It is to be noted that the principle of law that is concerned with the “procedural and substantive legitimate expectation” still hasn’t got rid of all the uncertainties which have been associated with the implementation of it. This cannot be denied that there have been various attempts to make sure that this rule is clarified and adopted generally and to make it work as per the standards of the modern world. However, it is worth mentioning that various well known legal authors and critics have shown their concerns because they believe that the court has not taken a definite approach for this principle and the way courts use these two rules is not a uniform way. If we take an aerial look, we might think that these two rules are the same therefore we need to have a proper system for differentiating between the two and also for making an equilibrium among the two as well.
It is to be noted that unbiased processes and procedures are directly affected by the “Procedural Legitimate Expectation”. Furthermore, the above mentioned procedures are the one which a person has the right to get from the public entities. Apart from the presence of “interest of greater importance or a justified reason”, there is no situation as per which the public authorities have the power to move away from the already laid out procedures. However, this rule has its roots within the notion of “legal certainty”, leading towards the fact that the public entities should keep in mind the actions they did or the policies upon which the citizens can depend when they are looking for equitable conduct in the legal framework. A practical example for this can be observed during the case “Hamble”. Furthermore, it is to be noted that as per the “Procedural Legitimate Expectation” the public bodies should not be allowed to act in a way that contradicts the traditional and settled policies or actions of the public authorities. Hence, in order to preserve the administrative self determination and the fairness of the legal system, there has to be an equilibrium among the will of public entities and the lawful suppositions of the people.
Unlike, the substantive legitimate expectation, which is concerned with the individuals' anticipation related with the substance of the judgments or the actions upon which the citizens can depend when they are looking for equitable conduct in the legal framework. A practical example for this can be observed during the case “Hamble”. Furthermore, it is to be noted that as per the “Procedural Legitimate Expectation” the public bodies should not be allowed to act in a way that contradicts the traditional and settled policies or actions of the public authorities. Hence, in order to preserve the administrative self determination and the fairness of the legal system, there has to be an equilibrium among the will of public entities and the lawful suppositions of the people. Unlike, the substantive legitimate expectation, which is concerned with the individuals’ anticipation related with the substance of the judgment, or the actions upon which the citizens can depend when they are looking for equitable conduct in the legal framework. The system of law that is concerned with the “procedural legitimate expectation” has been formulated in a strong manner and is considered contentious making it an obligation for the people who were given the surety of a specified “course of action” ought to be given the permission for due process along with the chances of raising concerns if the judgment has some influence upon them. On the other hand “substantive expectations”, it is to be noted that the “procedural expectations” are promptly upheld by the courts without showing any form of
To sum up, we can say that the ideology of “legitimate expectation” is based upon the rules that are formed for unbiasedness and application of the statements being formed by the public bodies. This cannot be denied that there have been various attempts to make sure that this rule is clarified and adopted generally and to make it work as per the standards of the modern world. However, this rule has its roots within the notion of “legal certainty”, leading towards the fact that the public entities should keep in mind the actions they did or the policies upon which the citizens can depend when they are looking for equitable conduct in the legal framework. The system of law that is concerned with the “procedural legitimate expectation” has been formulated in a strong manner and is considered contentious making it an obligation for the people who were given the surety of a specified “course of action” ought to be given the permission for due process along with the chances of raising concerns if the judgment has some influence upon them. On the other hand “substantive expectations”, it is to be noted that the “procedural expectations” are promptly upheld by the courts without showing any form of
hesitation, as they don’t ask for a particular action by the court and include relatively minimal expenses. This perspective has resulted in the prevention of undue burden on the judiciary while still adhering to the principle of “separation of powers”. The case “GCHQ” serves as the foundation for this rule. During this case, a “trade union” was being treated in such a way as if they had a “legitimate procedural expectation” which was mainly due to the fact that they were informed before making any change in the policy. In the same way, during the case of “Ex parte Taxi Fleet”, an intervention was made by the court for the prevention of an authority from changing a judgment without providing the affected groups with the chance to present their views, thereby maintaining the “procedural expectation”. Similarly, while dealing with a case involving illegal immigrants i.e. during “Ng Yuen Shiu”, it was established that these immigrants should also be entitled to defend themselves to ensure fair administration. It has focused upon signifying the requirement of the public bodies to stand by what they have said. The above-mentioned section of law is also found to be consistent with all the rules concerning the “procedural fairness”, illustrating the courts' consistent inclination towards enforcing “procedural legitimate expectations”, therefore making sure that the authorities uphold their commitments. But whenever the commitments made by the public entities can have a negative impact upon their authority, the courts avoid interfering in such cases. This is because such type of interference by the court, while keeping in view the case “Greenpeace”, shall be considered illegal.
Furthermore, it is to be noted that on the other side, “substantive legitimate expectation” is still one of most criticized and contentious portions of the law, due to the fact that it has lack of certainty and a number of other ambiguities which directly influences the way it impacts the legal justice and foreseeability. However, it is to be noted that this rule has implemented various obligations upon the public entities to follow specific procedures the moment they are going to make any decision, resulting in various issues and restricting the discretion of courts, therefore adding further complications in the maintenance of “separation of powers”. Moreover, the complications within the law concerning the substantive expectation was further underscored as courts rejected this approach and reverted to the restrictive stance seen in Re Findlay, as demonstrated in Hargreave, where the Hamble approach was deemed “erroneous in principle”. Subsequence cases like Coughlan and Bibi reaffirmed the necessity for courts to safeguard substantive legitimate expectations. In Coughlan, the court determined that the health authority had engendered a substantive legitimate expectation in Ms. Coughlan that she was entitled to lifetime accommodation, and frustrating this legitimate expectation would be deemed unlawful as it constituted an "abuse of authority’s power". Lord Woolf introduced a three-stage test, stressing that courts must weigh the interests involved, and if no overriding interest exists, the principles outlined in Hamble's case should prevail. However, during the case
It has been demonstrated by the discretionary power of the courts to reconcile policy objectives with legitimate expectations, guided by the principle of fairness. Respected scholars such as Schonberger and Craig advocate for elevating the standard of "abuse of power", endorsing proportionality as the yardstick. However, the criterion for substantive expectation remains ambiguous and imprecise, lacking definitive guidelines for judicial application. Nonetheless, TRS Allan posits that notions of "unfairness" and "abuse of power" offer adequate direction, considering that fairness may vary across different scenarios involving legitimate expectation, thus necessitating a comprehensive examination. The ruling in Coughlan also raises concerns regarding the separation of powers, as highlighted by Elliot. In the Bibi case, the courts prioritized the principle of separation of powers and determined that not all instances of "disappointed promises" warrant judicial intervention. It was acknowledged that the claimant harbored a legitimate expectation, but this did not impose an obligation on the council. Thus, the extent of fairness relied on the courts' interpretation of substantive legitimate expectations. The legal landscape further evolved in Wheeler v. Office of the Prime Minister, where political commitments were excluded from this category. Eliott regards this principle as a valued doctrine encompassing practices, assurances, policy pronouncements, and detrimental dependence, although the issue of detrimental reliance is less prominent compared to procedural legitimate expectation, where it is indispensable for equitable adjudication.
Various instances have drawn parallels between transitional measures and procedural legitimate expectation. In Niazi's case, it was determined that a policy favoring pleas from unlawfully imprisoned prisoners could potentially give rise to legitimate expectations. However, the appeal was dismissed due to the absence of any assurances or prior practices, nor any promise to consult before altering the discretionary scheme. Another aspect to consider regarding legitimate expectation is 'ultra vires representation'. Courts often grapple with determining whether ultra vires representations empower public bodies to extend their authority. Nevertheless, courts have consistently held that ultra vires assurances are unenforceable. Ian Steel contends that when losses are incurred due to reliance on ultra vires representations, reimbursement is warranted. Substantive legitimate expectation presents various challenges, unlike procedural legitimate expectation, as courts tend to adopt a more lenient approach in this realm. The lack of a clear distinction between the two branches of legitimate expectation, as highlighted by Finucane, contributes to ambiguity within the legal system, according to Elliott, rendering the application of the doctrine challenging. As observed in Begbie, the Court of Appeal remarked that proving reliance on representations by public authorities to one's detriment is immaterial. In cases lacking detrimental reliance, courts will only safeguard a legitimate expectation in exceptional circumstances.
Furthermore, in Ng Shen Yui, Lord Fraser asserted that legislative expectation could stem from any representation made by or on behalf of a public body if it resulted in unfairness or inconsistency with good administration for the expectation to be disregarded. In conclusion, Joanna Bell underscores the necessity for courts to address uncertainties to ensure the unequivocal application of the doctrine, determining whether it serves to confer or restrict rights. Bell contends that clarification will offer adequate guidance, leading to an improved application and evolution of the law regarding legitimate expectation. She cites Rowland's case to illustrate her concerns about courts employing both approaches of conferring and constraining rights.
Procedural legitimate expectation is clearer and easier to implement, unlike substantive legitimate expectation, which cannot be simplified unless its scope is well defined.
Furthermore, the Supreme Court's ruling in R (on the Application of Elan-Cane) v Secretary of State for the Home Department [2021] dismissed the Court of Appeal's argument that the rejection was legitimate and did not violate convention rights under Article 8 or 14 of the ECHR, thereby affirming the Secretary of State's decision.
Top of Form
Bottom of Form