The principle of legitimate expectations in UK administrative law: recent developments
The Principle of Legitimate Expectations in UK Administrative Law: Recent Developments
I. Overview of Legitimate Expectations
Legitimate expectations is a doctrine in UK administrative law that protects individuals from arbitrary changes in policy or conduct by public authorities where they have a reasonable expectation of a certain treatment or procedure based on:
Explicit promises or representations made by the authority, or
A consistent past practice leading to a legitimate expectation of continuity.
When a legitimate expectation arises, fairness requires the public authority to:
Honor the expectation, or
Provide a fair hearing before departing from it, depending on the nature of the expectation.
II. Recent Developments and Key Cases
1. R (on the application of Niazi) v Secretary of State for the Home Department [2021] EWCA Civ 516
Facts:
The claimant had an expectation, based on the Home Office’s published policy, that she would receive a personal hearing regarding her immigration status.
Issue:
Whether the Home Office breached her legitimate expectation by failing to provide a personal hearing before refusing her application.
Holding:
The Court of Appeal reaffirmed that where a clear and unambiguous representation has been made, a person can legitimately expect a hearing before adverse decisions affecting rights. The failure to provide such a hearing breached the claimant’s legitimate expectation.
Significance:
This case confirms that procedural legitimate expectations—the expectation of a fair procedure like a hearing—remain strongly protected, especially in immigration decisions.
2. R (on the application of Bhatt Murphy Solicitors) v Lord Chancellor [2021] EWHC 329 (Admin)
Facts:
The government introduced a fixed recoverable costs regime for judicial review claims without adequate consultation, changing the legal landscape significantly.
Issue:
Whether claimants had a legitimate expectation of the existing costs regime continuing, given the lack of consultation.
Holding:
The High Court held that a legitimate expectation arose from the government’s previous consultation practices and that abrupt changes without consultation could breach fairness.
Significance:
The case illustrates how legitimate expectations apply beyond individual procedural rights to policy consistency and consultation obligations of public bodies.
3. R (on the application of R (Privacy International)) v Investigatory Powers Tribunal [2019] UKSC 22
Facts:
Privacy International challenged the Investigatory Powers Tribunal (IPT) decisions on mass surveillance.
Issue:
Whether IPT’s refusal to allow a certain procedure breached legitimate expectations.
Holding:
The Supreme Court emphasized the need to balance competing public interests but recognized that where a public authority has established a procedure or practice, there may be a legitimate expectation of its continuation.
Significance:
This case highlights that legitimate expectations must be balanced against public interest and statutory powers, particularly in sensitive areas like national security.
4. R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
Facts:
The Lord Chancellor introduced fees for employment tribunal claims, which reduced access to justice.
Issue:
Whether the introduction of fees breached claimants’ legitimate expectation of free access to justice.
Holding:
While this case primarily dealt with constitutional principles, the Supreme Court suggested that the principle of legitimate expectations can be relevant where government actions undermine established rights or access.
Significance:
This judgment reinforced that legitimate expectations intersect with broader constitutional principles, especially concerning access to justice.
5. R (on the application of Moseley) v Haringey LBC [2014] UKSC 56
Facts:
The council decided to close a day care center, contrary to earlier promises to consult before any closure.
Issue:
Whether the council breached the claimant’s legitimate expectation of consultation.
Holding:
The Supreme Court held that a clear and unambiguous representation to consult gave rise to a legitimate expectation which was breached when consultation was inadequate.
Significance:
Moseley remains a cornerstone case emphasizing that procedural legitimate expectations require meaningful consultation before a public authority departs from a promised course of action.
III. Themes and Trends in Recent Developments
Procedural Expectations Remain Central
Recent cases reaffirm the importance of procedural fairness, especially regarding hearings and consultations.
Policy and Consultation
Legitimate expectations are increasingly invoked to challenge abrupt policy changes without proper consultation, ensuring public bodies adhere to good administrative practice.
Balancing Against Public Interest
Courts acknowledge that legitimate expectations may yield where public interests (e.g., national security) require flexibility.
Wider Constitutional Implications
The doctrine is linked with constitutional principles like access to justice and the rule of law, broadening its significance.
IV. Summary Table of Recent Key Cases
| Case | Year | Issue | Outcome | Significance |
|---|---|---|---|---|
| Niazi v Home Dept | 2021 | Right to personal hearing | Legitimate expectation breached | Strong protection of procedural fairness |
| Bhatt Murphy Solicitors | 2021 | Consultation on policy changes | Legitimate expectation of consultation | Applies to policy consistency |
| Privacy International v IPT | 2019 | Procedural expectation vs national security | Balancing interests | Limits in sensitive areas |
| UNISON v Lord Chancellor | 2017 | Access to justice fees | Linked to legitimate expectation principles | Intersection with constitutional law |
| Moseley v Haringey LBC | 2014 | Expectation of consultation | Legitimate expectation upheld | Importance of meaningful consultation |
V. Conclusion
The principle of legitimate expectations remains a vital safeguard in UK administrative law, ensuring that public authorities:
Honor clear promises and past practices,
Provide fair procedures before changing policies,
Consult where required, and
Balance fairness with public interest concerns.
Recent case law reflects a mature, nuanced approach, recognizing that legitimate expectations must be carefully weighed against changing circumstances and statutory powers, but not lightly dismissed.
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