A Pluralist Account of Deference and Legitimate Expectations
I have a new paper on SSRN, a draft of a chapter that will appear in a forthcoming collection edited by Greg Weeks and Matthew Groves, Legitimate Expectations in the Common Law World (Hart, 2016). Here is the abstract:
Critics doubt the existence of any coherent doctrine of legitimate expectations in the common law. Legitimate expectation is said to be a vague concept which permits judges to trespass into the legislative and executive domains and distribute palm-tree justice.
In my view, however, coherence can be attained. That the doctrine may not map clearly onto the various justifications offered for it from time to time is not a great surprise. The doctrine is of recent provenance and, as is the case with the common law, its development has not followed inexorably from an agreed set of first principles. Some underlying theory is needed to assist in answering difficult doctrinal questions.
I propose a pluralist approach to the doctrine of legitimate expectations. Several values — the rule of law, good administration, democracy and separation of powers — can be found in the decided cases. Faced with values found in the cases that are individually appealing but which may be in tension, coherence can be achieved by adopting a pluralist approach that does not assign priority to any one value but seeks instead to reconcile them.
Three controversial doctrinal questions form a crucible within which the appropriate interaction of the rule of law, good administration, democracy and separation of powers can be observed and the advantages of a pluralist approach appreciated. These are, first, the role of knowledge and reliance, second, substantive legitimate expectations and third, expectations based on ultra vires representations.
I argue that neither knowledge nor reliance should be a pre-requisite to the enforcement of legitimate expectations. On substantive legitimate expectations, I take the side of the Court of Appeal in Coughlan, arguing in the teeth of strong criticism of that decision that there are indeed good reasons for courts to enforce substantive legitimate expectations, though I also observe that the Court of Appeal probably went too far in one important respect. And as to ultra vires representations, I ally myself with those who have advocated a balancing approach that would permit courts to enforce them in some circumstances.
Download the draft here.
As always, comments are very welcome. I will do my best to use them to improve the final version. I will also serialize the paper, in coffee-break-sized chunks, over the next few weeks.
This content has been updated on September 12, 2015 at 16:30.