Legitimate Expectations Flashcards
(23 cards)
Is legitimate expectation a separate ground of judicial review?
No, per GCHQ [1985] AC 374, it is normally part of procedural impropriety.
What is the rationale for protecting legitimate expectations?
A combo of Rule of Law (legal certainty) and good governance—to uphold consistency, promises, and public trust.
What is the tension in protecting legitimate expectations?
Authorities must not fetter discretion—they must adapt policy to new situations when necessary.
What are the two types of legitimate expectations?
(1) Procedural – e.g. right to consultation; (2) Substantive – e.g. right to a benefit or protection from detriment.
What can generate a legitimate expectation?
A promise, a past practice, or a policy.
Promises- Which case involved a breached promise to consult taxi drivers?
Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 – procedural LE.
Promises- Which case established substantive legitimate expectations?
Coughlan [2001] QB 213 – “home for life” promise breached by health authority.
How does GCHQ [1985] illustrate past practice?
Practice of union consultation breached by a sudden ban—procedural LE arose but was defeated by national security.
What was the issue in Unilever [1996]?
HMRC’s 20-year practice of accepting late tax relief claims gave rise to a LE.
How did policy create LE in Ex p Khan [1985]?
Official leaflet on adoption gave rise to a LE—policy guidance was relied on.
What did Mandalia [2015] decide about policies?
Even absent a LE, a published policy is binding unless there’s a good reason to depart.
What is the test for a representation to create a LE?
Must be “clear, unambiguous, and devoid of relevant qualification” – MFK Underwriting [1990].
What applies to past practices?
Must be a specific and directed undertaking – Bhatt Murphy [2008].
Why did Bancoult (No. 2) [2008] fail on legitimate expectations?
The Foreign Secretary’s statement was not clear and unambiguous.
Is detrimental reliance required to establish a LE?
No, but it is relevant when deciding if departure from the LE is justified – Finucane [2019].
Departure from legitimate expectations- When can a LE be lawfully frustrated?
Only if it’s objectively justified and proportionate – Coughlan [2001]; Nadarajah [2005].
What determines the intensity of review of a LE case?
Nature of the promise, size of the group affected, and detrimental reliance – Begbie [2000].
When is low-intensity (Wednesbury) review applied?
In macro-political or general policy cases—e.g. Begbie [2000]; Finucane [2019].
When is high-intensity review applied?
In personal, discrete cases with identifiable impact—e.g. Coughlan, Bibi.
What factors affect intensity of review?
Detrimental reliance
Importance of the promise
Size of affected group
What are the two stages of LE review?
(1) Is there a LE? (2) Can it be lawfully frustrated? – Finucane [2019].
What did Tesco Stores v SoS for the Environment [1995] confirm?
The weight of a representation is for the decision-maker, subject to rationality review.
What did Bibi v Newham LBC [2001] establish?
Even a mistaken promise may give rise to a LE; must be considered in decision-making.
