Public Law L5 - Legitimate expectation Flashcards
(25 cards)
What is the most recent ground of challenge to be developed in judicial review? (1)
Legitimate expectation.
What does legitimate expectation relate to? (2)
The concept that an expectation of either a procedure or a benefit, arising from a representation or promise made by a public body – or established practice – may be protected in law.
What are the two primary forms of legitimate expectation? (2)
Procedural and substantive.
What is procedural legitimate expectation? (2)
Procedural legitimate expectation can arise when either a public body has promised or represented that a particular procedure will be followed before a decision is made or where there has been an established practice for the public body to use a particular procedure.
What is substantive legitimate expectation? (2)
Substantive legitimate expectation is where an assurance or promise has led a person to believe that they will receive a particular, tangible benefit. If upheld by the court, it will entitle the person to actual benefit, unlike procedural legitimate expectations.
Three-step approach to assess legitimate expectation claims? (3)
(1) Has an expectation arisen?
(2) If so, is the expectation legitimate?
(3) Has the public body lawfully frustrated the legitimate expectation?
What will the legitimacy of expectation depend on? (4)
Clarity, legality, knowledge and reliance.
What is meant by clarity? (3)
A promise has to be clear, unambiguous and devoid of relevant qualification. It should also be considered how on a fair reading of the promise it would have been reasonably understood by those to whom it was made.
What is meant by legality? (1)
A representation must be legal in the sense that it would be within the powers of the public authority to fulfil the promise in question.
Does a promise given rise to the alleged LE have to be made by the person or body bound by it? (1)
No.
Can a expectation still be legitimate where the public authority made a promise in the mistaken belief it was under a statutory duty to do what it had promised to do? (1)
Yes.
What is an agent? (1)
An agent is someone who is authorised to act on behalf of another person or body.
Will a public body be bound by a representation of one of its agents? (1)
Not if the agent acted outside his authority in making the representation.
What is meant by knowledge? (2)
Can a person claim they had a legitimate expectation when they had no knowledge of the representation or past practice, at the relevant time before the action / decision?
What is meant by reliance? (1)
Detrimental reliance will not be present when the courts finds unfairness in the defeating of a legitimate expectation.
Will the courts necessarily protect a LE? (2)
No, its frustration can be deemed to not have been unlawful by the court in certain circumstances.
Who do the courts impose the burden of proof on in establishing that a frustration of a LE was lawful? (1)
The public body.
What should there be to override the LE? (1)
Sufficient public inteerst.
What have the courts generally concluded in regard to procedural LEs? (1)
The importance of fairness will dictate that the expectations be fulfilled.
What exceptions may mean the courts concludes the frustration of the PLE was lawful? (2)
When there are compelling public interest reasons such as national security interests and the need for speedy, executive action.
What happens when the legitimate expectation is only that the public authority should bear in mind its previous policy or representation? (1)
The court is confined to reviewing it on grounds of Wednesbury Reasonableness.
When assessing if a PLE can be lawfully frustrated what will the court consider? (2)
The court will require the procedure to be complied with, unless there is an overriding reason to resile from it. The adequacy of the reason will be assessed on the basis of fairness.
When assessing if a SLE can be lawfully frustrated what will the court consider? (3)
The court can now also decide whether the frustration of the expectation was so unfair as to amount to an ‘abuse of power.’ The court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.
What will decisions that lie within the macro-political field attract? (1)
A less intrusive approach by the courts (wednesebury approach).
