Substantive legitimate expectations

Introduction

The Coughlan case is a leading decision with respect to the issue of ‘substantive legitimate expectations' and the purpose of this paper is to critically evaluate the arguments in favour of, as well as against, the judgments in the instant case. Upon engaging with the relevant criticisms and evaluations of the decision, it is submitted in this paper that the decision in Coughlan was correct.

Background

Prior to Coughlan, it was unclear “whether substantive legitimate expectations were recognised within UK law”. In order to understand the issues surrounding legitimate expectations, it is instructive for the purposes of this essay to briefly review the facts of the case. The claimant, Miss Coughlan, was a quadriplegic who lived in a hospital for the chronically disabled from 1971-1993 called Newcourt hospital. Newcourt hospital was deemed to be unacceptable for modern care and as a result, she was moved to a new, purpose built facility in 1993 called Mardon House that was specifically designed to accommodate severely disabled patients. Miss Coughlan and other residents in the new facility were given an explicit “promise that they could live there ‘for as long as they chose' whereby it would be their “home for life”. Although there were other grounds of challenging the legality of the health authority's decision in the closure of a long-term care facility specifically designed for the purposes of severely disabled patients, the evaluation in Coughlan primarily hinged upon the Health authority's promise in providing a ‘home for life' to the claimant.

However, in 1998, the Health Authority in charge of the new residence decided to close the facility on the grounds that the unit was “prohibitively expensive” and not “financially viable” because it “left fewer resources for other services”. As a result, the health authority decided to transfer Miss Coughlan and the other residents to a home run by the local authority that was not purposely built for their care, unlike Mardon House. Miss Coughlan applied for judicial review on the basis that by closing the new facility, the health authority conducted its affairs unlawfully “in breaking the recent and unequivocal promise given by it that the applicant and other patients could live there for as long as they chose”. In other words, Coughlan had a ‘legitimate expectation' that she would be able to remain at Mardon House as long as she chose to, but the court's held that the health authority's breach of that expectation unfairly amounted to a significant abuse of power and consequently ruled in favour of the applicant.

The Reasoning Employed In Coughlan

In Coughlan, the court recognised three scenarios of reviewing cases relating to legitimate expectations whereby a member of the public expects to be treated one way by a public body, but is treated in a way that is contrary to their expectations. Here, the court began its analysis by exploring the precise examination of the nature and/or circumstances in which the promise was being made.

The first scenario is that the court could conclude that the public authority is only required to uphold its previous representation if it has carefully and reasonably exhausted all of the available options available to it at the time before deciding to resile from its initial promise. Here, the decision is reviewed on Wednesbury grounds and Hargreaves is cited as an example of this type of case. This scenario applies the test of “rationality and whether the public body has given proper weight to the implications of not fulfilling the promise”.

The second scenario is that the court could “decide that the promise…induces a legitimate expectation of (for example) being consulted before a particular decision is taken”. Here, the courts will require that there is an opportunity for consultation before a decision is to be provided unless there is a prevailing reason to detract from that promise. In this instance, the court would determine whether such a breach was procedurally fair.

Finally, the third scenario is that the court could explore whether a lawful promise has induced a legitimate expectation of substantive benefit to the claimant. Here, the court will have to determine whether such a decision to breach a promise was so grossly “unfair that to take a new and different course will amount to an abuse of power”. Additionally, the court must decide if there was “a sufficient overriding interest to justify a departure from what has been previously promised”.

Coughlan is a seminal judgment concerning the issue of substantive legitimate expectations and it was held that the instant case fell within the third category, despite the controversy surrounding the court's role of intervening in such cases. The courts reasons for placing Coughlan in the third category is because of (1) “the importance of what was promised to” the claimant, (2) “the fact that the promise was limited to a few individuals” and (3) because the consequences to the health authority of requiring it to honour its promise” were merely financial.

The courts held in favour of the applicant in Coughlan on the grounds of Preston, which suggests that it is an abuse of power if an authority reneges on its promise towards a limited number of individuals without justification. Furthermore, Coughlan acknowledged that the proper test was located in Unilever where the courts in that case concluded that “for the crown to enforce a time limit which for years it had not insisted upon would be so unfair as to amount to an abuse of power”. However, it is important to highlight that the judiciary in Coughlan rejected the Wednesbury test as the grounds for reviewing substantive legitimate expectation cases because it would not be conducive to striking the appropriate balance between the aims and priorities of the administration whilst simultaneously upholding the principle of fairness towards the claimant. Finally, Coughlan held that there was no overriding interest in frustrating the claimant's expectations of remaining at Mardon House for the rest of her life because the health authority “failed to weigh the competing interests correctly” and does not appear to have made an offer of suitable, alternative accommodation. However, recent commentators have both criticised and affirmed the landmark judgment in Coughlan, and it is to this subject that we now turn.

Concerns With Coughlan

Elliot argues that the conclusions in Coughlan are unsupported by authority and inconsistently developed within the broader framework of English administrative law. As mentioned earlier, Coughlan rejected the Wednesbury test of rationality as the grounds for review and appears to be in favour of an approach that is far more sympathetic to ‘substantive protection'. However, in doing so, Elliot contends that the foundations of the judicial decisions are on dubious grounds because there is (1) “no clear guidance as to when such protection should be afforded” and (2) the reasoning outlined in Coughlan fails to sketch the times in which the courts ought to intervene where a “departure from previous policy is not…objectively justified”, or when a departure from policy is irrational.

To substantiate this argument, Elliot underscores the idea that the courts are better equipped to make their legal decisions on procedural, as opposed to substantive dimensions of executive decisions in its use of the Wednesbury test. For example, he refers to the Wednesbury test and its influence upon human rights cases. Here, Elliot maintains that the Wednesbury test is the underlying ‘organising principle' in the sense that it is the cornerstone of adjudication and refers to the LJ Brown's judgment in ex p Smith whereby the courts had to examine the legitimacy of the armed forces' policy of excluding homosexuals from service:

on the conventional Wednesbury basis adapted to a human rights context and ask: can the Secretary of State show an important competing public interest which he could reasonably judge sufficient to justify the restriction [of the applicant's rights]? The primary judgment is for him. Only if his purported justification outrageously defies logic or accepted moral standards can the court, exercising its secondary judgment, properly strike it down.

Consequently, Elliot insists that the decision in Coughlan and its ‘intrusive mode of review' of cases involving substantive expectations is incompatible with the decision in Smith and Hargreaves, thus casting its appropriateness into serious doubt because of its failure to acknowledge how the Wednesbury test of unreasonableness restricts the courts adjudication of executive decisions. This position is consistent with the point in Barak-Erez' article which highlights that the primary contention “against the doctrine of legitimate expectations in administrative law is that it clashes with the aim of securing administrative freedom of discretion”. In other words, it represents an affront to the ‘autonomy of executive bodies'. Conversely, in another article, Elliot notes that Coughlan appears to be more representative of the jurisprudence of the European Court of Human Rights than with the principled and established Wednesbury test in English law.

In this connection, Clayton asserts that the decision in Coughlan further complicated the scope of substantive, legitimate expectations. He argues that the Court's decision in Coughlan obfuscated the ambit of substantive legitimate expectations and consequently extended the principle beyond its appropriate boundaries. Clayton also highlights that substantive expectations generated as a result of representations and/or promises from a public body ought to be distinguished from policy based expectations; consequently, he contends that “policy based expectations are more satisfactorily analysed as illustrations of the principle of consistency rather than the principle of substantive legitimate expectations”. In other words, he maintains that it is difficult to defend departures from policy-based expectations—in favour of substantive expectations towards particular individuals—because they form the basis of a consistent, principled approach to good administration. Additionally, Clayton also directs his critique towards the reasoning affirmed in Coughlan by suggesting that its employment of the legal principle that it is an abuse of power if an authority reneges on its promise towards a limited number of individuals is an uncertain measurement.

Thus, he suggests that the principle of consistency ought to be applied whereby public authorities adhere to their policies—and that inconsistency—ought to be perceived as a dimension of Wednesbury unreasonableness. He cites Hoffman's observations in Matadeen v. Pointu as the rationale for his argument:

Equality before the law requires that people should be uniformly treated, unless there is some valid reason to treat them differently… Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution…[T]reating like cases alike and unlike cases differently is a general axiom of rational behaviour.

While there are merits to both Elliot and Clayton's approaches, it is submitted in this paper that the Coughlan decision was indeed the correct approach—and we explore this in the section below.

In Favour Of Coughlan?

The problem of Elliot and Clayton's argument is that the reasonableness doctrine appears to overshadow what seems to be a competing value of fairness. However, it is submitted in this paper that the two values need not be mutually exclusive. The decision of Coughlan and its affirmation of substantive legitimate expectations illustrate the court's awareness of the tension between prizing administrative freedom on the one hand and fairness on the other, while recognising that neither perspective should triumph over one another. Although it could be argued that the principle of ‘substantive legitimate expectation' did indeed triumph over the Wednesbury test—as Elliot and Clayton seem to suggest—the particular facts of the Coughlan case indicates that the courts attempted to strike the appropriate balance in reconciling the two doctrines. Additionally, Roberts points out that Coughlan does not simply recommend that an expectation driven by policy considerations should be overruled; rather, these considerations ought to be balanced with an evaluation of “whether there is a sufficient overriding public interest to justify departing from the original policy in respect of the applicant”.

Schonberg and Craig highlight four propositions acknowledging that Coughlan did not depart from established principle and was therefore justified. First, they note that the courts were aware of the fact that they could not substitute their judgment in regards to “how discretion ought to have been exercised” by the executive authority in substantive review cases. Second, the courts recognised its role of intervention could be legitimated in evaluating whether the purposes of fair-decision making on the administrations' behalf were being complied with. Third, Schonberg and Craig affirm Elliot's contention that the Wednesbury reasonableness test is of crucial importance regarding an evaluation of the executive branches' decisions. However, they nuance this argument by highlighting that the decision in Coughlan also affirms, “that there should be some control in terms of rationality” in the sense that the test ought not be severely restrictive, but viewed with a positive bent as noted by Cooke LJ where he asks whether “the decision in question was one which a reasonable authority could reach?” Finally, Schonberg and Craig underscore that the varied application of the Wednesbury test in fundamental rights cases supports the notion that the criterion for evaluation ought to be delineated in compliance with the character of the interest in the case. Thus, they conclude that

The general judicial approach is to consider whether a reasonable minister could reasonably make the contested decision on the material at hand: the more substantial the interference with rights, the more the court requires by way of justification.

Furthermore, Schonberg and Craig provide a convincing analysis of the importance of substantive legitimate expectations as a principle of law and suggest that four considerations ought to be at the forefront of determining whether an appropriate standard of review is being exercised: (1) a public body may lead an individual to experience severe hardship if it acts in a manner that is contrary to what the individual may have been led to expect; thus, the law ought to protect an individual's interests if they are led to rely upon an expectation to his/her detriment; (2), “protection of legitimate expectations is closely linked with the rule of law” (3) “a lack of respect for individual expectations may undermine trust in public authorities”, and (4)“public authorities must comply with the general principles of EU law, including that of legitimate expectations, in situations which fall within the scope of Community law”. Additionally, Schonberg and Craig also propose that the ‘proportionality test' would be an appropriate mechanism in refining the judicial approach to substantive, legitimate expectations. It is submitted that these considerations provide a helpful criterion towards balancing the importance of upholding the principles of Wednesbury unreasonableness and administrative discretion with the protection of substantive, legitimate expectations.

Conclusion

Although this paper affirms that the decision in Coughlan ought to be hailed as a positive development in the law, it is evident that there are numerous conflicting perspectives on the appropriate balance between administrative discretion and the expectations of individuals relying on executive assurances. However, as the development of the principle of substantive legitimate expectations expands incrementally, it will be interesting to observe how the courts will approach future cases in light of the arguments concerning consistency and fidelity to the principle of Wednesbury unreasonableness advanced by Elliot and Clayton, as well as the proposals of proportionality issued by Schonberg and Craig.

Bibliography

Case Law

Council of Civil Service Unions v. Minister for the Civil Service. [1985] AC 374.

R v Chief Constable of Sussex. Ex p. International Trader's Ferry Ltd. [1999] 2 AC 418

R v. Home Secretary Ex p. Khan. [1984] 1 WLR 1337.

R v. Home Secretary Ex p. Hargreaves. [1997] 1 WLR 906.

R v. Inland Revenue Commissioners Ex p. MFK Underwriting Agencies Ltd. [1990] 1 LR 1545.

R v. Inland Revenue Commissioners Ex p. Preston. [1985] AC 835.

R v. Inland Revenue Commissioners Ex p. Unilever Plc. [1996] STC 681.

R v. Ministry of Agriculture, Fisheries and Food Ex p. Hamble (Offshore) Fisheries Ltd. [1995] 2 All ER 714

R v. North and East Devon Health Authority Ex p. Coughlan. [2001] QB 213

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

R v. Secretary of State for Transport, Ex p. Richmond upon Thames London BC. [1994] 1 All ER 577.

Articles & Books

Barak-Erez, D. “The Doctrine of Legitimate Expectations and the Distinction between the Reliance and Expectation Interests”. European Public Law. Vol. 11, no. 4 (2005). P. 583-601.

Clayton, R. “Legitimate Expectations, Policy, and the Principle of Consistency”. Cambridge Law Journal. Vol 62, no. 1 (2003). P. 93-105.

Craig, P.P. Administrative Law. (5th ed). London: Sweet and Maxwell, 2003.

Elliot, M. “Legitimate Expectation: The Substantive Dimension”. Cambridge Law Journal. Vol. 59, no. 3 (2000). P. 421-425.

Elliot, M. “Coughlan: Substantive Protection of Legitimate Expectations Revisited”. Judicial Review. Vol. 5, no. 1 (2000). P. 27-32.

Roberts, M. “Public Law Representations and Substantive Legitimate Expectations”. Modern Law Review. Vol. 64, no. 1 (2001). P. 112-122.

Schonberg, S., and Craig, P. “Substantive Legitimate Expectations after Coughlan”. Public Law. (Winter 2000). P. 684-701.

Steele, I. “Substantive Legitimate Expectations: Striking the Right Balance?” Law Quarterly Review. Vol. 121 (April 2005). P. 300-328.

Further Reading

Cane, P. Administrative Law. (4th ed). Oxford: Oxford University Press, 2004.

Havers, P., and Sheldon, N. “Politicians' Promises and Abuse of Power”. Judicial Review. Vol 5, no. 2. (2000). P. 96-99.

Leyland, P., and Anthony, G. Textbook on Administrative Law. (5th ed). Oxford: Oxford University Press, 2005.

Sales, P., and Steyn, K. “Legitimate Expectations in English Public Law: An Analysis”. Public Law. (Autumn 2004). P. 564-593.

Steyn, K. “Substantive Legitimate Expectations”. Judicial Review. Vol. 6, no. 4 (2001). P. 244-249.