When an expectation becomes legitimate
A High Court ruling on a claim from a group of police officers has emphasised how public bodies need to take on board the doctrine of legitimate expectation, writes Nicholas Dobson.
Many of us have expectations. Some (like Dickens’ Pip) may even have Great Expectations. But for expectations to become enforceable at public law they must be legitimate. This is part of the duty on public authorities to act fairly, broadly summarised by Laws LJ in R (Bhatt Murphy (a firm) and others) v. Independent Assessor [2008] EWCA Civ 755.
He said that "The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes)." For a "change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority."
And if the authority "has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation)". On the other hand, if the authority ". . .has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation).
But "If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power."
So an essential ingredient of legitimate expectation appears to be a public authority acting (procedurally or substantively) so unfairly as to constitute an abuse of power.
Promotion process halted
These principles were relevant in a recent case concerning Greater Manchester Police (GMP) officers (R (Simpson and others) v. Chief Constable of Greater Manchester Police [2013] EWHC 1858 (Admin) - Supperstone J on 28 June 2013).
For although the officers had passed the necessary tests for promotion to the next rank and been told that they "will" be promoted, subject to suitable vacancy availability and a professional standards check, they were then informed that the results achieved at a 2009 Assessment Centre would no longer stand for immediate promotion. The claimant officers challenged this on the basis that they had either a substantive legitimate expectation of a benefit, or a promise or practice inducing a legitimate expectation of being consulted before a particular decision is taken.
Supperstone J agreed, noting the observation of Lord Dyson in Paponette and others v. Attorney General of Trinidad and Tobago [2010] UKPC 32 that: "The breach of a representation or promise on which an applicant has relied often, though not necessarily, to his detriment is a serious matter. Fairness, as well as the principle of good administration, demands that it needs to be justified. Often, it is only the authority that knows why it has gone on its promise. At the very least, the authority will always be better placed than the applicant to give the reasons for its change of position. If it wishes to justify its act by reference to some overriding public interest, it must provide the material on which it relies."
In the court’s view, no proper reasons had been given by GMP for its change of position in relation to relevant claimants when the decision was made. Furthermore, GMP should have consulted with the claimants before changing the existing substantive policy (Promotion Selection Policy for Police Officers – 15 April 2005). For paragraph 7 of that policy stated that ". . .in the event that significant changes are proposed" to the policy "all the parties potentially affected will be consulted". Supperstone J took the view that this amounted to an unequivocal assurance by means of an express promise that the defendant would embark upon consultation before significantly changing the policy. For the claimants plainly were "parties potentially affected", and it had not been suggested that the changes were not "significant’.
Consequently, the claimants successfully established a substantive legitimate expectation (the frustration of which had not been justified) that having passed the live assessment stage they would be promoted subject to the availability of a suitable vacancy and a professional standards check. Alternatively, the claimants had a legitimate expectation of being consulted which GMP had not met, thereby breaching the requirement of procedural fairness. In the circumstances, GMP’s decision was unlawful.
Comment
This case is another reminder to local and public authorities that in their nature the courts expect them to act more high-mindedly than private individuals or private corporations. For as long as private persons comply with applicable law they may act more or less how they please – subject of course to commercial and reputational pressures.
However, as noted, amongst the suite of legal requirements affecting local and public authorities is the duty to act fairly. This, as mentioned, encompasses the doctrine of legitimate expectation – effectively public law estoppel. Local authorities need to take this clearly on board (together with the public sector equality duty and other public law principles) when considering, for example, how to introduce and implement budget cuts. For public authorities are large and highly visible litigation targets. And the legal weaponry available against them is powerful and extensive.
Dr Nicholas Dobson is a lawyer specialising in local and public law. He is also Communications Officer for Lawyers in Local Government.