how can this be treated
can be treated as a form of procedural impropriety - Lord Diplock, GCHQ
what is the rationale behind it
legal certainty - preserves rule of law
individuals may expect administrators to decide like cases alike
public trust in government
BUT
decision makers should not fetter their discretion
political issues may demand changes in policy
what are the 2 separate questions to be asked
- has a legitimate expectationn arise
- can the public body lawfully defeat it/go back on its commitment
question 1 - what are the 2 types of legitimate expectation
procedural - consultation
substantive - receiving a benefit/not suffering a detriment
change from procedural to substantive
for some time, courts only recognised procedural
It is ‘difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision-maker than it is to frustrate a legitimate expectation that the applicant will be listened to’
- Sedley in Hamble Fisheries
substantive legitimate expectations
Coughlan case - promised a home for life but home closed
- recognised that she had a substantive expectation to remain at the house and the local authorities decision to resile from their promise was an abuse of power
- fundamentally important interests at stake
- no good reasons to resile from promise
VERY FEW CASES CAN ESTABLISH SUBSTANTIVE LE
question 1 - what generates a legitimate expectation
promise
practice
policy
examples of promises, practices and policy
promises - promise of home for life in Coughlan, decision to increase no. of taxi licenses without consulting drivers themselves in Liverpool Taxi
past practices - past practice of consulting the unions in changes of conditions of employment in GCHQ
policies - public authorities are require to comply with their policies in the absence of good reason not to do so - Mandalia
question 1 - what does the representation need to be
clear, unambiguous and devoid of relevant qualification
MFK
example of MFK not met
Bancoult - background to the statement was the ongoing study on the feasibility of resettling the islanders
detrimental reliance
an issue on which the courts have different views - whether in order to qualify a promise as LE, there had to be evidence that the person had suffered a detriment
Finucane - SC claimed that this was not a necessary condition for procedural LE, however it is relevant in assessing whether departure from it is justified
question 2 - justifying departure from a LE
courts have the task of weighing the requriements of fairness against any overriding interest relied upon for the change of policy - Coughlan
a proportionate measure
Q2 - cases requiring low intensity review
Begbie
distinguished between cases that affect the general public via policy changes and cases that are much narrower and more targeted - policy decisions with a large public impact have a lower standard of review
Q2 - cases requiring higher intensity review
Begbie
when act is smaller, affects less people, with no general policy issues the courts will be able to clearly envisage the affects of enforcing the promise
standard of review is more intense as able to evaluate whether overriding public interest that justifies departing from the promise
Q2 - relevance of factors
what was promised
detrimental reliance
size of the group affected
2 stages applied in Finucane
had a legitimate expectation airsen?
- yes, clear and unambiguous undertaking and are not allowed to depart from this unless it is fair to do so
was the expectation unlawfully frustrated?
- no, the decision was macro political
