Legitimate Expectations and Public Bodies
The principle of legitimate expectations may apply to public bodies. The principle protects the legitimate expectations of citizens against arbitrary and unexpected changes in administrative procedure and practice. The legitimate expectations principle may require public bodies to abide by commitments, practice and procedure in certain circumstances. The principle has become more firmly established in the last twenty years.
The principle of legitimate expectations may apply where a public body leads a person to believe that a particular state of affairs will continue and that person acts to his determent in reliance on the representation. Where it would be unjust to allow the representation to be withdrawn, at least without mitigating the detriment incurred in reasonable reliance on it, the public body may be estopped from withdrawing its representation to the extent necessary so that no injustice is caused.
The principles may apply where a public authority has made a statement or adopted a position, made a promise or representation, express or implied, as to how it will act in a particular area. This representation must be addressed, directly or indirectly, to identifiable persons or to a group affected, potentially affected. It will usually form part of a transaction or relationship between that person or group and the public authority.
Legitimate expectations commonly arise in relation to circulars setting out policies or the provisions of schemes. In contrast to statutes, they may not be directly relied on as law, directly enforceable by courts. However, such schemes, if widely published and addressed to participants in a particular area or industry, may create legitimate expectations that the policy will continue to be implemented in accordance with the scheme, at least until, reasonable notice of a change is given. However, where the underlying statutory power gives considerable case be case discretion, the courts may hold that the discretionary power cannot be affected by the terms of the published schemes.
Acting on Representation
The person or group must act on the basis of the representation. The representation must create an expectation, reasonably entertained, by the person or group that the public authority will abide by the representation, to the extent it would be unjust to permit the authority to resile from it.
If persons affected by an administrative practice reasonably arrange their affairs with reference to it, the State may be obliged to give reasonable notice of a change. The notice should be sufficient to allow persons affected, the time to find alternative methods of dealing with the matters arising. The principle may accordingly restrict sudden or arbitrary changes in administrative policy and practice.
The above conditions are minimum preconditions but they are not necessarily sufficient to allow the principle to operate in a particular context. The principle is similar to the concept of estoppel found in private law. There are, however, significant differences. An important difference is that public bodies are inherently limited in their powers. They must act in accordance with law. They cannot bind themselves through the principle of estoppel to do something outside their powers.
Legitimate Expectations and Businesses
A business may have a legitimate expectation in relation to the way in which public authorities exercise their discretion. Where an individual has been led to believe that a particular state of affairs will exist, for example, that a particular discretion will be consistently applied in a particular manner and undertakes expenditure and lays plans on this basis, the public body may be held to be constrained not to exercise its powers otherwise. This is so on the basis that having allowed or induced persons to act in accordance with a particular expectation, they should not be entitled to arbitrarily change course.
Reasonable expectations go beyond enforceable legal rights. Usually what it involves is a statement or undertaking by a public body which makes it unfair for the individual to be subsequently denied relief by a change of policy or rule,s without taking account of the effect of legitimate expectations created by the statement or undertaking.
The principles are not absolute and the Court undertakes a balance between allowing local authorities to perform their function and protecting the rights and interests of citizens who have the legitimate expectations. The principle of legitimate expectations has been applied to policies as well as individual administrative decisions.
In one case where a milk quota scheme was designed so that it gave no quotas to farmers who had not produced milk because they had given undertakings in that regard under the previous scheme. Because the scheme arbitrarily and unfairly denied them quotas on the basis of having previously so undertaken, if the European Court decided that this was contrary to their legitimate interests. Because they had availed of a particular scheme, they should not be excluded arbitrarily from the benefit of future provision.
Legitimate Expectations Limits I
There are limits to the principle of legitimate expectation. The principles of legitimate expectations are applied in accordance with equitable principles of fairness and good faith. The principle applies only in limited circumstances where it would be unfair, unreasonable and unjust to permit the public authority to resile from its previous position.
The principle of legitimate expectations is not absolute. It is restricted by the fact that public interest requires that public authorities and parties exercise their statutory powers properly. Just because a particular course of action was taken in the past does not mean that it must be taken in the future. In the statutory context, public bodies must generally be free to exercise their discretion. Generally, they cannot undertake to or exercise their discretion in such a way as to fetter it.
The State is entitled to change its policies from time time. There cannot be a legitimate expectation that policy and practice will not be changed. The mere fact that some practice has been in force for a long time, does preclude the State from changing it. It does not follow that every time the State changes its rules or makes the terms of schemes more restrictive, that persons potentially affected may rely on the principle of legitimate expectations. If the principle was this wide, it would wholly negate the ability of the State to change the law and practice.
Legitimate Expectations Limits II
A legitimate expectation will not be allowed where it would be illegal or outside the powers of the bodies concerned. For example, the fact that a planning officer has given support or positive assurance relating to a planning permission does not prevent the planning authority from making such decision as it sees fit.
The Courts are very reluctant to interfere with the exercise of discretionary powers. In some cases the legitimate expectation is only to a hearing and that procedures will be followed, before rights are changed. In other cases, the expectation may be held to relate to an actual benefit.
Where a member of the public has an expectation arising from the conduct of the authority that he will be given a hearing before a decision adverse to its interest will be may be made, there is a duty on the authority to act fairly and give a fair hearing before an adverse decision adverse to interest is taken.
Legitimate Expectations Limits III
The legitimate expectation of a benefit does not give rights to a benefit which cannot otherwise exist legally. However, a discretionary or equitable right to a benefit may apply in circumstances where a person has been specifically promised something and has acted in reliance on it.
Where a legitimate interest relates to a benefit that can be implied from the authority’s words or actions the expectation may be the benefit will be provided in accordance with the proper exercise of its legal powers in light of the current policy.
Public authorities cannot be overly constrained by the principle. The authority cannot stop themselves from exercising a power in a manner prescribed by law.
Existing administrative practice as reflected in circulars may not be specific enough to create legitimate expectations, even in the cases of long-standing practice.
Legitimate expectations arise most commonly in relation to procedural requirements. The principle may also apply to substantive practices. The position is better to establish the relation to procedural rules.
The person affected need not necessarily show that he has been induced to act to his determent. It may be sufficient that the person concerned has knowledge of the prior practice, and has relied on it. There is some inconsistency in the approach of the courts to the question of whether the applicant or person concerned must be aware of the practice.
In most cases where legitimate expectations have been recognized, the parties affected have been aware of the practice. However, there have been cases where legitimate expectation have been upheld on the part of persons who are unaware of the relevant practice. This has occurred in immigration cases, where persons might have entered the country without prior knowledge of the relevant practice.
The expectation must itself be legitimate. If the expectation is for a windfall, inherently unreasonable or is due to an error in administration, the expectation would not be legitimate. There is no legitimate expectation that the law will not change. Where the State has not enforced laws in a particular area, it is unlikely that the person will be held to have a legitimate interest that the State will never do so.
The principle of legitimate expectations may merge into the principle of promissory estoppel when representations are made to individuals on which they reasonably rely. Specific representations by a public authority may give rise to a promissory estoppel where the person affected reasonably relies on it to his or her determent. However, the legitimate expectation does not necessarily so require.