Chapter 13 Outline answers to essay questions

Essay Answer

It is possible to answer this question in three stages.

Stage One – Define and Explain Legitimate Expectation giving practical examples of where it might be relevant

You should make the following points clearly:

  1. A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though there is no other legal basis upon which he could claim such treatment.
  2. A legitimate expectation may arise from a representation or promise; a consistent past practice, and the conduct of the decision-maker.
  3. The basic principle is that the principles of fairness, predictability, and certainty should not be disregarded, provided there are no overriding policy considerations like national security.

Stage Two – Explain the key legal principles which determine whether legitimate expectation will succeed.

The relevant key principles are;

  1. a legitimate expectation may arise, subject to overriding considerations like national security, based on consistent past practice if a decision making process would be unfair if it were not followed. ( Council of Civil Service Unions v Minister for the Civil Service (1985)
  2. If a public body exercising a statutory function makes a promise as to how it will behave in the future which induces a legitimate expectation of a benefit which is substantive, rather than merely procedural, to frustrate that expectation can be so unfair that it will amount to an abuse of power.
  3. The court has to determine whether there was a sufficient overriding interest to justify a departure from what had previously been promised. R v North and East Devon Health Body, ex p Coughlan (2001).

Stage Three – Consider the review of these principles by the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (2009).

The House of Lords had to decide whether a statement made by the Secretary of State revoking immigration controls in 2000 created a legitimate expectation that the Chagos Islanders would be allowed to return and settle permanently on the outer islands. The key principle applied here is that legitimate expectation has to be based on a promise which is both clear and unambiguous. The House of Lords decided that no legitimate expectation had been created on which the islanders could rely.