UNITED KINGDOM
Legality
- Overarching and uncodified principle:
Positive legality → authority must act within the law (else ultra vires)
Negative legality → law applies to everyone
Legitimate Expectations
- Legitimate expectations can be broadly defined in 2 groups:
1. Procedural expectation
Where a procedure not otherwise required has been promised (GCHQ).
2. Substantive expectation
Where what is expected may be a particular of favourable decision by the
authority.
Here, the protection offered by judicial review is somewhat more limited than
that provided for procedural expectations
o Discretion of the administration!
In Coughlan, the Court of Appeal took time to consider its role where what is at
issue is a promise by a public body as to how it would behave in the future, when
exercising a statutory function.
o ‘Policy and the reasons for adopting and changing it will be accepted by the
courts as not ordinarily open to judicial review’.
o ‘The court’s task … is then limited to asking whether the application of policy
to the individual who has been led to expect something different is a just
exercise of power’.
Unlawfully created Legitimate Expectations
- These may be created:
(a) Where an authority makes a representation that it will do something that it
cannot lawfully do (ultra vires representation), or
For example, where an authority says that it will accept an individual’s claim to a
property right over a piece of land where statute in fact specifies that the land is
for public use.
(b) Where an official who has not been authorised to make a representation
purports to make a representation on behalf of the authority.
For example, where an officer may indicate to an individual that planning
permission has been granted but where no such decision has been taken and is,
moreover, a matter for a committee within the authority.
Ultra Vires Representations
- The understanding that ultra vires representations cannot bind an authority
rests upon constitutional orthodoxy and, in particular, the understanding that
decision-makers may act only within the parameters of the powers that are granted
to them, or the duties that imposed upon them, by statute.
Legality
- Overarching and uncodified principle:
Positive legality → authority must act within the law (else ultra vires)
Negative legality → law applies to everyone
Legitimate Expectations
- Legitimate expectations can be broadly defined in 2 groups:
1. Procedural expectation
Where a procedure not otherwise required has been promised (GCHQ).
2. Substantive expectation
Where what is expected may be a particular of favourable decision by the
authority.
Here, the protection offered by judicial review is somewhat more limited than
that provided for procedural expectations
o Discretion of the administration!
In Coughlan, the Court of Appeal took time to consider its role where what is at
issue is a promise by a public body as to how it would behave in the future, when
exercising a statutory function.
o ‘Policy and the reasons for adopting and changing it will be accepted by the
courts as not ordinarily open to judicial review’.
o ‘The court’s task … is then limited to asking whether the application of policy
to the individual who has been led to expect something different is a just
exercise of power’.
Unlawfully created Legitimate Expectations
- These may be created:
(a) Where an authority makes a representation that it will do something that it
cannot lawfully do (ultra vires representation), or
For example, where an authority says that it will accept an individual’s claim to a
property right over a piece of land where statute in fact specifies that the land is
for public use.
(b) Where an official who has not been authorised to make a representation
purports to make a representation on behalf of the authority.
For example, where an officer may indicate to an individual that planning
permission has been granted but where no such decision has been taken and is,
moreover, a matter for a committee within the authority.
Ultra Vires Representations
- The understanding that ultra vires representations cannot bind an authority
rests upon constitutional orthodoxy and, in particular, the understanding that
decision-makers may act only within the parameters of the powers that are granted
to them, or the duties that imposed upon them, by statute.
