin R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs.27 Herethe majority of their Lordships rejected the claim that there was an enforceablelegitimate expectation for residents of the Chagos Islands to return following thedecision in Bancoult (No 1).28 It was held that the statement by the Foreign Secretarythat the government accepted the ruling by the Divisional Court and that a newOrdinance would be made which would allow ‘the Ilois to return to the outer islands’was not a sufficiently clear and unambiguous promise. Lord Hoffmann giving theleading judgment in the majority, declining to re-examine the case-law on the subject,said that ‘the background to the statement was the ongoing study “on the feasibility ofresettling the Ilois” ’. The result of this was that there was no clear and unambiguouspromise that the applicant would be able to return for it was clearly conditional on theoutcome of the study. He accepted that the Chagossians ‘saw things differently’29 andtried to persuade the government that the statement constituted a clear policy com-mitment. However, ultimately he held that ‘the question is what the statement unam-biguously promised and in my opinion it comes nowhere near a promise that, even ifthere could be no resettlement, immigration control would not be reimposed’30. LordRodger of Earlsferry, in a similarly brief dismissal of the claim, stated that what wasat issue was a right for the Chagossians to be able to live permanently on certainislands. The government had promised to allow some form of return, however, thiswas subject to the completion of work it was doing on the feasibility of such return.On Lord Rodger’s reading, the government could not be construed to have clearly andunambiguously promised to allow the Chagossians to return and settle. Lord Carswellin this respect agreed with Lord Hoffmann. The strict approach of the majoritydemonstrates that it will only be in cases where there is a very clear promise that alegitimate expectation may be founded.

A more flexible approach can be found in the reasoning of the minority in Bancoult.Lord Bingham of Cornhill held that the Court of Appeal had decided correctly infinding that the applicant had a legitimate expectation of a right to return. He saidthat:31

‘[t]here was no representation that the outer islands would be resettledirrespective of the findings of the feasibility study, or that Her Majesty’s Govern-ment would finance resettlement, and it was implicitly acknowledged that obser-vance of its Treaty obligations might in future oblige the Government to close theouter islands. But there was in my opinion a clear and unambiguous representation,devoid of relevant qualification, that (1) the Government would not be challengingthe Divisional Court’s decision that Mr Bancoult and his fellow Chagossians hadbeen unlawfully excluded from the outer islands for nearly 30 years, (2) theGovernment would introduce a new Immigration Ordinance which would allow theChagossians to return to the outer islands unless or until the United Kingdom’s

27. [2008] UKHL 61, [2009] 1 AC 453.28. [2001] QB 1067.29. Above n 27, at [62].30. Ibid.31. Ibid, at [73].



treaty obligations might at some later date forbid it, and (3) the Government wouldnot persist in treating the Chagossians as it had reprehensibly done since 1971.’

His Lordship emphasised that this was a promise clearly aimed at a very small groupand concluded that ‘Mr Bancoult and his fellows were clearly intended to think, anddid, that for the foreseeable future their right to return was assured’.32

Lord Mance gave the most detailed explication of the requirements for a represen-tation to bind the decision maker. He said that the representation should be construedaccording to its ordinary meaning that would be attached to it by the person(s) towhom it was addressed. He picked out a number of passages from the foreignsecretary’s statement, claiming that:33

‘[the foreign secretary’s statements] are only consistent with a clear policydecision taken by the United Kingdom to recognise and give legal effect to a rightto return on the part of the Chagossians, while continuing the feasibility studywhich had already been started, in order to assess the feasibility of any resettlementprogramme which the government might or might not in due course support.’

Lord Mance’s analysis demonstrates that the current test for a legitimate expectationsexistence is unsatisfactory. The content of the expectation can vary significantlydepending on how broadly the representation is interpreted by the courts. The differ-ence between the majority and minority opinions are over what, as a matter of law andfact, the Foreign Secretary committed himself to when he made his statement. The factthat such different interpretations from the House of Lords are possible, demonstratesthat the test is insufficiently certain.

We should construe the doctrine of legitimate expectations narrowly. Enforcementof a legitimate expectation will always involve fettering the discretion of the decisionmaker. This is generally undesirable. It is not possible for the legislature to cateradequately for every possible scenario; thus it will often delegate discretion to deci-sion makers in order to adapt quickly to changing political attitudes or in light of aparticular need for flexibility given changing circumstances. Sales and Steyn34 notethat the very existence of discretion shows that the legislature (or the common law)does not feel capable of determining the outcome in advance of the actual case arising,for where it does feel so able it prescribes specific outcomes in the form of legislationeither by creating legally enforceable rights and entitlements against public authoritiesor prohibiting certain public authority actions. The presence of a discretion in contrastto a legal right or prohibition ‘interposes between the legislature and the outcomes inindividual cases a requirement for the exercise of judgment by the decision maker inthe light of the particular circumstances of those individual cases’.35 This desire forflexibility is the reason for the rule against the decision maker fettering his discretionthrough inflexible policies.36 Where Parliament has clearly expressed that the decisionmaker should have a free discretion to make decisions in the public interest, the courtsshould not readily hold her to have voluntarily fettered that discretion. Equally, thedecision maker has greater resources to be able to determine the effects of her decision

32. Ibid.33. Ibid, at [174].34. P Sales and K Steyn ‘Legitimate expectations in English law: an analysis’ (2004) PL 564.35. Ibid, at 568.36. See, eg, British Oxygen Co v Minister of Technology [1971] AC 610. Though this doesraise the question as to whether there is tension between this rule and the legitimate expectationdoctrine (on which see below).



and is accountable for those effects. A court is not. Taken together, these consider-ations may be termed the normative discretionary principle. This principle necessi-tates a narrow approach. The doctrine of legitimate expectations should therefore beconfined to where there is a very clear promise as to very specific entitlements so asto ensure that we capture only those situations where there is a very clear moralobligation pressing on the decision maker.

What then of the test proposed by Lord Mance? He suggests that the representationshould be construed according to its ordinary meaning that would be attached to it bythe person(s) to whom it was addressed. Lord Mance’s test is not English law norshould it be. It is an unsatisfactory hybrid of subjective and objective tests for whethera representation is clear and unambiguous. The difference between objectively con-struing the meaning of the representation and doing so objectively from the viewpointof the person who is the subject of the representation is far from clear. Such aconstruction is also contrary to principle. Where a representation is ambiguous, as themajority held that it was in Bancoult, it cannot give rise to an enforceable legitimateexpectation save in exceptional circumstances.37 In the absence of a clear promise, thediscretion of the decision maker should not be constrained by harm that would besuffered from the disappointment of expectations that an individual chooses to enter-tain about the way that the decision maker’s powers will be exercised. It is only whenthey have undertaken responsibility through making a promise that discretion can befettered.

3. WHY REQUIRE A REPRESENTATION?

It is an important question of principle as to why a clear unequivocal representation isrequired at all. Sales and Steyn38 suggest that an underlying normative judgment as towhat standards of behaviour are to be expected from public authorities is reflected inthis requirement. They suggest that:39

‘Short of a clear and unequivocal assurance by the public authority, theindividual’s interest does not assume special weight so as to impose upon thepublic authority a duty of particular care (beyond the usual public law duties) inrelation to decision-making affecting that individual.’

Their argument is circular. In essence they state that the reason why an expressassurance is required in order to generate a legal obligation on the part of the decisionmaker is that without it the individual’s interest will not impose a duty of care. Thistells us nothing about why the assurance generates such a duty in the first place. Abetter approach is to look at the obligational nature of promises. In virtually everydecided case it is the conception of legitimate expectations as a promise that has beenat the forefront of the judges’ reasoning40. Recently in R (Niazi) v Secretary of Statefor the Home Department41 Laws LJ held that the public authority must have ‘dis-tinctly promised’ in order for a legitimate expectation to arise.

37. See also Wheeler v Prime Minister, above n 26.38. Above n 34.39. Ibid, at 575.40. See, eg, Coughlan, above n 1.41. [2008] EWCA Civ 755, (2008) 152(29) SJLB 29.



Promises exist, not just as statements but social conventions that carry with them anumber of socially programmed assumptions.42 The foremost element of this socialconvention is an invitation to an individual to place their confidence in the promisemaker. Thus, the promise exists as a recognised social convention of trust that is vitalto avoid a society dominated by self-interest and duplicity. A promise is not simply astatement but an act of engaging in a morally binding social institution.43 Thus, tobreak a promise is to directly interfere with the liberty of the person or persons whohave relied on that promise.

Where a public authority makes a promise it has intentionally altered an individu-al’s perception of the world. The authority has created a belief in the occurrence of theevent that is the subject of the promise and created a reliance on that altered percep-tion. This is particularly the case given the amount of trust that is reposed in stateinstitutions. Thus, we may say that the enforcement of a legitimate expectation is thejudicial protection of a moral obligation that the public authority has freely solicited.In this vein, Schønberg44 notes that departures from individual representations entaila form of moral harm because of the detrimental impact on individual autonomywhich may be compounded by detrimental reliance or, in many instances, financialloss. The promise means that the public authority has undertaken responsibility for theindividual to whom it has made the promise.45 The courts will therefore intervene toensure that the individual’s domain of entitlement is not destroyed by the publicauthority.

A related and complementary justification to the one I offer is made by ProfessorForsyth.46 He argues that the key is the trust reposed in the decision maker by theindividual: ‘good government depends upon trust between the governed and thegovernor. Unless that trust is sustained and protected officials will not be believed andgovernment becomes a choice between chaos and coercion’. This draws on theGerman law concept of Vertrauenschutz. His analysis neatly encapsulates the impor-tance of the promise explicated above. Forsyth thus concludes:47

‘it is a simple concrete question of fact whether trust has been reposed in anofficial’s promise, so this principle does go “some distance” to indicate whichexpectations should be protected and which should not. It captures precisely whylegitimate expectations should be protected.’

Under this analysis a clear representation is essential. The moral, promissory obliga-tion, which is the necessary precursor to the legal one, can only be invoked by a clearrepresentation. In this respect, the clear unequivocal representation acts asthe gateway for a legitimate expectation claim.

Finding a representation will normally be unproblematic. For example, in theCoughlan case, the promise of a home for life was plainly clear and unequivocal. The

42. J Raz ‘Promises and obligations’ in PMS Hacker and J Raz (eds) Law, Morality andSociety (Oxford: Clarendon, 1971).43. See J Searle ‘What is a speech act?’ in J Searle (ed) The Philosophy of Language(Cambridge: Cambridge University Press, 1971). This notion of speech as an act has roots inL Wittgenstein Philosophical Investigations (Oxford: Basil Blackwells, 3rd edn, 1967).44. S Schønberg Legitimate Expectations in Administrative Law (Oxford: Oxford UniversityPress, 2000).45. Over and above its general duty to see to the welfare of individuals.46. HWR Wade and CF Forsyth Administrative Law (Oxford: Oxford University Press,10th edn, 2009).47. Ibid, p 447.



problem comes in more marginal cases, as demonstrated by Bancoult, where repre-sentations as to an entitlement are made, but it is not clear what the precise content ofthat entitlement is. The root of this problem lies in the inherently vague notion of whatexactly constitutes a clear and unequivocal representation. The significance of anylack of clarity or equivocation when making the representation appears to depend onthe level of generality at which the courts hold the representation to operate. Thedifference in approaches is plainly illustrated by the difference between the majorityand minority approaches in Bancoult.

4. A NEW TEST

A more structured approach could help to fetter the inherent subjectivity that comesinto such a broad assessment. The best approach is a three-stage test:

1. The threshold question – is the representation clear enough for the court to make anorder?

2. The question of individual expectation – objectively construed, what could the applicantexpect in all the circumstances as a result of the decision maker’s representation orconduct?

3. The question of administrative intent – did the decision maker realise that they weremaking a promise, or that the circumstances amounted to a promise, to an individual orgroup, as to a specific benefit or ought they reasonably to have realised this?

All of these elements must be met in order for an expectation to be legitimate. This testallows the judge in the individual case to structure their approach and provides aclearer, more principled guide to adjudication. It also helpfully delineates between thedifferent categories of cases where the lack of a clear and unambiguous representationhas defeated a legitimate expectation claim.

(a) Threshold question

The first question reflects cases where there is no way that the court could frame anorder that would enforce that expectation. One such example is Wheeler v PrimeMinister. Here the expectation claimed was that the executive would endeavour tointroduce a Bill to Parliament. It is hard to see how the court could ever frame an orderthat would enforce this expectation without interfering with proceedings in Parlia-ment.48 Equally, this threshold question would cover promises by public authorities tonegotiate or to act in good faith, etc, which are already inadmissible as contractualpromises. In Bancoult, the promise was merely to allow return to the islands pendingthe outcome of the feasibility study. It would be impossible to enforce an appropriateorder that the government should look carefully at attempting to allow return to theislands if it transpired that it would be feasible. Thus, the threshold question was notsatisfied.

There are likely to be few cases that fall into this category, but it is important thatthe judge should bear in mind his ability to make an order when looking at whether therepresentation was sufficient to give rise to a legitimate expectation.

48. As prohibited under the Bill of Rights 1689.



(b) The question of individual expectation

The second question is where clarity and equivocation are most important. Thepromise made to the applicant is the sole determinant of the maximum extent of theirexpectation.49 Here the judge should look at all the circumstances of the representationto determine what the applicant could reasonably expect if the promise was carriedout. Thus, in Coughlan, it is clear that the applicant could expect to have a home atMardon House for life. Equally in R v Home Secretary, ex p Khan,50 the Court ofAppeal held that where the Home Secretary had specified certain criteria for theadmission of child immigrants into the UK, it amounted to ‘grossly unfair adminis-tration’ to refuse entry to the applicant on wholly different criteria. The applicantcould reasonably expect that the published criteria would apply. In contrast, in ReFindlay, an application by prisoners challenging changes to their parole arrangementswas rejected by the House of Lords on the grounds that the most that the prisonerscould legitimately expect was that the Home Secretary would consider their caseunder the relevant policy in force at the time. We see therefore that the court is notconcerned with what the applicant actually expected. The actual expectation will berelevant as a matter of evidence as to what could reasonably be expected. It willequally be relevant to the standard of protection. The court, however, is concernedwith the applicant’s legitimate expectation, rather than simply their expectation. It isessential to look therefore at what, objectively, the promise entailed. That the courtsshould employ an objective test is well established.51 It is also the position in Europeanlaw where a legitimate expectation is assessed from the point of view of a prudent,discriminating and well-informed trader,52 although the test in European law is farmore demanding than that in English law.53 We must however note that this test is notconcerned with what the applicant could expect as a result of litigation. This questiondoes not pertain to what they could reasonably expect the courts to enforce, but whatthey could reasonably expect the decision maker to do if the promise was carried out.

(c) The question of administrative intent

The third, decision maker oriented, question most closely corresponds with the legiti-macy of an expectation. It is the point at which the legal duty arises by the authorityvoluntarily incurring this obligation to an individual. Sales and Steyn suggest that the‘requirement of unequivocal clarity ensures policies are based upon specific consid-eration of the relevant issues, rather than being based upon readings of policies that thedecision maker may not have anticipated’.54 The test I propose articulates their

49. This is distinct from its protection. It is conceivable, indeed likely, that an expectation ofsubstantive benefit will not be substantively protected: R v Devon CC, ex p Baker [1995] 1 AllER 73 per Simon Brown LJ.50. [1984] 1 WLR 1337.51. See, eg, Ng Yuen Shiu, above n 13, R v Secretary of State for the Home Department, ex pHargreaves [1997] 1 All ER 397, Coughlan, above n 1.52. Case 265/85 Van den Bergh en Jurgens v Commission [1987] ECR 1155, Case T-70/99Alpharma v Council [2002] ECR II-3495.53. See Case C-80/89, Behn Verpackungsbedarf GMBH v Hauptzollamt Tzehoe [1990] ECRI-2659 and contra R (Zeqiri) v Secretary of State for the Home Department [2002] UKHL 3,[2002] Imm AR 296: ‘Kosovar refugees cannot be expected to check the small print’ at [44] perLord Hoffmann.54. Above n 34, at 575.



argument more clearly. It ensures that the only time that the decision maker is boundis when they know that they have made a promise or clearly ought to have known theywere making a promise.

Finding administrative intent will be unproblematic in cases where the decisionmaker is a single individual. More commonly however, discretionary power is con-ferred upon a complex administrative structure such as a government department or alocal health authority. The issue of which individuals within that structure will be ableto form a sufficient intent to be able to create a legitimate expectation is a difficult onethat has yet to be adequately addressed by the courts. It is clear that a member of sucha complex decision-making structure may form sufficient intent if he or she is able tobind the decision-making entity as whole. The consequences of an intra vires promisemade by an official who does not have sufficient powers to ensure that the promise iscarried out, however, remains to be fully worked out by the courts.55

Formulating a the test for a clear unambiguous representation in this way neatlyencapsulates the reason why factors such as the size of the group, the informationdisclosed to the decision maker, are relevant to an assessment of whether the repre-sentation in question should be binding. Taking each factor in turn we can see how thequestion of administrative intent can explain both their relevance and how they shouldbe assessed.

(i) full disclosure of information

It is well established that an applicant must disclose all material facts before assert-ing a legitimate expectation. It might be possible to explain the requirement ofdisclosure as a requirement of conscience. However, the inherent subjectivity ofconscience requirements makes such an explanation unattractive. A better explana-tion is that it is impossible for the decision maker to make a binding promise whereshe does not have all material facts in front of her. Thus, in R v IRC, ex p MFKUnderwriting Agents Ltd,56 it was held that a legitimate expectation will only ariseif full disclosure of material information has been made to the decision maker. Onlythen can the decision maker have had an ability to decide how its discretion shouldbe exercised in relation to the applicant. This was also the reason why in Begbie57

the fact that a political party was in opposition at the time that representations weremade and thus had little access to information was held to prevent a legitimateexpectation arising. Without sufficient information, the decision maker cannot bindherself in a meaningful way.

A similar reasoning can be observed in R v DPP, ex p Kebilene, where LordBingham CJ said he would be ‘very hesitant to hold that a legitimate expectation couldbe founded on answers given in Parliament to often very general questions’.58 Somehave suggested that this might be part of a general bar to legitimate expectations

55. A full examination of the individuals capable of making binding representations is beyondthe scope of this paper. For an illuminating discussion of these issues, see Moules Actionsagainst Public Officials: Legitimate Expectations, Misstatements and Misconduct (London:Sweet and Maxwell, 2009).56. [1990] 1 WLR 1545.57. R v Secretary of State for Education and Employment, ex p Begbie [2000] 1 WLR 1115.58. [2000] 2 AC 326 at 339.



arising out of statements to Parliament.59 This is an untenable suggestion given thenumber of cases that have been prepared to entertain the possibility of claims arisingout of statements to Parliament.60 A better explanation is that responses to generalquestions do not represent a promise. Such responses will often be general andon-the-spot, meaning that the decision maker has not fully considered the alternativesand could not be said to be making a serious promise in any meaningful sense. Thegenerality of the answer will appear to militate against the presence of an undertakingof responsibility.

(ii) a small, closed category

A requirement of administrative intent also explains the relevance of the width of theclass of people who are the subject of the representation.61 In Coughlan, Lord WoolfCJ said that one of the deciding factors was that this had been made to a small numberof people and was akin to a contract. One of the reasons that the small number ofpeople to whom the promise was made was relevant was that it demonstrates veryclearly that the decision maker knew that they were making a morally binding promiseand taking responsibility for another person. This is in contrast to very generalstatements made by ministers to the public regarding the assisted place scheme inBegbie. Here the courts did not accept that there was a sufficiently clear and unam-biguous representation. This is absolutely right; there was no possibility that thegovernment could consider itself morally or legally bound by the promise it had made,nor ought it to have. The statements made were general in character and the class ofpeople was so large and varied, it would be absurd to think that the decision makerconsidered himself to have promised the same benefit in respect of every single case.This will of course be sensitive to context.62 What it demonstrates, however, is that itis important, not just that an expectation arises, but that the decision maker is boundby their own voluntary action.

In ABCIFER,63 in the Court of Appeal, a promise to between 800 and 1500 peoplewas held to give rise to a legitimate expectation. This was overturned in the House ofLords. However their Lordships did not reject the idea that legitimate expectationscould arise amongst such a large group of people. The key, therefore, is not merely thatthis is a small group, but that it is a group that has the same interest in the fulfilmentof the promise or that the promise applies in the same way to each individual. Such anapproach is consistent with the principles outlined above and with the policy consid-eration of allowing maximal flexibility for the decision maker. Sales and Steynconceptualise the small closed category requirement as meaning that:64

59. Argued by Counsel in Wheeler v Prime Minister, above n 26, Richards LJ doubtedwhether this was right but did not decided the issue.60. Findlay, above n 2, at 326–328; R (Abbasi) v Secretary of State for Foreign and Com-monwealth Affairs [2002] EWCA Civ 1598, (2002) 99(47) LSG 29 at [91]; and R (Associationof British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB1397.61. R (Structadene) v Hackney London Borough Council [2001] 2 All ER 225, Begbie, aboven 57.62. Above n 53.63. [2007] EWCA Civ 498, [2008] QB 365.64. Above n 34, at 576.



‘A sufficient nexus is required between the terms of the statement by thedecision maker and the specific type of case which then arises for a decision; andthe extent to which the decision maker’s consideration before making its statementcould reasonably be expected to have involved detailed examination of such spe-cific types of case (or not) provides appropriate guidance on that point.’

In Begbie, in contrast, because the individuals involved had very different interests, itwas far less likely that the decision maker had intended to make a promise as to theirentitlements. The key is that where a promise is made to a small group it is more likelythat this will be a voluntary assumption of greater responsibility than general state-ments to a more disparate group and more likely that the decision maker will conceiveof her statements as a promise, rather than an indication of her current mindset.

(iii) the benefit claimed

The question of administrative intent also explains why the clarity of the representa-tion appears to vary depending on the entitlement claimed by the applicant. Where asubstantive benefit is claimed, there appears to be a far stricter requirement that thepromise be clear and unequivocal. In ABCIFER65 at first instance in relation to a claimto be paid a substantial sum of money without further consideration on the basis of alegitimate expectation (not pursued in the Court of Appeal), Scott Baker J stated thatthe representations relied upon by the claimant lacked the characteristics of a contract,setting a very high bar for substantive claims to succeed. In contrast, in R v BarnetLBC, ex p Pardes House School being left with the impression that the applicantwould be permitted to tender by the council was sufficient to ground an expectation.The reason why a distinction can be drawn between promises of procedural andsubstantive benefits can be answered by the decision maker-oriented question. Inprocedural cases, satisfying the expectation of the applicant is far less onerous for thedecision maker and has far less impact upon the fulfilment of the decision maker’sstatutory functions than would a promise as to a substantive outcome. A proceduralpromise does not fetter the decision maker’s discretion to any great extent. It is alsofar more common that a decision maker intends to promise the individual that theywill have the opportunity to make representations and state their case than to promisea substantive outcome. Thus the court will be more willing to find that a decisionmaker intended to make a promise in procedural instances than cases where a sub-stantive benefit is claimed. This explains why legitimate expectations based on pastpractice may more readily be found to arise in the procedural category of case.66

By providing a structure test for legitimate expectations, we allow the judge to takeinto account these various factors in a structured and principled way, rather than asdistinct factors (the relevance of which is questionable in the absence of an overarch-ing principle) that may or may not be relevant. The decision maker-oriented elementof the test provides an overarching principle for these factors to be properly assessed.The issue that then arises is whether the test proposed is exhaustive. Are thereadditional requirements of knowledge of the representation? Must the applicant haverelied on the representation to his detriment?

65. [2002] EWHC 2119 (Admin).66. See, eg, R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168.



(d) Knowledge and reliance

Can a claimant rely on a policy to found a legitimate expectation when they had noawareness of its existence? As a matter of pure logic, the answer would appear to bean obvious no. It is strange to say that a person had a legitimate expectation ofsomething that they did not in fact have any knowledge of at all. The position as amatter of authority is somewhat less clear. In R (Rashid) v Secretary of State for theHome Department67 it was held by the Court of Appeal that the applicant’s lack ofknowledge of the Home Secretary’s settled policy on internal relocation within Iraqwas not ‘relevant’68 or ‘material’69 as to whether he possessed a legitimate expectation.Rashid is consistent with the decision of the High Court of Australia in Minister ofEthnic Affair and Immigration v Teoh70 where it was held that:71

‘. . . it is not necessary that a person seeking to set up . . . a legitimate expec-tation should be aware of [the relevant policy] or should personally entertain theexpectation, it is enough that the expectation is reasonable in the sense that thereare adequate materials to support it.’

The High Court’s reasoning has been described by Lord Woolf MR as ‘whollyconvincing’.72 It is hard to see how the reasoning could merit such a description. Thejudgment refers to ‘the expectation’ without explaining how an expectation couldpossibly exist without knowledge of the policy on which it would be based. Teoh hasreceived a great deal of academic criticism. Elliott73 questions whether legitimateexpectation is really the appropriate doctrine to secure compliance with promulgatedpolicies in these circumstances. Moules74 suggests that policies that the claimant hadno knowledge of should be dealt with under the principles of substantive fairnessrather than legitimate expectations. Forsyth,75 foreshadowing this debate, states that itis ‘self-evident and fundamental [that if someone] did not in fact expect something,that person’s expectation, being non-existent, cannot be protected’.76

There is considerable force in the criticism of the Rashid/Teoh approach. We maytherefore prefer the dissent of McHugh J, who states that ‘[i]f the doctrine of legiti-mate expectation were now extended to matters about which the person affected hadno knowledge, the term “expectation” would be a fiction’.77 As a matter of principleMcHugh J’s approach should be followed. Legitimate expectation relies on the indi-vidual’s liberty being affected by their being the subject of a promise. Their liberty isnot affected where they have no knowledge of the promise in the first place. Similarly,as a matter of authority, we might also reject the Rashid approach. Lack of knowledgewas the reason given by Lord Steyn for rejecting a legitimate expectation claim in

67. [2005] EWCA Civ 744, [2005] Imm AR 608.68. Ibid, at [25] per Pill LJ.69. Ibid, at [47] per Dyson LJ.70. (1995) 128 ALR 353.71. Joint judgment of Mason CJ and Deane J at 365.72. R v Secretary of State for the Home Department, ex p Ahmed and Patel [1998] INLR 570,[1999] COD 69 at 71.73. (2005) JR 281.74. Moules, above n 55, at 2-051.75. (1997) PL 375.76. Ibid, at 375.77. Teoh, above n 70, at [31].



R v Secretary of State for the Home Department, ex p Hindley.78 We may thereforeconclude that knowledge is required to found a legitimate expectation claim. Casessuch as Rashid may still fall under principles of fairness or even irrationality, but it isan undesirable fiction to try and force them into the legitimate expectations category.Equally, as was noted in R (A) v Home Secretary,79 there may be an argument in favourof recognising a requirement of adherence to lawful policies independent of thelanguage of legitimate expectations. This may be an analytically more satisfactorymode of protecting an applicant’s interests. Though as Elliot notes ‘the relationshipbetween such a requirement and the non-fettering rule which precludes undue relianceon policy remains fully to be worked out’.80

Does the requirement then constitute a separate requirement for the test of legiti-mate expectations? Put simply, no it does not. It is purely part of assessing whatobjectively the applicant could expect from the promise. If they had no knowledgethen they could not expect anything as a result.

Does the applicant then have to rely on the representation to their detriment?Reliance appears to be required in EU law.81 The position of English law appears to bethat it is not. In R v Home Secretary, ex p Ruddock,82 in a case involving wiretaps, alegitimate expectation was upheld notwithstanding the fact that it was impossible forthe applicants to rely detrimentally on it. In R v Secretary of State for Education, exp Begbie83 Peter Gibson LJ held that it is very much the ‘exception rather than therule’84 that reliance will not be required. Equally, in R (Bibi) v Newham BoroughCouncil,85 Schiemann LJ adopted Professor Craig’s view that:86

‘Detrimental reliance will normally be required in order for the claimant toshow that it would be unlawful to go back on a representation. This is in accordwith policy, since if the individual has suffered no hardship there is no reason basedon legal certainty to hold the agency to its representation.’

However, Craig adds a caveat, stating that:87

‘Where an agency seeks to depart from an established policy in relation to aparticular person detrimental reliance should not be required. Consistency oftreatment and equality are at stake in such cases, and these values should beprotected irrespective of whether there has been any reliance as such.’

To this end, in Begbie, Sedley LJ had ‘no difficulty with the proposition that in caseswhere government has made known how it intends to exercise powers which affect thepublic at large it may be held to its word irrespective of whether the applicant had beenrelying specifically upon it’.88 The better view is that detrimental reliance is not

78. [2001] 1 AC 410.79. [2006] EWHC 526 (Admin), [2006] Imm AR 477 per Collins J.80. M Elliott ‘Legitimate expectations procedure, substance, policy and proportionality’[2006] CLJ 254.81. Milk Marketing Board of England and Wales v Tom Parker Farms Ltd [1998] 2 CMLR721.82. [1987] 2 All ER 518.83. Above n 57.84. Ibid, at 1124.85. [2002] 1 WLR 237.86. P Craig Administrative Law (London: Sweet and Maxwell, 4th edn, 1999) p 619.87. Ibid, approved by Schiemann LJ op cit.88. Begbie, above n 57, at 1133.



required in order to ground a legitimate expectation. Such an expectation may arise bysatisfying the three questions I have outline above. The extent of any detrimentalreliance will be important in assessing the extent to which an expectation will beprotected. Without detrimental reliance, it is unlikely that the applicant’s interest willbe pressing. Put another way, the liberty of the applicant is affected far more greatlywhen they have relied detrimentally on a representation. The question of protection is,however, conceptually distinct from the question of whether a legitimate expectationexists at all. There is no reason why a legitimate expectation may not exist without anyreliance, enforced only by ensuring that the decision maker takes into account themoral detriment done to the applicant by frustrating that expectation.

5. RELATIONSHIP WITH OVER-RIGID POLICIES

The enforcement of a promise made by the decision maker does, to some degree, bindthe decision maker as to the course of conduct that they are free to pursue. Thisputs the legitimate expectations doctrine in tension with the rule against over-rigidpolicies. Moules notes that ‘policies can create consistency, certainty and facilitate thedispatch of large numbers of decisions’.89 To this end, the decision maker risks being‘castigated for inconsistency if he does not have a policy’.90 However, the normativediscretionary principle demands that ‘such power must be exercised on each occasionin the light of the circumstances at the time’.91 In the case of the latter, the courts haveheld that because the decision maker was entrusted with a discretion, it is an abuse ofher power to fetter that discretion by adopting a policy that will not look at each caseon its merits. They have held so because an over-rigid policy undermines the parlia-mentary monopoly on the creation of rules. If Parliament intended the decision makerto adhere to certain rules in exercising her discretion then it would have legislated tothat effect. In the absence of such guiding legislation, the courts assume that thedecision maker was intended to look at each case individually. However, in the case oflegitimate expectations, the decision making discretion of the public authority isfettered by its previous conduct or policy. Thus we have, on the one hand, a rule thatsays that the authority cannot declare that it wishes to bind itself prospectively throughits statements generally. On the other hand, if the public authority makes statementsinducing a legitimate expectation, these will prospectively bind the authority as to itsfuture options. The extent of this tension is demonstrated by the following example.Suppose a minister adopts a policy that he will allow all immigration appeals fromindividuals that have lived in the country for 2 years but will reject out of hand all ofthose from individuals who have not.92 This would clearly be an over-rigid policy andbe struck down should any applicant who has lived in the country for less than 1 yearseek judicial review. However, assuming for the moment that policy statements arecapable of giving rise to enforceable legitimate expectations, it appears that individu-als who have lived in the country for more than 2 years may have a claim that theirexpectations are legitimate and should be enforced, notwithstanding the fact that thedecision maker’s policy was made in excess of his jurisdiction.

89. Moules, above n 55, at 2-022.90. R (Walmsley) v Lane [2005] EWCA Civ 1540, [2006] RTR 15.91. R v Secretary of State for the Home Department, ex p Venables [1997] 3 All ER 97 perLord Browne Wilkinson.92. Assuming she is empowered to do so.



How do we resolve this tension? One possible response would be to say that witha legitimate expectation the courts are enforcing something that is beneficial, while apolicy will often involve denying benefits to an individual. This is a poor distinctionfor three reasons. The first, as Sales and Steyn93 note, is that in the case of an over-rigidpolicy ‘it is not the fact that an individual is complaining which provides the foun-dation for judicial intervention, but that the decision maker is not properly fulfilling itsduty as laid down by the legislature, to decide what to do in each case in the light ofits particular circumstances’. The second is that in the case of an over-rigid policy itis entirely conceivable that the policy does confer a great many benefits to a numberof people, notwithstanding the fact that one individual has lost out. The courts are notmaking a normative judgment on the benefits of the policy; they are instead condemn-ing the decision maker’s abrogation of her duty. The third is similar to the secondreason, namely that where a legitimate expectation has arisen there is clearly a benefitto an individual if it is protected. However, in the context of public authority decisionmaking, there will almost always be an opportunity cost to benefitting any individual.By doing anything that involves public authority expenditure (which all, even proce-dural legitimate expectations will inevitably do), it is trivial to note that the resourcesexpended on this benefit cannot be used to benefit any other individual. Thus, byconferring a benefit to one person, another loses out.

A better method for resolving the tension between the two doctrines may be to saythat both doctrines are the product of a balancing exercise between the competingclaims of the liberty of the individual and the normative discretionary principle. Anover-rigid policy is so when it involves an abrogation of the decision maker’s duty toconsider each case fairly. A legitimate expectation similarly will be protected wherethe individual’s liberty is compromised by the decision maker’s voluntary invitationof reliance on the promise. It may be that there are situations where a policy issimultaneously too rigid and yet gives rise to legitimate expectations. However, this ismerely an example of the public body owing different obligations to different groups.The public authority is under the general duty to the public to exercise its discretion,thus it cannot have an over-rigid policy. However, the authority owes a separate dutyto those to whom a promise was made not to violate unduly their liberty, thus it willbe held to the legitimate expectations it has created. To this end, Sales and Steyn haveargued:94

‘The “rule of law enforces minimum standards of fairness, both substantiveand procedural”95; it requires regularity and reasonable predictability in areaswhere government exercises discretionary power. Thus the ideal of legal certainty,which supplies the foundation for the protection of legitimate expectations, pro-vides a counterpoise to the reasons underlying the “no-fettering” doctrine.’96

The different doctrines therefore reflect a different outcome of the judicial balancingof liberty and normative discretion.

Moreover, the problem is rarely so stark. Legitimate expectations will generally beprocedurally protected through the opportunity to advance reasons rather than throughsubstantive restriction of the decision maker’s discretion. Procedural protection

93. Above n 34.94. Ibid, at 569–570.95. R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539 at 591F perLord Steyn.96. See Craig, above n 86, pp 615–616.



requires the decision maker to engage in a more thorough coordination of interests. Itdoes not predetermine the outcome of that coordination. The rule against over-rigidpolicies is directed towards ensuring that decision makers properly consider cases ontheir merits. By ensuring more detailed consideration of the interests affected by theexercise of executive discretion, procedural protection of legitimate expectationscomplements, rather than conflicts with, the rule against over-rigid policies.

Moreover, it is not common for a policy to be found to be over-rigid. In BritishOxygen Co Ltd v Minister of Technology,97 in the context of the purchase of equipment,Viscount Dilhorne said ‘it seems somewhat pointless and a waste of time that the Boardshould have to consider applications which are bound as a result of its policy to fail’.98

It appears from this case that in the context of national policies involving a large numberof applications, the rule against over-rigid policies will rarely be successfully invoked.It is therefore unlikely that many cases will arise where the doctrines of legitimateexpectations and over-rigid policies could conceivably conflict.

Two core ideas however can be derived from this discussion. The first is that thecourts will often have to engage in a balancing act with heads of review that in somecases conflict. This is undesirable, however unavoidable, given the state of the authori-ties on legitimate expectations. It is, however, not always the case that these heads ofreview will conflict. The extent to which they do will depend upon the remedialconsequences of a legitimate expectation. The second is that the invocation of legiti-mate expectations has great potential to undermine the agency autonomy of thedecision maker. The extent to which this autonomy is undermined will depend on howthe justifications for the legitimate expectations doctrine interact with the remediesavailable to the administrative courts.

CONCLUSION

The doctrine of legitimate expectations is still in its infancy. Through a combinationof luck and judicial reticence, the House of Lords has had little impact on its devel-opment. In the two most recent decisions of BIAPO and Bancoult, the issue of a clearand unambiguous representation was insufficiently analysed by the majority of theirLordships. Leave to appeal was refused in Niazi. The development of the law in thisarea will therefore continue to be through dicta from the Court of Appeal. The upshotof this has been that the law lacks justificatory principle as well as a clear organisa-tional structure. It is to be hoped that the Supreme Court will revisit this issue in thenear future. Legitimate expectation in its current state as a patchwork of possibleelements to consider, rather than organised system of rules, is little more than amechanism to dispense palm-tree justice.99

A principled approach can, however, be found. The requirement of a clear andunequivocal promise is the gateway for a legitimate expectation arising because it isthe point at which the public authority assumes moral and legal obligation for theindividual. Such an approach justifies the legitimate expectations protection andprovides a clear principle around which to frame a more structured, certain test fordiscovering these expectations. By adopting a three-stage structure, we can more

97. [1971] AC 610, though see contra R v Secretary of State for the Environment, ex p BrentLondon Borough Council [1982] QB 593.98. At 631.99. Above n 80.



easily see when that responsibility has been assumed by the decision maker andidentify the interest that the applicant has. The structure that I have proposed ensuresthat the courts are able to work out what the maximum content of the expectation is,ensuring that the decision maker is only held to that which they intentionally promisedto the applicant. By adopting this analysis, we create a system of rules that are easilyaccessible and promote trust in government that is the foundation of the legitimateexpectation doctrine.



clarity and ambiguity: a new approach to the test of legitimacy in the law of legitimate...

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