Policies, the Non-Fetter Principle and the Principle of Substantive Legitimate Expectations: Between a Rock and a Hard Place
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Policies, the Non-Fetter Principle and
the Principle of Substantive Legitimate
Expectations: Between a Rock and a
Hard Place?
Chris Hilson
Professor of Law, University of Reading
Introduction
1. Many accounts of the non-fetter principle' and the principle of substantive legitimate
expectations2 end up by concluding that administrative decision-makers are caught
between a rock and a hard place.3 At first sight, the two principles or doctrines do
indeed seem to conflict, requiring two different, incompatible approaches: the non-
fetter principle requires decision-makers not to stick rigidly to policies; the principle of
substantive legitimate expectations, on the other hand, requires decision-makers to
stick to their policies in appropriate cases.
2. At the root of the apparent conflict is the situation where a public authority wishes, for
otherwise lawful public policy reasons, to change its original policy to a new one. In
these circumstances, those disadvantaged by the new policy may seek judicial review
on the basis that they have a substantive legitimate expectation that the original policy
will be followed.
3. Over the years, a number of commentators have examined, in varying degrees of
depth, the question of whether there is a conflict between the non-fetter principle and
the principle of legitimate expectations.4 Cane, for example, asks does the latter not
allow, in effect, a fettering of the decision-maker's discretion?5 At first sight, as Craig
notes, the answer is yes and thus, if [a]n agency is not to be fettered in the way in
which it develops policy, therefore an individual cannot rely on policy option one once
the agency has moved to policy option two.6 In other words, if, based on the principle
On the non-fetter principle, see further C Hilson, Judicial Review, Policies and the Fettering of Discretion
[2002] PL 111.
2 For a recent, succinct review of the case law on legitimate expectations and a novel, proportionality-based
approach to the principle, see R (Abdi & Nadarajah) v Secretary of State for the Home Department[2005] EWCA Civ
1363. Recent commentary on the principle includes, e.g. P Sales, Legitimate Expectations [2006] JR 186;
I Steele, Substantive Legitimate Expectations: Striking the Right Balance (2005) 121 LQR 300; and P Sales and
K Steyn, Legitimate Expectations in English Public Law: An Analysis [2004] PL 564.
3 See, e.g. P Leyland and G Anthony, Textbook on Administrative Law, 5th edn (OUP, 2005), p. 301.
4 For example Sales, n. 2 above, pp. 186 187; P Cane, Administrative Law, 4th edn (OUP, 2004), pp. 205 206;
P Craig, Administrative Law, 5th edn (Sweet & Maxwell, 2003), pp. 643-645; De Smith, Woolf and Jowell's Principles
of Judicial Review (Sweet & Maxwell, 1999), paras 10-012, 10-013, 12-032, 12-033; B Hadfield, Judicial Review and
the Concept of Legitimate Expectation (1988) 39 NILQ 103 at 114.
5 Cane, n. 4 above, p. 205.
6 Craig, n. 4 above, p. 643. To similar effect, see Hadfield, n. 4 above, p. 114. Judicial support for this perspective
can be found in Lord Scarman's judgment in In Re Findlay [1985] AC 318 at 338: It is said that the refusal to
except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision
frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the
legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his
case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt](ViewImageLocal?handle=hein.journals/judire11&div=44&collection=journals&method=preview&ext=.png&size=3)
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Policies, the Non-Fetter Principle and the Principle of Substantive Legitimate Expectations: Between a Rock and a Hard Place
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