From Heresy to Orthodoxy: Substantive Legitimate Expectations in English Public Law

Abstract

English administrative law is unusual in the common law world for its embrace of the doctrine of substantive legitimate expectations. However, while that doctrine is now an accepted — if not yet fully settled — part of the administrative law landscape in England, it is only 20 years since it was judicially castigated as "heretical". This paper charts the development of the substantive legitimate expectation doctrine over recent decades, and critically examines the reasons for its transformation from heresy to orthodoxy.

It does so by situating the emergence of the substantive legitimate expectation principle within the context of wider changes that have taken place in English public law in recent decades, arguing that the patina of doctrinal orthodoxy that substantive legitimate expectations now enjoy is warranted. That position is advanced by reference to two lines of argument.

First, it is argued that the doctrine of substantive legitimate expectation can be understood in terms more subtle and less uncompromising than those implied by the early cases which attracted particularly critical attention, both academically and judicially.

Second, as well as addressing the substantive legitimate expectation doctrine's compatibility with orthodoxy, orthodoxy's compatibility with the doctrine is examined and two distinct but complementary propositions advanced. It is argued, on the one hand, that understandings of what orthodoxy is have evolved somewhat in the last 20 or so years. On the other hand, it is argued that understandings of what orthodoxy requires, in doctrinal terms, have also changed.

These shifting perceptions of the nature and implications of orthodoxy have served to carve out a space for the substantive legitimate expectation doctrine today which is more generous than that which previously existed. The story of the evolution of the doctrine of substantive legitimate expectation thus forms part of a larger tableau upon which is recorded the recent evolution of English administrative law itself.

Keywords: administrative law, constitutional law, public law, English law, judicial review, substantive review, legitimate expectations

JEL Classification: K00, K10, K19, K30, K39, K40