legitimate expectations Flashcards
coughlan case
suffered life changing injuries in road traffic accident so in nursing hospital then transferred to long term care, promised could remain there for as long as they wished but after 5 years NHS closed house
situation involves a promise to narrow group of ppl - sets out a criteria
when a public body makes a promise or has a policy it can be helt to that promise or policy
rationale in favour to holding authority to promise
legal certainty - rule of law - must be consistent so cases can be decided alike
individuals ought to be able to plan their actions on that basis
BUT decision makers should not fetter their discretion. political issues may demand changes in policy (local authority should not slavishly follow rules or policies)
types of legitimate expectations
procedural e.g. a consultation
substantive - receiving a benefit, not losing a beneift or not suffering a detriment
what generates a legitimate expectation
promise: liverpool taxi fleet case - council promised taxi drivers if needed an increased number of licenses would consult them but broke that promise - promise to follow a certain procedure the decision maker could be held to promise established in coughlan case
BUT only if promise is ‘clear, unambiguous and devoid of relevant qualifications’ - MFK case
past practice: GCHQ - past practice of consulting the unions - government agency which deals with communications and security, gov at time decided to ban trade unions from GCHQ argued it was a past practice to consult trade unions - didnt work as national security consideration BUT if different employment setting argument would have been valid
substantive expectations example - unilever case - gov section that collects policy = practice of allowing late claims for tax relief and it had occurred for 20 years - enforceable substantive as longstanding
‘the practice has to be so consistent as to imply clearly, unambiguously and without relevant qualification that it would be allowed in the future’ - R(on app of MP) V Secretary of state for health and social care
policy: khan case - couple who wanted to adopt pakistani nephew, given leaflet explaining home office guidance, set out criteria, thought able to adopt nephew but refused due to 5th criterion not in guidance given (child should not have parents able to care for the child) CoA held guidance did create legitimate expectations and could either grant entrance or apply policy and allow khans to make representations as to why new policy shouldnt apply in that case
mandalia case - public authorities required to comply with their policies in the absence of good reason, not to do so even when the person wasnt aware that the policy did not exist
clear, unambiguous and devoid of significant qualification
bancoult case - chagos island part of british indian ocean terriroty where gov leased land to USA to build military base - result = order in council meant inhabitants had to leave - later = compensation given that they would not return to resettle (not all island only some agreed) court found gov abused powers
detrimental reliance
some earlier case law suggested that claimant would have had to suffered detriment for LE to arise
SC clarified this is not necessary condition for LE to arise - finucane case
justifying departure from LE
coughlan case - once LE established ‘court will have task of weighing the requirements of fairness against any overriding interest relied upon for changing of policy’
fairness v other socials want to change and adapt policy
cases requiring low and high intensity reviews
low:
begbie case - (laws on) involves Qs of general policy affecting the public at large (wednesbury)
high:
where theres no wide ranging issues of general policy or non with multi layered effects - judge not offending principle of democracy
factors of LE
extent of the detrimental reliance
what is being promised
size of affected group
finucane case
HR lawyer in NI, murdered whilst having dinner in front of amity by paramilitaries, emerged the murder had an element of complicity on part of security services
family asked for public inquiry as state involved in killing, promised inquiry by LP but CP david cameron gave apology on behalf of gov and no inquiry
breach of LE and whether gov justified to go back on promise
SC - doesnt apply proportionality test, only if abuse of power is on microscopic lvl - issue = political and SC = hands off approach - found by failing to carry ought public inquiry gov had breached article 2 ECHR - right to life so public inquiry
LE and relevant considerations
bibi case - homeless and assured by local auth that provided permanent obligation but based on misunderstanding on law by council - court rec. that bibi family given assurance and expectation but did not put family at top of queue or say that council should give permanent housing only should be given consideration
