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Legitimate expectation - Coggle Diagram

- - - - specifc representation relied on e.g R v Liverpool Corporation ex parte Liverpool Taxi Operators’ Association
      - A representation can also be contained in a policy. AG of Hong Kong v NG Yuen Shiu- HK gov had to honour terms or original policy to allow Chinese nationals
      - R (Greenpeace ltd) v Secretary of State for Trade and Industry- courts enforced promise to hold ‘the fullest possible consultation’ in an energy white paper. This is controversial as public bodies are allowed to change their policies, otherwise they would fetter their discretion.
    - - An expectation can arise from an established practice or settled course of conduct by the public body, towards the claimant/a class of persons to which the claimant belongs e.g R v IRC ex parte Unilever plc
  - - - Clarity
        
        (promise) R v IRC ex parte MFK Underwriting Agents Ltd- a promise has to be ‘clear, unambiguous, and devoid of relevant qualification’
        
        (promise)Paponette v AG for Trinidad and Tobago- ‘how on a fair reading of the promise it would have been reasonably understood by those whom it was made
        
        (promise)R (Patel) v General Medical Council- legitimate expectation occurred through a promise where the appellant had asked for a number of specific assurances and tried to obtain unequivocal responses concerning a promise in an educational context
        
        (past practice)R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs- there would need to be ‘evidence that the practice was so unambiguous, so widespread, so well-established and so well recognised as to carry within it a commitment to a group’. On the facts, the evidence was too thin to establish past practice
      - legality
        
        A representation must be legal in the sense that it would fall within the powers of the public authority to fulfil the promise
        
        R v Secretary of State for Education and Employment ex parte Begbie- a promise was contrary to the requirements of statutory provisions under an Act
        
        The promise giving rise to the alleged legitimate expectation does not in all circumstances necessarily have to have been made by the person or body who may be bound by it e.g R (BAPIO Action Ltd) v Secretary of State for the Home Department held a promise made by one gov dept was binding on a different gov dept
        
        An expectation can still be legitimate where the public authority where the public authority made the promise under a mistaken belief it was under a statutory duty to do what it had promised to do e.g R (Bibi) v Newham LBC
      - agency (agents are authorised to act on behalf of a person or body)
        
        A public body will not be bound by a representation made by an agent, where the agent acted outside of their authority when making the representation e.g South Buckinghamshire District Council v Flanaghan
      - knowledge
        
        Refers to whether a person can 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 etc)
        
        Knowledge is an essential prerequisite e.g R v Ministry of Defence ex parte Walker
        
        Rare: R (Rashid) v Secretary of State for Home Department that the applicant could benefit from a policy of which he had no knowledge. Pill LJ accepted in his judgment that this was not a typical legitimate expectation case
        
        it may be 'good administration' for public bodies to accept legitimate expectation without knowledge
        
        already a policy that covers situations: policy adopted by a public authority must be consistently applied and can only be departed from with good reason
        
        R (Kambadzi) v Secretary of State for the Home Department
      - reliance
        
        anyone seeking to benefit from a substantive expectation would have to demonstrate reliance upon the expectation to their detriment (old- not essential now- see cases)
        
        R v Secretary of State for Education and Employment ex parte Begbie- found reliance it is not essential, but important
        
        R (Bibi) adopted view detrimental reliance should normally be required but not where, for example, a public body seeks to depart from an established policy
- - - - The importance of fairness will dictate that the expectation be fulfilled. E.g. Liverpool Taxi Operators’ Association
      - GCHQ shows frustration of procedural legitimate expectations was not unlawful when there are compelling public interest reasons
    - - This area is more problematic. This was due to the judicial caution of fettering the ability of public authorities to change policy and more general concerns about judicial intervention
      - Re Findlay- judges played a more deferential role on policy change as not allowing them to change their policy would fetter their discretion or prevent policy change
      - R v Ministry of Agriculture Fisheries and Foods ex parte Hamble Fisheries- re-emphasised fairness. This does not mean no expectation, no matter how reasonable, will survive a change in policy, public bodies have a duty to exercise their powers fairly.
      - Key case: R v North and East Devon Health Authority ex parte Coughlan
        
        In this case, the Court of Appeal held that the assessment of whether a legitimate expectation could be lawfully frustrated depended on the nature and context of the particular legitimate expectation
        
        (a) Where the legitimate expectation is only that the public authority should bear in mind its previous policy or other representation, the court is confined to reviewing it on grounds of Wednesbury unreasonableness. (This is what happened in Re Findlay and Hargreaves.)
        
        b) Where there is a procedural legitimate expectation, 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
        
        C) Where there is a substantive legitimate expectation, 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. In Coughlan the case fell under c) the abuse of power as the home for disabled people was said to be life-long but it was closed.
        
        post-Coughlan developments
        
        R v Secretary for Education and Employment, ex parte Begbie- categories in Coughlan were not ‘hermatically sealed’ and each represented a point on a scale. Decisions within macro-political should have less intrusive approach (i.e Wednesbury) and those lying outside that field a higher intensity of review
        
        The question of lawfulness of frustration of legitimate expectations has been incorporated into a concept of proportionality.
        This has generally developed in other areas of review such as unreasonableness as evidenced in Pham v Secretary of State for the Home Department
        
        Key case: R (Nadarajah and Abdi) v Secretary of State for the Home Department- in obiter it was stated proportionality should be used to determine whether procedural and substantive legitimate expectations can be lawfully frustrated
        
        the question in either case will be whether denial of the expectation in the circumstances is proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case.
        
        where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. Courts will encounter a steeper climb when decision-maker references wide-ranging or macro-political issues of policy.
        
        in high policy or macro-political contexts, where the court does not feel equipped or entitled to apply the more intrusive proportionality standard of review, it will revert to a rationality (ie Wednesbury) approach.
        
        Re Finucane’s Application
        A promise to hold a public enquiry was taken back under a new government. The Supreme Court held that, where a decision concerning macro-political issues was made in good faith on genuine policy grounds, it would be very difficult for a person to enforce compliance with a legitimate expectation. The decision not to hold the public inquiry was held to be lawful on this basis