DIPLOMA IN LEGAL STUDIES
PUBLIC LAW II 2010/2011
“What is the current status of the doctrine of legitimate expectations in Irish law? How do you think the doctrine will develop in the coming years”?
WORD COUNT 2881: NOT INCLUDING FOOT NOTES OR BIBLIOGRAPHY
PAGE COUNT 10
DEADLINE 6.00pm on the 31st March 2011
“Take nothing on its looks; take everything on evidence. There's no better Rule.” —Charles Dickens in “Great Expectations”
“unhappiness could well be found by focusing alone on the expectations of citizens and seeking to discern their legal legitimacy or otherwise ”
Some eighteen years ago, in Fakih v Minister for Justice O'Hanlon J. described that “….the plea of legitimate expectation … may have some of the characteristics of the ‘unruly horse’ which were associated with the plea of public policy”. A year later, Costello J. in Hempenstall v Minister for the Environment commented that “….the law relating to the doctrine of legitimate expectation is an evolving one, whose parameters have not yet been defined and whose exact scope has not yet been established’. Fennelly J in Glencar Exploration plc v Mayo County Council observed that “….the doctrine of legitimate expectation is of relatively recent vintage when compared with other grounds of judicial review and the courts have repeatedly emphasised that it is still in development”. The authors of De Smith's Judicial Review describe legitimate expectation as the tension between legal certainty (abiding by representations) and preserving flexibility to pursue the changing public interest. In consideration of the above, a number of questions relating to the scope of the doctrine remain to be definitively answered by the courts in Ireland. Legitimate expectation has been interpreted as having significantly different meanings ranging from a means of broadening the circumstances in which the common law rules of natural justice will apply to encompassing a substantive entitlement to a benefit or privilege.
The scope of the doctrine of legitimate expectation can be extremely broad. As such, and for so for the purposes of this assignment I will focus on the following issues which give rise to the current status of the doctrine and the perceived development over the coming years. The format will be as follows;
•Established ground giving current status to the doctrine
•The fundamental issue of whether the doctrine should be confined to a form of procedural guarantee or whether it can ever provide the basis for a substantive entitlement to the benefit being sought by a claimant.
•The extent to which the doctrine of legitimate expectation can fetter the exercise of a statutory discretionary power by a minister or a public authority.
•The overlap with estoppel
•Ultra Vires Representations
•Finally, and depending on how these issues are addressed, I intend to address the second question and consider whether the doctrine can develop and play a meaningful role in judicial review proceedings going forward.
It is generally accepted now that, in order to succeed in a claim based on a failure of a public body to respect a legitimate expectation, the three matters set out by Mr. Justice Fennelly in the Supreme Court decision in Glencar Exploration v Mayo County Council need to be established: “…..Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected annually or potentially in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority, or that the person or...