User:Markkvincent/sandbox

Substantive legitimate expectation
A substantive legitimate expectation arises where a public body makes a "lawful representation that an individual will receive, or continue to receive, a substantive benefit of some kind".

Development of a substantive legitimate expectation
The Court of Appeal in R v. Secretary of State for the Home Department, ex p Hargreaves (1997) initially rejected the argument that the courts could perform a substantive review function beyond that permitted of Wednesbury. This stance was soon changed.

In R v Secretary of State for the Home Department ex p Khan (1984),, the applicant argued that the government had unfairly failed to apply the criteria in a government circular that outlined the criteria for which a family could adopt children living outside the United Kingdom. In the court’s judgment, Parker LJ surmised that expanding the doctrine of legitimate expectation to protect a substantive element would not necessarily be inconsistent with the principle underlying the doctrine. He stated that “just as [other cases have established that public authorities cannot] resile from an undertaking and change [their] policy without giving a fair hearing so, in principle, the Secretary of State, if he undertakes to allow in persons if certain conditions are satisfied, should not in my view be entitled to resile from that undertaking without affording interested persons a hearing...”.

This introduced the idea that in certain cases, the courts would consider if policy changes were justified even when the affected parties had already been consulted. Effectively, this proposition grants courts the discretion to ascertain whether the public interest is better served by ordering an authority to perform its undertaking than to frustrate it.

Khan (1984), ,is also regarded as the first case in which an individual relied on a general policy, as opposed to a specific representation or a policy drawn for a closed class of persons, as the grounds for the expectation of a benefit.

While Khan mooted the idea of a substantive legitimate expectation, the doctrine was more completely developed in the High Court judgement of R v Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Off-shore) Fisheries Ltd [1995]. Sedley J attempted to widen the court's protection of legitimate expectations by including “substantive protection of a substantive legitimate expectation”.

In his judgment, Sedley J clearly rejected the proposition that legitimate expectations were limited to procedural grounds. In no uncertain terms, he stated that “[i]t is difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision-maker than it is to frustrate a legitimate expectation that the applicant will be listened to before the decision-maker decides whether to take a particular step.”

The Categorical Approach
The UK’s major development of substantive legitimate expectation in R v North and East Devon Health Authority, ex p Coughlan (1999), created 3 distinct categories for courts to further classify and treat substantive legitimate expectations differently.

The applicant, Mrs Pamela Coughlan, was a long-term patient in Mardon House from 1993. The health authority promised that Mardon House would be the patients’ "home for life” . However, in 1998, the cost of running the facility had become “prohibitively expensive” and the authority decided to close it. Relying on the promise the authority had made, Mrs Coughlan challenged the authority’s decision in court. The High Court held that Mrs Coughlan had a legitimate expectation that the authority would keep Mardon House open and granted a quashing order on the authority’s decision. The Court of Appeal also affirmed that there Mrs Coughlan had a substantive legitimate expectation that needed protection. In its judgement, the Court prescribed a categorical approach in classifying legitimate expectations, based on the circumstances of each individual case:

Category (a): Protection of substantive legitimate expectations against decisions that are wednesbury unreasonable

The Court of Appeal in Coughlan stated that The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. The Court is confined to reviewing the decision on Wednesbury grounds. This has been held to be the effect of changes in policy in cases relating to the early release of prisoners as in ''Reg. v. Secretary of State for the Home Department, Ex parte Hargreaves''[1997] 1 W.L.R. 906.

Category (b): Protection of procedural fairness

The Court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. It is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking fairness into account.

Category (c): Protection of a substantive legitimate expectation - the balancing exercise

Where the Court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, the court will decide whether to frustrate that expectation is so unfair that to take a new and different course will amount to an abuse of power. Once legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.

Categories (a) and (c) seek to streamline the means of protection for substantive legitimate expectations. Under category (a), the court is restricted to reviewing the decision on Wednesbury grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. On the other hand, category (c) is employed where the court finds it “necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised”. This approach is said to be closely related to the application of the proportionality principle. Category (c) requires the court to conduct a balancing exercise in considering the relative merits between enforcing a decision maker’s promise which has given rise to a legitimate expectation and the countervailing reasons to frustrate the promise, with an emphasis on fairness and promoting good administration.

Although Coughlan attempted to neatly categorise the different types of substantive legitimate expectations to assist the judicial intervention in administrative decisions, difficulties nevertheless arose in deciding which category each case fell under. R v Secretary of State for Education and Employment, ex p Begbie clarified that category (a) is utilised in cases where a sizeable part of the population is involved and affected in “what may inelegantly be called the macro political field”. However, category (c) is employed where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract.

The proportionality approach
The categorical approach advocated by Coughlan showed that for substantive legitimate expectations to be protected, it had to fit into one of three separate categories. Courts encountered a potential problem of a substantive legitimate expectation belonging to 2 different categories in turn, leading to 2 different approaches and 2 different outcomes. Lord Justice John Laws was of the opinion in R. v. Secretary of State for Education and Employment, ex parte Begbie (1984),. that Coughlan’s 3 categories are not "hermetically sealed”. In an obiter dicta in Nadarajah v. Secretary of State for the Home Department, Laws LJ sought out a more structured form of merits-based review. . He expanded Coughlan’s distinct categorical approach into a continuum based on proportionality where he suggested that in order for a decision to resile from legitimate expectation, to be lawful, it must be “a proportionate response to a legitimate aim pursued by the public body in the public interest.”

By advocating proportionality in the court's approach towards protecting substantive legitimate expectations, Laws LJ effectively paralleled the approach used by UK courts when considering whether an interference with a qualified right under the European Convention on Human Rights is lawful. Drawing guidance from the convention, the proportionality test requires (i) that the objective of the action must be sufficiently important to justify limiting a fundamental right; (ii) that the action designed to meet the objective must be rationally connected to that objective, and not arbitrary, unfair or based on irrational considerations; and (iii) the means used to impair the right must be no more than is necessary to accomplish the legitimate objective, and the more severe the deleterious effects of an action, the more important the objective must be if the action is to be justified.

The proportionality approach, by virtue of the Human Rights Act 1998, resonated with courts that were familiar in applying such a test in cases involving qualified Convention rights across a wide spectrum of factual and policy contexts. Although Obiter, it was acknowledged by Silber J. in R (X) v Head Teacher and Governors of Y School.

Potential remedies for legitimate expectations
Under a judicial review of administrative action, the court has a range of remedies it may award. Upon the applicant satisfying threshold issues, the court may seek to protect the legitimate expectation. The quashing order (also known as certiorari) is one of the more common prerogative orders issued in legitimate expectation.

A quashing order has the effect of invalidating the public body’s decision, which often results in the issue returning to the original body to reconsider afresh. It is used to protect the procedural legitimate expectation of an individual, who seeks to protect his or her right to be consulted before a decision affecting him or her is made. In A.-G. of Hong Kong v. Ng Yuen Shiu, both the remedies of prohibition and that of a quashing order were discussed. The Privy Council substituted the lower court’s inappropriate order of prohibition with an order of certiorari to quash the authority’s decision. In this case, a representation was made by the public authority that each illegal entrant to Hong Kong from Macau, of whom the applicant was one, would be interviewed with each case treated on its merits before deciding to deport the illegal entrant. Tbe applicant was not given an opportunity to make any representations. The failure of the authority to provide the applicant with this chance was deemed to be a sufficient ground for quashing the decision. The Court of Appeal had earlier ordered a prohibition restraining the Director from executing the removal orders. However, the Privy council decided otherwise that a prohibition was an excessive step. Lord Fraser of Tullybelton who delivered the judgment of their Lordships stated:

The appropriate remedy is not the conditional order of prohibition made by the Court of Appeal, but an order of certiorari to quash the removal order made by the director on October 31 against the applicant. That order of certiorari is of course entirely without prejudice to the making of a fresh removal order by the Director of Immigration after a fair inquiry has been held at which the applicant has been given an opportunity to make such representations as he may see fit as to why he should not be removed.

A quashing order may also be used to protect a substantive legitimate expectation. It effectively sets aside the decision that frustrates the promise which leaves the public authority bound to their earlier representation – a substantive outcome for an applicant. Coughlan is particularly illustrative where the Court of Appeal upheld the High Court’s decision in issuing a quashing order to prevent the health authority from closing the facility which the applicant was a resident of. The Court of Appeal held that the applicant had a substantive legitimate expectation to keep the home open, which the authority was not allowed to frustrate. The quashing order effectively ensured that the facility was kept running for the benefit of its residents.

Apart from a quashing or prohibiting order, a mandatory order is occasionally used to mandate a substantive outcome for an applicant. A mandatory order is one which commands a public body to perform a public duty, and is often used to compel public bodies to exercise the powers given to them.

Court’s have been cautious when deciding to order public authorities to fulfill the substantive legitimate expectations of applicants. In awarding complete protection of an applicant’s substantive legitimate expectation, the court is effectively mandating the outcome of a public body’s decision making process. This will undesirably fetter the discretion of the decision maker, as it will no longer be able to construct policy without constraints. While protecting legitimate expectations has an important role in ensuring good administration, there are certain issues in which the judiciary should restrain itself from exercising its reviewing role. In elaborating on the categories of prerogative decision which are unjusticiable, Lord Diplock observed that: "Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another – a balancing exercise which judges by their upbringing and experience are ill- qualified to perform."

To this extent, issues concerning national security, national welfare and the polycentric debate involving the allocation of resources should remain outside the scope of the doctrine of legitimate expectations. Arguably, when a court makes a mandatory order such as in the case Coughlan, requiring the authorities to continue running a “prohibitively expensive”. home, it has overstepped its boundaries. Nevertheless, it is acknowledged that protecting substantive legitimate expectations is a key tenet of ensuring good administration. Consistency and fairness are reinforced in decision making processes where administrative power to alter policy is not used to unduly frustrate legitimate expectations. . Further, the court’s protection of a substantive legitimate outcome builds trust and credibility in the executive body and governing administration.

To some who have fully relied on the decision maker’s policy, any change in policy may cause them severe hardship and leave them with no alternative. Coughlan is illustrative of such an instance. By acting contrary to what it had induced an individual to expect, a public body may cause that individual severe hardship, especially where there is no satisfactory alternative to the substance of the promise. Protection via any remedy may thus alleviate such problems in similar circumstances. .

Notable differences in other jurisdictions
Notwithstanding its acceptance and protection in the UK, procedural legitimate expectations are also recognised in other common law jurisdictions. In stark contrast lies the application of substantive legitimate expectations where Courts in other continental jurisdictions have either remained reticent about their reluctance to accept it or have explicitly expressed doubts over it.

Besides its strict application in the UK, protection of procedural legitimate expectation has also been recognised and accepted in other common law jurisdictions such as Australia: see Gte (Australia) Pty Ltd v Brown. In the case, the authority had denied natural justice by failing to comply with the promise to provide an opportunity for a hearing towards the close of the investigation and by departing from the procedures upon which the Department had determined in the present case. Applying the principles of GCHQ, a frustration of legitimate expectation was held. Apart from Australia, this principle to provide a right to be heard has also been approved in Singapore, though none of the cases have yet succeeded in establishing a frustration of legitimate expectation: see Re Siah Mooi Guat and Borissik v Urban Redevelopment Authority.

In contrast, protection of substantive legitimate expectation has not yet been expressly recognised as part of Singapore law. The Singapore Court of Appeal’s reasoning in Abdul Nasir bin Amer Hamsah v. Public Prosecutor. implicitly suggests that Singapore recognised substantive legitimate expectation as the Court’s approach drew strong parallels with UK’s approach to substantive legitimate expectation. Although the case was essentially on criminal liabiltiy and had no direct relation to Singapore’s judicial review for legitimate expectations, the Court nevertheless explicitly stated that “certain legitimate expectations could, in certain circumstances, be deserving of protection, even though they did not acquire the force of a legal right”. In ''UDL Marine (Singapore) Pte. Ltd. v. Jurong Town Corp.'' (2011),, the High Court "entertain[ed] some doubt" as to whether the doctrine of substantive legitimate expectation is part of Singapore law, but did not discuss the matter further as neither the respondent nor the Attorney-General had made submissions on the issue. Arguably, these intermittent opportunities for judicial consideration of the application of substantive legitimate expectations may lay the grounding for future development of the doctrine in Singapore.

On the opposite end of the spectrum from the UK, the Australian Courts have outrightly expressed strong doubts over their recognition of the substantive legitimate expectation doctrine. The Australian High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam High Court of Australia[2003] ,emphasised that the reasoning in Coughlan ‘involved large questions as to relations between the executive and judicial branches of government’. Reasoning employed was that it violates the seperation of powers and extends the reach of judicial power as provided for in s75(v) of the Australian Constitution. Hence, the Australian position stipulates that the balancing act employed in Coughlan should be left to the executive and falls beyond the province of the courts. .

=Notes=

Cases

 * ("GCHQ case").
 * Re Siah Mooi Guat [1988] 2 S.L.R.(R.) [Singapore Law Reports (Reissue)] 165, High Court (Singapore).
 * Abdul Nasir bin Amer Hamsah v. Public Prosecutor &#91;1997&#93; SGCA 38, [1997] 2 S.L.R.(R.) 842, Court of Appeal (Singapore), archived from the original on 24 December 2011.
 * Borissik Svetlana v. Urban Redevelopment Authority [2009] 4 S.L.R.(R.) 92, H.C. (Singapore).
 * Borissik Svetlana v. Urban Redevelopment Authority [2009] 4 S.L.R.(R.) 92, H.C. (Singapore).
 * Borissik Svetlana v. Urban Redevelopment Authority [2009] 4 S.L.R.(R.) 92, H.C. (Singapore).