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Administrative Law

Administrative Law (5th edn)

Timothy Endicott
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p. 2878. Substantive unlawfulnesslocked

p. 2878. Substantive unlawfulnesslocked

  • Timothy EndicottTimothy EndicottFellow in Law, Balliol College, Professor of Legal Philosophy, University of Oxford


This chapter shows that judges must substitute their own judgment for that of an administrative authority on some issues, in order to give effect to the principle of legality. When there is reason for non-deferential judicial review, deference would mean abandoning the rule of law. The more interventionist grounds on which judges will control the substance of some decisions—relevance, proportionality, and legitimate expectations—may involve little deference, depending on the type of decision and the context in which it is made. Each of these interventionist doctrines gives the judges the opportunity to do justice for a claimant and to improve public administration. For the very same reasons, each doctrine poses a danger that the judges will make themselves into surrogate administrators by overextending the grounds of judicial review.

When there is reason for non-deferential judicial review, deference would mean abandoning the rule of law. The more interventionist grounds on which judges will control the substance of some decisions—relevance, proportionality, and legitimate expectations—may involve little deference, depending on the type of decision and the context in which it is made.

Each of the interventionist doctrines gives the judges the opportunity to do justice for a claimant and to improve public administration. For the very same reasons, each doctrine poses a danger that the judges will make themselves into surrogate administrators by overextending the grounds of judicial review.

Look for • • •

The extent to which judges should and should not defer to administrative authorities in giving effect to these grounds of judicial review of the substance of decisions:



legitimate expectations;

abuse of power.

p. 288‘The differences in approach between the traditional grounds of review and the proportionality approach may … sometimes yield different results … This does not mean that there has been a shift to merits review. On the contrary, … the respective roles of judges and administrators are fundamentally distinct and will remain so.’

R (Daly) v Home Secretary [2001] UKHL 26 [28] (Lord Steyn)

8.1 Minimal deference and the principle of legality

Deference is not a default setting for judicial review; it depends on the issue. The four basic reasons for deference (see 7.1.1, p 244) depend on the type of decision and the context in which it is made.

In this chapter, we will see that the judges substitute their own judgment for that of an administrative authority on some issues, in order to give effect to the principle of legality (see 1.5.6, p 25). The most non-deferential grounds of decision in English judicial review are relevance and proper purposes (8.2, p 294), proportionality (8.3, p 300), and legitimate expectations (8.4, p 312); the doctrine of legitimate expectations has recently generated a doctrine of consistency in the exercise of discretionary power (8.5, p 323).

These adventurous, non-deferential doctrines have changed judicial review and have dramatically increased the role of judges in governance in the UK. But the main theme of this chapter is that it would be a mistake to think that these forms of judicial review have abolished the earlier, deferential approach of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. There is still no general rule authorizing judges to review discretionary administrative decisions without deference. There is no general rule that an administrative decision is unlawful if it is substantively unfair (see 8.6, p 325). But in special circumstances, where judges can improve administrative decision making by passing judgment on the very questions of substance that the administrative authority had to decide, it is no breach of comity for them to do so. And where it is necessary to prevent arbitrary government, the rule of law demands that they do so.

We can start with zero deference: the courts do not defer to administrative authorities on the question of whether they should carry out a legal duty.

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. 289and 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. 291there 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.

Carltona upended? Gerry Adams and the Home Secretary

In R v Adams [2020] UKSC 19, Lord Kerr, writing reasons for a unanimous Supreme Court, threw the Carltona principle into doubt. In 1975, Gerry Adams was convicted of attempting to escape from prison. He had been imprisoned during the troubles in Northern Ireland, on temporary orders made under emergency anti-terrorism legislation.3 The legislation authorized the Home Secretary to make the orders. The orders in Adams’ case had been signed by a Minister of State on behalf of the Home Secretary. Lord Kerr held that it was unlawful for the order to be made without the Secretary of State having personally decided whether it should be issued. He wrote that ‘whether the Carltona principle should be considered to arise in a particular case depends on an open-ended examination of … the framework of the legislation, the language of pertinent provisions in the legislation and … the gravity of the consequences flowing from the exercise of the power, rather than the application of a presumption’ [26]. Perhaps the case reflects the judges’ hostility to detention by executive order and should be seen as an exception based on its special facts (in particular, the ‘gravity of the consequences’ of the order). But Lord Kerr suggested that the case was not exceptional because there is no general principle that departmental officials can act on behalf of the Secretary of State. Lord Kerr did not mention Bourgass and his dictum about the Carltona principle is irreconcilable with Lord Reed’s holding that ‘a decision made on behalf of a minister by one of his officials is constitutionally the decision of the minister himself’ (Bourgass [49]).

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. 292exercise 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.

• Pop quiz •

Does the genuine exercise rule impose procedural or substantive duties on administrative authorities?

8.1.3 The principle of legality and the value of liberty

The courts will not treat general powers as authorizing decisions that disregard certain fundamental values (see 1.5.6, p 25). This reading-down of powers is the most important general technique by which judges limit public authorities’ leeway in the use of discretionary powers. Which interests will be protected? There is no catalogue, and it is not the judges’ job to codify the principle of legality. But it is their job to identify specific instances of it, and if there were a catalogue, it would certainly include the following.

Examples of values protected by the principle of legality

Liberty (A and X v Home Secretary [2004] UKHL 56—see 1.1.2, p 8)

Property (Rooke v Withers (1597) 5 Co Rep 99—see 7.1 p 240; Entick v Carrington (1765) 19 Howell’s St Tr 1029—see 14.1, p 550; Ahmed v HM Treasury [2010] UKSC 2)

Access to tribunals and courts (R (UNISON) v Lord Chancellor [2017] UKSC 51—see 7.3.2, p 269)

Administrative due process (Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180).

Note the overlaps! Administrative due process and access to the courts protect property and liberty.

The judges will not allow the use of a power to detract from these values disproportionately, even if a statute conferring a power says nothing about the matter, and even when there are other relevant considerations at stake.

p. 293Liberty

In English law, ‘every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act’ (Liversidge v Anderson [1942] AC 206, 245 (Lord Atkin)).4 Lord Atkin called that ‘one of the pillars of liberty’. Liberty is the first and most famous of the values protected by the principle of legality.

Habeas corpus is available as a process for challenging detention if no other adequate process is available. But, today, all of the important forms of executive detention—by mental health authorities, or the police, or immigration officials—are regulated by statutory schemes. An application for habeas corpus will fail where a statute authorizes the detention. And habeas corpus is not available where a statutory scheme provides an adequate process for a court to determine whether the detention is lawful.5 The judges will take the same creative approach to their task in controlling those statutory schemes as they took centuries ago in developing habeas corpus (see 1.1.1, p 5).

Instances of the special judicial concern for liberty: the prisoner cases

In R v Home Secretary, ex p Doody [1994] 1 AC 531, R v Home Secretary, ex p Pierson [1997] 3 All ER 577 (HL), and R v Home Secretary, ex p Venables and Thompson [1997] 3 WLR 23, the judges insisted on due process in the Home Secretary’s decisions setting tariffs for life prisoners and used the relevance doctrine to control the grounds on which the Home Secretary decided a tariff.

Then, under the Human Rights Act 1998, the courts declared that the mere fact that the Home Secretary had power to decide the tariff was incompatible with the right to an independent tribunal in Art 6 of the Convention (R (Anderson) v Home Secretary [2002] UKHL 46). Parliament changed the legislation as a result and tariff setting for life-sentence prisoners is no longer a problem of administrative law; the initial decision is made by a judge.

In R v Home Secretary, ex p Simms [1999] 3 All ER 400 and R (Daly) v Home Secretary [2001] UKHL 26, the courts protected a prisoner’s freedom to communicate with lawyers and the media (see 8.3, p 300).

p. 294Judges have extended their scrutiny beyond the decision to detain to impose intensive control on the treatment of a detained person. In R (Wilkinson) v Broadmoor Special Hospital [2001] EWCA Civ 1545, the doctors at a mental hospital decided that they needed to administer medical treatment under restraint to a patient who was detained because of a mental illness. The Court of Appeal held that, in judicial review, the court’s task was to make ‘its own assessment of the relevant facts’ [34], and to conduct ‘a full merits review of the propriety of the treatment proposed’ [36]. So, instead of deferring to the mental health experts, the court has to decide whether it is right to impose the treatment on the patient, using evidence from the doctors, given under cross-examination. Because the treatment is forced, the courts treat the administrative decision as only provisional, and the treatment that ought to be given is an open question for the court to decide.

8.2 Relevant considerations and proper purposes

It seems to be part of the genuine exercise rule: if a public authority does not act on relevant considerations or does not use a power for the purposes for which it exists, the authority is not genuinely doing what it was given power to do. Yet this ground of review can be dynamite. Lord Greene put it this way in Wednesbury (228):

‘If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, … the authority must disregard … irrelevant collateral matters.’

Twenty years after Wednesbury, the House of Lords made this doctrine into the basis of a highly political interference with the Minister of Agriculture’s management of a milk marketing scheme, in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. The Minister had a discretionary power to refer complaints to a committee, and he refused to refer a complaint because he did not want to generate political pressure in favour of the opponents of the scheme. Lord Reid held (at 1030):

‘Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, 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.’

Public authorities should always act for proper purposes and on the basis of the relevant considerations. But in a doctrine that it is the judges who are to decide which purposes are proper and which considerations are relevant, there is potential to abolish all deference to administrative authorities.

p. 295A consideration is something that a decision maker might take into account in a way that would affect the decision; it can be a general consideration as to the purpose of the decision-making power (as in Padfield), or it can be one of the facts of a particular case. A relevant consideration is one that the decision maker ought to take into account. Relevant considerations include legitimate general grounds for decision, and also those facts of the particular case on which the legitimate general grounds of decision depend.

In judicial review, should the judges decide what purposes public authorities can pursue and what considerations are relevant? The crucial point that will emerge from the following discussion is that they must be prepared to control administrative judgments as to the relevance of a consideration and as to whether a purpose is proper. Yet it is not generally the judges’ job to do so by replacing the administrators’ view of what purposes are proper and what considerations are relevant with their own view.

The remarkable thing about the decision in Padfield is not that the judges interfered in politics. They have been interfering in politics at least since the Case of Proclamations (1611) 12 Co Rep 74 and Prohibitions del Roy (1607) 77 ER 1342 in the seventeenth century (see 1.5.1, p 16). But in those earlier decisions, the judges only decided what actions the Crown did or did not have power to undertake. In Proclamations, Sir Edward Coke held that the King could not act like Parliament: he could not create new offences. In Prohibitions, Coke held that the King could not sit as a judge. In Padfield, Parliament had given the minister the power to decide whether to refer a complaint to the committee. The House of Lords told the minister (some of) the grounds on which he could and could not take the actions that Parliament had authorized the government to take.

Is that approach compatible with the deferential approach that Lord Greene was outlining in Wednesbury? Or did the judges abolish deference in Padfield, by taking it on themselves to tell the government the grounds on which it could act? The answer has to be that Padfield did not abolish deference. But let’s consider why it may seem to do so.

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. 296In 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. 297This 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.

• Pop quiz •

Can you distinguish R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 from R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521 (see 7.3.2, p 269)? Both were challenges to government funding decisions under statutory powers, but in Hammersmith and Fulham, the House of Lords refused to interfere with a funding decision unless it was ‘so absurd that he must have taken leave of his senses’. Why wasn’t the same hands-off standard applied in World Development Movement?

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. 298are 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.

R (Khatun) v Newham LBC [2004] EWCA Civ 55: the claimant asked for a housing decision to be quashed on the ground that the potential tenant’s view as to the suitability of the housing was a relevant consideration that the local authority had ignored. The Court of Appeal refused; following Findlay, Laws LJ held that, ‘where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review’ (Khatun [35]).

R (Al Rawi) v Foreign Secretary and Home Secretary [2006] EWCA Civ 1279: ‘In this area of the government’s responsibility to make decisions touching the conduct of foreign relations, the class of factors which are neither compulsory nor forbidden, but which it is open to the decision-maker to treat as relevant or not, must be particularly wide’ (Laws LJ [131]).

R (Hurst) v London Northern District Coroner [2007] UKHL 13: ‘Some considerations are required to be taken into account by decision makers. Others are required not to be. But there is a third category: those considerations which the decision maker may choose for himself whether or not to take into account’ (Lord Brown [57]).

R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60: ‘A discretionary decision is not in any event vitiated by a failure to take into account a consideration which the decision-maker is not obliged by the law or the facts to take into account, even if he may properly do so: CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183’ (Lord Bingham [40]).

Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305: the Secretary of State had a legal obligation to take into consideration his own previous decision in a similar case, but only because ‘no reasonable Secretary of State would have failed to do so’ [23].

p. 299 R (DSD) v Parole Board [2018] EWHC 694 (see 13.12.1, p 542): ‘… it is for the decision-maker and not for the court to make the primary judgment as to what should be considered in the circumstances of any given case. The court exercises a secondary judgment, framed in broad Wednesbury terms, if a matter is so obviously material that it would be irrational to ignore it’.

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.

Relevance and the courts

Lord Greene did not treat questions of relevance generally as questions for the court. In B Johnson & Co v Minister of Health [1947] 2 All ER 395, 400, decided less than four months before the Wednesbury hearing, he refused to substitute ‘the opinion of the court as to what considerations should weigh with the Minister for the opinion of the Minister himself, which had been made by Parliament the decisive matter’.

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. 300judges. 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 Proportionality

It is unreasonable to use a sledgehammer to crack a nut or to make a mountain out of a molehill. It is unreasonable to act in a way that has a disproportionate impact on people affected by a decision, and no public authority should act unreasonably. But that does not mean that judges should interfere when an administrative authority does so. The point of the Wednesbury doctrine was that comity generally requires judges not to decide what would be a reasonable decision, but only to interfere with a decision that no reasonable person in the position of the administrative authority would take. p. 301The Wednesbury principles apply quite broadly (although even those principles do not apply to all decisions by public authorities—see 7.3.2, p 269) because they offer ways in which judges can identify administrative decisions as arbitrary. But it is not necessarily arbitrary to do too much or too little. So judicial review on the ground of proportionality calls for some rationale other than the judges’ general responsibility to impose the rule of law on other public authorities. Proportionality should only be a ground of judicial review where the law recognizes an interest that ought to be protected by a judicial inquiry as to whether it has been, or may be, damaged in a way that is out of proportion to the attainment of a public objective (see 3.6, p 97).

It sometimes seems that proportionality is poised to take over judicial review. To his version of ‘The List’ of the grounds of judicial review (see 9.4.1, p 373), Lord Diplock said that further grounds might be added in time, and mentioned ‘the possible adoption in the future of the principle of “proportionality”’ (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (‘GCHQ’) 410). And after the enactment of the Human Rights Act 1998, judges started to suggest that proportionality has become a general feature of English administrative law. For proportionality really did become a test of compatibility of administrative action with Convention rights (see 3.6, p 97, for an account of the structure and the role of proportionality reasoning under the Convention). And it came to seem to some, such as Lord Slynn, that proportionality cannot be restricted to European Union law and the effect of Convention rights:

‘I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle is part of English administrative law … Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing.’7

More recently, in a series of cases—Kennedy v Charity Commission [2014] UKSC 20 [54], R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [66], Pham v Home Secretary [2015] UKSC 19 [113], Keyu v Foreign Secretary [2015] UKSC 69 [132] and [304], and Youssef v Foreign Secretary [2016] UKSC 3 [51]–[61]—the Justices of the Supreme Court asked themselves whether the time had come, as Baroness Hale put it in Keyu [303], ‘to recognise proportionality as a further basis for challenging administrative actions, a basis which, if adopted, would be likely to consign the Wednesbury principle to the dustbin of history’.

In Keyu, the claimants argued that the four-stage proportionality test set out in Bank Mellat (see 3.6, p 97) ‘should now be applied in place of rationality in all domestic judicial review cases’ [131]. Lord Neuberger said that ‘It would not be appropriate for a five-justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very p. 302wide in applicable scope’ [132]; Lord Kerr agreed, but added, ‘I suspect that this question will have to be frankly addressed by this court sooner rather than later’ [271]. In Youssef, Lord Carnwath said, ‘It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue’ [55].

The Supreme Court will no doubt be addressing the matter again and again. But the time will never come for a proportionality test in the judicial review of all administrative decisions. As Baroness Hale put it very succinctly in Keyu, ‘it is one thing to apply a proportionality analysis to an interference with, or limitation of, a fundamental right and another thing to apply it to an ordinary administrative decision such as whether or not to hold some sort of inquiry’ [304]. There is actually a very good rationale for what Lord Slynn called ‘separate compartments’: in judicial review on the ground of proportionality, the judges put some interest or interests asserted by the claimant into one side of the scales and public interests (or the interests of other individuals) into the other side, and decide which is weightier. Proportionality has no place in judicial review unless there is some special reason for judges to decide when government action too great an adverse impact on some interest or interests that the law protects.

There is such a special reason for judges to engage in proportionality reasoning in Convention rights adjudication. For the Strasbourg judges, the reason is that the UK has adopted the Convention as a way of protecting certain interests of persons. For UK judges, the reason is that the Human Rights Act requires them to protect those interests.

And proportionality reasoning is not restricted to Convention rights adjudication: where the values protected by the principle of legality (see 1.5.6, p 25) are at stake, there is special reason for the judges to use proportionality reasoning to provide that protection. The classic example is R (Daly) v Home Secretary [2001] UKHL 26. The Home Secretary, exercising a statutory power to make rules for management of prisons, instructed prison governors to exclude prisoners from their cells while making searches. The House of Lords held that the policy was unlawful because it created a risk that prison guards would read the prisoner’s correspondence with his lawyer, which in turn would inhibit a prisoner from communicating freely with his lawyer. That interfered too much—that is, disproportionately—with the prisoner’s freedom to communicate with his lawyer. The decision was ‘an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review’ (Lord Bingham [23]). It was orthodox because the requirement of proportionality is a way of protecting a ‘common law right’ ([10] and [15]) of privileged communication with a lawyer. And the role of that right in Daly reflects the fact that there is not, and there should not be, any general doctrine of proportionality in judicial review of administrative action.

Think about the difference between the decision in the Daly case and the decision in a case like World Development Movement, or a case like R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521 (see 7.3.2, p 270). If proportionality were a general standard of judicial review of administrative action, then in a case like World Development Movement, it would be possible to challenge the government’s use of the overseas development budget on the ground that a project it funded did not p. 303accomplish enough to justify the expenditure. And in a case like Hammersmith and Fulham, the court would have to decide whether the central government’s decision to cap the spending of local authorities was proportionate (in its impact on their finances, presumably, and on their ability to spend public money) to the pursuit of legitimate central government objectives. The court would have to quash a decision if it did not allow local authorities to spend enough. But there is no reason for the country to be governed by the judges’ view, instead of central government’s view, as to whether an overseas development project is promising enough, or as to how much local authorities should be able to spend.

In spite of the many suggestions over more than thirty years since Lord Diplock’s remark in the GCHQ case in 1984, there is no reason for the judges to make proportionality into a general ground of judicial review and no reason to expect that the courts are going to attempt to do so. But the judges’ use of proportionality reasoning certainly is dynamic: it has a tendency to generate new forms of judicial review. The landmark example is R (UNISON) v Lord Chancellor [2017] UKSC 51, in which the Supreme Court struck down an administrative scheme of fees for the Employment Tribunal on the ground that the fees were so expensive that they amounted to an unlawful curtailment of the common law right of access to justice. UNISON was an application of the doctrine in Daly, and Lord Reed appealed to Lord Bingham’s use of proportionality reasoning in Daly to protect the common law rights of prisoners (UNISON [82], [88]). On that basis, Lord Reed concluded that ‘even an interference with access to the courts which is not insurmountable will be unlawful unless it can be justified as reasonably necessary to meet a legitimate objective’ (UNISON [89]). But you can also see the case as a leap beyond Daly because UNISON was a decision about government funding, which is not ordinarily decided on the basis of proportionality (see the discussion of UNISON in 7.3.2, p 273).8

And the judges took a further leap beyond UNISON in Gina Miller’s second case (see 2.7, p 65). Prime Minister Boris Johnson prorogued Parliament—that is, ended one session, announcing a date for the beginning of a new session—for five weeks in September and October 2019, during the run-up to a deadline for negotiation of a Brexit deal with the European Union. The Supreme Court held that a prorogation is unlawful if it ‘has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions’ and they concluded that ‘the court will intervene if the effect is sufficiently serious to justify such an exceptional course’ (R (Miller) v Prime Minister [2019] UKSC 41 [50]). Lady Hale and Lord Reed cited UNISON for the proposition that where the exercise of a statutory power affects ‘the operation of a constitutional principle’, ‘the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification’ (Miller [49]). And they held that prerogative power is limited by the common law in the same way [49]. The UK p. 304constitution had always left the exercise of the Queen’s power to prorogue to the advice of a Prime Minister, who is subject to political control; in one leap, the Supreme Court subjected the power to prorogue (a power that had never been subjected to legal control) to a proportionality test imposed by the judges.

Miller No 2 does not mean that proportionality is a general ground of judicial review. But it illustrates the open-ended capacity of the judges to adopt new forms of very direct and intrusive control over government whenever they decide that it is their job to give effect to a principle, by holding that the government must not act in a way that affects the underlying interests too much.

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. 305And 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. 306and 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. 307that 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

Like proportionality, equality is a relation. But it is a relation among people. Is there a general principle of judicial review that people should be treated as equals? Yes there is, according to the old line of cases leading to Wednesbury. In Slattery v Naylor (1888) 13 App Cas 446, 453 (see 7.1, p 243), Lord Hobhouse suggested that the court might set aside some by-laws as unreasonable ‘such, for instance, as a bye-law providing that the Roman Catholic cemetery should be closed to the Roman Catholic community, but remain available for others’. And Lord Russell said in Kruse v Johnson [1898] 2 QB 91, 99, that by-laws would be unlawful ‘[i]f, for instance, they were found to be partial and unequal in their operation as between different classes’. So there is an unspecific anti-discrimination principle in English administrative law that is more than a century old. It can be found in Wednesbury: if no reasonable administrative authority would treat two people differently, then it is unlawful to do so.

But it would be going too far to say that a court can generally quash a decision that does not treat the claimant equally with other people. In R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25, the Supreme Court held emphatically that ‘the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law’ (Lord Carnwath [24]). While investigating alleged price fixing by several companies in the tobacco market, the Office of Fair Trading reduced the penalty for one company because of an assurance it had given that company. But then it decided that the assurance had been a mistake and refused to reduce the penalties for other companies in the same position. Those other companies argued unsuccessfully that a principle of equality required the authority to give them the same benefit. The Supreme Court held that it would only be unlawful to refuse to give the benefit to those companies if it breached a legitimate expectation or was irrational [41].

As Lord Hoffmann held in Matadeen v Pointu [1999] 1 AC 98 (PC) 109: ‘The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle—that it should always be the judges who have the last word on whether the principle has been observed.’ The abstract principle of equality is not a ground of judicial review because it is not necessarily the judges who should decide whether two people should be treated the same. The judges’ role in insisting on equality should be restricted (as Slattery and Kruse suggest) to decisions that would show an arbitrary disrespect for people (see Lord Hoffmann in R (Carson) v Work and Pensions Secretary [2005] UKHL 37).

The Equality Act 2010

But in respect of racism, sexism, and other forms of prejudice, legislation has given the judges the last word on whether people should be treated the same. In the 1970s, Parliament prohibited certain forms of discrimination (not only by public authorities, p. 308but also by private persons and companies) on the basis of race and sex.11 Those measures were designed to respond to traditional prejudices that caused particularly unfair disadvantages to people who had suffered discrimination. It took legislation to respond effectively to those grounds of discrimination; the legislation has been consolidated in the Equality Act 2010, which replaces the earlier provisions for race, sex, and disability, and also includes age, gender reassignment, marriage and civil partnership, religion or belief, and sexual orientation as protected characteristics (ss 5–12). The Equality Act brings together existing prohibitions on (and remedies against) discrimination and harassment on the grounds of those characteristics. And it institutes a new requirement for public authorities that is transforming public policy formation and administration: the public-sector equality duty.

The public-sector equality duty

The claimants in R (Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 never stood a chance when they tried to persuade the court that the huge rise in university tuition fees violated the European Convention on Human Rights (see 8.3.1, p 304). But they succeeded in one aspect of their case: the court held that the decision had been made unlawfully because the Secretary of State did not give the ‘rigorous attention’ that he was required to give to his public-sector equality duty (‘PSED’) [97].

The Equality Act 2010 frames the PSED as follows:

‘149(1) A public authority must, in the exercise of its functions, have due regard to the need to—


eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;


advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it …’

The PSED applies to age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation (s 149(7)). The duty is onerous:

‘… the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.’12

p. 309The PSED applies extraordinarily broadly, to the ‘functions’ of a public authority. It does not require pointless steps to be taken where the needs identified in the Equality Act 2010 are irrelevant: ‘There is no need to enter into time consuming and potentially expensive consultation exercises or monitoring when discrimination issues are plainly not in point’ (R (Elias) v Defence Secretary [2005] EWHC 1435 [96] (Elias J)). And the judges have resisted attempts ‘to get the Court to “micro-manage” the information gathering aspect of the PSED’ (R (Aspinall) v Secretary of State for Work and Pensions [2014] EWHC 4134 [123]). Yet the PSED has opened up new possibilities for challenging policy decisions in the courts: wherever a policy involves a potential benefit or detriment to people with the protected characteristics, the courts will find a breach of the PSED unless a decision maker can show that attention was given to each of the statutory considerations. If that cannot be done, the public authority may be held to be in breach of the duty, even where ‘there has on any view been very substantial compliance with these equality duties’ (Hurley [95]).

The requirement of ‘due regard’ might have been taken to introduce a proportionality test, so that the court must decide whether the public authority has done enough to remove disadvantages and to meet the needs of people with the protected characteristics. But in R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, the Court of Appeal established that a statutory duty (in that case, under the Race Relations Act 1976) to have due regard to the impact of a decision on equality is not ‘a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups’ (Dyson LJ [31]). Dyson LJ held that ‘due regard’ is ‘the regard that is appropriate in all the circumstances’, including the way in which the disadvantaged racial group is affected, but also including ‘such countervailing factors as are relevant to the function which the decision-maker is performing’ [31]. As a result, the PSED has the effect of (1) creating an onerous obligation to take procedural steps involving the preparation and use of equality impact assessments; and (2) requiring public authorities to take the resulting considerations into account (so that the PSED is a particularly intense, statutory form of the doctrine of relevant considerations). If the impact of a decision on equality is properly considered, then the administrative authority’s evaluation of that impact ‘will only be treated as unlawful where it is “unreasonable or perverse”’ (R (S) v Justice Secretary [2012] EWHC 1810 [99] (Sales J)).

It is important that, in Hurley, although the PSED had not been carried out, the court did not interfere with the decision to raise college fees to £9,000 per year: ‘It would cause administrative chaos, and would inevitably have significant economic implications, if the regulations were now to be quashed’ (Hurley [99]; see also 10.4.6, p 415). The decision in R (Hunt) v North Somerset Council [2013] EWCA Civ 1320 was similar: the Court of Appeal held that the Council had not fulfilled its PSED because, although the right sort of equality impact assessment had been prepared before a decision to reduce spending on youth services, and had been provided to the councillors, the councillors had not actually been told that they had to read it and take it into account. But to uphold the claim, the Court would have had to quash the Council’s entire budget for the previous financial year, which it refused to do because that would have been ‘highly impractical and detrimental to good administration’ [90].

p. 310The PSED has restructured policy making. And it has created a new frontier in administrative law litigation because it gives a novel technique for judicial review challenges against funding decisions that could not realistically be challenged in any other way. But because of that great breadth, the duty lacks depth: if the right processes have been conducted, and the considerations resulting from an equality impact assessment have been considered, then the resulting decision will be lawful. And even if a decision is unlawful, the court will refuse a remedy that would be detrimental to good administration.

The Equality Act 2010 holds out a collateral way of attacking policies by asking the court to scrutinize the steps that the government has taken to try to comply with the PSED. That opportunity has yielded a steady stream of litigation.13 But the really important effect of the Act is the structural change that it has brought to public decision making. Public expenditure decisions (and, in particular, decisions to cut funding to deal with strains on public finance) now involve a public process of explicit consideration of the impact on people with the protected characteristics.

Non-discrimination under the European Convention on Human Rights

We have seen that the statutory PSED uses a heightened form of the doctrine of relevant considerations to constrain public authorities in making policy decisions that have a particular impact on disadvantaged groups. The European Convention on Human Rights provides proportionality protection against discrimination in Art 14. That may seem to be a much stronger form of protection. But it is very significantly limited by judicial deference, both in Strasbourg and in the UK courts, to Parliament and to the executive.

Article 14 provides that:

‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

The Strasbourg Court has interpreted Art 14 as meaning that a policy needs a proportionality justification if there is ‘a difference in the treatment of persons in analogous, or relevantly similar, situations’:

‘Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, … if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’14

p. 311But in making this proportionality assessment, ‘a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy … the court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”’15 (see 3.7, p 106, on the margin of appreciation).

In R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, the claimants tried to use Art 14 to challenge a politically significant element in the government’s austerity programme. The Department for Work and Pensions had imposed a benefit cap to reduce housing benefit where the total welfare benefits received by a household exceeded net median earnings in working households. The claimants argued that the cap violated Art 14 and was therefore unlawful under the Human Rights Act; the argument was that the cap discriminated against women because it particularly affected single-parent households, most of which are headed by women.

The government stated its objectives as saving public expenditure for the economic good of the country, incentivizing work to reduce long-term unemployment, and changing the benefits culture. Having accepted those aims as legitimate, the Supreme Court (with Baroness Hale and Lord Kerr dissenting) held that the benefit cap was not a disproportionate way of pursuing them. Lord Reed emphasized that although the Human Rights Act ‘entails some adjustment of the respective constitutional roles of the courts, the executive and the legislature’, the courts still need to give weight to the determination of some issues by Parliament and to the executive [93]:

‘… the question of proportionality involves controversial issues of social and economic policy, with major implications for public expenditure. The determination of those issues is pre-eminently the function of democratically elected institutions. It is therefore necessary for the court to give due weight to the considered assessment made by those institutions. Unless manifestly without reasonable foundation, their assessment should be respected.’

That ‘manifestly without reasonable foundation’ test, used by the Strasbourg Court and the UK Supreme Court on questions of general economic policy, is very much like Wednesbury unreasonableness. It is a strong form of judicial deference. But the deference will not prevent the judges from interfering when they think that there is no ground at all for a benefit rule that is alleged to be discriminatory. In R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, the government had instituted a ‘bedroom tax’—another austerity initiative to restrict welfare benefits. The regulations capped housing benefit (that is, social security payments to help with rent) for claimants who had more bedrooms than the Department thought they needed. The Supreme Court held that there was p. 312manifestly no reasonable foundation for counting a family as having too many bedrooms when medical reasons prevented adults from sharing a bedroom or required a child to have an overnight carer. Similarly, in JT v First-Tier Tribunal [2018] EWCA Civ 1735, the Court of Appeal held that the rules for criminal injuries compensation were manifestly without reasonable foundation because they denied eligibility to a victim of violent crime (before 1979) where ‘the applicant and the assailant were living together as members of the same family’.

The somewhat deferential approach of the majority of the Supreme Court in these cases is entirely justified. The question of how much to spend on welfare benefits is a critically important question for every developed country and bad judgements in favour of austerity will inflict hardship on the economically disadvantaged (who are not mentioned in Art 14), and on women and children and the disabled, who are overrepresented among the economically disadvantaged. That hardship reflects a social injustice to the extent that the UK could do better at alleviating it. Yet if the judges were to abandon the deferential approach of SG, they would be controlling the country’s public expenditure while suffering from a major disability. The judges lack the techniques to manage the economy, or even to manage public revenue and expenditure, and a community can only make good decisions on welfare expenditure by integrating them into the overall management of public revenue and expenditure. There is no effective solution to injustice in social security through litigation.

You may think that there is no effective solution through politics either, since democratic processes do not reflect the interests of the disadvantaged. But consider this surprising fact: since the European Convention on Human Rights was established in 1950, the really significant improvements in the situation of disadvantaged people in the UK have been achieved through the politics of the welfare state (chiefly in the forms of public education, the National Health Service, public housing, and welfare benefits), rather than through the role of courts in giving effect to human rights law. There is no reason to think that the UK would have done better if judges showed less deference to Parliament and the executive on questions of economic strategy.

8.4 Legitimate expectations

In R (Bibi) v Newham LBC [2001] EWCA Civ 607, a local authority promised to give permanent accommodation to Manik Bibi and his family within eighteen months. The local authority thought that the family, who were homeless, had a legal right to it. Then the House of Lords held that homeless people had no such right and that local authorities should not bump homeless people up to the front of the housing queue (R v Brent LBC, ex p Awua [1996] AC 55). As a result, the Council refused to provide the permanent accommodation it had promised, and the claimants sought judicial review. The Court of Appeal issued a declaration ‘that the authority is under a duty to consider the applicants’ applications for suitable housing on the basis that they have a legitimate expectation that they will be provided by the authority with suitable accommodation on a secure tenancy’ (Bibi [69]).

p. 313That phrase ‘legitimate expectation’ is a technical term.16 A legitimate expectation might better be called a ‘legally protected expectation’. If a person has a legitimate expectation, it is not merely legitimate for him or her to expect something; the law will give the expectation some form of protection in judicial review. Bibi shows why this technique has been developed. On the one hand, Bibi had no legal right to permanent accommodation.17 On the other hand, it would be unfair to Bibi, and it would put the integrity of public services in doubt, if a public authority were to pay no attention to what it had said that it would do. As Lord Fraser put it in the GCHQ case ([1985] AC 374, 401):

‘even where a person claiming some benefit or privilege has no legal right to it as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law’.

Remember that word ‘protect’: the courts will not necessarily order a public authority to do what the claimant expected it to do.

The courts have been working—in a process that is still in flux—to find a way for the law to protect expectations that public authorities generate. In doing so, courts face a special, and rather delicate, problem of comity: how can they complete this development without taking over the judgments that a good administrator would make, in reconciling the protection of legitimate expectations with conflicting interests? In Bibi, at [64], Lord Justice Schiemann resolved the problem of comity in the following way:

‘In an area such as the provision of housing at public expense where decisions are informed by social and political value judgments as to priorities of expenditure the court will start with a recognition that such invidious choices are essentially political rather than judicial. In our judgment the appropriate body to make that choice in the context of the present case is the authority. However, it must do so in the light of the legitimate expectations of the respondents.’

So in a case like Bibi, the court:

will defer very substantially on general questions as to priorities of expenditure;

will not defer at all on the question of whether expectations induced by the public authority are relevant; and

will defer to some extent on the question of whether the promise should be carried out, in a way that will vary substantially, depending on the circumstances.

p. 314That last form of deference explains the difference between a legitimate expectation of housing and a right to housing. If a person has a right to housing (conferred by statute or contract), the court will order housing (or compensation) to be provided. Courts do not defer to administrative authorities on the question of whether to respect someone’s legal rights.

But if the claimant has a legitimate expectation, the court will defer to the public authority in a way that depends both on the authority’s responsibility for setting funding priorities and on the authority’s capacity to identify the interests of third parties, such as people waiting in the queue for permanent housing ahead of the Bibi family. Those third parties would not be treated fairly if their interests were simply subordinated to the expectations of the claimants. But if the claimants had a legal right to housing, the authority’s expenditure priorities would be irrelevant, and so would the interests of third parties.

As Schiemann LJ said, if a claimant has a legitimate expectation of a housing benefit, the court ‘will not order the authority to honour its promise where to do so would be to assume the powers of the executive’ (Bibi [41]). He held that a local authority is ‘abusing its powers’ if it acts without even considering the fact that it is going back on a legitimate expectation [39]. The gist of the doctrine of legitimate expectation is that the court will quash a decision if the public authority’s approach to the claimant’s expectation was an abuse of power. There may or may not be ‘only one lawful ultimate answer to the question whether the authority should honour its promise’ [43].

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. 315the 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.’

There is no legitimate expectation unless a court is in a position to decide that it would be an abuse of power to disappoint the expectation.

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. 316With 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].

Estoppel and legitimate expectation: the land by the lake

Suppose I promise to give you my piece of land by the lake, and say that you can build a cabin there and move in. But I like the new cabin so much that I decide to keep the land and try to have you ejected. I will be estopped (which is Norman French for ‘stopped’) from asserting my property rights in court. Does a legitimate expectation estop a public authority from asserting the lawfulness of an exercise of public power? No. I am estopped from asserting my right to the land by the lake because it would be unconscionable (that is, selfish in a way that the law should not tolerate) for me to do so after I induced you to act to your detriment.

Although there is ‘an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority’ (Lord Hoffmann in R (Reprotech) v East Sussex County Council [2002] UKHL 8 [34]), the analogy is dangerous because the rationale for protecting a legitimate expectation is not that the public authority is using private legal rights unconscionably. The rationale is abuse of public power. The question is not limited to the private rights or interests of the claimant: ‘remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote’ (Reprotech [34]). The court will insist that a legitimate expectation should be fulfilled only if it would be an abuse of power for the public authority not to do what the claimant expected. Both Lord Scarman and Lord Fraser made the same point in Newbury District Council v Environment Secretary [1981] AC 578, 616, 617.

• Pop quiz •

What if a public authority does the very things that would create an estoppel if they were done by a private person? Is the public authority estopped from asserting its right to the land by the lake? Or does the other party need to ask the court for protection of its legitimate expectation?

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. 318That 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. 319Although 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. 320In 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. 321If 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. 322J’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. 323The 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.

8.5 Consistency

In R (Rashid) v Home Secretary [2005] EWCA Civ 744, the claimant was a Kurd from Iraq, whose application for asylum was turned down on the basis that he could have escaped persecution within Iraq by relocating to the Kurdish zone. Neither Rashid, p. 324nor his advisers, nor the Home Office caseworker who dealt with his claim knew that the Home Secretary had a policy that asylum claims were not to be refused on that ground. The Court of Appeal held that the rejection of the claim was an instance of unfairness amounting to an abuse of power.

The Court of Appeal described its decision in Rashid as an application of the doctrine of legitimate expectation. But Rashid had no expectation! He did not know about the Home Secretary’s policy. In Coughlan, and even in Bibi, the public authority’s conduct was substantively unfair because the defendant had led the claimant to expect a different course of conduct.

What is the real rationale for the decision in Rashid? The explanation is that the courts consider it to be their responsibility to require some degree of consistency from administrative authorities in adhering to their policies. In Nadarajah v Home Secretary [2005] EWCA Civ 1363 [68], Lord Justice Laws said that it is:

‘a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public’.

In the landmark case of Mandalia v Home Secretary [2015] UKSC 59, the Supreme Court adopted Lord Justice Laws’ view, and established a new doctrine of consistency in the application of policy. Lord Wilson said for the unanimous Court that ‘the applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing, which was best articulated by Laws LJ [in Nadarajah]’ (Mandalia [29]). Lord Wilson restated the principle (citing Mandalia) in R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [17]:

‘Where a public authority issues a statement of policy in relation to the exercise of one of its functions, a member of the public to whom it ostensibly applies, … has a right at common law to require the authority to apply the policy, so long as it is lawful, to himself unless there are good reasons for the authority not to do so.’

Laws LJ based the principle on good administration. It is not generally the job of judges to tell government departments what good administration requires. Courts should only do so if their view can be imposed on the department with no breach of comity. In Nadarajah, Mandalia, and Lee-Hirons, it is the fact that the public authority had itself chosen the policy that made the judges feel free to require adherence to it.

Yet public authorities ought to be able to change their policies. The doctrine of legitimate expectation does not stop them from doing so (R (Niazi) v Home Secretary [2008] EWCA Civ 755), and neither should the doctrine of consistency in the application of policy. Sometimes, it will be unclear whether a public authority has unlawfully neglected its policy, or has lawfully changed it. In Nadarajah itself, the Court held against the claimant on the ground that the Home Office had changed its policy in a way that involved no abuse of power. This crucial aspect of the doctrine of consistency will be worked out through the p. 325elaboration of an important proviso that Lord Justice Laws stated in Nadarajah [68], and that Lord Wilson restated in Lee-Hirons—that the law does not require a public authority to adhere to its policy where ‘there is good reason not to do so’.

We can see the same approach at work not only in claims that rely on a statement of policy, but also in claims that rely on a public authority’s decision in another similar case. In Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305, the Secretary of State rejected the claimant’s objections to a new housing development on the ground that the development plan that the objectors relied on was out of date. The Court of Appeal quashed the decision on the ground that the Secretary of State had not taken into account the fact that he had decided in another case, just a few weeks earlier, that the development plan was up to date. The result, you may say, imposes a doctrine of precedent on administrative decision making. But it is important to bear in mind that the standard the Court of Appeal applied was Wednesbury unreasonableness: the Court concluded that ‘No reasonable Secretary of State’ could have failed to take the earlier decision into account, and to explain why he or she was making a different decision in the new case, because the two cases were ‘indistinguishable on an issue of critical importance in their determination’ [56].

So you may well ask whether the new doctrine of consistency—consistency with policies and with previous decisions—is really new.21 It is targeted at arbitrary, irresponsible use of power (that is, use of power that does not respond to the considerations that it ought to respond to). So, the doctrine is related to the doctrine of legitimate expectations, and to Wednesbury unreasonableness: these grounds of review are all justified by the court’s role in interfering with administrative decisions that the court can identify as arbitrary.

• Pop quiz •

The doctrine adopted in Mandalia and Lee-Hirons is that a public authority may not lawfully depart from a policy that favoured the claimant unless it has good reason. After Mandalia, should we conclude that there is no need for a doctrine of legitimate expectations, since unfairly disappointing a legitimate expectation will count as an instance of departing from a policy without good reason?

8.6 Why substantive unfairness is not a general ground of judicial review

The judges in Coughlan held that the ground for quashing the decision to move Miss Coughlan was ‘an abuse of power or a failure of substantive fairness’ [76]. Are they the same thing? Is substantive unfairness a ground of judicial review?

p. 326As Lord Diplock said in R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses [1982] AC 617, 637, judicial review is not available ‘for acts done lawfully in the exercise of an administrative discretion which are complained of only as being unfair or unwise’. If the claim is only that a decision was substantively unfair, that is not a ground of judicial review. But certain forms of unfairness can justify judicial review. In the ferment of judicial review in the 1980s (see 2.6, p 61), this point became clear: the House of Lords held unequivocally and unanimously in R v Inland Revenue Commissioners, ex p Preston [1985] AC 835 that the judges in judicial review can give relief against unfairness in the exercise of an administrative discretion, but only if the unfairness means that the judges could conclude that the decision was an abuse of power by the commissioners (see Lord Templeman, at 864).

That sort of unfairness may, as in Coughlan, arise because of an expectation that the public authority has induced. But a decision can be substantively unfair without any legitimate expectation. Legitimate expectation is indeed, as the judges suggested in Coughlan, an instance of a general doctrine of substantive unfairness. But substantive unfairness is a general ground of judicial review only when it amounts to abuse of power.

It is not even enough that a decision is very unfair—after all, it did not matter how unfairly the Conservative government was acting in capping the local authorities’ rates in R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] AC 521 and R v Environment Secretary, ex p Nottinghamshire County Council [1986] AC 240 (see 7.3.2, p 269); it was still not the judges’ job to remedy the unfairness. The local by-laws in both Wednesbury and Kruse were substantively unfair if they were disproportionate (if the by-law in Wednesbury restricted access to the cinema too much, or if the by-law in Kruse did not give people enough freedom to sing hymns in public). But the judges in both cases insisted that it was not for them to decide those questions. Contrast the great case of Rooke v Withers (1597) 5 Co Rep 99 (see 7.1, p 240): when the Commissioners of Sewers charged Rooke for the whole cost of flood defence work that would not only protect his seven acres but also 800 acres owned by others, the substantive unfairness was something that the court—even without usurping the role of the Commissioners—could identify as an abuse of the charging power.

It is the principle of comity that distinguishes forms of substantive unfairness that the court can and cannot remedy. Procedural unfairness generally justifies judicial review because the judges can generally require another public authority to use a fair procedure, without interfering with that authority in a damaging way. But judges cannot generally decide whether the substance of an administrative decision was fair without damaging the work of administrative authorities. As Lord Carnwath said in R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [41], ‘procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand … is not a distinct legal criterion.’22

p. 327If you think that substantive unfairness should be a general ground of judicial review (because unfair decisions shouldn’t happen), go back to Hammersmith and Fulham and Nottinghamshire and they will remind you that the courts cannot remedy all bad decisions. Substantive unfairness does not generally justify judicial review. The added something that is required is something that the court is in a position to identify as an abuse of power, something that is manifestly unfair—‘conspicuous unfairness’ (Rashid [19]). That is, judicial review requires unfairness that is manifest to a reviewing court. That is the general standard today for review of the substance of the exercise of discretionary power. It is vague and offers courts the temptation just to quash any decision when they think that a different decision ought to have been made. If they do that, they are stepping beyond the role of judges.

As Lord Scarman put it in Nottinghamshire: ‘[T]he courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness in the purported exercise of the power be such as to amount to an abuse of the power’ (249–50).23

8.7 Conclusion

In English administrative law, whether and how a court should defer to another public authority’s discretionary decisions is an open question, which depends on the type of decision, the nature of the decision maker, and the decision-making context. We cannot say that there is a general rule of deference or a general rule of no deference.

Deference (see 7.2.4, p 258) means not minding, or not asking (to some extent), whether the initial decision was right or wrong! You can see why judges sometimes have difficulty in deferring to administrative authorities.

But where there are grounds on which a judge can conclude that an administrative decision was an abuse of power, deference would mean abandoning the rule of law.

Substantive unfairness is not a general ground of judicial review (although ‘unfairness amounting to an abuse of power’ is a ground of judicial review (R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 [89])). Inequality of treatment is not a general ground of judicial review. Neither is proportionality. Not even Wednesbury unreasonableness is a general ground of judicial review, as Lord Scarman emphasized in R v Environment Secretary, ex p Nottinghamshire County Council [1986] AC 240, 247 (see 7.3.2, p 269).

p. 328Does abuse of power unify the grounds of judicial review? Lord Scarman said so in Nottinghamshire (250). The cases, of course, give no precise explanation of what counts as abuse of power. ‘Abuse’ is vague. But the crucial point is that abusing power is worse than just making the wrong decision. An abuse of power is a departure from responsible government (see 1.4.2, p 15). As Laws LJ said in R v Education Secretary, ex p Begbie [2000] 1 WLR 1115 [81], to call someone’s conduct an abuse of power is a ‘condemnation’. The reason for condemnation is that the decision maker has abandoned the standards that are meant to guide his or her conduct. So, for example, an error of law (by a judge or by an administrative authority) is not an abuse of power, as Lord Griffiths said in R v Hull University Visitor, ex p Page [1993] AC 682, 693:

‘I do not regard a judge who makes what an appellate court later regards as a mistake of law as abusing his powers … I used the phrase “abuse of power” to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform. I did not intend it to include a mere error of law.’

We can say the same about exercises of discretionary power. If the health authority in Coughlan moved Miss Coughlan when it did not need to do so, it made the wrong decision. If it abused its power, it did worse than that; it engaged in a form of misbehaviour that was incompatible with the public role that the health authority was expected to perform.

The special feature of abuse of power is that judges ought to be able to identify it without needing to second-guess the decision maker on matters that call for deference. Wednesbury unreasonableness was Lord Greene’s attempt to articulate the basis of abuse of power: it is conduct that a court ought to condemn because, even from the court’s detached point of view, it can be seen that no one in the decision maker’s position could seriously defend the decision.

Ordinarily, a decision is an abuse of power if it is abusive towards the claimant. That is only the ordinary case: consider R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386, in which the government took money that Parliament had allocated for overseas aid and used it to give Malaysia a financial incentive to buy British military aircraft (see 8.2.2, p 296). What made that decision an abuse of power—the thing that distinguishes it from simply making the wrong decision—is that it showed a flagrant disregard by a public authority for the purposes for which it was given a power. The government did not merely make a bad overseas aid decision; it did not make an overseas aid decision at all. It decided to use the overseas aid fund for something else instead.

The courts have a very wide-ranging responsibility to interfere with official action that is unlawful because it does not conform to standards that Parliament has set for public authorities (e.g. in the Equality Act 2010 and the Human Rights Act 1998). Judges should only impose standards of their own devising when doing so is justified by the core rationale for judicial review—that is, to promote responsible government by holding it unlawful for a public authority to act in a way that judges can identify as p. 329arbitrary (see 2.9, p 74). It is the judges’ duty of comity that distinguishes decisions that should have been different (which may be none of the judges’ business) from decisions that ought to be quashed on judicial review. If we think of ‘abuse of power’ as referring to uses of administrative power which a court can overrule with no breach of comity towards the initial decision maker, we make it into a term that unifies the grounds for control of discretionary decisions.

That is why substantive unfairness—like unreasonableness (see 7.1.3, p 250)—is not in itself a ground of judicial review. But some forms of substantive unfairness justify interference by a court. The nineteenth-century law is still good on this point, and much of the twentieth- and twenty-first-century progress has been to apply it more broadly, and with particular attention to special aspects of substantive unfairness: to the interests that may arise from expectations generated by officials and to the potential for judges to protect certain interests of a claimant by asking (with a greater or lesser degree of deference where comity requires it) what setbacks to those interests are disproportionate to the public interests that a public authority is pursuing. The basic principles are more than a century old. Decisions ‘such as reasonable men could not make in good faith’ are one thing (and courts may quash them unless the issues at stake are non-justiciable) (Slattery v Naylor (1888) 13 App Cas 446, 453). But decisions are not to be struck down as unreasonable (or disproportionate, or a breach of legitimate expectation) merely because they do not ‘commend themselves to the minds of judges’ (Slattery, 453).


Judges may control a discretionary power by:

applying (and developing) the law of due process;

applying any legal prohibition on the use of power (such as the prohibition in the Human Rights Act 1998 s 6 on acting incompatibly with a Convention right, when primary legislation does not require it);

deferential24 review of fact finding (see 9.2, p 356);

non-deferential review of interpretations of the law (see 9.1, p 333);

protecting a legitimate expectation (by procedural or substantive means);

deferential review for reasonableness (the extent of deference varies dramatically with the context).

Of course, you might say that the last point encompasses all of the others: it is not the judges’ job to tell another public authority how to use its power, or even what would be reasonable. But if the court can determine that a power has been exercised unreasonably without breaching its duty of comity to another public authority, there is ground for judicial review.

p. 330Take-Home Message • • •

The doctrines of relevance, legitimate expectations, and proportionality all require judges to pass judgment on the substantive fairness of administrative decisions.

But there is still no general doctrine that an administrative decision should be struck down just because it is substantively unfair.

Only certain forms of substantive unfairness justify judicial review. The vague general test for those sorts of unfairness is that the courts will interfere with an abuse of power.

The application of that general test depends on the type of decision and the context in which it is made. Judges really will substitute their own judgment for that of the initial decision maker on certain questions—in particular, on whether there are grounds for the use of a discretionary power to detain a person.

Critical Questions • • •


Are there any grounds other than abuse of power on which judges may interfere with the substance of an exercise of a discretionary power?


Can a public authority lawfully act contrary to a legitimate expectation?


Should the courts defer to a public authority on the question of what purposes the authority’s powers can properly be used to pursue?


Should the courts defer to a public authority on the question of what considerations are relevant to the exercise of a discretionary power?


Why is proportionality a general principle of the law of due process, but not a general principle of the control of discretionary powers?


The courts have a doctrine of precedent (requiring them to abide by [some] previous decisions) and a doctrine of res judicata (giving conclusive effect to a decision once it is made and is not subject to any appeal). Is there a doctrine of precedent or a doctrine of res judicata for administrative authorities?


Your local council sends you a cheque for £1,000, with a letter explaining that you paid too much council tax. You deposit the cheque (thinking, quite reasonably, that the council must know what it is doing). Then the council accountants realize that, because of a clerical error, they wrote the cheque and sent the letter to the wrong person. Can they demand the money back?


The government has a regular practice of responding to a declaration of incompatibility under the Human Rights Act 1998 by making an amending order. If a statute is declared incompatible, does a person affected by it have a legitimate expectation that the government will do so?

p. 331Reading • • •

Re Findlay [1985] AC 318

R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386

R (Bibi) v Newham LBC [2001] EWCA Civ 607

R (Daly) v Home Secretary [2001] UKHL 26

R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213

R (Begum) v Denbigh High School [2006] UKHL 15

R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60

R (Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201

On fettering of discretion:
  • Adam Perry, ‘The Flexibility Rule in Administrative Law’ (2017) 76 CLJ 375.
  • On delegation:
  • Rory Gregson, ‘When Should There Be an Implied Power to Delegate?’ [2017] PL 408.
  • On proportionality:
  • Paul Craig, ‘The Nature of Reasonableness Review’ (2013) 66 Curr Leg Probl 1.
  • Sir Philip Sales, ‘Rationality, Proportionality and the Development of the Law’ (2013) 129 LQR 223.
  • On legitimate expectations:
  • Joanna Bell, ‘The Doctrine of Legitimate Expectations: Power-Constraining or Right-Conferring Legal Standard?’ [2016] PL 437.
  • Adam Perry and Farrah Ahmed, ‘The Coherence of the Doctrine of Legitimate Expectations’ (2014) 73 CLJ 6.
  • Rebecca Williams, ‘The Multiple Doctrines of Legitimate Expectations’ (2016) 132 LQR 639.
  • Online Resources • • •

    The following online resources accompany this chapter: summaries of key cases and guidance on answering the pop quizzes and critical questions.


    • 1 Approved in the House of Lords by Lord Mustill, R v Home Secretary, ex p Doody [1994] 1 AC 531, 566. See 4.7, p 146, and 4.11, p 156, for the arguments on which the claimant succeeded in Doody, which is a landmark in the law of due process.

    • 2 The government promptly changed the prison rules after the Supreme Court’s decision, to allow a prison governor to make the decision: Prison and Young Offender Institution (Amendment) Rules 2015/1638 rule 2(3).

    • 3 Detention of Terrorists (Northern Ireland) Order 1972 (SI 1972/1632 (NI 15)) s 4(1) and 4(2).

    • 4 Lord Atkin was dissenting; his dissent has come to be accepted as good law (Inland Revenue Commissioners v Rossminster [1980] AC 952).

    • 5 Extradition is governed by a statutory regime that retains habeas corpus: see the Extradition Act 1989. For an example of a grant of habeas corpus in the House of Lords in extradition proceedings, see R (Guisto) v Governor of Brixton Prison [2003] UKHL 19.

    • 6 See, e.g. Paul Craig: ‘The court substitutes judgment … deciding whether the statute can be used for the challenged purpose or whether the contested consideration is relevant’ (‘The Nature of Reasonableness Review’ (2013) 66 Curr Leg Probl 131, 135–6). See also the discussion in 13.8.1, p 522, of the remarkable relevant considerations case of R v Parliamentary Commissioner for Administration, ex p Balchin [1997] JPL 917.

    • 7 R (Alconbury) v Environment Secretary [2001] UKHL 23 [51].

    • 8 In the three years after the UNISON decision, the Ministry of Justice received 22,000 applications for refunds of the fees and made 22,000 refund payments totalling £18.2 million. See Ministry of Justice, Tribunal Statistics Quarterly: April to June 2020, 29 September 2020, s 3.

    • 9 Huang v Home Secretary [2007] 2 AC 167 [16].

    • 10 On the variability of judicial deference to policy decisions, see 7.3.8, p 281.

    • 11 The Race Relations Act 1976, Sex Discrimination Act 1975, and Equal Pay Act 1970. The Disability Discrimination Act was added in 1995.

    • 12 R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 [59].

    • 13 An example is R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554, in which opponents of the government’s income support scheme during the Covid-19 pandemic used the Equality Act 2010 to challenge it.

    • 14 Carson v United Kingdom (2010) 51 EHRR 369 [61].

    • 15 Stec v United Kingdom (2006) 43 EHRR 1017 [52].

    • 16 Lord Denning used it in a 1969 decision in which he held that before a foreign national’s permission to stay in the UK is revoked early, they should be given an opportunity to make representations, even though they have no right to remain in the UK, because they have ‘a legitimate expectation of being allowed to stay for the permitted time’ (Schmidt v Home Secretary [1969] 2 Ch 149, 171).

    • 17 The promise from the local authority gave them no rights in contract law, because it was a gratuitous promise (Bibi gave no consideration for it). On what a right is, see 3.4, p 93.

    • 18 See Coughlan [73].

    • 19 The defendant in Coughlan argued that there were overriding reasons of public interest for going back on the promise: the cost of continuing to use Mardon House (which is not stated in the judgment) and the detrimental consequences for patient care of providing different sorts of service there [87]. The Court of Appeal’s reasons gave no assessment of those considerations. The decision in Coughlan is only warranted on an assumption as to the facts which the judgment does not explain: that the cost, and the detriment to patient care, were both so little that it was an abuse of power not to incur them.

    • 20 See, e.g. R (Alliance of Turkish Business People Ltd) v Home Secretary [2020] EWCA Civ 553 [66].

    • 21 And compare the doctrine of equality of treatment of different persons: it, too, uses a standard of Wednesbury unreasonableness: see the discussion of R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 in 8.3.2, p 307.

    • 22 Lady Arden endorsed Lord Carnwath’s view in R (Pathan) v Home Secretary [2020] UKSC 41 [53] (see 4.7.1, p 148, for discussion of Pathan). In R (Talpada) v Home Secretary [2018] EWCA Civ 841, Singh LJ rejected the idea that the court has ‘a wide-ranging discretion to overturn the decision of a public authority where it considers it to be unfair’ [65].

    • 23 Citing Lord Templeman’s speech in Preston, 864–5.

    • 24 More or less deferential, depending on the type of decision: see 9.2.4, p 362.

    © Timothy Endicott 2021