Legitimate Expectation
LEGITIMATE EXPECTATION
The Legal and Institutional Background
The doctrine of legitimate expectation operates as a control over the exercise of discretionary powers conferred upon a public authority. The typical reason why discretionary powers are conferred upon a public authority is to ensure that they are exercised having due regard to the particular circumstances of individual cases coming before the decision-maker – ie in circumstances where Parliament was not confident at the time of passing legislation in predicting all circumstances and how individual cases should be resolved. It is often difficult to tell in advance of concrete situations arising precisely how an authority should act; and that may be as true for the authority as for Parliament itself. This reasoning is inherent in the rule forbidding a public authority which has a discretion and adopts a policy as to its exercise from following that policy without having due regard to the specific facts of the particular case: British Oxygen [1971] AC 610.
The doctrine of legitimate expectation is the converse of this situation: it operates to say that, subject to certain conditions, a public authority which adopts a policy should be required to follow and apply that policy in cases subject to it, without being permitted to depart from it. It applies in cases where the decision-maker has committed itself in advance to a particular course of conduct in a particular class of case (defined in more or less general terms), without reference to the specific facts of individual cases. The key issue, therefore, in legal terms, is to explain by reference to normative considerations when and why (or why and, therefore, when) the policy maker will be required to follow its own pre-determination of the outcome of the case without being free just to change its mind when the specific facts of an individual case are before it.
In addressing that issue, it is important to understand that the problem
The Legal and Institutional Background
The doctrine of legitimate expectation operates as a control over the exercise of discretionary powers conferred upon a public authority. The typical reason why discretionary powers are conferred upon a public authority is to ensure that they are exercised having due regard to the particular circumstances of individual cases coming before the decision-maker – ie in circumstances where Parliament was not confident at the time of passing legislation in predicting all circumstances and how individual cases should be resolved. It is often difficult to tell in advance of concrete situations arising precisely how an authority should act; and that may be as true for the authority as for Parliament itself. This reasoning is inherent in the rule forbidding a public authority which has a discretion and adopts a policy as to its exercise from following that policy without having due regard to the specific facts of the particular case: British Oxygen [1971] AC 610.
The doctrine of legitimate expectation is the converse of this situation: it operates to say that, subject to certain conditions, a public authority which adopts a policy should be required to follow and apply that policy in cases subject to it, without being permitted to depart from it. It applies in cases where the decision-maker has committed itself in advance to a particular course of conduct in a particular class of case (defined in more or less general terms), without reference to the specific facts of individual cases. The key issue, therefore, in legal terms, is to explain by reference to normative considerations when and why (or why and, therefore, when) the policy maker will be required to follow its own pre-determination of the outcome of the case without being free just to change its mind when the specific facts of an individual case are before it.
In addressing that issue, it is important to understand that the problem