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Procedural Legitimate Expectation

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A procedural legitimate expectation by an individual/group rests on the presumption that the decision-maker will follow a certain procedure in advance of a decision being taken. This expectation can manifest in various ways such as the expectation of being consulted, [1] the expectation of being entitled to fair hearing, [2] the expectation to hold an inquiry before a decision is made [3] and the expectation of being allowed time to make representations especially where the applicant is seeking to persuade an authority to depart from a lawfully established policy. [4] The court’s protection of procedural legitimate expectations reinforces the notion that administrative decision makers should be bound by certain representations which they make to individuals who stand to be affected by their decision. [5] The procedural dimension of legitimate expectation is currently well established in common law in the United Kingdom.

What does Procedural Legitimate Expectation seek to protect?

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Rooted in its origins from the principle of natural justice, the court’s protection of procedural legitimate expectation protects procedural interests of the individual in public law. Although procedural expectations by applicants may manifest in various forms ; they are unitarily linked under “right to a hearing” as illustrated by the cases. [4] This is grounded on the basis that an individual who stands to be affected by a decision has a right to be heard. [6] UK courts developed this doctrine largely to encourage good administration and prevent abuses by decision-makers, ensuring that the rules of natural justice are observed. [7]

Development of procedural protection

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After the concept of legitimate expectation was recognised in public law, a key development of this principle was observed in the judgement of Lord Fraser of Tullybelton in Attorney-General of Hong Kong v. Ng Yuen Shiu [2]where he enunciated that:

“when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty" [8]

Despite initial resistance to recognition and acceptance of this doctrine by Courts,[9] the eventual landmark case of Council of Civil Service Unions v Minister for the Civil Service (“GCHQ”) in 1985 firmly established procedural protection of legitimate expectations.[4] In GCHQ, strikes by civil servants at the Government Communication Headquarters (GCHQ) destabilised operations and was a threat to national security. Swift action was taken by the government authorities to limit the union rights of employees at GCHQ to belong only to an approved departmental staff association. The applicant challenged this decision by arguing that they should have been consulted because of the long-standing practice of doing so. Lord Fraser of Tullybelton, in his judgement, regarded “legitimate” as synonymous to “reasonable”, and identified two ways in which a legitimate expectation could arise:

“Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”[10]

This effectively means that legitimate expectation can arise by representation or conduct. While the House of Lords ultimately held that the government action was not unlawful for reasons of national security, it agreed that there was a legitimate expectation on the facts due to the well-established practice of consultation between the government and trade union on important matters affecting the latter. The Court was of the opinion that if not for national security interests, the application to protect a procedural legitimate expectation via judicial review would have been granted.

Protection of procedural legitimate expectations have since been firmly entrenched as one of the court’s roles in judicial review. The importance of procedural fairness as enunciated by GCHQ was further illustrated by Re Police Association for Northern Ireland’s Reference[[1990] NI 258].[11] The court held that there was no deprivation of legitimate expectation of the Police Association or unfairness imposed, but more importantly, applied the principles in GCHQ and clearly related legitimate expectation to its procedural form. Procedural interests were further protected in R v Inland Revenue Commissioners, ex p Unilever [12], where it was stated that a public authority cannot, without some form of warning, change a long-standing practice that it is aware an individual has acted in the light of and derived a benefit from.


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 [13]. 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 [14]. 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 [15] and Borissik v Urban Redevelopment Authority [16].

A shift to protection of the substantive domain

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Although protection of procedural legitimate expectations assured individuals subject to decision makers of the ‘greater propensity for fairer decisions’ [17] in which decision making processes were guided by fairness, it was deemed insufficient in promulgating fairness in the outcome of decisions. A procedural right alone is insufficient in some circumstances to produce a fair outcome, as “procedure and substance are intertwined, with procedural rights reinforcing substantive ones, and vice-versa”.[18] Schmidt v Secretary of State for Home Affairs[19] is illustrative of the Court’s protection of a procedural right inevitably leading to its provision of a substantive outcome. The plaintiffs here challenged the decision to refuse renewal of their residence permits on the grounds that they had not been given a hearing before the decision was reached. This argument was rejected upon finding that the original permits were issued for only a certain time, which had since expired. However, Lord Denning articulated that had the plaintiffs’ residence permits been revoked before they had expired, they “would have a legitimate expectation of being allowed to stay for the permitted time” [20]. The court was in effect envisaging procedural protection of a substantive expectation of being allowed to stay in the UK.[21]


Notes

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  1. ^ Council of Civil Service Unions v Minister of Civil Service ("GCHQ") [1983] UKHL Civ 6, [1985] A.C. 374 at 401B, House of Lords (UK).
  2. ^ a b Appellant v. Ng Yuen Shiu also known as Ng Kam Shing (and Cross-appeal)Respondent [1983] UKPC Civ 2, [1983] 2 A.C. 629, Privy Council.
  3. ^ Reg. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 Q.B. 299, Court of Appeal (England & Wales).
  4. ^ a b c 'Council of Civil Service Unions v Minister of Civil Service' ("GCHQ") [1983] UKHL Civ 6, [1985] A.C. 374 at 415F, House of Lords (UK). Cite error: The named reference "GCHQ 1" was defined multiple times with different content (see the help page).
  5. ^ Iain Steele (2005), "Substantive legitimate expectations: Striking the right balance?", Law Quarterly Review: 121(Apr) at 300-328.
  6. ^ R. v. Secretary of State for Transport, ex parte Richmond-upon-Thames London Borough Council [1994] 1 W.L.R. 74 at 93, Court of Appeal (England & Wales).
  7. ^ O'reilly v Mackman [1983] UKHL Civ 1, [1983] 2 A.C. 237 at 275, House of Lords (UK).
  8. ^ Ng Yuen Shiu, pp. 638.
  9. ^ Lloyd (A.P.) and others (A.P.) (Appellants) v. McMahon (Respondent) [1987] AC Civ 625, [1987] 2 A.C. 625,.
  10. ^ GCHQ at page 401, paragraph B.
  11. ^ Re Police Association for Northern Ireland’s Reference [1990] N.I 258, (Northern Ireland).
  12. ^ R v Inland Revenue Commissioners, ex parte Unilever [1996] STC 681, Court of Appeal (England & Wales).
  13. ^ Gte (Australia) Pty Ltd v Brown [1986] 14 FLR 309
  14. ^ Gte (Australia) Pty Ltd v Brown [1985] 76 ALR 221 at 222
  15. ^ Re Siah Mooi Guat [1988] SLR 766 at 777 para E
  16. ^ Borissik v Urban Redevelopment Authority [2009] 4 SLR(R) 92 at [50]
  17. ^ Siraj Shaik Aziz; Sui Yi Siong (2012), "Expecting the right thing: The imperative for recognising substantive legitimate expectations in Singapore", Sing. L.Rev review, 30: 147 at 148.
  18. ^ Siraj, at 151
  19. ^ .
  20. ^ Schmidt at pp 171
  21. ^ Forsyth. C.F. (1997), "Wednesbury protection of substantive legitimate expectations", Public law: 375 at 377.
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