Singapore legal doctrine allowing judicial review
The doctrine of legitimate expectation in Singapore protects both procedural and substantive rights. In administrative law, a legitimate expectation generally arises when there has been a representation of a certain outcome by the public authorities to an individual. To derogate from the representation may amount to an abuse of power or unfairness. The doctrine of legitimate expectation as a ground to quash decisions of public authorities has been firmly established by the English courts. Thus, where a public authority has made a representation to an individual who would be affected by a decision by the authority, the individual has a legitimate expectation to have his or her views heard before the decision is taken. Alternatively, an individual may also have a legitimate expectation to a substantive right. The recognition of substantive legitimate expectations is somewhat controversial as it requires a balancing of the requirements of fairness against the reasons for any change in the authority's policy. This suggests the adoption of a free-standing proportionality approach, which has been said not to apply in administrative law.
The procedural dimension of the doctrine of legitimate expectation has been recognized by Singapore courts and, since 2013, the substantive form of the doctrine as well. However, whether the courts will adopt the UK approach with regard to measuring legitimate expectation with the ruler of proportionality remains an open question.
Development of the doctrine in the English courts.
Legitimate expectation of a procedural right.
The doctrine of legitimate expectation originates from common law principles of fairness. English courts developed this doctrine largely to encourage good administration and prevent abuses by decision-makers. Generally, the courts will grant judicial review of an administrative decision based on an individual's legitimate expectation if a public authority has made a representation to the individual within its powers. The individual has to show that the representation was a clear and unambiguous promise, an established practice or a public announcement. This is largely a factual inquiry.
The key idea is that under certain circumstances where a representation has been made by a public authority to an individual who would be affected by a decision by the authority, the individual expects to be heard before the decision is made. To deny the right to be heard amounts to unfairness. The court will thus be inclined to quash a decision if there has been unfairness and reliance by the individual on the representation to his detriment. This is demonstrated in the 1983 House of Lords decision "Council of Civil Service Unions v. Minister for the Civil Service" (the GCHQ case). This case involved the trade unions of employees of the Government Communications Headquarters (GCHQ), a government signals and intelligence department, who argued that they had an expectation to be consulted before the Minister took the decision to deny them the right to join trade unions. The Minister argued that it had been necessary to take that step as the trade unions were conducting strikes that crippled GCHQ operations and threatened the national security of the United Kingdom. The Court established that in the past the trade unions had been consulted on employment-related matters, even though it was not a rule. However, their Lordships clearly recognized that an individual can have a legitimate expectation to be consulted before a decision is taken when it is proven that this is the practice. Such a representation can come in the form of a clear and unambiguous promise to hear the individual or an established practice to consult those affected before taking the decision. Nonetheless, on the facts of the case, their Lordships agreed that they could not review the Minister's decision even though there was an enforceable legitimate expectation as the decision had been made on national security grounds.
Legitimate expectation of a substantive benefit.
The English courts initially wavered in recognizing that an individual has a legitimate expectation of a substantive benefit arising from a representation from the authorities. The notion of protecting a substantive legitimate expectation was espoused in the 1995 High Court decision in "R. v. Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Off-shore) Fisheries Ltd." In that controversial case, Justice Stephen Sedley formulated the framework for legitimate expectations as the balance of the requirements of fairness against the decision-maker's reasons to change the policy. This was in step with the development of the doctrine of proportionality as prescribed in the Treaty on European Union, and in European Court of Justice case law. The decision wove proportionality back into the fabric of judicial review in the UK under the banner of an expanding doctrine of "fair administration" despite the clear rejection of proportionality as a self-standing ground of review by the House of Lords in "R. v. Secretary of State for the Home Department, ex parte Brind" (1991).
In 1996, the Court of Appeal opined in "R. v. Secretary of State for the Home Department, ex parte Hargreaves" that "[o]n matters of substance (as contrasted with procedure) "Wednesbury" provides the correct test". In "Associated Provincial Picture Houses v. Wednesbury Corporation" (1947), the High Court had introduced the idea of "Wednesbury" unreasonableness, that is, a public authority's decision is unlawful if, although they have "kept within the four corners of the matters they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it". The inference to be made from "ex parte Hargreaves" was that where an applicant claimed to have a substantive expectation, it was not for the court to judge if that expectation should be protected "vis-à-vis" the broader public interest. The court should only intervene if the decision-maker's exercise of its discretion satisfied the "Wednesbury" threshold.
However, the courts' role in protecting substantive legitimate expectations was clearly established by the Court of Appeal of England and Wales in "R. v. North and East Devon Health Authority, ex parte Coughlan" (1999). The case involved an applicant who was promised by her local authority that a new nursing home would be her "home for life". The Court granted the application for review on the ground that the applicant had a legitimate expectation to have the substantive benefit of staying in the nursing home as promised by the local authority. It also set out the approach to be taken in safeguarding procedural and substantive legitimate expectations. Where procedural legitimate expectations were concerned, courts would require an opportunity for consultation to be given unless there was an overriding reason to resile from it (such as the national security concern that arose in the "GCHQ" case). As regards substantive legitimate expectations, courts would decide whether cases lie "... in what may inelegantly be called the macro-political field", or are those "where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract". In the first situation, the public authority "is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course", and the court may only review the authority's decision on the ground of "Wednesbury" unreasonableness. On the other hand, when assessing a case in the second situation, the court decides whether for an authority to frustrate an expectation is so unfair that it amounts to an abuse of power. The court must weigh the requirements of fairness towards the individual against any overriding interests relied by the authorities to justify the change of policy.
A slightly different approach has been adopted by Lord Justice of Appeal John Laws. In "R. v. Secretary of State for Education and Employment, ex parte Begbie" (1999), he suggested that the "Coughlan" categories are not "hermetically sealed", and in "Nadarajah v. Secretary of State for the Home Department" (2005), he expanded on this by taking a proportionality approach:
 ;templatestyles src="Template:Blockquote/styles.css" / ;[A] public body's promise or practice as to future conduct may only be denied ... in circumstances where to do so is the public body's legal duty, or is otherwise ... a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest.
In "Coughlan" the view was expressed that the court will assess whether it is unfair for an authority to frustrate a legitimate expectation when the expectation is "confined to one person or a few people, giving the promise or representation the character of a contract". In "R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2)" (2007), it was accepted that members of a group of close to a thousand or even up to several thousand people could have a legitimate expectation of a substantive benefit following the government's announcement of its intentions.
Where a person convinces the court that his or her substantive legitimate expectation has been frustrated, the usual remedy is for the court to order that the public authority fulfil the expectation. However, in "R. (Bibi) v. Newham London Borough Council" (2001) it was held that when the decision in question is "informed by social and political value judgments as to priorities of expenditure" it is more appropriate for the authority to make the decision, and the court may order that the authority should merely reconsider its decision, taking into account the person's substantive legitimate expectation.
"Coughlan" has been criticized for allowing the doctrine of proportionality to affect administrative law, as the court has to judge the merits of a case when granting a review on grounds of substantive legitimate expectation and, in a sense, usurp the discretion of the executive branch of government. This is arguably inconsistent with the court's traditional role in judicial review which is to avoid examining the merits of administrative decisions and only scrutinize them for compliance with the law.
Singapore.
Legitimate expectation of a procedural right.
Singaporean courts have accepted the existence of both procedural and substantive legitimate expectations. In "Re Siah Mooi Guat" (1988), the applicant was a Malaysian national who was declared a prohibited immigrant under section 8(3)(k) of the Immigration Act and had her re-entry permit to Singapore and employment pass cancelled. As the applicant's appeal to the Minister for Home Affairs was rejected, the applicant took out an application to the High Court to quash the decision of the Minister. One ground of the application was that the applicant had a legitimate expectation to two procedural rights: the opportunity to make representations to the Minister before he considered her case under the Immigration Act, and the duty of the Minister to give reasons for his decision.
In his judgment, Justice T. S. Sinnathuray considered "Schmidt v. Secretary of State for Home Affairs" (1968), decided by the Court of Appeal of England and Wales. He found that the procedural principles that govern the administration of Singapore's immigration laws were similar to those in the UK. In "Schmidt" it was decided that an alien has no right to enter the country except by leave and the Home Secretary can refuse leave without giving any reason; that if an alien is given leave to enter the country for a limited period he has no right to stay, and no legitimate expectation of being allowed to stay, for a day longer than the permitted period; and that an alien's application for an extension of his stay can be refused without reasons and without a hearing as the rules of natural justice do not apply. Furthermore, in "Schmidt" Lord Denning had espoused the "obiter" view that where an alien's permit to stay "is revoked before the time limit expires, he ought ... to be given the opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for a permitted time". This argument was advanced by Siah's counsel to persuade the court that "an alien who is in possession of an entry permit which has not yet expired is in the country lawfully until the date of expiry and, therefore, he has an interest during the unexpired portion that carries with it a public law right to a fair procedure, if and when the minister desires to terminate that leave to stay prematurely". The High Court judge considered this proposition and conceded that it was an "attractive" one. However, he ultimately dismissed the argument by