Coughlan Case and Essay Substantive Legitimate Expectation Theory That where a PA represents (either by express promise or by course of dealings) that it will conduct itself in a certain way that rep may give rise to an expectation that the pa will continue to act in this way giving rise to l. e Maybe too focused on merits of the case… Craig suggests that the protection of LE is in the interests of constitutional law… providing predictability, regularity and certainty.
Bingham in ex parte unilever – categories are not closed and development should not be caged… if a pa makes a promise it can amount to a contract and it’s unfair to go back on this. … le is the public law equiv of estoppel. -Schmit (1969) Scientology applicants visa rejected by home secretary, they were deported before end of trial; however, Denning felt they had a legitimate expectation to stay in the country until the end of their trial. This was a third element following on from natural justice, and their rights and privileges Coughlan (2001) Financial reasons wanted to close home, however had made an unequivocal promise stating she can stay, she relied on this selling her home. CoA held PA would only be allowed to resile from this in public interest. Also amounted to breach art 8 respect for one’s home ***Importance: new category of LE… sought to create this distinction from PLE. Here abuse of power was key, implications only financial but impact was huge. It would have been unfair to go back on promise and this lead to disproportionate effect on Coughlan. The boundaries of this case are still being explored… -Examples of how this operates: – Bibi (2001) Held that there was a legitimate expectation but the court was not willing to apply the Coughlan test and ‘order authority to honour its promise when to do so would assume the powers of the executive’. This suggested J didn’t want to meddle in the affairs of g/p especially considering delicate mature of social housing. Also the court suggested that no distinction need be drawn between substantive and procedural expectations. **In Bibi the court considered that it was not necessary to found a legitimate expectation that C had relied to her detriment on the representation made, in fact le should only be taken into account when making the decision (e. g. LA take this into account) Rashid (2005) If the LE so unfair and solution so simple (reasonableness test) then discretion of enforcement can be excercised. Notes relevant interests and complexity/number of people affected. Begbie – Would assisted places funding continue ‘all through’ schools or just until end of primary? Held not legitimate expectation due to concerns about pre-election promises, inconsistency with statutory scheme, not made to applicant directly etc. Law’s LJ approach more subtle than Coughlans threefold categorisation. But not inconsistent with the overall approach, he sees it more as points on a spectrum than ‘hermetically sealed’ categories. Wheeler (2009) The court sought to asses whether LE could arise from Lisbon treaty since no eferendum. Still unclear whether PLE or SLE. Claim failed as no claim – ratification was lawful. Proportionate response Laws LJ supports “a proportionate response to a legit aim” in order to ensure fairness and good admin. In light of the HRA this is supported as this is the favoured method. Right to fair trial/ no punishment without law. Hence why Laws LJ stated that resiling from LE should be given same scrutiny as applying HRA. Perhaps English law heading in this direction Daly and Brind have recognized this. Unlawful representations Must have the power to enforce this decision – may be revisited in future. Rowland v Environment Agency = ultra vires expectations are not legitimate. Although if representation is within powers of the agency but outside the authority of the official that is perhaps more complex. Arguments not to bind an authority to unlawful representations: legality, not to allow authorities to enlarge their powers, not to stop them from exercising powers or duties.
BUT individual may not know that the representation is unlawful and the expectation or detriment is just the same. Anti-public interest Stems from Coughlan – idea of an overriding interest justifying departure, it suggested proportionality test. For example in the GCHQ case – national security, although this hasn’t been tested. Procedural Expectation Expectation to be informed etc is easier to enforce -GCHQ – expected to be consulted on the prohibition of joining strikes/union this is l. e. -Ridge v Baldwin – expectation to have a hearing
