8.1.1 Zero deference: no discretion to act unlawfully

The court will not leave it up to an administrative authority to choose whether to violate a legal rule. This simple point is a reminder of the difference between discretionary power and discretion (see 7.2.2, p 256): even if a public authority has a very wide discretionary power, it has no discretion to use that power to do anything that is prohibited by law. As a result, the law of tort (see Chapter 14), the criminal law (see 14.5.4, p 585), and the law of contempt of court (see 10.4.5, p 413) are parts of administrative law, p. 289↵and in fact, parts of our constitution: no one has any exemption from tort liability or criminal liability, or from the duty to abide by a court order, on account of being a public official.

8.1.2 Zero deference: the genuine exercise rule

An administrative authority also has no discretion to abdicate its powers. Every discretionary power carries with it a legal duty to consider whether and how to exercise it. In R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598, comity required the Court not to interfere with the Foreign Secretary’s judgment as to whether to demand the release of British prisoners in Guantánamo Bay (see 1.1, p 4). The Court of Appeal deferred radically to the Foreign Secretary’s judgment on the question of whether to make diplomatic representations on behalf of a subject whose fundamental rights were being violated by another country. But the Court made it plain that it would step in if the Foreign Secretary were to refuse even to consider whether to do so. In that case, the Court would ‘make a mandatory order to the Foreign Secretary to give due consideration to the applicant’s case’ [104]. On the issue of whether the Foreign Office should consider making representations, the judges will not defer to the Foreign Secretary’s judgment at all.

Similarly, it is unlawful for an administrative authority to fetter its own discretion by, for example, adopting rules that prevent it from considering particular cases on their merits. But that does not mean that administrative authorities cannot lawfully adopt rules or act on policies. In fact, we will see in this chapter that a court may hold that it is unlawful for a public authority to depart from a policy, where that would be unfair to a claimant (8.4, p 312). The rule against fettering means, instead, that a decision maker may need to be prepared to consider an argument that an exception should be made to a policy for some special reason in a particular case (British Oxygen Co Ltd v Board of Trade [1971] 1 AC 610). The question ought to be whether the purposes for which the authority has the power require it to be willing to consider special circumstances.

In the exercise of statutory powers, the basis of the no-fettering principle is that by giving a discretionary power, Parliament impliedly imposes a duty to consider exercising it. In R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44, the defendant’s power was not a statutory power, but the prerogative power to assist British nationals overseas. Lindsay Sandiford was convicted in Indonesia of attempting to smuggle cocaine into Bali, and was sentenced to death; she asked the Foreign Office to give her legal aid to seek clemency; she was told that the government had a strict policy against funding legal representation overseas for British nationals. She argued that the Foreign Office had infringed the rule against fettering its discretion. The Supreme Court rejected that argument, on the basis that in the case of a prerogative power, no one has imposed on the holder of the power a duty to consider different possibilities for its exercise; so the Foreign Office’s general policy did not amount to an unlawful fettering of its discretion. That does not make its decision immune from review; it is still possible to challenge such a policy on grounds of p. 290↵‘irrationality’ [65]–[66]. The Supreme Court decision in Sandiford suggests that the rule against fettering simply does not apply to prerogative power. But if, in the exercise of the prerogative, the decision maker adopted a rule or policy and arbitrarily refused to consider the situation of a person affected by the policy, then it would be justifiable for the court to require the decision maker to consider the case: and indeed, it is actually implicit in the holding in Abbasi (not contradicted in Sandiford) that the court might order the government to consider a request that the prerogative be exercised for the benefit of a claimant.

An administrative authority must not unlawfully delegate its decision-making power to anyone else. But that does not mean that all delegation is unlawful. For example, when the Home Secretary had statutory power to decide the tariff for life prisoners (see 2.5.1, p 55), a prisoner argued that his tariff was unlawful because it was the Home Secretary who had the power to set the tariff and the decision had been made by a junior minister. That argument failed because ‘it is absurd to suppose that every power which is conferred on the political head of a department must be exercised by him and him alone’ (R v Home Secretary ex p Doody [1993] QB 157 (CA) (Staughton LJ, 194)¹). This principle is called the ‘Carltona principle’ after Carltona v Commissioners of Works [1943] 2 All ER 560 (CA), in which Lord Greene said that the act of an official in a department can count as the act of the minister. ‘Constitutionally, the decision of such an official is, of course, the decision of the Minister. The Minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority’ (563). As a result, if officials in a department make a decision on behalf of a minister, it is not an ultra vires delegation of a statutory power that Parliament conferred on the minister, and it is not a violation of the rule that a Secretary of State must genuinely exercise his or her statutory powers. In fact, ‘delegation’ isn’t exactly the right word, according to Lord Reed in R (Bourgass) v Secretary of State for Justice [2015] UKSC 54, since ‘a delegate would normally be understood as someone who exercises the powers delegated to him in his own name. Rather, the principle is that a decision made on behalf of a minister by one of his officials is constitutionally the decision of the minister himself’ [49]. This principle is an extension of the principle of action on behalf of the Crown: when the Prime Minister signs a treaty for the UK, or when the Home Secretary issues a passport, they act on behalf of the Crown, and their action is an action of the Crown (and, of course, the decision to issue a passport is actually taken by Home Office officials on behalf of the Home Secretary).

But in Bourgass, the decision wasn’t made for the Secretary of State by officials in the department; the Secretary of State had actually delegated his power to someone—to a prison governor, rather than to an official in his department. The power was to decide how long a prisoner should remain in solitary confinement (while prison authorities were investigating his alleged involvement in an assault). The Supreme Court held that p. 291↵there was a ‘constitutional separation’ between prison governors and the Secretary of State for Justice and his departmental officials [64], so that the Carltona principle did not apply and the delegation was unlawful because the independence of the Secretary of State’s role served as a safeguard for prisoners [88].² The basis of the decision is significant; the delegation in Bourgass was not unlawful simply because a discretionary power was delegated, but because the delegation was incompatible with the purpose for which the power was given to the authority named in the statute.

The three requirements of the genuine exercise rule—no refusal to consider using a power, no fettering of a discretion, and no delegation that is incompatible with the purpose of a power—are potentially compatible with comity between judges and administrative authorities. Zero deference on the question of whether to consider exercising a discretion is compatible with due deference on the question of how to p. 292↵exercise it. The courts are not taking over the administrative officials’ job if they only make sure that the administrative officials actually make a genuine exercise of their own responsibility.

But the dangerous word in the doctrine is ‘genuine’. There is a standing impulse for judges to say that a bad exercise of discretion was not an exercise of the authority’s power at all. So this doctrine is only potentially compatible with comity between judges and administrative authorities. Depending on what they count as genuine, the judges may end up using the genuine exercise doctrine to replace other public authorities’ judgment with their own. But, as a technique for judicial innovation, it has been overtaken by the more openly non-deferential doctrines.

8.1.3 The principle of legality and the value of liberty

8.2.1 Relevance, deference: a contradiction?

Whenever a different decision ought to have been taken, you can explain why by pointing out a consideration that the decision maker should have acted on, or should not have acted on. Likewise, you can explain by pointing out that the decision maker should have pursued a different purpose. So, it may seem that under Wednesbury and Padfield, the judges must determine all questions as to what decision ought to have been taken. And then you may think that administrative law contains a massive contradiction: judges should defer, to some extent, on some issues (since they are only reviewing the lawfulness of the decision, rather than making a new administrative decision), yet they should not defer (since a decision is to be quashed if it was based on an irrelevant consideration or did not pursue the right purpose). How can we resolve the contradiction?

p. 296↵In a New Zealand case, CREEDNZ Inc v Governor General [1981] 1 NZLR 172, Cooke J started out by saying that a decision will only be quashed for failure to attend to relevant considerations:

‘when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation … It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision’ (183).

The House of Lords adopted that reasoning in Re Findlay [1985] AC 318, 334. On this approach, the relevance doctrine is really a rule that the court may quash a decision if the law specifically requires consideration of something that the decision maker ignored (or requires the decision maker to ignore something that they did not ignore) or if the decision maker ignored something so obviously relevant (or acted on a ground so obviously irrelevant) that they can be said not to have properly exercised the power they were given. It is not, in fact, a doctrine that all questions of relevance are for the court.

To test the extent to which a court should be prepared to overrule the judgment of an administrative authority on a question of relevance, let us look at one of the most remarkable examples of the use of the doctrine of relevance and proper purposes: the Pergau Dam case.

8.2.2 Pergau Dam

In 1993, the Foreign Secretary, Douglas Hurd, decided to spend £234 million to build a dam in Pergau, Malaysia. It was the largest single project that had been financed by the Overseas Development Administration (ODA) and it was a waste of money. The National Audit Office (see 15.4.6, p 623) said that it was a waste. So did the ODA’s own economists. The money was spent because Prime Minister Thatcher had promised financial assistance to Malaysia while she was negotiating an arms deal in which Malaysia was to buy more than £1 billion worth of British fighter planes. Instead of using the development budget for development, the British government was using it as a sweetener to promote British arms sales.

In R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 (‘Pergau Dam’), the High Court held that the government had acted unlawfully in providing money for the dam from the overseas aid budget. The remarkable thing about the decision is that the judges were prepared to hold a spending decision unlawful when the purposes of the decision were highly political and involved foreign relations. The minister argued that the judges should defer to his view as to what purposes were within the statute. The Court disagreed (401):

‘Whatever the Secretary of State s intention or purpose may have been, it is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose.’

p. 297↵This does not mean that the court will not defer on the question of what purposes the minister should pursue. It means that the court will not defer on the question of what purposes the legislation rules out. And that is so even where there is a reasonable argument in favour of the minister’s view as to which purposes the legislation rules out.

But the minister does have discretion to choose among the purposes that the law does not prohibit. The Overseas Development and Co-operation Act 1980 s 1(1) gave the Secretary of State power to make grants ‘for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people’ (Pergau Dam, 390). He was certainly maintaining the economy of Malaysia by giving the government £400 million from the overseas development fund. It is not implausible to argue that the Act authorized the action. But the Court quite rightly rejected a plausible interpretation in favour of an interpretation that better fulfilled the development purpose of the legislation.

Often, the courts suggest that all questions of relevance are for the court, but that it is up to the decision maker to decide their weight, as in this classic statement by Lord Keith in Tesco Stores v Environment Secretary [1995] 1 WLR 759, 764:

‘It is for the courts … to decide what is a relevant consideration … But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense.’

But the fact that some consideration is or is not very weighty is itself a highly relevant consideration: that simply demonstrates that not all questions of relevance are for the courts.

8.2.3 Questions of relevance and of proper purposes are not necessarily for courts

Judges and legal scholars sometimes claim that the court in judicial review must substitute its judgment for that of the defendant on the question of what considerations p. 298↵are relevant.⁶ Yet several leading cases have emphasized that a decision maker has discretion in deciding which considerations are relevant. A statute may require or forbid a decision maker to act on some consideration, and a decision will be unlawful if it is based on Wednesbury unreasonable judgments as to what considerations matter. But there are very many situations in which it is up to the decision maker to decide whether a consideration may be taken into account. In Findlay, the House of Lords held that the law neither required the Home Secretary to consider the Parole Board’s view before making a policy change, nor prohibited him from doing so. Consider the following cases, in which the judges have refused to decide what was relevant.

In all of these cases, the courts were prepared to control the administrative authority’s decision as to what is relevant. In none of them did the courts treat judgments of relevance as judgments for the courts. That is the right approach because control over judgments of relevance is essential if the courts are to prevent arbitrary government. But comity requires courts not to interfere with a reasonable administrative judgment as to what is relevant.

With the Padfield doctrine of proper purposes, the courts’ approach has been rather different. Remember Lord Reid’s holding that ‘the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court’ (Padfield (1030)). That view of statutory construction is a deep strand in late-twentieth-century law. The idea that interpretation of statutes is a matter for judges, on which they should not defer to administrators, is at the centre of judicial review for error of law, as we will see in Chapter 9. Applied to the doctrine of proper purposes, the same idea leads to an excess of judicial review.

Consider a landmark of twenty-first-century review for improper purposes: R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing [2020] UKSC 16. The Public Service Pensions Act 2013 authorized the defendant Secretary of State to give guidance to the authorities administering £287 million in local government pension funds as to how they should invest the funds. The Secretary of State’s guidance said that the authorities should not boycott investments in foreign nations unless the government had imposed legal sanctions on those nations, and that they should not adopt policies that ran contrary to UK foreign or defence policy. In a deeply divided decision, the UK Supreme Court held 3–2 that the guidance was unlawful. They all agreed that the question of whether the guideline came within the purpose of the Secretary of State’s power was one for the judges to answer, since it depended on interpretation of the statute conferring the power on the Secretary of State. They all accepted that the law reflects Lord Reid’s idea from Padfield, that interpretation is for p. 300↵judges. As Lady Arden and Lord Sales put it in their dissenting opinion, ‘the courts are the authoritative organ for the interpretation of a statutory power’ [67].

But what was the interpretive question? The Act empowered the Secretary of State to make such provision as he or she ‘considers appropriate’ (s 3(1)). Lord Wilson, for the majority, quite rightly pointed out that ‘the power cannot be as broad as that. No statutory discretion is unfettered’ [23]. There is good ground for judges to quash purported exercises of such a power that are carried out in bad faith, or corruptly, or that are Wednesbury unreasonable. It is an instance of the principle of legality (see 8.1.3, p 292): judicial interference with such abuses of power is demanded by the rule of law, even when Parliament stated no limits on the power it conferred. But there was no such abuse of power in the Palestine Solidarity case: the majority supported their decision simply on the basis that they took a different view from that of the Secretary of State, as to the purpose of the power that Parliament had entrusted to him. A purpose is simply what a power is for, and this approach to judicial review actually allows judges to decide any question of what is to be done with a power.

The result of the Palestine Solidarity litigation was that three Court of Appeal judges and two Supreme Court judges thought that it is ok for the government’s guidance to require consistency with UK foreign policy; the judge at first instance and three Supreme Court judges thought that it is not ok. The rule of law does not require that this question of how to use an open-ended power should be decided by a majority vote of the judges in the highest court, rather than allowing it to be decided by the person to whom Parliament gave the power.

The rule of law justifies judicial interference with abuse of the power, but it does nothing to justify the notion that we should be governed by the opinion of the judges, rather than the opinion of the person to whom an administrative power is given, on the question of how the power is to be used. If the judges deferred to some extent to the judgment of the Secretary of State on that question (while being prepared to quash a decision based on a view of the purpose of the power that is patently unreasonable), it would certainly be possible to interfere with abuses of the power.

Like the doctrine of relevant considerations, the doctrine of proper purposes ought to be applied with comity, allowing the holder of a power to act on his or her own view of its purpose, if that view is reasonable.

8.3.1 Deference and the Human Rights Act 1998

In Human Rights Act adjudication, the role of proportionality is deeply entrenched and very wide ranging. In a Human Rights Act claim, the question for the court is whether a person’s Convention rights have been violated and not whether a public authority has used its power reasonably. So it may seem that the Human Rights Act imposes a legal limit on the exercise of discretionary powers, which involves no deference to the decisions of an administrative authority. A breach of a Convention right is simply unlawful (unless it was required by statute), whether or not it is so unreasonable that no reasonable public authority would act that way.

And yet, deference plays a crucial role in judicial decisions concerning Convention rights. Some of the most important judicial accounts of deference to administrative authorities come in decisions under the Human Rights Act, when the judges are rejecting a claimant’s argument that the judges should impose the decision that they would have made if they had the job of the initial decision maker. In R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, 381, Lord Hope said: ‘In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.’

No case illustrates the role of deference in applying the Human Rights Act 1998 better than R (Begum) v Denbigh High School [2006] UKHL 15. Shabina Begum claimed that her school had violated her freedom of religion by enforcing a uniform policy that banned the jilbab (see 6.10.2, p 230). You might think that the House of Lords would simply decide whether the policy was ‘necessary in a democratic society … for the protection of the rights and freedoms of others’—as it says in Art 9(2) of the Convention. But, in fact, the House of Lords firmly refused to decide for itself what was necessary in Denbigh High School. Lord Bingham said [34]:

‘It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision.’

p. 305↵And Lord Hoffmann agreed that ‘an area of judgment, comparable to the margin of appreciation, must be allowed to the school’ [64].

The issue in Begum was whether the impact of the school’s uniform policy on Shabina Begum’s freedom of religion was disproportionate to its value in protecting other girls’ freedom. Do the four basic reasons for deference apply to the judges’ decision on that issue? The first reason—the allocation of decision-making power to the administrative agency—is put in question by the passage of the Human Rights Act 1998: Parliament may have allocated power to schools to determine uniform policies, but in the Human Rights Act, Parliament allocated power to courts to decide what counts as a breach of the freedom of religion under Art 9. So the presumption of non-interference (the principle that a court should not interfere with someone else’s decision unless there is a special reason to do so—see 7.1.1, p 244) does not apply.

Another basic reason for deference does apply, however, and it is very important: it is the familiarity of the school authorities with the needs of the pupils, which is a form of expertise. On that issue, the school authorities are better informed than judges, in a way that cannot be remedied through the litigation process. A sensitive understanding of the social pressures faced by the girls is crucial to a good decision as to whether it is legitimate to prohibit the jilbab, and people working in the school are better placed to reach the necessary understanding than people working in a court.

The House of Lords’ deference to the school in Begum does not mean that the court will not control the school’s decisions. The court will ask whether the school’s choice was made responsibly, with due process, and on the relevant considerations. Its deference is limited, and is left rather vague by the decision in Begum, but can best be summed up by saying that the judges will not interfere with reasonable decisions of a school as to whether a school needs a uniform policy that limits religious expression. The law requires the school not to ban the jilbab unless the ban is necessary for the protection of the freedom of others. But the judges will not pass judgment on that question; they will leave it to the school, unless they can see—in spite of the advantages that the school authorities have—that there is no justification for the policy.

This approach is less deferential than the ordinary common law of control of discretionary powers, yet deference is still essential. But notice that the judges did not defer on the question of how to interpret the Convention. The Human Rights Act requires the judges to do that without deferring to the public authority whose decision is being challenged. The deference arises because the application of the Convention rights themselves sometimes requires assessments that can best be made by public authorities other than courts.

Lord Brown explained, in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [55], that ‘it is the court’s recognition of what has been called variously the margin of discretion, or the discretionary area of judgment, or the deference or latitude due to administrative decision-makers, which stops the challenge from being a merits review’. And Lord Reed has said that the courts should ‘give weight’, in proportionality reasoning, to the initial decision maker’s view on issues that ‘are by their nature more suitable for determination by Government or Parliament’ (R (Nicklinson) v Ministry of Justice [2014] UKSC 39 [296]; see also R (SG) v Secretary of State for Work p. 306↵and Pensions [2015] UKSC 16 [92]). He added that ‘There is nothing new about this point. It has often been articulated in the past by referring to a discretionary area of judgment’ [296]. The same point has often been articulated by referring to ‘giving weight’ to the government’s assessment of relevant considerations, as in the landmark case of Ali v Home Secretary [2016] UKSC 60 [46] on deportation from the UK of foreign criminals. Lord Reed held for the Supreme Court that:

‘where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, [tribunals and judges] should attach considerable weight to that assessment …’

The Court accepted the Home Secretary’s judgment that imprisonment for four years or more ‘represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life’ [46]. Lord Reed cited (at [44]) a remark by Lord Bingham that ‘giving of weight to factors such as these is not … aptly described as deference’.⁹ That remark reflects the hesitancy of some judges to see themselves as deferring (see 7.2.4, p 258). But other judges, such as Lord Hope in Kebilene and Lord Brown in Tweed have described the very same approach as deference. And it is a legitimate and, in fact, essential judicial approach in such cases: judges defer when they allow executive officials a discretionary area of judgment and when they give weight to the judgment of an official. The result of cases such as Begum and Ali is a flexible, variable doctrine of deference in the application of proportionality reasoning, even in Human Rights Act claims.

One of the more spectacularly doomed proportionality challenges to government policy making was brought by protesters against the 2010 leap in university student fees in England and Wales from just over £3000 to £9,000 per year. In R (Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201, the claimants argued that the change was a breach of the right to education under Art 2 of Protocol 1 to the Convention. The government had decided to shift a large part of the public funding of higher education from grants to loans; the court was not prepared to hold that the new funding policy violated the Convention. The government is accountable to Parliament, and not to the courts, for this aspect of policy.¹⁰ In order to hold that the policy violated the Convention, the judges would need to be able to pass judgment on the public interest in reducing the cost to the Treasury of higher education, and on the prospect that access to education would be hindered by perceptions of the risk of taking loans; then they would need to weigh the two against each other. There was no prospect that the judges would do that. But a doomed claim may not be futile from the campaigner’s point of view: accusing the government of violating human rights puts a political issue in a new light, and forces the government to defend itself in court. The litigation frames p. 307↵that issue as a dispute in which the campaigners are holding the government to account before an independent authority. ‘Public interest’ litigation can be a way of getting a message to the public, even if the claimant is bound to lose (see 10.3.2, p 399).

8.3.2 Equality

8.4.1 What generates a legitimate expectation?

An expectation does not deserve legal protection merely because it was reasonable for a claimant to expect a particular action. There must have been a pattern of conduct, or a representation, or a promise, that makes it unfair for the public authority to disregard the expectation. Then, it becomes the business of the courts to protect the expectation in some way.

If the alleged legitimate expectation was generated by a promise, it must have been ‘clear, unambiguous and devoid of relevant qualification’ (R v Inland Revenue Commissioners, ex p MFK Underwriting Agents [1990] 1 WLR 1545, 1569 (Bingham LJ); see also R (Bancoult) v Foreign Secretary (No 2) [2008] UKHL 61 [60]). Ironically, it can be very unclear whether there has been a clear promise. In Bancoult (see 7.3.1, p 261), the House of Lords was deeply divided 3–2 over whether the Foreign Secretary had clearly promised that the Chagossians would be allowed to return to the Chagos Islands.

An expectation can deserve judicial protection even if the public authority did not actually make a promise. A legitimate expectation may arise from ‘the existence of a regular practice which the claimant can reasonably expect to continue’, as Lord Fraser said in the GCHQ case ([1985] AC 374, 401). In that case, the practice of consulting unions had given the unions reason to believe that the practice would continue; the reason was that the practice created a relationship between the government as employer and the union, in which the government was committed to recognizing p. 315↵the union’s role in decision making. Similarly, the (then) Inland Revenue’s twenty-year-old practice of allowing late claims for a form of tax relief gave rise to a legitimate expectation in R v Inland Revenue Commissioners, ex p Unilever [1996] STC 681 (CA), so that it was an abuse of power for the Revenue to pull the rug out from under the claimants’ feet by suddenly refusing late claims.

Whether it arises from government practice or from a statement, the expectation must be one that the courts can legitimately protect. In R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521, the government had announced that the Environment Secretary would not cap the spending of local authorities that set ‘sensible’ budgets. The local authorities argued that they had set sensible budgets, and that it was therefore a breach of their legitimate expectation for the government to cap their spending. The argument failed so comprehensively that Lord Bridge only said that it was ‘plainly misconceived’, and did not even take the trouble to explain why. The reason was that, by promising not to interfere with ‘sensible’ budgets, the government was not pinning itself down to any particular view of what counted as sensible. If the court had been willing to decide what was a sensible budget, it would have been taking over the minister’s job. There was nothing wrong with the local authorities expecting to be able to set a sensible budget without being capped. But they had no hope of getting a court to protect that expectation by deciding what would be a sensible local council budget.

Even more radically, in Wheeler v Office of the Prime Minister [2008] EWHC 1409, the claimant tried to argue that there was a legitimate expectation of a referendum before the UK ratified the European Union’s Treaty of Lisbon because Prime Minister Tony Blair had promised a referendum before ratification of another treaty (the claimant said that the two treaties had the same effect). The Administrative Court held that there was no legitimate expectation. Even if the promise of a referendum applied to the new Lisbon Treaty (and the Court doubted whether that question was justiciable [37]), the promise did not generate an expectation that the Court would protect [43]: ‘In our view a promise to hold a referendum lies so deep in the macro-political field that the court should not enter the relevant area at all.’

8.4.2 What brings a legitimate expectation to an end?

Since a practice generates a legitimate expectation only if it is ‘a regular practice which the claimant can reasonably expect to continue’ (GCHQ case ([1985] AC 374, 401), there is no legitimate expectation if the claimant had reason to think that a practice will not continue. So a public authority can lawfully change its policy, and then a person affected by the old policy has no legitimate expectation that the old policy will be applied. But the court may need to draw a difficult distinction between changing a policy and departing from a policy without changing it.

p. 316↵With legitimate expectations generated by promises, it is different. In R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137, Tony Blair’s government had announced in Parliament in 2001 that, ‘In the interests of greater transparency, we will now, as from today, give reasons for not calling in individual cases’ [6] (that is, reasons for leaving it to the local authority to decide an application for permission to build a new development). Fifteen years later, the Secretary of State in Theresa May’s government did not give reasons for a decision not to call in an application for a new development near Paddington station. Objectors sought judicial review, and it emerged in the Court of Appeal that the government was not even aware of the statement that had been made in 2001. The Secretary of State argued that the practice had changed since 2001, so that it had become government policy not to give reasons for all such decisions. But the Court of Appeal held that ‘as a matter of good administration and transparent governance’ [48], such a change had to be made by a similar public announcement. It is not a great step towards transparency if government decisions are quashed for non-compliance with a fifteen-year-old promise that had been forgotten; perhaps the decision is best explained as reflecting a sense on the part of judges that administrative authorities simply ought to abide by what they have promised.

If a legitimate expectation is based on a promise, the public authority in question has to revoke the policy by publicly announcing that it will no longer take the policy it promised to take—almost as if it were repealing a legal rule. Very shortly after the decision in Save Britain’s Heritage, the government announced in Parliament that the Secretary of State would no longer give reasons for decisions not to call in an application for planning permission.

8.4.3 Does reliance matter?

Yes. If a claimant acted to his or her detriment because of an expectation that a public authority induced, then that fact will count in favour of an argument that it would be an abuse of power for the public authority to ignore the expectation. But reliance is not conclusive, because the requirements of public policy and the interests of third parties may mean that it is not an abuse of power to disappoint an expectation, even after a claimant has relied on it. And reliance is not necessary, either: ‘It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power’ (Bancoult (No 2) (Lord Hoffmann [60]), endorsed in Re Finucane’s Application for Judicial Review [2019] UKSC 7 [72], [159]). Since it is relevant, there are bound to be cases in which the very fact that a claimant did not rely on a representation or practice means that he or she has no legitimate expectation. R v Education Secretary, ex p Begbie [2000] 1 WLR 1115 is an example. Peter Gibson LJ said: ‘It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation’ [48].

8.4.4p. 317 What if a claimant expected that a public authority would do something unlawful?

A public authority’s conduct or representation may lead a claimant to expect the authority to do something that is against the law. Even if the claimant’s expectation is perfectly reasonable (e.g. if the claimant had no reason to think that the expected conduct was unlawful), it cannot count as a legitimate expectation. In order to generate an expectation that the law will protect, a public official’s promise or undertaking ‘must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power’ (R v Home Secretary, ex p Ruddock [1987] 1 WLR 1482, 1497 (Taylor J)). p. 318↵That does not only mean that no legitimate expectation arises from a representation that a public authority will do something that is specifically prohibited by law. It also means that, if there is a legitimate expectation, it does not stop the public authority from being able to change a policy, or to act on all of the relevant considerations: ‘[T]he Secretary of State cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it’ (Ruddock, 1497).

If a public authority cannot fetter its discretion, it may seem that a claimant cannot have a legitimate expectation that a public authority will use a discretion one way rather than another. But no: the Ruddock decision simply means that the doctrine of legitimate expectation does not necessarily prevent a public authority from changing a policy that would have benefited a claimant.

The courts have tried to reconcile the protection of expectations with the need for public authorities to be able to change policies. In Re Findlay [1985] 1 AC 318, Lord Scarman said that a prisoner had no legitimate expectation of being treated according to the parole policy that was in effect when he went to prison (338): ‘The most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute.’ The House of Lords was concerned to ensure that the law should not protect an expectation if doing so would prevent a public authority from exercising its responsibilities, which might include changing a policy.

8.4.5 Procedural and substantive protection for legitimate expectations

In the 1980s and 1990s, there was much controversy over whether the doctrine gave substantive protection for legitimate expectations, or whether a public authority merely needed to listen to what the person affected had to say, before deciding to disappoint a legitimate expectation. In GCHQ, Lord Diplock had suggested that ‘where the decision is one which does not alter rights or obligations enforceable in private law but only deprives a person of legitimate expectations, “procedural impropriety” will normally provide the only ground on which the decision is open to judicial review’ ([1985] AC 374, 411); cf O’Reilly v Mackman [1983] 2 AC 237, 275 (Lord Diplock). It seemed to some that an authority with a discretionary power had to be free to act regardless of the expectations of persons affected by the decision or the courts would be taking away the discretion (and by the same token, they would be giving public authorities a technique for taking away their own discretion, by promising someone that they would use a power in one way rather than another).

But as Bibi shows, that controversy is long over. The claimants in Bibi did not merely get a declaration that they were entitled to a hearing; by telling the local authority that the claimants’ legitimate expectation had to be taken into account, the Court spelled out considerations on which it had to decide. And that means determining part of the substance of the decision that it had to make. The authority could not deny Bibi what he had been promised unless there were overriding reasons not to give it to him. p. 319↵Although this was not clear when the GCHQ case was decided in 1984, there was clear authority for substantive protection for legitimate expectations in R v Home Secretary, ex p Khan [1985] 1 All ER 40, and Taylor J unequivocally stated that the doctrine of legitimate expectation is ‘not confined’ to a right to be heard in R v Home Secretary, ex p Ruddock [1987] 1 WLR 1482, 1497. In fact, it should always have been obvious that the doctrine gave substantive protection. After all, it follows from the Wednesbury doctrine that if no reasonable public authority would disappoint an expectation, then it is unlawful to do so. And that is unquestionably a matter of substance.

Is substantive protection of expectations dangerous? Does it restrict a public authority’s capacity to change its policy? And does it enable an authority to bind itself illegitimately, evading the law that requires it to make a genuine exercise of its discretion (see 8.1.2, p 289)? Not necessarily. As Taylor J pointed out, substantive protection for legitimate expectations need not fetter the discretion of a public authority (Ruddock, 1497). It can be a good exercise of discretion for a public authority to commit itself (after all, public authorities can enter binding contracts—see 15.3.2, p 614). But the substantive impact of the doctrine ought to be limited, because no one can legitimately expect a public authority to be unable to change its policy under any conditions. That applies even where a public authority has made a promise to the claimant. As Lord Kerr said in Re Finucane’s Application for Judicial Review [2019] UKSC 7 [76]:

‘Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it.’

And in Rahman v Home Secretary [2011] EWCA Civ 814 [43], Stanley Burton LJ said for the Court of Appeal: ‘A minister is entitled to review, to change and to revoke his policy whenever he considers it to be in the public interest to do so’. We can make that into a complete statement of the substantive effect of legitimate expectations if we say that a minister is entitled to review, to change, and to revoke a policy where it would not be an abuse of power, in light of the claimant’s expectations, to do so.

The result in Bibi shows that the courts can protect legitimate expectations without taking away a public authority’s discretion. In fact, in Bibi, the doctrine of legitimate expectation simply acts as an instance of the relevance doctrine, because the Court held that the law required the authority to take its promise into account in exercising its discretion. That fact itself shows, first of all, that the doctrine of legitimate expectation is not a novelty, and second, that it must provide some form of substantive protection. Like Wednesbury unreasonableness, the relevance doctrine unquestionably controls the substance of decisions. The strenuous debates over the legitimate expectation doctrine have really concerned the extent of substantive protection. We will look at that problem in this section; it tests the limits of the judges’ role.

p. 320↵In the idea that courts should prevent abuse of power, there is a rationale for some form of substantive protection for expectations that administrative authorities have induced. The courts must apply it with comity towards administrative authorities. You might think that it is no breach of comity for the judges to hold an administrative authority to a policy choice to which the authority has committed itself. Yet the courts still need to defer to some extent, as Lord Scarman explained in Findlay, because a public authority may have legitimate reasons to change a policy, or to create exceptions to it, and may need to reconcile it with competing interests. The deference the courts need to show may make it impossible for them to decide whether it is appropriate for a public authority to disappoint a legitimate expectation. The judges do not always keep hold of the principle of comity as clearly as they did in Bibi.

The leading case is R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (CA). A car accident had left Miss Coughlan in need of constant nursing care. After she had been in a hospital for more than twenty years, the health authority promised her that, if she moved into a new nursing home called Mardon House, she could stay there for life. She agreed, but after five years the authority decided to close Mardon House and to move her again. The decision was made for financial reasons and because the facility was not clinically well suited for other health service functions that were located there [53]. The Court of Appeal held that the decision had been unlawful. The authority had deliberately considered the fact that Miss Coughlan had been promised a home for life, so the decision shows how legitimate expectation can move beyond the relevance doctrine.

Lord Woolf MR, for the Court of Appeal, pointed out that different expectations may deserve different forms of legal protection (at [57]):

‘(a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation … Here the court is confined to reviewing the decision on Wednesbury grounds … (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here 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 …. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, … the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.’

Of Lord Woolf’s three categories of protection, the first is an application of the relevance doctrine¹⁸ and the second is an application of the law of due process.

p. 321↵If legitimate expectations can be protected in different ways, what determines the form of protection? The Court held that Miss Coughlan’s case came within category (c) because the promise was so important to her, the persons affected by the promise were few, and the consequences of holding the authority to its promise were ‘likely to be financial only’ [60].

Lord Woolf’s category (c) is a form of protection against substantive unfairness. But not just any unfairness. In order for a court to interfere, the claimant has to show that frustrating the expectation was unfair in a way that the judges can identify as an abuse of power. So it seems that Miss Coughlan did not win merely because the health authority had not given the right weight to her expectation. She won because their decision was so unfair as to be an abuse of their discretionary power. Understood in that way, the case is an orthodox application of principles that go back to Kruse and earlier; it is only remarkable because, by deciding that the decision was an abuse of power, the judges took it on themselves to discount the financial consequences of keeping open an almost-redundant nursing home.¹⁹

Yet the judges also said that, ‘it is for the court to decide’ whether a decision in category (c) ‘strikes a proper balance between the public and the private interest’ [52] and ‘the Health Authority failed to weigh the conflicting interests correctly’ [89]. The Court also held that: ‘The propriety of such an exercise of power should be tested by asking whether the need which the Health Authority judged to exist to move Miss Coughlan to a local authority facility was such as to outweigh its promise that Mardon House would be her home for life’ [83]. That would indeed have been the way for the health authority to decide whether to move Miss Coughlan—but the way for a court to decide whether it was lawful is (according to the Court of Appeal in Coughlan itself) to ask whether it was so unfair as to amount to an abuse of power for the health authority to reach the conclusion that it reached ([57] and [67]–[71]). So there is an ambiguity in Coughlan: is it the judges’ job to identify an abuse of power? Or to determine whether a public authority decided proportionately (that is, to impose the court’s weighting of the conflicting interests)?

In R v Ministry of Agriculture, Fisheries and Food, ex p Hamble Fisheries Ltd [1995] 2 All ER 714, 731, Sedley J had held that the court’s duty was ‘to protect the interests of those individuals whose expectation of different treatment has a legitimacy which in fairness outtops the policy choice which threatens to frustrate it’ (emphasis added). Hamble Fisheries had refitted a boat to take advantage of the Ministry’s way of counting fishing quotas; the Ministry changed its policy and refused to make an exception to allow the company to take advantage of the old scheme. The word ‘outtops’ in Sedley p. 322↵J’s reasons shows that he took it upon himself to decide whether the Ministry made the correct decision. In R v Home Secretary, ex p Hargreaves [1997] 1 All ER 397, Hirst LJ called Sedley J’s approach ‘heresy’. The heresy was that Sedley J judged whether the policy change was important enough to justify the impact on Hamble Fisheries, instead of deferring to the Ministry’s view of the importance of the policy change. Hirst LJ said, in Hargreaves: ‘On matters of substance (as contrasted with procedure) Wednesbury provides the correct test … while Sedley J’s actual decision in the Hamble case stands, his ratio in so far as he propounds a balancing exercise to be undertaken by the court should in my judgment be overruled’ (412).

Did Coughlan rehabilitate Hamble Fisheries after it was called ‘heresy’ in Hargreaves? No, because Coughlan, according to the Court of Appeal, involved an abuse of power. Consider the fact that the Court of Appeal in Coughlan relied on Kruse v Johnson (Coughlan [72]). It would be completely foreign to Lord Russell’s approach in Kruse to say that the court must decide whether the policy objective was important enough to justify the impact on the defendants. His approach was not even to ask that question, but to ask instead, in anticipation of Wednesbury, if decisions were ‘manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men’ (Kruse v Johnson [1898] 2 QB 91, 99–100—see 7.1, p 243).

The justices of the Court of Appeal in Coughlan (which included Sedley LJ) certainly wanted to reject the Hargreaves view that Wednesbury provides the correct test for substantive protection of legitimate expectations. They held that, in category (a) (where the public authority need only bear in mind its policy or representation), ‘the court is confined to reviewing the decision on Wednesbury grounds’—implying that, in category (c), the court is not confined to reviewing the decision on Wednesbury grounds. And the Court suggested that the right approach ‘is to ask not whether the decision is ultra vires in the restricted Wednesbury sense but whether, for example through unfairness or arbitrariness, it amounts to an abuse of power’ [67]. That presents Wednesbury as if it were restricted to irrationality (see Coughlan [62]). Then the Court held that the decision of the health authority in Coughlan was perfectly rational, but could be quashed for unfairness amounting to abuse of power (citing Kruse [72]). The Court presented the resulting doctrine of substantive protection for legitimate expectations as a progression beyond Wednesbury.

But the result in Coughlan, and the reasons for it, are compatible with Lord Greene’s reasons in Wednesbury. Precisely because the Court held the decision in Coughlan to be an abuse of power, there is no ground for the Court’s suggestion that Coughlan required a ground of review other than those that Lord Greene identified. No reasonable public authority would exercise its power in a way that is so unfair as to amount to an abuse of power. It would be deeply contrary to Lord Greene’s approach in Wednesbury to say that a decision might be so unfair as to amount to an abuse of power, and yet still lawful because it was not irrational. The Court of Appeal in Coughlan had a convincing argument that a decision does not have to be irrational before it can be quashed as an abuse of power. But that convincing argument only shows that it has always been a mistake for the courts to describe Wednesbury unreasonableness as ‘irrationality’ (see 7.1.3, p 250).

p. 323↵The Court’s conclusion that the health authority had abused its power—and the fact that the justices could cite Kruse in favour of their decision—mean that the outcome in Coughlan could have been explained entirely by the Wednesbury doctrine. Yet, in its conclusion on the legitimate expectation issue, the Court really did restate the old heretical line from Hamble Fisheries—the line that the Court of Appeal had overruled in Hargreaves—by holding that ‘the health authority failed to weigh the conflicting interests correctly’ (Coughlan [89]). That is a test of proportionality (see 8.3, p 300).

Coughlan left the law in an uncertain state: on the one hand, the judges said that the test for the lawfulness of disappointing a legitimate expectation was abuse of power and on the other hand, they suggested that it was a test of proportionality between the public interest and the private interests of the person with the legitimate expectation. The state of the law was resolved after Coughlan, when Lord Justice Laws held, in R (Nadarajah) v Home Secretary [2005] EWCA Civ 1363, that a public authority can only disappoint a legitimate expectation if doing so is ‘a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest’ [68]. Later cases have treated that as good law without ever resolving the tension between abuse of power and proportionality.²⁰ Perhaps the resolution is that the courts count the interest of a claimant in fulfilment of an expectation induced by a public body as deserving special protection—protection that the courts provide by treating the disappointment of a legitimate expectation as an abuse of power, and therefore unlawful, unless the public authority can show that it is a proportionate way of pursuing a legitimate objective. This approach gives a legitimate expectation roughly the same force as the interests protected by common law rights such as the right to access to justice (see the discussion of UNISON in 8.3, p 303).

8.4.6 Legitimate expectations: conclusion

What more does the doctrine of legitimate expectations give to a claimant than the ordinary doctrines of due process and control of discretionary powers? Nothing: it is part of those doctrines. It can be procedurally unfair to disappoint an expectation without a hearing and it can be substantively unfair to disappoint an expectation. Procedurally unfair decisions are unlawful. But substantively unfair decisions are only unlawful if they are so unfair that they amount to an abuse of power.