Legitimate Expectation
The recognition of substantive legitimate expectations is to be welcomed, but the standard of review in such cases remains problematic. Discuss.
Fairness and legal certainty are two crucial factors to be seen in decisions made by public authorities; the doctrine of legitimate expectations was first formulated by Lord Denning MR in Schmidt v Home Secretary (1969).The doctrine comes into play when a public authority makes a declaration regarding its policy, or the manner in which it will exercise its discretion, and then seeks to retreat from this position.Those seeking to enforce such a doctrine will naturally be people who have relied on the former position, probably to their detriment, and often with their position now worsened due to the change in policy.
However there has been disagreement as to whether the doctrine is truly a valid one under English law. Indeed in Khan, the Home Office departed from a representation of policy as regards approval of adoption from abroad, it was held, however, that they could only depart from such a policy following a hearing and in the overriding public interest. Further in Unilever it was held that the Inland Revenue cold not depart from a practice which it had followed for 25 years without some prior warning. Perhaps the most obvious example was seen in Hamlbe Fisheries, here a company purchased two small vessels in order to transfer the licenses to a larger vessel they already owned, which was permitted under the MAFF’s policy at the time. However, after purchase but before transfer of the licences the policy was changed. It was held by the court that, although the policy could be changed for the future, where an expectation had “a legitimacy which in fairness outtops policy choice” this would be protected by the courts, and the public authority may well be required to allow an interim period or make some kind of fair warning in order to change policy in such a way. Here it can be seen that there is a strong emphasis
Fairness and legal certainty are two crucial factors to be seen in decisions made by public authorities; the doctrine of legitimate expectations was first formulated by Lord Denning MR in Schmidt v Home Secretary (1969).The doctrine comes into play when a public authority makes a declaration regarding its policy, or the manner in which it will exercise its discretion, and then seeks to retreat from this position.Those seeking to enforce such a doctrine will naturally be people who have relied on the former position, probably to their detriment, and often with their position now worsened due to the change in policy.
However there has been disagreement as to whether the doctrine is truly a valid one under English law. Indeed in Khan, the Home Office departed from a representation of policy as regards approval of adoption from abroad, it was held, however, that they could only depart from such a policy following a hearing and in the overriding public interest. Further in Unilever it was held that the Inland Revenue cold not depart from a practice which it had followed for 25 years without some prior warning. Perhaps the most obvious example was seen in Hamlbe Fisheries, here a company purchased two small vessels in order to transfer the licenses to a larger vessel they already owned, which was permitted under the MAFF’s policy at the time. However, after purchase but before transfer of the licences the policy was changed. It was held by the court that, although the policy could be changed for the future, where an expectation had “a legitimacy which in fairness outtops policy choice” this would be protected by the courts, and the public authority may well be required to allow an interim period or make some kind of fair warning in order to change policy in such a way. Here it can be seen that there is a strong emphasis