INTRODUCTION
I question the underlying premise of the statement, that ‘requiring public bodies to do
what they have undertaken to do’ would necessarily ‘promote the highest standard of
good government’: good government is a complex business, and the public interest and
the legality principle (in the case of ultra vires assurances) would be engaged too. Hence,
though detrimental reliance is not crucial to obtaining judicial review on grounds of
legitimate expectations, not all legitimate expectations can be fully enforced.
English law certainly takes into account the need for administrative agencies to act
reasonably and to not abuse their power in the Bibi sense but English law certainly does
not accept the assumption that forcing public authorities to do what they said, even if it
was particularly misguided or simply ultra vires.
In this essay, I will define relevant terms and then explore these various considerations
normatively before considering the English legal position.
WHAT IS A LEGITIMATE EXPECTATION?
A legitimate expectation is simply a situation where an individual or defined class of
people have been either expressly or impliedly given some sort of assurance by the
government that they would receive a particular form of treatment or benefit. Steele
(2005) considers the qualification ‘legitimate’ to be unhelpful, saying that it simply refers
to cases where the interest raised is one deemed ‘deserving’ of judicial protection. Despite
its imprecise nature, Attorney-General of Hong Kong v Ng Yuen Shiu suggests that a
legitimate expectation is one which is ‘reasonable’. Ahmed and Perry (2014) say a
legitimate expectation may arise through a promise, government practice or policy.
Generally, legitimate expectations may be substantive or procedural. Ng Yuen Shiu was a
case of procedural legitimate expectation protected through the grant of a fair hearing to
Mr Ng, an illegal Macanese immigrant to the then-Crown Colony of Hong Kong, on the
basis of assurances published in the Hong Kong press that he would not be summarily
deported if he presented himself to the immigration authorities. R v North and East Devon
Health Authority ex p Coughlan, in contrast, is a case of substantive legitimate
expectations protected substantively. Ms Coughlan was promised a ‘home for life’, and
that was what the court ordered the Health Authority to do. Coughlan also said that some
substantive promises may only be given some lesser protection, like procedural
protection.
WHAT IS GOOD GOVERNANCE?
Good governance is a nebulous term. Fundamentally, good governance is about making
decisions which benefit society at both general and personal levels. This embodies a
tension between efficiency and fairness to the individual, although acting fairly towards
individuals may instrumentally contribute to efficiency by fostering co-operation
between citizens and government agencies. In the case of legitimate expectations, one
must therefore consider the importance of the assurance made and balance it against the
public interest. This is the position advanced by Craig generally, and the position adopted
in Coughlan for (intra vires) substantive legitimate expectations.
I question the underlying premise of the statement, that ‘requiring public bodies to do
what they have undertaken to do’ would necessarily ‘promote the highest standard of
good government’: good government is a complex business, and the public interest and
the legality principle (in the case of ultra vires assurances) would be engaged too. Hence,
though detrimental reliance is not crucial to obtaining judicial review on grounds of
legitimate expectations, not all legitimate expectations can be fully enforced.
English law certainly takes into account the need for administrative agencies to act
reasonably and to not abuse their power in the Bibi sense but English law certainly does
not accept the assumption that forcing public authorities to do what they said, even if it
was particularly misguided or simply ultra vires.
In this essay, I will define relevant terms and then explore these various considerations
normatively before considering the English legal position.
WHAT IS A LEGITIMATE EXPECTATION?
A legitimate expectation is simply a situation where an individual or defined class of
people have been either expressly or impliedly given some sort of assurance by the
government that they would receive a particular form of treatment or benefit. Steele
(2005) considers the qualification ‘legitimate’ to be unhelpful, saying that it simply refers
to cases where the interest raised is one deemed ‘deserving’ of judicial protection. Despite
its imprecise nature, Attorney-General of Hong Kong v Ng Yuen Shiu suggests that a
legitimate expectation is one which is ‘reasonable’. Ahmed and Perry (2014) say a
legitimate expectation may arise through a promise, government practice or policy.
Generally, legitimate expectations may be substantive or procedural. Ng Yuen Shiu was a
case of procedural legitimate expectation protected through the grant of a fair hearing to
Mr Ng, an illegal Macanese immigrant to the then-Crown Colony of Hong Kong, on the
basis of assurances published in the Hong Kong press that he would not be summarily
deported if he presented himself to the immigration authorities. R v North and East Devon
Health Authority ex p Coughlan, in contrast, is a case of substantive legitimate
expectations protected substantively. Ms Coughlan was promised a ‘home for life’, and
that was what the court ordered the Health Authority to do. Coughlan also said that some
substantive promises may only be given some lesser protection, like procedural
protection.
WHAT IS GOOD GOVERNANCE?
Good governance is a nebulous term. Fundamentally, good governance is about making
decisions which benefit society at both general and personal levels. This embodies a
tension between efficiency and fairness to the individual, although acting fairly towards
individuals may instrumentally contribute to efficiency by fostering co-operation
between citizens and government agencies. In the case of legitimate expectations, one
must therefore consider the importance of the assurance made and balance it against the
public interest. This is the position advanced by Craig generally, and the position adopted
in Coughlan for (intra vires) substantive legitimate expectations.
