Admin - Legitimate Expectations

Question 1

what is a legitimate expectation?

Answer 1

when a public body makes a commitment/promise or has a policy, that body’s authority must be held to accountability

Question 2

what are the two types of legitimate expectation?

Answer 2

• procedural
• substantive

Question 3

what is a procedural legitimate expectation?

Answer 3

an expectation that a particular procedure will be followed

Question 4

what is a substantive legitimate expectation?

Answer 4

a expectation that you will receive a particular benefit or outcome

Question 5

what 3 things can generate a legitimate expectation?

Answer 5

• promise
• past practice
• policy

Question 6

when legitimate expectation arising from a promise stand? (incl. case quote)

Answer 6

MFK - if the promise is ‘clear, unambiguous and devoid of relevant qualification’

Question 7

2 case examples regarding legitimate expectation arising from a promise

Answer 7

• Coughlan - a disabled resident of a nursing home was told that she would have a ‘home for life’ by the authority. held to have a legitimate expectation of remaining there; she could not be moved elsewhere against her will
• Liverpool Taxi Fleet - taxi drivers had a legitimate expectation of a full and proper consultation prior to changes being made to their regulatory regime

Question 8

when does a legitimate expectation arise from past practice? (incl. case)

Answer 8

R (on the application of MP) v SS Health and Social Care - ‘the practice has to be so consistent as to imply clearly, unambiguously and without relevant qualification that it will be followed in the future’

Question 9

2 cases regarding legitimate expectation arising from past practice

Answer 9

• GCHQ - CCSU had a legitimate expectation of consultation in this case as there was a past practice of consultation
• Unilever - Unilever filed late tax returns for 20 years without any sanction or warning; held to have a LE that they would not be disadvantaged for doing so

Question 10

2 cases considering legitimate expectations arising from policy

Answer 10

• Khan - Home Secretary was not able to change an adoption policy “without affording interested persons a hearing and then only if the overriding public interest demands it”
• Mandalia - public authorities are required to comply with their policies in the absence of good reason not to do so

Question 11

Mandalia - 2 circumstances when LE is strained

Answer 11

1. the applicant is unaware of the policy until after the decision was made
2. the guidance is issued by one public body to another

Question 12

is detrimental reliance necessary in legitimate expectations? (incl. 2 cases)

Answer 12

• Bancoult 2 - not essential that the applicant should have relied upon the promise to their detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power
• Finucane - a requirement for detrimental reliance could give rise to inequity as it is easier for larger corporations to prove economic loss for non-compliance of a policy rather than those who are financially strained

Question 13

is a public body ever justified in going back on their promise? (incl. 2 cases)

Answer 13

• Coughlan - the courts have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy
• Nadarajah - the notion that public authorities must be held to their promises is a proportionate measure in achieving good administration

Question 14

when is a procedural LE be frustrated? (incl. 2 cases)

Answer 14

• fairness requires that the LE be honoured, so it will not be frustrated unless there are major public policy issues, such as national security in GCHQ
• if an LE concerns an overly political matter, the courts will not uphold it e.g. Wheeler - no LE to hold a referendum on EU membership based on a promise that a political party had made previously

Question 15

what happens when the issue verges on political? (incl. 2 cases)

Answer 15

• the more political the matter is, the less the court will intervene
• Begbie - ‘macro-political’ decisions are subject to less scrutiny by the courts
• Bibi - test for whether issue is macro-political:
  1. what has the decision-maker committed themself to?
  2. is the public body acting, or planning to act unlawfully?
  3. what should the court do?

Question 16

academic commentary - different types of LE?

Answer 16

Williams - the wide range of cases covered by the doctrine of LE has made the area ‘amorphous’. It focuses too much on providing remedy rather than what cause of action gave rise to the claim in the first place. Therefore the doctrine should split cases up into different categories

Question 17

academic commentary - the coherence of legitimate expectations?

Answer 17

• Ahmed + Perry - LEs arise when a public body binds itself with a non-legal and goal dependent rule
• the rules fall under promise, practice or policy as they are the ways in which a public body represents its intentions
• therefore this ‘rule-based’ account of LEs is economical as it explains all cases in terms of a single factor

Question 18

academic commentary - what did the Finucane judgment do?

Answer 18

Elliott - the Finucane judgment did two things:
1. ‘muddied the waters’ of the doctrine further by not specifying whether it (the judgment) was dealing with a procedural or substantive LE
2. showed the courts abstain from answering difficult doctrinal questions about LEs by hiding behind empty notions such as ‘good administration’ and ‘fairness’