STUCK AT A CROSSROAD? SUBSTANTIVE LEGITIMATE EXPECTATIONS IN ENGLISH LAW

Alison L Young

doi:10.1017/s000819732100057x

Abstract

AbstractIn “The Provenance and Protection of Legitimate Expectations” Forsyth argued that English law should protect substantive legitimate expectations. However, he was concerned that too great an expansion of legitimate expectations could lead to incoherence and intuitive decision-making. I argue that recent case law, and Forsyth's analysis, have clarified some of these inconsistencies. Nevertheless, the doctrine of legitimate expectations stands at a crossroads. Should it adopt a rules-based approach and narrow legitimate expectations, or a principled approach that embraces a broader conception? I argue that English law needs both for legitimate expectations effectively to balance legal certainty and substantive equality.

Highlights

Much has happened since 1988, when Christopher Forsyth, the Emeritus Sir David Williams Professor of Public Law at the University of Cambridge, set out to clarify the newly emerging protection of legitimate expectations in English law in “The Provenance and Protection of Legitimate Expectations”.1 Forsyth made three main claims and one prediction
Lord Carnwath made it clear in Finucane that his statement in United Policyholders was meant only to apply to cases of substantive legitimate expectations, and not to procedural legitimate expectations or to the principle of the consistent application of policy established in Mandalia
It has argued that clarification can be achieve in this area of the law by recognising the emergence of a core case of substantive legitimate expectations

Summary

INTRODUCTION

Much has happened since 1988, when Christopher Forsyth, the Emeritus Sir David Williams Professor of Public Law at the University of Cambridge, set out to clarify the newly emerging protection of legitimate expectations in English law in “The Provenance and Protection of Legitimate Expectations”.1 Forsyth made three main claims and one prediction. The general protection of substantive legitimate expectations in English law was confirmed 11 years after Forsyth wrote his article, in the ground-breaking Coughlan case.[5] The Court of Appeal drew on statements in the 7th edition of Wade and Forsyth’s Administrative Law, and recognised the grounding of substantive legitimate expectations on the need to protect promises, balancing legal certainty and legality. Writing 23 years after his original article, Forsyth recognised the explosion of case law and academic writing relating to substantive legitimate expectations. This prompted in Forsyth the “sombre reflection” that “[t]here is a real danger that the concept of legitimate expectation will collapse into an inchoate justification for judicial intervention. Rather than choosing between them, both paths need to remain available if we are to maintain the correct balance between legal certainty and legality

PLUS ÇA CHANGE

THE CORE CASE OF SUBSTANTIVE LEGITIMATE EXPECTATIONS

BEYOND THE CORE: A PRINCIPLED APPROACH

NAVIGATING THE CROSSROADS

CONCLUSION