R v Secretary of State for Health, ex parte US Tobacco Inter...

Facts

• US Tobacco challenged the Health Secretary's decision to ban certain forms of tobacco advertising.
• The company argued that previous governmental consultations and statements created a legitimate expectation of a less stringent, voluntary regulatory approach.
• US Tobacco asserted that its investments were made in reliance on this expected regulatory environment.
• The shift to an advertising ban was claimed by US Tobacco to be unfair, unlawful, and resulting in substantial financial loss.

Issues

1. Whether prior government representations and consultations amounted to a legitimate expectation that regulation would be limited to voluntary arrangements with the tobacco industry.
2. Whether the government’s change in policy, introducing a ban, unlawfully breached any legitimate expectation.
3. Whether overriding public health interests permitted the government to depart from prior indications or expectations.

Decision

• The Court of Appeal rejected US Tobacco’s claim, finding no breach of legitimate expectation.
• The Court acknowledged the existence of the legitimate expectation principle but held it was not absolute and could not prevent government from changing policy in the public interest.
• No unequivocal or clear representations guaranteeing a fixed regulatory approach had been made by the government.
• The shift toward a ban was justified as a rational response to growing public health concerns and within the government’s discretion.

Legal Principles

• Legitimate expectation arises where public authorities induce a clear, unambiguous expectation by their representations or conduct.
• Such expectations do not bind government absolutely; public interest considerations, especially in complex areas like public health, can justify a departure.
• Courts will scrutinize administrative action for fairness and procedural propriety but recognize the government's primary duty to protect public health may override prior expectations.
• Legitimate expectation cannot fetter discretionary powers when substantial public policy considerations emerge.

Conclusion

The case confirmed that while legitimate expectation is an important tool for ensuring fairness in administrative action, it cannot preclude a shift in government policy when justified by overriding public interest such as public health. The judgment emphasizes that only clear and unequivocal representations may give rise to enforceable expectations, and these remain subject to the state’s duty to protect the public.