Lecture 25: Legitimate Expectations Flashcards
What is the principle of legitimate expectation in public law?
Legitimate expectation means public bodies should keep their promises or usual practices unless they have a good reason not to, as shown in Nadarajah [2005].
On what basis is the legitimate expectation doctrine justified?
The legitimate expectation doctrine is justified not just by fairness but by a broader requirement of good administration, where public bodies should act consistently and straightforwardly with the public (Nadarajah [2005], Laws LJ).
When does a legitimate expectation arise?
A legitimate expectation arises either when a person has previously been allowed to enjoy a benefit and expects it to continue, or when a person has received a clear assurance or promise that a benefit won’t be removed without giving them a chance to respond (GCHQ case, Lord Diplock).
What kind of assurance or promise can give rise to a legitimate expectation?
A promise or assurance gives rise to a legitimate expectation only if it is “clear, unambiguous and devoid of relevant qualification”, as stated by Bingham LJ in R v IRC, ex p MFK Underwriting [1990] 1 WLR 1545.
Is a clear statement by a public body always enough to create a legitimate expectation?
A clear statement alone is not always enough to establish a legitimate expectation; all the surrounding circumstances must be considered, including the political or policy context (ex p Begbie [2000] 1 WLR 1115; Wheeler [2008] EWHC 1409).
Can a person rely on a promise they did not know about to claim a legitimate expectation?
No, knowledge of the statement is essential—a person cannot rely on a government promise they were unaware of (DM v Secretary of State for the Home Department [2014] CSIH 29).
Is it necessary to show reliance on a promise to establish a legitimate expectation?
It is not necessary to show reliance to establish a legitimate expectation; the courts have held that good administration would be undermined if authorities could abandon promises simply because there was no proven disadvantage (Re Finucane’s Application [2019] UKSC 7).
Can a person claim a legitimate expectation based on a policy they only found out about after an adverse decision?
No, a legitimate expectation claim is weakened if the person was unaware of the policy or if the guidance was issued between public bodies rather than to the public (Mandalia v Home Secretary [2015] UKSC 59).
When can a public authority lawfully depart from a legitimate expectation?
A public authority can lawfully depart from a legitimate expectation only if it is legally required to do so or if doing so is a proportionate response to a legitimate public interest, as judged by the courts (Nadarajah [2005]).
What is a substantive legitimate expectation?
A substantive legitimate expectation arises when a public body’s conduct or promise leads a person to expect a specific benefit, and failing to fulfil that promise would be so unfair as to amount to an abuse of power (ex p Coughlan [2001] QB 213).
What are the possible outcomes when a legitimate expectation is found by the court?
The possible outcomes include:
The authority must consider past practice or promise (Wednesbury standard);
The court requires consultation if there was a procedural expectation;
The court may enforce the substantive benefit if denial would be unfair (Coughlan [2001]).
What is a procedural legitimate expectation?
A procedural legitimate expectation exists where a person expects to be heard before a benefit is withdrawn, or expects a promised process to be followed, based on fairness and proper administration (Schmidt v SSHD [1969]; Ng Yuen Shiu [1983] 2 AC 269).
