SUBSTANTIVE LEGITIMATE EXPECTATIONS

• Date: 01 December 2014
• Published date: 01 December 2014
• Author: Charles TAY Kuan Seng LLB (Hons) (Qld).

In Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority[2014] 1 SLR 1047, the doctrine of substantive legitimate expectations was recognised as a stand-alone head of judicial review in Singaporean administrative law. This is a novel development. In this article, a careful review of the development in English judicial thought in relation to the substantive legitimate expectation doctrine since 1969 is undertaken, and the Australian and Canadian positions are summarily examined. In the light of this study, the Chiu Teng development is then closely analysed, and comments are proffered in relation to how the jurisprudence can better develop hereon.

The Singapore Reception

I. Introduction

1 Substantive review appears to have captured the imagination of parties interested in administrative law in Singapore of late. Towards the close of 2013, two major contributions occurred in the field. The first is an article by Daniel Tan analysing the development of the law of substantive review of administrative actions in Singapore,1 and the second is the Singapore High Court decision of Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority2 (“Chiu Teng”). In Chiu Teng, Tay Yong Kwang J explicitly expanded the scope of substantive review available in Singapore through the introduction of the doctrine of substantive legitimate expectations as a stand-alone head of judicial review in

Singapore law.3 This development to the law in Singapore is novel and merits close examination. This article attempts this.

2 The focus of this article is the doctrine of substantive legitimate expectations. As observed by Tan, judicial review of administrative acts for procedural matters is largely uncontroversial.4 However, the extent to which courts may interfere with administrative decisions on substantive grounds is less settled. This is because judicial review “is premised on the orthodoxy that it is review on the basis of the legality of a decision rather than its merits”5 [emphasis in original]. Under the doctrine of substantive legitimate expectations, expectations with substantive qualities created by public bodies may be enforced by private persons. Interestingly enough, though this doctrine has hitherto been accepted in English law, it has been rejected in both Australia and Canada. Tay J's decision in Chiu Teng coheres with the English jurisprudential path.

3 This article is structured as follows. As a holistic understanding of a rule demands an appreciation of the rule's provenance, the article begins with examining the evolution of the doctrine of substantive legitimate expectations in English law. In recognition of their contributions, the Australian and Canadian perspectives on the doctrine will then be reviewed. Finally, the focus will return to Singapore, and three key observations in relation to the Chiu Teng development will be set out for the reader's consideration.

II. Development of the English position

A. The early cases

(1) Schmidt (1969), Ng Yuen Shiu (1983) and GCHQ (1985)

4 The notion of “legitimate expectations” existing in relation to private individuals' dealings with public authorities — and the corollary idea that such “expectations” warrant legal protection — first arose in the context of the protection of procedural rights. As observed by Tay J in Chiu Teng,6 the term “legitimate expectation” was first used by Lord Denning MR in Schmidt v Secretary of State for Home Affairs7 (“Schmidt”), where, in the light of a decision of the Home Secretary to

refuse extension of a foreign student's temporary permit to stay in the UK without granting the student a hearing, his Lordship observed:8

It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. [emphasis added]

5 Not much more was said in relation to the legitimate expectation concept in Schmidt or in the cases in the immediate years following it, and its scope or basis was not examined.9 Eight years after Schmidt in 1977, however, a strident criticism of Lord Denning MR's concept arose in a judgment of Barwick CJ of the High Court of Australia. In Salemi v MacKellar (No 2)10 (“Salemi”), Barwick CJ said:11

It is … necessary to examine the eloquent phrase ‘legitimate expectation’ derived as it is from the reasons for judgment of the Master of Rolls in Schmidt v Secretary of State for Home Affairs. I am bound to say that I appreciate its literary quality better than I perceive its precise meaning and the perimeter of its application. But, no matter how far the phrase may have been intended to reach, at its centre is the concept of legality, that is to say, it is a lawful expectation which is in mind. I cannot attribute any other meaning in the language of a lawyer to the word ‘legitimate’ than a meaning which expresses the concept of entitlement or recognition by law. So understood, the expression probably adds little, if anything, to the concept of a right.

6 The Privy Council responded to this criticism six years after in 1983 by introducing the vocabulary of “reasonableness” to assist in explaining the meaning of the word “legitimate”. In Attorney-General of Hong Kong v Ng Yuen Shiu12 (“Ng Yuen Shiu”), the Privy Council disagreed with the opinion of the Australian Chief Justice in Salemi and held that the word “legitimate” in the expression “legitimate expectations” should be read as meaning “reasonable”.13 The relevant portion of the judgment of the Board delivered by Lord Fraser of Tullybelton is reproduced:14

The … proposition for which the applicant contended was that a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if he has ‘a legitimate expectation’ of being accorded such a hearing. The phrase ‘legitimate expectation’ in this context originated in the judgment of

Lord Denning MR in Schmidt v Secretary of State of Home Affairs[1969] 2 Ch 149, 170. It is many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No 2)(1977) 137 CLR 396, 404, Barwick CJ construed the word ‘legitimate’ as expressing the concept of ‘entitlement or recognition by law’. So understood, the expression (as Barwick CJ rightly observed) ‘adds little, if anything, to the concept of a right’. With great respect to Barwick CJ, their Lordships consider that the word ‘legitimate’ in that expression falls to be read as meaning ‘reasonable’. Accordingly ‘legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis. [emphasis added]

7 Even though what the applicant in Ng Yuen Shiu contended for was a procedural matter (ie, a “fair hearing”), the Privy Council's reading of the meaning of “legitimate” as meaning “reasonable” was a radical development which immensely expanded the ambit of the “legitimate expectation” idea. In the absence of any articulated limitation then, it meant that expectations could conceivably be protected so long as they were backed by some reasonable basis.

8 In Council of Civil Service Unions v Minister for the Civil Service15 (“GCHQ”), two years after Ng Yuen Shiu, the House of Lords continued to apply the vocabulary of “reasonableness” to construing legitimate expectations. However, the expansive approach taken by the Privy Council in Ng Yuen Shiu that “legitimate” meant “reasonable” was retracted somewhat. In GCHQ, Lord Diplock opined that equating the word “legitimate” with the word “reasonable” could lead to confusion as the phraseology of “reasonable expectation” could connote a lack of legal consequences.16 Furthermore, Lord Diplock observed that the word “reasonable” could bear different shades of meaning depending on the context in which it is being used.17 Lord Fraser of Tullybelton, who wrote the Privy Council's judgment in Ng Yuen Shiu, concurred with Lord Diplock's observations above and explained that the word “reasonable” was intended to be only exegetical (ie, explanatory) of “legitimate”.18

9 It would not be too far-fetched to suppose that it was the grafting of the concept of “reasonableness” onto the idea of “legitimate expectations” in Ng Yuen Shiu that paved the way for the latter expansion of the doctrine in England to cover the protection of substantive rights. After the concept of “reasonableness” was expressly

adopted in Ng Yuen Shiu, it was a very natural step for Lord Fraser of Tullybelton to set the foundation for substantive relief by stating in GCHQ that:19

Legitimate, or reasonable, expectation may arise either from an express promise or from the existence of a regular practice which the claimant can reasonably expect to continue. [emphasis added]

10 In Australia, by sharp contrast, the idea that substantive relief can be sought on the basis of legitimate expectations never took root. This must be viewed to stem from the fact that in Australia, the concept “legitimate, or reasonable, expectations” outside of defined legal entitlements was never accepted into the jurisprudence of judicial review.20 The focus there was firmly on strict legality.21 The importance of this jurisprudential fork cannot be downplayed —Ng Yuen Shiu was the fulcrum upon which the entire doctrine of substantive legitimate expectations was latter constructed. If one reads “legitimate expectations” in the sense construed by Barwick CJ, the natural conclusion is that only expectations based on rights in esse should be protected. Besides legal rights, this is likely to cover only procedural rights based on natural justice principles. This was the jurisprudential path taken by Australia. If, however, one reads “legitimate expectations” in the sense set out by Lord Fraser of Tullybelton (ie, allowing for considerations of reasonableness generally), room exists for the...