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I. Introduction
Much has happened since 1988, when Christopher Forsyth, now the Emeritus Sir David Williams Professor of Public Law at the University of Cambridge, set out to clarify the then newly emerging protection of legitimate expectations in English law in “The Provenance and Protection of Legitimate Expectations”.1 Forsyth made three main claims and one prediction. First, he argued that there were circumstances in which, even in 1988, English law had sporadically protected substantive legitimate expectations and that the law should do so more generally.2 Second, he explained how the origin and underpinning of legitimate expectations was the German principle of Vertrauenschutz – the protection of promises and of trust in the administration.3 This promotes legal certainty, which needs to be balanced against legality to ensure that the protection of a substantive legitimate expectation does not place too great a fetter on the discretionary powers of the administration. Third, Forsyth expressed concern over the extension of the doctrine of legitimate expectations beyond lawful representations. To extend legitimate expectations to include ultra vires representations “would be to create that legal horror: a body that can set its own limits to its jurisdiction”.4 Forsyth's prediction was that the general protection of substantive legitimate expectations would be confirmed.
Despite a rocky start, the general protection of substantive legitimate expectations in English law was finally confirmed 11 years after Forsyth wrote his article, in the ground-breaking Coughlan case.5 The Court of Appeal drew on statements in the 7th edition of Wade and Forsyth's Administrative Law, and also recognised the grounding of substantive legitimate expectations on the need to protect promises, balancing legal certainty and legality. Moreover, at the time of writing, legitimate expectations in English law cannot arise from an ultra vires representation where this is beyond the power of the public body as a whole and not merely the powers of the individual agent of that body whose actions created the legitimate expectation.6
It is not often that an academic article is able to achieve such a successful impact upon the law. However, Forsyth's prescience was not just limited to the confirmation of the protection of substantive legitimate expectations. Forsyth also recognised that “[p]ublic authorities may, through their conduct, cause an...