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=Introduction=

Basis/Origins of the doctrine
Since its inception, the doctrine of legitimate expectation has been viewed as an offshoot of natural justice. The duty to act fairly is a core tenet of administrative law and a predominant feature in the application of the rules of natural justice. With each individual’s ‘entitlement to natural justice’ and fairness, legitimate expectation reinforces the public body’s duty to act fairly. It is this protection of fairness that made way for the Court’s acknowledgement of legitimate expectations. In their elaboration of the doctrine, UK Courts adopted other key aspects of judicial review such as Wednesbury unreasonableness, fairness and abuse of power, to justify the existence and the protection of legitimate expectations.

The phrase ‘legitimate expectation’ was first used in the case of Schmidt v Secretary of State for Home Affairs, but was not applied on the facts. Subsequently, in O’Reilly v Mackman , the doctrine of legitimate expectations was recognized as part of judicial review in public law, allowing individuals to challenge the legality of decisions on the grounds that the decision maker “had acted outwith the powers conferred upon it”. Although initially unclear, the nature and boundaries of the doctrine of legitimate expectation have been elucidated by recent seminal cases, such as R v North and East Devon Health Authority, ex parte Coughlan, and Council of Civil Service Unions v Minister for the Civil Service (the "GCHQ " case, 1983). Notwithstanding efforts of the Court, ambiguity of these terms persist as there is insufficient guidance as to when legitimate expectations would arise. In response, Laws LJ proposed the aspiration of “good administration” as a justification for the protection of legitimate expectations.

The Legal Framework
Upon reviewing an ex parte administrative claim for the protection of a legitimate expectation against an authority’s decision/policy, courts will deliberate over three key considerations, which are:
 * 1) The situations and circumstances in which legitimate expectations arise;
 * 2) Instances in which it would be unlawful for the public authority to frustrate such an expectation; and
 * 3) The remedies that would be available to the aggrieved party if it is found that the public authority had unlawfully frustrated a legitimate expectation.

Procedural
A procedural legitimate expectation is created when a representation is made by a public authority that it will follow a certain procedure before making a decision on the substantive merits of a particular case. Examples of procedural legitimate expectations would include the right to be consulted or the entitlement to a fair hearing.

Substantive
A substantive legitimate expectation is formed where a representation is made by a public authority as to the final decision and outcome that the public authority will make in a particular case.

=When does an expectation become legitimate?= Courts take into account not only the reasonableness of the expectation but other considerations such as the nature of representation made. Lord Diplock in GCHQ stated that a “legitimate expectation” is one which “has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a ‘reasonable’ man, would not necessarily have such consequences”. It is a question of law, and has to be decided on an objective basis with full reference to the facts of the case.

Although the GCHQ case states that an ‘effect will be given in public law’ for a legitimate expectation, the legitimacy of an expectation is not meant to be a conclusory label assuring the court’s provision of remedies, but rather to warrant prima facie protection only. It may be rebutted by countervailing public interests.

Nature of Representation Made
A legitimate expectation does not arise when it is made ultra vires of the decision maker’s statutory powers. Courts are reluctant to protect such an expectation. The rationale for this is undoubtedly clear and rests on the scope of the administrative authority’s powers. It prevents public authorities from expanding their powers simply by making ultra vires representations. Secondly, allowing public authorities to be bound by their ultra vires representations may potentially prevent them from exercising its statutory powers or duties. Also, allowing a public authority to be bound could be unfair to third parties who are affected. However, courts may be obliged to protect legitimate expectations arising from representations by unauthorised officers of the public body.

Ultra Vires Representation
Expectations are not legitimate when they require a public authority to act in breach of its statutory duty. This applies only when the statutory provisions diametrically conflict with the representation. In other words, the statutory provision will render the courts fulfillment of the expectation impossible. However, a statutory provision which merely permits, but does not compel the public authority to breach the expectation will not necessarily justify any such breach. Where the circumstances under which the representation was made falls under the Human Rights Act 1988, the individual’s rights may occasionally override the arguments of legality. The European Convention of Human Rights has declared that in the determination of whether the individual’s rights would override the arguments of legality would be determined on a case-by-case basis, and in the light of the proportionality principle.

Statements Made by Unauthorised Officers
For the expectation to be legitimate, the individual making the representation must have actual or apparent authority to make it on the behalf of the public authority. Such representations would prima facie bind the public authority. It is of note that although representations made by an individual with apparent authority may have been made outside his powers, they are nevertheless legitimate as they fall within the scope of powers of the particular public body.

Representations will not lead to legitimate expectations when delegation of such power to the individual making the representation is forbidden by statute or where the individual making the representation lacks actual or apparent authority. In the latter case, the applicant’s expectation will lack legitimacy and thus would be prima facie non-binding on the public authority.

The Reasonableness of the Expectation
In deciding whether the expectation held by the aggrieved party is legitimate, the courts will consider whether the expectation was, in all circumstances, reasonable when it was formed. The reasonableness test requires the court to assess the behaviour of the parties in the events which occurred prior to the making of the alleged representation.
 * The representation may arise from either the words used or the behaviour of the parties.
 * The aggrieved party must not have utilized fraudulent measures to obtain the representation, and must have disclosed all relevant information.
 * The representation must usually be “clear, unambiguous and devoid of all relevant qualification."
 * However,this would not be required to establish the existence of a legitimate expectation if the public authority acted so unfairly such that its conduct constituted an abuse of power.

The number of aggrieved individuals affected may play a part as courts have found for a legitimate expectation when the representation was “pressing and focused”, and made to a small group of individuals. On the other hand, courts rarely find an existence of a legitimate expectation when the representation was one made in general terms, to a large and diverse group of individuals. Of notice are instances such as where an individual has sought relief on behalf of a sizeable group of people, albeit successfully.

An Alternative test Proposed by De Smith
De Smith’s test is illustrative to determine the presence of a legitimate expectation. It lays out four requirements of the representation made and the following expectation:
 * The representation must be clear, unambiguous, and does not have any relevant qualification;
 * The expectation must be induced by the behaviour of the public authority;
 * The representation must have been made by someone who had actual or apparent authority; and
 * The representation must be applicable to the aggrieved parties.

Reliance and Detriment as a Consideration for Legitimacy
Courts have considered the applicant’s reliance on the representation as a relevant consideration when determining an existence of a legitimate expectation. In doing so, courts have dichotomised the role of reliance to that of “weak” and “strong”. A weak reliance arises when the applicant was made aware of and merely believed in the truth of the representation. Strong reliance, on the other hand, occurs where the applicant has acted upon the representation and consequently faced detriment.

Prior to the court’s protection of legitimate expectations, the baseline requirement of weak reliance is assessed. It is not however required where the authority did not apply the general policy of the time to the individual case at hand. This exception is prompted by the overriding imperative of equality. Thus, the applicant need not have had detailed knowledge or the existence of the policy in order for a legitimate expectation to arise where the public authority had departed from the existing policy in deciding the individual case. Strong reliance by the applicant is not compulsory to prove the existence of a legitimate expectation. In spite of detrimental reliance not being an essential requirement, Peter Gibson L.J. stated that “it would be wrong to understate the significance of reliance in this area of the law”. Detrimental reliance is not indicative of whether the court should protect an applicant’s legitimate expectation but usually furthers an applicant’s case. It was only in exceptional cases where the court protected a legitimate expectation in which detrimental reliance was absent.