UK Constitutional Law Association

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Joe Tomlinson: The Problem with the Trust Conception of the Doctrine of Legitimate Expectations in Administrative Law

Joe TomlinsonSince the emergence of the modern doctrine of legitimate expectation in English and Welsh administrative law in the 1969 case of Schmidt v Secretary of State for Home Affairs [1968] 3 All E.R. 795, the doctrine has been, and continues to be, on the sharp end of some academic and (less occasionally) judicial barbs. From among the voices of dissatisfaction, there has been a persistent strand of criticism: that the doctrine suffers from the absence of a clear conceptual footing. Clarification of the underlying theory of the protection of legitimate expectations will, so the thinking normally goes, “provide invaluable guidance to difficult questions concerning the scope and effect of the doctrine.” This strand of criticism—warranting some sort of search for concepts—has been reaching what Paul Daly refers to as a “crescendo” in recent years.

One growing school of thought among administrative lawyers is that the doctrine is about protecting trust placed in administrative agencies by members of the public (I will call this the “trust conception” of legitimate expectation). The first part of this post examines the emergence of the trust conception of legitimate expectation in this jurisdiction, its recent rise in significance, and what the explanation precisely is. The second part of this post argues that the trust conception of the doctrine is flawed as it is artificial and does not adequately connect with how the doctrine applies in reality.

The Trust Conception of Legitimate Expectation

Over two decades ago, Christopher Forsyth highlighted how trust in government is essential and the, then young, doctrine of legitimate expectation was concerned with ensuring that trust was maintained. To Forsyth, the justification for the doctrine is that those “who have placed their trust in the promises of officials, should not find, when that trust is betrayed, that the law can give no remedy.” In his leading administrative treatise with Professor Wade, Forsyth further states that trust “captures precisely why legitimate expectations should be protected.”

As the literature on legitimate expectation grew and grew, more and more references to the concept of trust appeared. Robert Thomas, for example, noted trust as a “justification” for the principle and Søren Schønberg argued that effective administration is impossible without trust. More recently, however, the idea that the concept of trust underpins the doctrine appears to have gained much more traction. Much of the impetus for this could possibly be attributed to a widely-cited 2011 Public Law article by Paul Reynolds, “Legitimate Expectations and the Protection of Trust in Public Officials.” Since that article, the concept of trust has received further reference in academic writing. Furthermore, the concept is now beginning to be referred to in judgments. Perhaps the most important example of this, to date, is how the concept of trust has entered the jurisprudence of the Upper Tribunal Immigration and Asylum Chambers. In Mehmood (Legitimate Expectation) [2014] UKUT 00469, the President of the Immigration of Asylum Chamber, McCloskey J, endorsed (at paras. 13–16) Professor Forsyth’s statement that:

“Good government depends upon trust between the governed and the governor. Unless that trust is sustained and protected officials will not be believed and the Government becomes a choice between chaos and coercion.”

McCloskey J then went on to state:

“The two basic ingredients of what the law has come to recognise as a substantive legitimate expectation are satisfied where there is an unambiguous promise or assurance by a public official in which the affected citizen reposes trust.” (emphasis added)

This statement was again confirmed by the President (at para. 11) in Iqbal (Para 322 Immigration Rules) [2015] UKUT 00434 (IAC).

All of this raises an important question: what, precisely, is meant by “trust” in this context? Paul Reynolds is, as yet, the only author to put forward a sophisticated and detailed account of what exactly is meant by trust here. For Reynolds, the idea of “trust” refers to the trust that the individual places in the actions of a public authority that induce the expectation. Thus legitimate expectations ought to be protected because to do otherwise would be to permit a breach of the claimant’s trust in the public authority. While the protection of legitimate expectations may serve to promote “general” trust in government (something essential to its effective functioning and legitimacy), Reynolds suggests the conceptual basis of the principle ought to be the protection of, what he refers to as, “specific” instances of trust between the state and the individual. This refinement is seen as necessary as arguing to the contrary would be to accept that a legitimate expectation could be simply an expectation that the claimant is treated fairly or “properly,” thereby becoming a concept which is “uselessly overextended.” According to Reynolds, establishing the existence of a specific instance of trust to show the presence of an expectation is one matter but whether the court ought to afford legal protection to that expectation is another matter entirely. Thus, that “specific trust exists is a necessary, but not a sufficient condition to establishing [the protection of] a legitimate expectation.” It follows that:

“All that needs to be shown is that a relevant representation has been made by the public authority and that it has been received by the claimant: this will be sufficient to form a rebuttable presumption that the claimant trusted the public authority to stand by that representation.”

A question prompted here is what sort of “representation” is capable of inducing “specific trust?” For Reynolds, an administrative agency’s promises, policies, and practices will seemingly all suffice so long as they are capable of giving rise to a specific instance of trust: “[i]t is entirely possible for a representation made by way of a policy statement to incite specific trust that that public official will stick to her word.”

The Problem with the Trust Conception of Legitimate Expectation

For supporters of the trust conception of the doctrine, the concept of trust seems to capture why legitimate expectations, both procedural and substantive, ought to be protected. It further allows one to recognise when the doctrine ought to be engaged and gives a more precise normative framework to assess individual legitimate expectation claims, without being so rigid that it fails to take into account the balancing exercise involved in the adjudication of such claims. There is, though, at least one crucial point where this explanation falls down – and, thus, why it ought to be resisted as a convincing “grand explanation” of the doctrine. That problem revolves around the distinction between expecting and trusting.

The general, ordinary language definition of “trust” is a firm belief that something is reliable, true, or able. The general, ordinary language definition of “expect” is to regard something as likely. The trust account of the doctrine ignores that one can expect something without trusting that it will happen. That is to say, one can regard something as likely to happen (and maybe even hope it will happen) without holding a firm belief (or trusting) that it will happen.

An example helps to illustrate this abstract point. Suppose that there are three housemates who, after two years of cohabiting, have developed a consistent practice of washing up immediately after each time they have cooked and eaten. If housemate X has cooked and eaten, then housemates Y and Z may both expect her to wash up immediately afterwards (an expectation that would be rooted in past, consistent practice). It is also perfectly possible and plausible that housemate Y does have a firm belief (i.e. trusts) that housemate X will wash up. At the same time, it is equally possible and plausible that housemate Z has developed no such firm belief about the future conduct of housemate X.

There is, then, a clear gap between the concepts of trust and expectation. In this respect, the trust conception of legitimate expectation is somewhat artificial. There are two possible rejoinders to this criticism.

The first is to argue that the trust conception does not require actual trust to be placed in the public authority by a claimant but, instead, what is being protected is the relationship of trust that ought to exist. The implication of this argument is that the trust conception simply collapses into the unconvincing idea that doctrine is essentially about the courts getting public bodies to do what they said they would do (Adam Perry and Farrah Ahmed consider this as the “representation theory” of the doctrine and explain why it is unconvincing in their paper “The Coherence of the Doctrine of Legitimate Expectations”).

The second possible rejoinder is to argue that it ought to be a requirement, for a legitimate expectation claim to be valid, that a claimant has actually placed trust in a public authority. The problem with this line of argument is that is forces an unjustified distinction, potentially between similar cases, to be made between those individuals who have actually placed trust in a promise, policy, or practice of an administrative agency and those that did not (and merely had an expectation). This is an arbitrary distinction (especially where not trusting the public authority that induced the expectation may, in the face of that expectation being disappointed, appear to have been the wiser view). Returning to the example introduced above makes this point clearer: in the event that housemate X does not wash up after eating, does housemate Y have a legitimate grievance and housemate Z not? It seems difficult to seriously argue that this is the case yet this second rejoinder would inevitably lead us to the conclusion that it is.

Applying this analysis to the seminal legitimate expectation case of R. v. North and East Devon Health Authority ex p. Coughlan [2000] 2 WLR 622—where the Health Authority wanted to close Mardon House (a purpose-built home for seriously injured patients) in breach of its representation that it was to be the Claimant’s “home for life”— demonstrates how the trust conception falls down in practice. The trust conception would understand the substantive protection of the Claimant’s expectation, as provided by the Court of Appeal in this case, to be for the normative purpose of protecting the trust the Claimant had placed in the Health Authority on the specific matter of her residence. It is, however, hypothetically possible that the Claimant had no such firm belief (i.e. did not trust) in the Health Authority’s representation that Mardon House would be her “home for life.” Instead, the Claimant could have simply thought it to be more likely than not that the representation would be followed. Alternatively, it is hypothetically possible the Claimant may have felt as though she had no choice but to accept the representation. If the Claimant did not actually place trust in the representation then: (i) there would not be an actual specific instance of trust to protect (something else therefore must have been motivating the protection); and (ii) it would be very difficult to argue that the outcome ought to have been different on the basis of the lack of a firm belief on the Claimant’s behalf.

Conclusion

So, where does the analysis in this post leave us in terms of the concern that the doctrine suffers from the absence of a clear conceptual footing? Most obviously, it can be said that the trust conception is not a valid means of circumventing this concern. Perhaps more significantly, it may also indicate that the nature of the inquiry being undertaken—that is, the notion of searching for the conceptual justification of the doctrine—is a misguided endeavour. While it is a profitable and legitimate task to seek out the justifications for a principle of public law, the apparent lack of a convincing, overarching conceptual basis for the doctrine in English law may, despite what some scholars have suggested, be no cause for concern after all. But that is a question—one which prompts some foundational questions about the nature of public law adjudication—for another day.

Joe Tomlinson is currently completing his PhD at the University of Manchester and will be Lecturer in Public Law at the University of Sheffield from September 2016. He is grateful to Jake Rylatt (Cambridge) and Elizabeth O’Loughlin (Manchester) for discussions about this post.

(Suggested citation: J. Tomlinson, ‘The Problem with the Trust Conception of the Doctrine of Legitimate Expectations in Administrative Law’ U.K. Const. L. Blog (22nd July 2016) (available at: http://ukconstitutionallaw.org)).

 

3 comments on “Joe Tomlinson: The Problem with the Trust Conception of the Doctrine of Legitimate Expectations in Administrative Law

  1. Denis Cooper
    July 22, 2016

    “All that needs to be shown is that a relevant representation has been made by the public authority and that it has been received by the claimant: this will be sufficient to form a rebuttable presumption that the claimant trusted the public authority to stand by that representation.”

    OK, I have in my hand an official booklet which was sent to me by the government, which was in fact delivered to every household in the country in preparation for the EU referendum.

    The text of that “relevant representation” may be seen here:

    https://www.eureferendum.gov.uk/why-the-government-believes-we-should-remain/eu-referendum-leaflet/

    and on page 14 there is a crystal clear promise to the electors:

    “This is your decision. The Government will implement what you decide.”

    Not, be it noted, “The Government will ask Parliament to implement what you decide.”, but “The Government will implement what you decide.”

    So has this created any “legitimate expectation” that in the event of a majority vote to leave the EU the government would act to take us out of the EU?

    Or were 17.4 million of us stupid to repose any trust in that promise, because we should have anticipated that parliamentarians who had been given the opportunity to object to the contents of the booklet, and in particular to that promise, before the booklet was distributed:

    https://hansard.parliament.uk/commons/2016-04-11/debates/16041110000001/GovernmentReferendumLeaflet

    but were apparently too lazy and inattentive to do so, might be rescued by the courts after the vote had taken place and retroactively permitted to frustrate the will of the people as expressed in the referendum, in effect rewarding them for their past incompetence?

    • Daniel Norton
      July 25, 2016

      “So has this created any “legitimate expectation” that in the event of a majority vote to leave the EU the government would act to take us out of the EU?”

      While personally I’m of the opinion that activating article 50 is a royal prerogative, if for the sake of argument we assume that it becomes legally accepted that a parliamentary vote is needed then legitimate expectation simply won’t be a factor.

      If it was decided that a parliamentary vote was legally required, the government would be acting beyond its Parliament-granted power by activating article 50 without one. There wouldn’t be a *legitimate* expectation for the government to act ultra vires.

      Not that I think it’s a particularly relevant line of argument anyway as firstly I don’t think the ECA actually does anything to impede the royal prerogative and secondly because if so the Government will have an awful lot of freedom in how it wields the prerogative anyway. Trying to rely on judicial review regarding the use of a royal prerogative is fraught with difficulties anyway, some of which Thomas Fairclough covers here.

      • Denis Cooper
        August 5, 2016

        In other words the court would say that we were indeed stupid to repose any trust in that crystal clear pledge made by the government in its official booklet for the referendum. Which is what the courts previously said about pledges made in election manifestos; but of course this was not a manifesto issued by a political party, where perhaps the man on the Clapham omnibus should know better than to trust anything they say, but an official booklet issued by the government. So then the courts would be telling the people not to trust anything that their government said, not even if it was printed in black and white in an official document.

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This entry was posted on July 22, 2016 by in Administrative law, Judicial review, United Kingdom and tagged , .
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