Legitimate Expectations in Public Law

Introduction

Legitimate expectation in public law protects people from unfair shifts in policy or practice by public authorities. Where an authority has made a clear representation, or acted in a consistent way over time, those affected may reasonably expect the authority to act in line with that promise or practice.

The court asks three main questions:

• Was there a clear and unambiguous representation, or a well‑established practice?
• Was it reasonable to rely on it (and did the person rely on it in a way that mattered)?
• Is there a sufficient public interest reason to justify frustrating that expectation?

Some cases protect process (for example, a right to be consulted), while others protect a benefit (for example, continuing a policy or keeping a promise). The stronger and more specific the promise, the more likely the court is to require the authority to keep it unless there is a compelling justification.

What You'll Learn

• When a legitimate expectation arises from express promises or established practices
• The test for a promise: “clear, unambiguous and devoid of relevant qualification”
• The difference between procedural and substantive legitimate expectations
• How reliance and detriment affect the strength of a claim
• How public interest (e.g., national security, resources) can justify a change
• The burden of proof and how it can shift to the authority (Paponette)
• Practical steps to build or defend a legitimate expectation argument
• Remedies available in judicial review where an expectation is upheld

Core Concepts

Express Promises

An express promise is the most direct route to a legitimate expectation. The promise may be made to one person, a small group, or a defined class. The key points are:

• Clarity: The representation must be “clear, unambiguous and devoid of relevant qualification” (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61).
• Specificity: General policy aims or aspirational language usually won’t do. Concrete commitments do.
• Audience: A promise directed to an individual or small class tends to carry greater weight than a broad, political statement to the public.
• Qualification and disclaimers: If the authority warns that a statement is subject to change, it’s much harder to say there was a firm expectation.
• Withdrawal: Even if a promise created an expectation, an authority can change position if it can show a sound public interest reason and fair process.

Coughlan is the touchstone example: a “home for life” promise to a severely disabled resident was specific and personal, giving rise to a substantive expectation that the home would not be closed without a compelling reason.

Established Practices

A legitimate expectation can arise from a consistent and settled practice, even without explicit words. The focus is on:

• Consistency over time: The practice should be regular and long‑standing, not occasional or patchy.
• Uniform application: If the practice has varied or been applied unevenly, it is harder to say there was a settled course of conduct.
• Awareness: The affected person should know of the practice and reasonably expect it to continue.

In the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374), the unions could not show a consistent past practice of consultation that would bind the Government in the face of national security concerns. By contrast, where authorities have repeatedly consulted or followed a clear procedure, courts are more ready to recognise a procedural expectation (e.g., R (Bibi) v Newham LBC [2001] EWCA Civ 607).

Reliance and Detriment

Reliance is not always mandatory, but it often strengthens a claim, especially for substantive expectations:

• Procedural expectations: Reliance or financial detriment may be less important; fairness in process is the focus.
• Substantive expectations: Where someone changes position or incurs expense on the strength of the promise, the court is more likely to require the authority to keep it unless there is a compelling public interest.

In Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32, claimants made significant investments based on the Government’s assurances. Once the claimants showed a clear promise and reliance, the burden shifted to the authority to justify its change and to explain why less disruptive options were not feasible.

Overriding Public Interest

Even if a legitimate expectation is established, an authority may depart from it where there is a sufficient public interest reason:

• Examples include national security, public health, and major policy shifts driven by finance or law.
• The authority must show the decision is fair and proportionate in all the circumstances, including whether alternatives existed that would respect the expectation.
• The court will weigh the importance of the promise or practice, the impact on the individual, and the public interest in change.

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, while not primarily a legitimate expectation case, demonstrates how courts balance fairness with security. Policies affecting rights can be justified if the measures are suitably tailored and necessary to meet pressing concerns.

Procedural vs Substantive Expectations

Legitimate expectations fall into two broad types:

• Procedural expectation: An expectation of a process (e.g., consultation, a hearing, or a particular method of decision‑making). The usual remedy is to require the authority to follow that process.
• Substantive expectation: An expectation of a benefit or outcome (e.g., continuation of a service or policy). The threshold is higher; the promise must be clear and specific, and fairness may require the authority to honour it unless there is a strong public interest to the contrary (as in Coughlan).

Courts consider whether frustrating the expectation would be so unfair as to amount to an abuse of power. The more specific and personal the promise, the stronger the expectation.

Key Examples or Case Studies

• R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213

  • Facts: Health authority promised a “home for life” to a severely disabled resident.
  • Point: Clear, personal promises can create a substantive expectation. The court required a strong justification to depart from it.
  • Takeaway: Specific commitments to individuals or a small group carry significant weight.

• Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374

  • Facts: Trade unions claimed an expectation of consultation.
  • Point: The House of Lords accepted the doctrine of legitimate expectation but held that inconsistent past practice and national security concerns meant no enforceable expectation arose in that case.
  • Takeaway: Even where the doctrine applies, national security can justify departure.

• Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32

  • Facts: Taxi drivers invested based on Government assurances about facilities and operations.
  • Point: Once a clear promise and reliance are shown, the authority must justify any change and explain why less disruptive options were not practical.
  • Takeaway: Reliance can shift the burden to the authority and strengthen the claim.

• R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61

  • Facts: Statements about resettlement of Chagos Islanders were relied on as creating expectations.
  • Point: The court emphasised the clarity test: promises must be “clear, unambiguous and devoid of relevant qualification”.
  • Takeaway: Vague or qualified statements do not usually create a legitimate expectation.

• R (Daly) v Secretary of State for the Home Department [2001] UKHL 26

  • Facts: Policy affecting prisoners’ legal correspondence and searches.
  • Point: Illustrates how strong public interest reasons (security) can justify policies that limit expectations or rights, if suitably tailored.
  • Takeaway: Public interest can defeat an expectation where the measure is necessary and properly justified.

Practical Applications

• Map the representation or practice

  • Identify the precise words, documents, or actions said to create the expectation.
  • Check for qualifiers or disclaimers that keep the door open to change.

• Test for clarity and scope

  • Is the promise “clear, unambiguous and devoid of relevant qualification”?
  • Who was it made to—an individual, a defined group, or the public at large?

• Gather evidence of reliance and detriment

  • Show financial spend, life decisions, or other meaningful steps taken because of the promise or practice.
  • Where reliance is hard to prove, focus on fairness and consistency.

• Classify the expectation

  • Procedural: seek consultation, a hearing, or a specific decision process.
  • Substantive: seek continuation of a benefit, service, or policy.

• Anticipate and assess public interest arguments

  • Identify the authority’s reasons (e.g., national security, public health, budget).
  • Consider whether less disruptive options could achieve the same goal.
  • Evaluate whether the authority considered fairness to those affected.

• Structure a pre‑action letter (judicial review)

  • Set out the promise/practice, reliance, and why departure would be unfair.
  • Cite supporting cases (Coughlan, Paponette, GCHQ, Bancoult).
  • State the remedy sought: quashing order, declaration, mandatory order, or an undertaking to follow a process.

• Remedies and outcomes

  • Procedural cases: often a quashing order with directions to consult or reconsider.
  • Substantive cases: orders requiring the authority to keep the promise unless it can properly justify departure; sometimes a declaration is granted.

• Timing

  • Bring claims promptly and, in any event, within three months of the grounds arising (subject to the court’s discretion). Delay can be fatal.

Summary Checklist

• Clear, specific representation or a consistent, settled practice
• Promise meets the Bancoult clarity test
• Evidence the claimant knew of and reasonably relied on the promise/practice
• Any detriment or change of position recorded
• Categorise: procedural or substantive expectation
• Consider fairness: would frustrating the expectation be an abuse of power?
• Weigh public interest; check if less disruptive options were considered
• Identify suitable remedies and act within judicial review time limits

Quick Reference