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“Judicial review has I think developed to a stage today when…one can conveniently classify
under three heads the grounds upon which administrative action is subject to control by
judicial review.
• The first ground I would call ‘illegality,’
• the second ‘irrationality’ and
• the third "procedural impropriety.’”
(Lord Diplock in the GCHQ case)
PROCEDURAL IMPROPRIETY – LEGITIMATE EXPECTATIONS
ISSUE: The issue in this scenario is under the ground of what Diplock in the GCHQ case
called, ‘procedural impropriety’ and more specifically this engages with legitimate
expectations.
ARTICULATE LEGAL TEST do not (i) unfairly frustrate (ii) people’s legitimate
expectations
TEST FOR A a representation (a promise, practice, or policy), which is
REPRESENTATION P1 clear, unambiguous, unqualified
AUTHORITY FOR TEST MFK, Bancoult
TEST FOR A the MFK test (which was endorsed in Bancoult and applied in
REPRESENTATION P1 Patel) states the sufficiency of the representation must also be
EXPANSION considered how upon ‘a fair reading of the statement, it
would have been reasonably understood by those to whom it
was made’
TEST FOR A Ahmed and Perry have also continued to say that there are
REPRESENTATION P1 three forms of legitimate expectation which include:
EXPANSION ‘promises, practices, and policies’
TEST FOR A there’s no need for knowledge of (Rashid) or reliance on (Ng
REPRESENTATION P2 Yuen Shiu) the representation
matter to what kind of expectation exists and an
unsympathetic court can still bring either of these
back into play by treating them as relevant to the test
they use to decide whether to offer protection to the
expectation
AUTHORITY FOR TEST Rashid, Ng Yuen Shiu
FAIRNESS OF There is instability in how the courts might intervene to
LEGITIMATE protect a legitimate expectations the law is still developing
EXPECTATIONS hence the difficulty in this area. Sometimes there is no
fairness of the protection of legitimate expectations such as in
GCHQ case and sometimes there is all fairness to give the
claimant all the protection they demand such as in Coughlan.
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