Fairness and legal certainty are two crucial factors to be seen in decisions made by public authorities; the doctrine of legitimate expectations was first formulated by Lord Denning MR in Schmidt v Home Secretary (1969).The doctrine comes into play when a public authority makes a declaration regarding its policy, or the manner in which it will exercise its discretion, and then seeks to retreat from this position.Those seeking to enforce such a doctrine will naturally be people who have relied on the former position, probably to their detriment, and often with their position now worsened due to the change in policy.
However there has been disagreement as to whether the doctrine is truly a valid one under English law. Indeed in Khan, the Home Office departed from a representation of policy as regards approval of adoption from abroad, it was held, however, that they could only depart from such a policy following a hearing and in the overriding public interest. Further in Unilever it was held that the Inland Revenue cold not depart from a practice which it had followed for 25 years without some prior warning. Perhaps the most obvious example was seen in Hamlbe Fisheries, here a company purchased two small vessels in order to transfer the licenses to a larger vessel they already owned, which was permitted under the MAFF’s policy at the time. However, after purchase but before transfer of the licences the policy was changed. It was held by the court that, although the policy could be changed for the future, where an expectation had “a legitimacy which in fairness outtops policy choice” this would be protected by the courts, and the public authority may well be required to allow an interim period or make some kind of fair warning in order to change policy in such a way. Here it can be seen that there is a strong emphasis upon fairness in administration.
However the cases are not all in favour of the doctrine of legitimate expectations. Indeed, in Re Finlay policy regarding parole in certain categories of offences was changed. It was held, in response, that the applicants may have had an expectation that their case might be individually determined in accordance with whatever was policy at the time, but that other than this the HS was entitled to change policy in this area. Further in Hardgreves the HS changed policy on prisoners’ home leave with immediate effect and here the doctrine in Hamble Fisheries was rejected as “heresy” and “wrong in principle”. Despite such seemingly strong language, there was still doubt, Craig argues, as to whether the case really did reject the principle of substantive legitimate expectations fully, or whether there was simply not such on the facts, but that if there were, such could be protected (although notably only then to the Wednesbury principle).
There was an attempt to rectify the inconsistency seen above in Coughlan. Here the applicant had been seriously injured in 1971 and cared for in a hospital that was considered unsuitable for modern care, so in 1993 the applicant was moved to Mardon House on the strength of a promise made by the LHA to the applicant and others that they could remain here “as long as they chose”. In 1998 the LHA decided to close Mardon House, the applicant challenged this decision on the basis that the promise was breached. Finding for the applicant, the court made a distinction between three types of cases; 1. The court may decide that the public authority only needs to bear previous policy in mind when seeking to alter, but need do no more. The decision would only then be reviewable on Wednesbury grounds. Finlay/Hardgreeves were of this type. 2. There was a legitimate expectation of consultation engendered by the public authority (matter of procedural expectations) 3. A lawful promise induces a legitimate...