5. Legitimate Expectations – How They Arise and When They Can Be Frustrated

What is a "legitimate expectation" in judicial review?

A situation where "procedural impropriety" is the ground for judicial review when a person is deprived of an expectation

What is a key rationale for legitimate expectations?

It promotes legal certainty (Rule of Law) and public trust in government

What are the two main types of legitimate expectations?

Procedural (e.g., of consultation) or substantive (e.g., receiving a benefit)

How can a legitimate expectation arise?

From a promise, past practice, or a stated policy

Give a case example of a promise leading to a legitimate expectation.

Liverpool Taxi Fleet where an assurance of consultation was breached regarding new license

Provide another case example of a promise generating a legitimate expectation.

ex p Coughlan involved a promise by a Health Authority of a "home for life"

Give a case example where past practice created a legitimate expectation.

GCHQ referenced a past practice of consulting unions before changes

How did Unilever illustrate a legitimate expectation from past practice?

A twenty-year practice of allowing late claims for tax relief created an expectation

How can policy give rise to a legitimate expectation?

Official guidance, like on overseas adoption, can create an expectation (ex p Khan)

What quality must the representation (promise/practice/policy) have?

It needs to be "clear, unambiguous and devoid of relevant qualification".

Did the Foreign Secretary's statement in Bancoult (No 2) create a legitimate expectation?

No, the House of Lords held it was not clear and unambiguous enough

Is detrimental reliance a necessary condition for a legitimate expectation to arise?

Not for procedural legitimate expectations, as clarified by the Supreme Court

When is detrimental reliance relevant for legitimate expectations?

It is relevant when assessing whether departure from the expectation is justified

When is it lawful for a public authority to frustrate a legitimate expectation?

When the court weighs fairness against an overriding public interest (Coughlan)

What test applies to justify departing from a legitimate expectation?

The failure to comply must be "objectively justified as a proportionate measure" (Nadarajah)

When would courts apply "low intensity" review to frustrating an expectation?

For decisions involving general policy affecting the public at large (Begbie)

When might courts apply "higher intensity" review to frustrating an expectation?

For discrete cases with few players and no wide-ranging policy issues (Begbie)

What factors influence the intensity of review for frustrating an expectation?

The extent of detrimental reliance, what was promised (e.g., "home for life"), and size of affected group

Did the government's frustration of the "Finucane" inquiry expectation succeed?

Yes, despite the LE, it was deemed lawful as the decision was "macro-political"

How do legitimate expectations relate to "relevant considerations" in decision-making?

An assurance given must be taken into account by the decision-maker (Bibi)