legitimate expectation judicial review essay

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Administrative Law: Text and Materials (5th edn)

• Acknowledgements
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of European Union Legislation and International Treaties and Conventions
• List of Abbreviations
• 1. Introductory Matters
• 2. Jurisdiction
• 3. The Status of Unlawful Administrative Action
• 4. The Scope of Public Law Principles
• 5. Retention of Discretion
• 6. Legitimate Expectations
• 7. Abuse of Discretion I
• 8. Abuse of Discretion II
• 9. Bias, Impartiality, and Independence
• 10. Procedural Fairness
• 11. Giving Reasons for Decisions
• 12. Remedies
• 13. The Judicial Review Procedure
• 14. Restriction of Remedies
• 15. Liability of Public Authorities
• 16. Delegated Legislation
• 17. Inquiries
• 18. Statutory Tribunals
• 19. Ombudsmen

p. 187 6. Legitimate Expectations

• Mark Elliott Mark Elliott Professor of Public Law, University of Cambridge
•  and  Jason Varuhas Jason Varuhas Associate Professor, University of Melbourne
• https://doi.org/10.1093/he/9780198719465.003.0006
• Published in print: 22 December 2016
• Published online: September 2017

This chapter examines the doctrine of legitimate expectation and its application to lawfully created expectations as well as the extent, if any, to which it may protect ‘unlawfully generated expectations’. It first explains why legitimate expectations must be protected and goes on to discuss the relationship between two variables that are in play in any situation which potentially engages the legitimate expectation principle: that of legitimacy and that of the mode of protection which may be extended to expectations which satisfy the first criterion. The chapter then tackles the problematic question of unlawfully created expectations, focusing on the importance of securing fairness for the individual. It also considers the issues of constitutionality and public interest, along with representations issued by unauthorized officials and representations concerning action which is ultra vires the agency.

• representations
• legitimate expectations
• unlawfully created expectations
• constitutionality
• public interest
• ultra vires
• lawfully created expectations

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13. Grounds for judicial review: procedural impropriety, natural justice, and legitimate expectation

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the grounds for judicial review. These include procedural impropriety, which means breach of the rules of natural justice, and failure to comply with statutory procedural requirements. This chapter looks at the definitional elements of the rules of natural justice, whether the rules of natural justice apply in principle, the extent to which the rules of natural justice apply, disciplinary hearings, licensing cases, pecuniary and personal bias, whether or not a fair trial has taken place, and the right to be given reasons for a decision. This chapter also considers legitimate expectation as a ground for judicial review.

• Related Documents

13. Grounds for judicial reviewProcedural impropriety, natural justice, and legitimate expectation

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the grounds for judicial review. These include procedural impropriety, which means breach of the rules of natural justice and failure to comply with statutory procedural requirements. This chapter looks at the definitional elements of the rules of natural justice, whether the rules of natural justice apply in principle, the extent to which the rules of natural justice apply, disciplinary hearing, licensing cases pecuniary and personal bias, whether or not a fair trial has taken place and the right to be given reasons for a decision. This chapter also considers legitimate expectation as a ground for judicial review.

The Standard of Judicial Review in EU Competition Law Enforcement and Its Compatibility with the Right to a Fair Trial Under the EU Charter of Fundamental Rights

10. administrative law:.

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions; diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic and suggestions on further reading. This chapter is about judicial review. This is the means by which the citizen can use the courts to ensure that a public body obeys the law. The questions in the chapter deal with issues such as the erratic development of administrative law; the procedure to apply for judicial review; the right to apply (locus standi), procedural ultra vires; natural justice; and substantive ultra vires.

14. The grounds for judicial review

This chapter considers the grounds on which public decisions may be challenged before the courts. It begins with an overview of two cases—Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The importance of these two cases is their distillation of the general principles. The discussion then covers the different grounds for judicial review: illegality, relevant/irrelevant considerations, fiduciary duty, fettering of a discretion, improper purpose, bad faith, irrationality, proportionality, procedural impropriety, natural justice, legitimate expectations, the right to a fair hearing, reasons, and the rule against bias. It is noted that principles often overlap, so that a challenge to a public law decision may be based on different principles.

18. Procedural Impropriety

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. A public authority must have the legal power to act; if that power is conferred by statute, it may also specify the procedure that must be used prior to an action or a decision being taken. This is what is known as a ‘statutory procedure’, because it is specified in a statute. The statute may, for example, require the authority to give notice of its intention to take action in a certain way, to consult interested groups, or to tell individuals that they have the right to appeal from an adverse decision. If the authority does not comply, then this is a breach of the statutory procedure and may be reviewed as a procedural impropriety. This chapter discusses the judicial review of procedural impropriety. It covers the rules of natural justice; the right to be heard; legitimate expectation; the detailed requirements of natural justice; the rule against bias; and Article 6 of the European Convention on Human Rights.

10. Introduction to administrative lawThe foundations and extent of judicial review

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the concept of judicial review. Judicial review allows a High Court judge to examine the lawfulness of decisions made by public bodies carrying out their public functions and enactments where there is no right of appeal or where all avenues of appeal have been exhausted. The defendant must be a public body, the subject matter of a claim must be a public law matter, and the claimant must have the right to claim. This chapter also looks at the basis procedure for judicial review.

10. Introduction to administrative law: the foundations and extent of judicial review

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8 Legitimate Expectations

• Published: January 2007
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Legitimate expectations is well known as a doctrine of public law in both domestic and HRA law. It is, nonetheless, a distinctive general principle of EC law. As such, the Administrative Court is bound to observe the EC general principle of legitimate expectations, as articulated by the ECJ, in its discrete form. Precisely because it has the same name and essentially similar content to its domestic counterpart, care is needed on the part of those conducting and determining judicial review and other domestic proceedings in which public law issues arise to ensure that the separate EC dimension of the legitimate expectations doctrine is preserved in a case falling within the scope of EC law.

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Home » Law and Ethics » LEGITIMATE EXPECTATION

LEGITIMATE EXPECTATION

The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. It is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power.

The courts of the United Kingdom have recognized both procedural and substantive legitimate expectations. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken, while a substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of substantive benefit. In determining a claim for an alleged breach of a legitimate expectation, a court will deliberate over three key considerations:

• whether a legitimate expectation has arisen;
• whether it would be unlawful for the authority to frustrate such an expectation; and
• if it is found that the authority has done so, what remedies are available to the aggrieved person.

Procedural legitimate expectations have been recognized in a number of common law jurisdictions. In contrast, notwithstanding their acceptance and protection in the UK, substantive legitimate expectations have not been universally recognized. For instance, they have been given effect in Singapore but not in Australia.

The Coughlan case is a leading decision with respect to the issue of ‘substantive legitimate expectations’ and the purpose of this paper is to critically evaluate the arguments in favour of, as well as against, the judgments in the instant case. Upon engaging with the relevant criticisms and evaluations of the decision, it is submitted in this paper that the decision in Coughlan was correct.

Prior to Coughlan, it was unclear “whether substantive legitimate expectations were recognised within UK law”. In order to understand the issues surrounding legitimate expectations, it is instructive for the purposes of this essay to briefly review the facts of the case. The claimant, Miss Coughlan, was a quadriplegic who lived in a hospital for the chronically disabled from 1971-1993 called Newcourt hospital. Newcourt hospital was deemed to be unacceptable for modern care and as a result, she was moved to a new, purpose built facility in 1993 called Mardon House that was specifically designed to accommodate severely disabled patients. Miss Coughlan and other residents in the new facility were given an explicit “promise that they could live there ‘for as long as they chose’ whereby it would be their “home for life”. Although there were other grounds of challenging the legality of the health authority’s decision in the closure of a long-term care facility specifically designed for the purposes of severely disabled patients, the evaluation in Coughlan primarily hinged upon the Health authority’s promise in providing a ‘home for life’ to the claimant.

However, in 1998, the Health Authority in charge of the new residence decided to close the facility on the grounds that the unit was “prohibitively expensive” and not “financially viable” because it “left fewer resources for other services”. As a result, the health authority decided to transfer Miss Coughlan and the other residents to a home run by the local authority that was not purposely built for their care, unlike Mardon House. Miss Coughlan applied for judicial review on the basis that by closing the new facility, the health authority conducted its affairs unlawfully “in breaking the recent and unequivocal promise given by it that the applicant and other patients could live there for as long as they chose”. In other words, Coughlan had a ‘legitimate expectation’ that she would be able to remain at Mardon House as long as she chose to, but the court’s held that the health authority’s breach of that expectation unfairly amounted to a significant abuse of power and consequently ruled in favour of the applicant.

The Reasoning Employed In Coughlan

In Coughlan, the court recognised three scenarios of reviewing cases relating to legitimate expectations whereby a member of the public expects to be treated one way by a public body, but is treated in a way that is contrary to their expectations. Here, the court began its analysis by exploring the precise examination of the nature and/or circumstances in which the promise was being made.

The first scenario is that the court could conclude that the public authority is only required to uphold its previous representation if it has carefully and reasonably exhausted all of the available options available to it at the time before deciding to resile from its initial promise. Here, the decision is reviewed on Wednesbury grounds and Hargreaves is cited as an example of this type of case. This scenario applies the test of “rationality and whether the public body has given proper weight to the implications of not fulfilling the promise”.

The second scenario is that the court could “decide that the promise…induces a legitimate expectation of (for example) being consulted before a particular decision is taken”. Here, the courts will require that there is an opportunity for consultation before a decision is to be provided unless there is a prevailing reason to detract from that promise. In this instance, the court would determine whether such a breach was procedurally fair.

Finally, the third scenario is that the court could explore whether a lawful promise has induced a legitimate expectation of substantive benefit to the claimant. Here, the court will have to determine whether such a decision to breach a promise was so grossly “unfair that to take a new and different course will amount to an abuse of power”. Additionally, the court must decide if there was “a sufficient overriding interest to justify a departure from what has been previously promised”.

Coughlan is a seminal judgment concerning the issue of substantive legitimate expectations and it was held that the instant case fell within the third category, despite the controversy surrounding the court’s role of intervening in such cases. The courts reasons for placing Coughlan in the third category is because of (1) “the importance of what was promised to” the claimant, (2) “the fact that the promise was limited to a few individuals” and (3) because the consequences to the health authority of requiring it to honour its promise” were merely financial.

The courts held in favour of the applicant in Coughlan on the grounds of Preston, which suggests that it is an abuse of power if an authority reneges on its promise towards a limited number of individuals without justification. Furthermore, Coughlan acknowledged that the proper test was located in Unilever where the courts in that case concluded that “for the crown to enforce a time limit which for years it had not insisted upon would be so unfair as to amount to an abuse of power”. However, it is important to highlight that the judiciary in Coughlan rejected the Wednesbury test as the grounds for reviewing substantive legitimate expectation cases because it would not be conducive to striking the appropriate balance between the aims and priorities of the administration whilst simultaneously upholding the principle of fairness towards the claimant. Finally, Coughlan held that there was no overriding interest in frustrating the claimant’s expectations of remaining at Mardon House for the rest of her life because the health authority “failed to weigh the competing interests correctly” and does not appear to have made an offer of suitable, alternative accommodation. However, recent commentators have both criticised and affirmed the landmark judgment in Coughlan, and it is to this subject that we now turn.

Concerns With Coughlan

Elliot argues that the conclusions in Coughlan are unsupported by authority and inconsistently developed within the broader framework of English administrative law. As mentioned earlier, Coughlan rejected the Wednesbury test of rationality as the grounds for review and appears to be in favour of an approach that is far more sympathetic to ‘substantive protection’. However, in doing so, Elliot contends that the foundations of the judicial decisions are on dubious grounds because there is (1) “no clear guidance as to when such protection should be afforded” and (2) the reasoning outlined in Coughlan fails to sketch the times in which the courts ought to intervene where a “departure from previous policy is not…objectively justified”, or when a departure from policy is irrational.

To substantiate this argument, Elliot underscores the idea that the courts are better equipped to make their legal decisions on procedural, as opposed to substantive dimensions of executive decisions in its use of the Wednesbury test. For example, he refers to the Wednesbury test and its influence upon human rights cases. Here, Elliot maintains that the Wednesbury test is the underlying ‘organising principle’ in the sense that it is the cornerstone of adjudication and refers to the LJ Brown’s judgment in ex p Smith whereby the courts had to examine the legitimacy of the armed forces’ policy of excluding homosexuals from service:

on the conventional Wednesbury basis adapted to a human rights context and ask: can the Secretary of State show an important competing public interest which he could reasonably judge sufficient to justify the restriction [of the applicant’s rights]? The primary judgment is for him. Only if his purported justification outrageously defies logic or accepted moral standards can the court, exercising its secondary judgment, properly strike it down.

Consequently, Elliot insists that the decision in Coughlan and its ‘intrusive mode of review’ of cases involving substantive expectations is incompatible with the decision in Smith and Hargreaves, thus casting its appropriateness into serious doubt because of its failure to acknowledge how the Wednesbury test of unreasonableness restricts the courts adjudication of executive decisions. This position is consistent with the point in Barak-Erez’ article which highlights that the primary contention “against the doctrine of legitimate expectations in administrative law is that it clashes with the aim of securing administrative freedom of discretion”. In other words, it represents an affront to the ‘autonomy of executive bodies’. Conversely, in another article, Elliot notes that Coughlan appears to be more representative of the jurisprudence of the European Court of Human Rights than with the principled and established Wednesbury test in English law.

In this connection, Clayton asserts that the decision in Coughlan further complicated the scope of substantive, legitimate expectations. He argues that the Court’s decision in Coughlan obfuscated the ambit of substantive legitimate expectations and consequently extended the principle beyond its appropriate boundaries. Clayton also highlights that substantive expectations generated as a result of representations and/or promises from a public body ought to be distinguished from policy based expectations; consequently, he contends that “policy based expectations are more satisfactorily analysed as illustrations of the principle of consistency rather than the principle of substantive legitimate expectations”. In other words, he maintains that it is difficult to defend departures from policy-based expectations—in favour of substantive expectations towards particular individuals—because they form the basis of a consistent, principled approach to good administration. Additionally, Clayton also directs his critique towards the reasoning affirmed in Coughlan by suggesting that its employment of the legal principle that it is an abuse of power if an authority reneges on its promise towards a limited number of individuals is an uncertain measurement.

Thus, he suggests that the principle of consistency ought to be applied whereby public authorities adhere to their policies—and that inconsistency—ought to be perceived as a dimension of Wednesbury unreasonableness. He cites Hoffman’s observations in Matadeen v. Pointu as the rationale for his argument:

Equality before the law requires that people should be uniformly treated, unless there is some valid reason to treat them differently… Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution…[T]reating like cases alike and unlike cases differently is a general axiom of rational behaviour.

While there are merits to both Elliot and Clayton’s approaches, it is submitted in this paper that the Coughlan decision was indeed the correct approach—and we explore this in the section below.

In Favour Of Coughlan?

The problem of Elliot and Clayton’s argument is that the reasonableness doctrine appears to overshadow what seems to be a competing value of fairness. However, it is submitted in this paper that the two values need not be mutually exclusive. The decision of Coughlan and its affirmation of substantive legitimate expectations illustrate the court’s awareness of the tension between prizing administrative freedom on the one hand and fairness on the other, while recognising that neither perspective should triumph over one another. Although it could be argued that the principle of ‘substantive legitimate expectation’ did indeed triumph over the Wednesbury test—as Elliot and Clayton seem to suggest—the particular facts of the Coughlan case indicates that the courts attempted to strike the appropriate balance in reconciling the two doctrines. Additionally, Roberts points out that Coughlan does not simply recommend that an expectation driven by policy considerations should be overruled; rather, these considerations ought to be balanced with an evaluation of “whether there is a sufficient overriding public interest to justify departing from the original policy in respect of the applicant”.

Schonberg and Craig highlight four propositions acknowledging that Coughlan did not depart from established principle and was therefore justified. First, they note that the courts were aware of the fact that they could not substitute their judgment in regards to “how discretion ought to have been exercised” by the executive authority in substantive review cases. Second, the courts recognised its role of intervention could be legitimated in evaluating whether the purposes of fair-decision making on the administrations’ behalf were being complied with. Third, Schonberg and Craig affirm Elliot’s contention that the Wednesbury reasonableness test is of crucial importance regarding an evaluation of the executive branches’ decisions. However, they nuance this argument by highlighting that the decision in Coughlan also affirms, “that there should be some control in terms of rationality” in the sense that the test ought not be severely restrictive, but viewed with a positive bent as noted by Cooke LJ where he asks whether “the decision in question was one which a reasonable authority could reach?” Finally, Schonberg and Craig underscore that the varied application of the Wednesbury test in fundamental rights cases supports the notion that the criterion for evaluation ought to be delineated in compliance with the character of the interest in the case. Thus, they conclude that

The general judicial approach is to consider whether a reasonable minister could reasonably make the contested decision on the material at hand: the more substantial the interference with rights, the more the court requires by way of justification.

Furthermore, Schonberg and Craig provide a convincing analysis of the importance of substantive legitimate expectations as a principle of law and suggest that four considerations ought to be at the forefront of determining whether an appropriate standard of review is being exercised: (1) a public body may lead an individual to experience severe hardship if it acts in a manner that is contrary to what the individual may have been led to expect; thus, the law ought to protect an individual’s interests if they are led to rely upon an expectation to his/her detriment; (2), “protection of legitimate expectations is closely linked with the rule of law” (3) “a lack of respect for individual expectations may undermine trust in public authorities”, and (4)“public authorities must comply with the general principles of EU law, including that of legitimate expectations, in situations which fall within the scope of Community law”. Additionally, Schonberg and Craig also propose that the ‘proportionality test’ would be an appropriate mechanism in refining the judicial approach to substantive, legitimate expectations. It is submitted that these considerations provide a helpful criterion towards balancing the importance of upholding the principles of Wednesbury unreasonableness and administrative discretion with the protection of substantive, legitimate expectations.

Although this paper affirms that the decision in Coughlan ought to be hailed as a positive development in the law, it is evident that there are numerous conflicting perspectives on the appropriate balance between administrative discretion and the expectations of individuals relying on executive assurances. However, as the development of the principle of substantive legitimate expectations expands incrementally, it will be interesting to observe how the courts will approach future cases in light of the arguments concerning consistency and fidelity to the principle of Wednesbury unreasonableness advanced by Elliot and Clayton, as well as the proposals of proportionality issued by Schonberg and Craig.

Bibliography

• Council of Civil Service Unions v. Minister for the Civil Service. [1985] AC 374.
• R v Chief Constable of Sussex. Ex p. International Trader’s Ferry Ltd. [1999] 2 AC 418
• R v. Home Secretary Ex p. Khan. [1984] 1 WLR 1337.
• R v. Home Secretary Ex p. Hargreaves. [1997] 1 WLR 906.
• R v. Inland Revenue Commissioners Ex p. MFK Underwriting Agencies Ltd. [1990] 1 LR 1545.
• R v. Inland Revenue Commissioners Ex p. Preston. [1985] AC 835.
• R v. Inland Revenue Commissioners Ex p. Unilever Plc. [1996] STC 681.
• R v. Ministry of Agriculture, Fisheries and Food Ex p. Hamble (Offshore) Fisheries Ltd. [1995] 2 All ER 714
• R v. North and East Devon Health Authority Ex p. Coughlan. [2001] QB 213
• R v. Secretary of State for Education and Employment, ex p. Begbie [2000] 1 WLR 1115
• R v. Secretary of State for Transport, Ex p. Richmond upon Thames London BC. [1994] 1 All ER 577.

Articles & Books

• Barak-Erez, D. “The Doctrine of Legitimate Expectations and the Distinction between the Reliance and Expectation Interests”. European Public Law. Vol. 11, no. 4 (2005). P. 583-601.
• Clayton, R. “Legitimate Expectations, Policy, and the Principle of Consistency”. Cambridge Law Journal. Vol 62, no. 1 (2003). P. 93-105.
• Craig, P.P. Administrative Law. (5th ed). London: Sweet and Maxwell, 2003.
• Elliot, M. “Legitimate Expectation: The Substantive Dimension”. Cambridge Law Journal. Vol. 59, no. 3 (2000). P. 421-425.
• Elliot, M. “Coughlan: Substantive Protection of Legitimate Expectations Revisited”. Judicial Review. Vol. 5, no. 1 (2000). P. 27-32.
• Roberts, M. “Public Law Representations and Substantive Legitimate Expectations”. Modern Law Review. Vol. 64, no. 1 (2001). P. 112-122.
• Schonberg, S., and Craig, P. “Substantive Legitimate Expectations after Coughlan”. Public Law. (Winter 2000). P. 684-701.
• Steele, I. “Substantive Legitimate Expectations: Striking the Right Balance?” Law Quarterly Review. Vol. 121 (April 2005). P. 300-328.

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THE DOCTRINE OF LEGITIMATE EXPECTATIONS IN KENYAN ADMINISTRATIVE LAW

Article 47 of the Constitution of Kenya makes the doctrine of legitimate expectations a constitutional issue rather than a creature of the common law applicable in Kenya. The implication of this fact needs a new understanding in light of its potential impact on how discretionary power by public and private entities may be exercised.

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EXECUTIVES’ GUIDE ON APPLICATION OF THE DOCTRINE OF LEGITIMATE EXPECTATION AS A GROUND FOR JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

Siranjana Rodrigo

Public authorities are to maintain assurance of their acts, thereby preserve the reasonable expectation of the people. Such assurance has given the natal to the doctrine of ‘Legitimate Expectation’. Therefore, the legitimate expectation of the individual towards the decisions of the public authorities has been engineered prior to the conduct of them which creates and enhances uniformity and certainty of their decisions. Accordingly, people have faith in Legal certainty as a basic tenant of the rule of law and they plan their lives and get the knowledge about the legal consequences of their actions. Further, good administration system requires to uphold its promises made by expression or practice and protect the justice in the case of violation of such legal right and liberty and interest of the people. Legitimate Expectation arises when administrative authorities exercising certain policies, practices, and exercising of its discretionary power. According to Wade & Frosty, aggravated parties have the right to seek legitimately expected benefits by placing trust in the promises of the official that were violated or denied. Therefore, it is unfair to dash or deny legitimate expectations of the aggrieved parties without granting them an opportunity of representation and to convey authority why desecration should be fulfilled their expectation. Therefore, public authorities and decision-makers must be aware to protect the legitimate expectations of the people as it is a mature tool to decide fair exercising of discretion power of the public authority at the court of law.

Patrick Kilonzo

Administrative law, though law is different from other branches of law as some times it goes beyond the law to examine administrative circulars, policy statements, memoranda and resolution. It is a branch of pulblic law, it deals with the relationship between individuals and gvt. It deals with organisation and power of administrative and quasi administrative bodies with emphasis on the manner of exercise of the power. • Administrative law is primarily concerned with official action. • It relies greatly on the common law. • It is cross-cutting and will arise wherever a person becomes a victim of arbitrary exercise of public power. HISTORICAL DVLPT OF AL AL as practiced in Kenya has its origin in the laws of England. As a modern concept in England, Al began to emerge in the second half of the 17th century. However a number of the principles like natural justice pre-date this time. In earlier times in England justices of peace served as all purpose administrative authorities. They were supervised by judges of assize who conveyed instructions from the crown during their circuits and also dealt with defaults and malpractices. This system was strengthened under the Tudor mornachy through the use of the privy council and the provincial councils in the north and in Wales which was a drift towards centralisation of power. Oversight by the privy council was exercised through the star chamber which punished those who disobeyed the justices of peaceand reprimanded the justices themselves. After abolishion of the star chamber in 1642, and the destruction of most of the privy council executive power a new situation arose. The old machinery of central political control had been broken down therefore the court of kings bench stepped in and this ushered in a new era of control of administrative authority through courts of law. The kings bench issued its writs of Mandamus, Certiorari and prohibition together with ordinary damages to anyone who wished to dispute the legality of administrative acts of justices or other public authorities. The courts extended the application of the principle of ultra-vires and judicial preview. Later the same rules were applied to the administrative state and it began to emerge to regulate the central government. In kenya, the constitution now guarantees the right to fair administrative action as part of rights and fundamental freedoms under the bill of rights. Art 47 provides: a. Every person has the right to administartive action that is expenditious, efficient, lawful, reasonable and procedurally fair. b. If a right of fundamental freedom of a person has been or is likely to be adversely affected by administrative action the person has the right to be given written reasons for the action. c. Parliament shall enact legislation to give effect to the rights in cross 1 and the legislation shall: I. Review of admistrative action by a court of law or an independent tribunal II. Promote efficient administration In Kenya, the development of modern administrative law can be traced back to the advent of colonisation, Kenya was declared a British protectorate in 1895 and this was the start of deportation of British systems of governance including its systems of public administration.

John Gichuhi

Farrah Ahmed , Adam Perry

The doctrine of legitimate expectations is a developing area of administrative law, and many issues remain outstanding. Promises, practices, and policies generate legitimate expectations, but what is special about them? Why do they and only they generate legitimate expectations? The lack of an obvious answer has led some commentators to claim that the doctrine is ultimately incoherent and should be disaggregated. In this paper, we challenge this claim by arguing, first, that promises, practices, and policies each comprise or make applicable a certain type of rule, and second, that having a legitimate expectation is a matter of such a rule binding a public body to act in some way. This rule-based account gives the doctrine of legitimate expectations both coherence and distinctiveness.

karel gaeb , Joas Kamudulunge

Most legal systems are currently facing many administrative law challenges...

karim maged

Royal Institute of Colombo Law Journal 2021 - Volume II.

Shane Foster

Legitimate Expectation, as a ground of Judicial Review of government actions, has become an extremely popular choice for an overwhelming number of litigants who wish to pursue a remedy through the Writ Jurisdiction vested in the Court of Appeal by Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka. Scores of those applications have been rejected by the Honourable Court of Appeal because the applications themselves are misconceived in law and in fact. This article, therefore, aims to clarify the intricacies of the principle of Legitimate Expectation considering the recent Judgment of the Honourable Court of Appeal and those treatises of eminent Jurists that have become synonymous with Administrative Law. It aims to provide a general overview of the substantive and procedural aspects of the principle of Legitimate Expectation. The article will also provide a brief overview of the case law in relation to those aspects. It will traverse, in brief, the doctrinal connections of those above-mentioned aspects to the demands of Natural Justice and the Doctrine of Estoppel. An application to the Honourable Court of Appeal based on a legitimate expectation per se is notoriously difficult to succeed and hence, ancillary issues that may be taken cognizance of by the Honourable Court of Appeal before an application of that nature is allowed and a writ is issued in the favour of the Petitioner by the said Honourable Court is also traversed in brief. The article, finally, also poses a proposal pertaining to how the doctrine may be used to ensure good governance in Sri Lanka. The authors welcome any feedback that may emanate from a reading of the article.

Toby McKinnon

qaisar abbas

Melanie Murcott

Prior to KwaZulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu-Natal (KZN JLC) commentators and the courts were in agreement that "the way has been left open" for the development of the doctrine of substantive legitimate expectation in South African law, so that a court could, in the future, afford an expectant party’s substantive legitimate expectation (i.e. the expectation of a particular outcome) substantive – as opposed to mere procedural – protection. In KZN JLC the opportunity arose to develop a doctrine of substantive legitimate expectation, but the Constitutional Court declined to do so. Instead, a new legal mechanism was created to enforce a "unilateral publicly promulgated promise by government to pay". In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which left the way open for the Constitutional Court to develop a doctrine of substantive legitimate expectation in KZN JLC. I address the court’s refusal to develop the doctrine, and analyse the creative approach adopted in KZN JLC in respect of the enforcement of a unilateral and publicly promulgated promise by government to pay, from the perspective of whether this creative approach amounted to the invocation of the doctrine by another name. I then consider the implications of KZN JLC for the development of the doctrine of substantive legitimate expectation in future. Finally I discuss how the creation of a new legal mechanism to enforce publicly promulgated promises to pay is "subversive of PAJA and the scheme in s 33 of the Constitution".

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