Procedural vs Substantive Legitimate Expectations

Introduction

Legitimate expectation is a public law principle that allows people to challenge a public authority decision when the authority departs from a stated promise, established practice, or published policy. It has two strands.

• Procedural legitimate expectation is about process: a promised hearing, consultation, or other procedural step.
• Substantive legitimate expectation is about outcome: a promised benefit or continued provision of a service.

Both strands turn on fairness and consistency in public decision-making. In most cases, the claimant must point to a clear, unambiguous, and unqualified representation by the public authority, made by someone with authority, which it would be unfair to frustrate. Courts will also weigh any strong reason the authority gives for changing course, such as national security, statutory duties, or significant policy demands.

This guide sets out the tests, the leading cases, and how to apply them in practice.

What You’ll Learn

• The difference between procedural and substantive legitimate expectations
• What counts as a clear, unambiguous, and unqualified representation
• How established practice and published policy can create expectations
• When reliance and detriment matter (and when they do not)
• How courts balance fairness against competing public interests
• Leading cases including Ng Yuen Shiu, GCHQ, Coughlan, Begbie, and Nadarajah
• Practical steps to frame or defend a judicial review claim

Core Concepts

Sources of a Legitimate Expectation

Legitimate expectations arise in three common ways:

• Express promises: written or oral assurances from an authorised official (for example, a commitment to consult or to provide a specific benefit).
• Established practice: consistent past conduct (for example, always offering an oral hearing before refusal).
• Published policy: a policy that says how the authority will act (including eligibility criteria and procedural steps).

Key points:

• The representation must be clear, unambiguous, and unqualified. Ambiguous or informal statements are unlikely to suffice.
• The promise or practice must be lawful and within the authority’s powers. An expectation cannot force an unlawful act or override statute.
• The more specific and targeted the promise (for example, given to a named individual), the stronger the expectation. Broad political statements are weaker.
• Reliance and detriment strengthen a claim, especially for substantive expectations. They are less central for procedural expectations but can still support fairness.

Procedural Legitimate Expectation: Fair Process

Procedural expectations protect process rights promised by the authority.

Typical examples:

• A promised hearing or opportunity to make representations before an adverse decision.
• A stated consultation process before changing a service or policy.
• A commitment to follow a set sequence of steps (notice, reasons, right to reply).

Tests and limits:

• Show a clear promise/practice and that it applied to the claimant.
• The authority can depart only for good reason. It should explain why and consider whether a fair alternative process is possible.
• Public interest can justify a departure (for example, urgent national security). However, the authority must still act fairly in the circumstances.

Remedies:

• Courts usually quash the decision and require the authority to follow the promised process before deciding again.

Substantive Legitimate Expectation: Assured Outcomes

Substantive expectations protect benefits or outcomes that a public authority has committed to provide or continue.

When they arise:

• A clear and specific promise to an individual or small group, often akin to a commitment intended to be relied upon.
• Occasionally, a policy that confers a benefit that the authority has repeatedly applied, creating a strong expectation of continuation.

Approach in the case law (drawing on Coughlan):

• If the promise is specific and personal, the court may require it to be honoured unless there is a strong public interest reason to depart.
• If the promise is part of a wide policy affecting many people, the court may apply a lighter touch and focus on rationality and fair transitional arrangements.
• Reliance and detriment carry weight. The more someone has arranged their life around the promise, the stronger the claim.

Limits and balancing:

• Authorities can change policy. The question is whether it is fair to frustrate this expectation now, and whether the authority has justified the change.
• Budget pressures alone rarely suffice unless well-evidenced and pressing. Consideration of alternatives and transitional measures helps.

Remedies:

• Quashing the decision and, in strong cases, requiring the authority to keep the promise or reconsider with the expectation given decisive weight.

Balancing with Public Interest and Proportionality

How courts weigh expectations against competing interests:

• The authority must show a legitimate aim for departure (for example, national security, statutory duty, or a pressing policy need).
• The means chosen must be suitable and no more than necessary. Could the authority achieve the aim while still respecting the expectation, perhaps through phasing, grandfathering, or exceptions?
• The court’s intensity varies. Person-specific promises attract closer scrutiny than broad policy shifts. Where Convention rights are engaged, proportionality assessment is explicit.

Relevant themes from the cases:

• Good administration requires authorities to keep their word unless it is proportionate to depart in pursuit of a legitimate aim.
• The authority should record reasons, consider fairness, assess reliance, and explain why alternatives would not work.

Key Examples or Case Studies

Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629

• Context: The government announced that each illegal entrant would be interviewed before removal.
• Key point: A procedural legitimate expectation arose from the public announcement. The claimant was entitled to be heard.
• Application: If you publish a process, follow it or give a strong, reasoned justification for departure.

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

• Context: The Prime Minister removed trade union rights at GCHQ without consultation, citing national security.
• Key point: Legitimate expectation can arise from past practice; however, national security can justify not following that practice.
• Application: Even procedural expectations can yield to weighty public interests, but reasons must be real and documented.

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

• Context: A severely disabled woman was promised a “home for life” at a particular NHS facility; the authority later sought closure.
• Key point: A substantive legitimate expectation arose. The promise was specific and clear, and it would be unfair to frustrate it without overriding justification.
• Application: Person-specific, clear assurances can bind the authority unless there is a compelling, evidenced reason to depart and no fair alternative.

R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115

• Context: A change of government policy affected continued funding for assisted places.
• Key point: Broad, political or class-wide assurances are less likely to create enforceable substantive expectations. Review is less intense; fairness may be addressed through transitional measures.
• Application: Distinguish specific promises from general policy statements. Consider whether phasing or exceptions are appropriate.

R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363

• Context: Government departure from a stated position in immigration matters.
• Key point: The overarching principle is that promises should be kept unless there is a good reason to depart, assessed by proportionality.
• Application: Document the aim, consider less intrusive options, weigh reliance, and explain why departure is proportionate.

Practical Applications

For claimants

• Identify the representation: Is it a clear promise, a published policy, or a consistent practice? Keep copies of letters, policies, and web pages.
• Show it applies to you: Explain how you fall within the promise or practice (for example, your application type or cohort).
• For substantive claims: Evidence reliance and detriment (financial arrangements, care decisions, schooling, relocation).
• Challenge any departure: Ask for reasons, point out the fairness concerns, propose alternatives (phasing, exceptions).
• Remedies: Consider whether you seek a fresh decision after a fair process (procedural) or continuation of the benefit (substantive).
• Timing: Follow the pre-action protocol. Issue promptly and in any event within three months of the decision.

For public authorities

• Before changing course: Audit promises, policies, and practices that may create expectations. Identify affected groups and individuals.
• Assess fairness: Has there been reliance? Would a transitional scheme, grandfathering, or case-by-case exceptions reduce unfairness?
• Record reasons: Set out the aim, options considered, and why departure is necessary and proportionate.
• Communicate clearly: Give notice of change, invite representations where appropriate, and provide reasons if departing from expectations.
• Stay within powers: Ensure no promise commits the authority to act unlawfully or contrary to statute. If a past promise was beyond power, explain why it cannot be honoured and consider mitigation.

Problem question tips

• Classify the expectation: procedural or substantive?
• Check clarity and source: Is the representation clear, unambiguous, and unqualified? Was it made by someone with authority?
• Weigh the balance: What is the authority’s stated aim? Are there less disruptive means? What reliance evidence exists?
• Choose the remedy: Quashing, mandatory order to follow process, declaration, or in rare cases an order effectively requiring the promise to be kept.

Summary Checklist

• Is there a clear, unambiguous, and unqualified representation?
• Was it made by someone with authority and within legal powers?
• Did an established practice or published policy apply to the claimant?
• Procedural expectation: Was a hearing/consultation promised? Any valid reason to depart?
• Substantive expectation: Is the promise specific and personal? Evidence of reliance and detriment?
• Has the authority explained its aims, considered alternatives, and shown that departure is proportionate?
• Are there statutory duties or compelling public interest reasons that genuinely justify a change?
• What remedy is appropriate: fresh process, continuation of benefit, phased transition, or declaration?

Quick Reference