Iseult O’Callaghan[1]
1. Introduction
In the leading UK authority on the law of legitimate expectations, R v North and East Devon Health Authority, ex p Coughlan,[2] Lord Woolf MR established that the court will enforce a lawful promise or practice which has induced a legitimate expectation of a benefit if the ‘requirement of fairness’ outweighs any overriding interest relied upon by the state. Despite the existence of judicial review as a remedy for maladministration for centuries, the jurisprudence surrounding the doctrine of legitimate expectations remains remarkably underdeveloped. Keane CJ in Keogh v CAB stated that the legal parameters of the doctrine of legitimate expectations cannot be regarded as having been definitively established as yet.[3]
According to a UK study, only 18% of cases claiming a breach of a legitimate expectation succeed, with one Irish case to succeed in the last 20 years.[4] One of the predominant reasons posited is that legitimate expectations are qualified by considerations of the ‘public interest’ or where the justification lies in the macro-political sphere. Furthermore, the courts can only intervene where an administrative decision or the unjustified reversal of a promise which interferes with a right or interest is ‘positively unreasonable’ under the Wednesbury principle.[5]
2. The Imposition of the Public Interest and the Macro-Political on Rights and Interests
According to Glencar v Minister for the Environment, an expectation may be denied where there is a sufficient overriding public interest.[6] Paponette v Attorney General of Trinidad and Tobago entrenched the fifth leg of the test for legitimate expectations as laid out in Glencar and affirmed that where an individual possesses a legitimate expectation, the burden shifts to the public authority to show that there was a ‘public interest’ in denying that expectation.[7] In Sherry v Minister for Education,[8] the High Court held that the public interest in maintaining public confidence in the Irish Leaving Certificate predicted grading system during the Covid-19 pandemic justified removing the school historical data (SHD) variable, and thus justified the disappointment to Sherry. The applicant’s grades may have been strengthened had the SHD variable been factored in as he attended a private, fee-paying school with a high-performing history in the Leaving Cert.
The unyielding deference of the Irish and UK courts to the government in judicial review actions predicated on a breach of legitimate expectations has allowed serious transgressions of justice to go unchecked. The case of Re Geraldine Finucane exemplifies one of the greatest abuses of power to be perpetrated by the state during the “Troubles” in Northern Ireland.[9] A promise made that a public inquiry would be conducted into the murder of Belfast solicitor Patrick Finucane by a loyalist organisation in collusion with the Crown was reversed by the Conservative government on public policy grounds because it would be an unjustified expense and inefficient in establishing the truth. It is difficult to conclude that the ‘public interest’ in this case outweighed the right to life and the correlative right to understanding how a crime happened. The defeasibility of procedural legitimate expectations as occurred in Finucane, wherein clear undertakings as to the holding of a public inquiry can be ultimately trumped by countervailing considerations, was countenanced by Laws LJ in the earlier case of Nadarajah v Home Secretary and Coughlan.[10]
The burden of proof on the state all but disappears in cases involving the macro-political sphere, where the courts largely refuse to question the government’s rationale. This limitation was first recognised in R v Secretary of State, ex p Begbie, which concerned the failure to honour a promise made by the preceding government that funding would be made available to children in ‘Private Assisted Places Schools’ after the accession to power of the Labour Party in 1997.[11]The Court of Appeal acknowledged that though a change of tack by a public authority might be unfair on the applicant, judges will not be in a position to adjudicate in cases involving ‘wide-ranging issues of general policy with multi-layered effects’.[12] The fact that the policy reversal in this case was of an economic and social nature made by the democratically elected executive was sufficient to justify the derogation from the applicant’s right to an accessible education without incurring prohibitive expense.
Since these justifications are allegedly beyond the competence of the court, the applicant must show that the decision to reverse the expectation is ‘grossly unreasonable ‘or ‘manifestly absurd’.[13] This line of reasoning was used to justify the predicted grades policy reversal in Sherry and the denial of the public inquiry in Finucane, even though it is artificial to suggest that the public inquiry was a matter of national concern, when the intended beneficiaries in reality would be the Finucane family.
3. An Ineffective Test for Legitimate Expectations – Glencar v Minister for the Environment
It is submitted that the shortcomings of judicial review in this space can be attributed to a lack of clarity in the application of the test for legitimate expectations as laid out in Glencar v Minister for the Environment, specifically where it requires a representation to be made to an ‘identifiable person or group’, a ‘change of position’ occurring on faith of the representation, and ‘subjective awareness’ of the representation.[14] Furthermore, the conflicting standards in assessing ‘considerations of the public interest’ makes it virtually impossible for a claim of legitimate expectations to succeed. This article endeavours to address the latter issue, which is applied inconsistently in both the Irish and UK jurisdictions.
This aspect of Glencar has been marred by criticism as subsequent cases have oscillated between standards of the public interest that are more lenient and standards that are more exacting on the state to prove. Paponette v AG of Trinidad and Tobago and Power v Minister for Social Welfare set positive versions of the standard whereby the public interest must be proportionate to the injury caused and where the public interest justification must be a good reason of public policy.[15]Coughlan and Finucane formulated the standard in negative terms; there cannot be a public interest weak to the extent that it would be ‘unfair’ or an ‘abuse of power’ to dishonour the promise. Elliott, endorsed by ex-President of the UK Supreme Court Lady Hale, argues that these versions are vacuous and avoid difficult doctrinal and normative questions by sheltering behind superficial empty notions of good administration and fairness.[16]
4. Proposals for Reform – a Proportionality-Based Balancing Test
The courts have arguably failed thus far to strike the correct balance between respecting the public interest and adjudicating fairly on the cases before them.[17] It is submitted that a reformulation of the public interest component of the Glencar test, in particular, would go a long way towards reconciling the discrepancies in the Irish and English law of legitimate expectations. The Glencar ‘public interest’ test is rather weak as it is not difficult for the state to point to some arbitrary ‘public interest’. The formula fails to describe the quality of the public interest, with later versions of the standard varying between positive and negative versions.
Considering the interference with a legitimate expectation is analogous to the interference of rights under the doctrine of proportionality, it would be logical for the courts to adopt a proportionality-based balancing test in line with the case ofUnited Policyholders v AG of Trinidad, which exacts a higher standard on the state and weighs the public benefit of disappointing the expectation against the severity of individual’s rights being interfered with.[18] An entrenched proportionality-based balancing test would remediate the inconsistent application of the Glencar ‘public interest’ test and provide more certainty for applicants claiming a breach of legitimate expectations as to the likelihood of a successful outcome. It would allow for more detailed consideration of the other components of the Glencar formula for upholding frustrated legitimate expectations and would at least prevent the courts from throwing cases out for fear of encroaching on the separation of powers and the executive’s democratic legitimacy.
A proportionality-based test would be consistent with the general trend of recent decisions on frustrating legitimate expectations like in United Policyholders, Paponette and Power despite the deviation in Finucane in 2019, which invoked the traditional language of ‘fairness’ as adopted originally in Coughlan. As Elliott notes, it is particularly anomalous and disappointing that the Supreme Court rehabilitated the notion of ‘substantive fairness’ in Finucane, considering Lord Carnwath’s antecedent scepticism of the notion in Gallaher v Competition and Markets Authority a year earlier.[19]
A proportionality-based test would furthermore act as an extension to an existing ancillary doctrine which imposes a positive duty on the state to show that it has taken the earlier representation into account before finalising a change of policy and has considered factors to assuage the disappointment caused.[20] In determining the lawfulness of frustrating legitimate expectations on the basis of proportionality, regard should also be had to the provision of damages to mitigate the loss suffered if a disappointed expectation cannot be realised, although this may not amount to sufficient equity in cases where fundamental rights have been affected.
5. Conclusion
Restating the ‘public interest’ leg of the Glencar test as a proportionality-based balancing test would reinforce the protection of individual rights and interests against unjustified derogations from assurances on weak public interest grounds as occurred in Finucane. Ensuring robust grounds of judicial review is a topical issue in light of recent attempts by the UK and Irish governments to erode judicial review protections in a bid to curb the proliferation and administrative disruption caused by judicial review applications. The latest attempt by the UK government to introduce a new Bill of Rights to supplant the existing Human Rights Act 1998 is an additional cause for concern. Considering the Act incorporates the ECHR into UK law and could affect the application of the Stretch doctrine, which qualifies ultra vires representations made by the state where an ECHR right is involved,[21] bolstering the existing domestic avenues for rights vindication and redress is paramount.
[1] University College Dublin BCL (’22), Harvard LLM (‘24), Editor-in-Chief , UCD Law Review.
[2] [2001] QB 213.
[3] [2004] 2 IR 149 [35].
[4] Joanna Bell, An Anatomy of Administrative law (Oxford: Hart Publishing, 2017) 124; Power v Minister for Social Welfare [2007] 1 IR 543.
[5] Associated Provincial Picture Houses v Wednesbury Corporation [1948] I KB 223.
[6] [2002] 1 IR 84.
[7] [2010] UKPC 32; United Policyholders v AG of Trinidad [2016] UKPC 17 [108].
[8] [2021] IEHC 128 [111].
[9] In the matter of an application by Geraldine Finucane for Judicial Review [2019] UKSC 7.
[10] [2005] EWCA 1363; Mark Elliott, ‘The Supreme Court’s judgment in Finucane – II: Three unanswered questions concerning the doctrine of legitimate expectations, (Public Law for Everyone, 8 March 2019) para 3.
[11] [2000] 1 WLR 115.
[12] ibid.
[13] Begbie (n 12); Sherry (n 8).
[14] Glencar (n 6).
[15] [2007] 1 IR 543.
[16] Mark Elliott, ‘Legitimate expectation: reliance, process, substance’ (2019) 78 Cambridge Law Journal 260; Lady Hale, ‘Principle and Pragmatism in Public Law’ (2019) Judicial Review 315.
[17] Hilary Biehler, ‘Upholding Standards in Public Decision-Making: Getting the Balance Right’ (2017) 57 Irish Jurist 94.
[18] [2016] UKPC 13; Joanna Bell, ‘Note: United Policyholders’ (2016) Cambridge Law Journal 449.
[19] [2018] UKSC 25; Elliott (n 10) para 3.
[20] Paponette (n 7); Eddy Ventose, ‘Legitimate expectations and due process of law in Commonwealth Caribbean public law’ (2011) 127 Law Quarterly Review 362.
[21] Stretch v United Kingdom [2004] 38 EHRR 1; Gerard Hogan, David Gwynn Morgan and Paul Daly, Administrative Law in Ireland (5th edn, Round Hall 2019) 21.83.