Stuck at a crossroad? Substantive legitimate expectations in English law

Abstract

In “The Provenance and Protection of Legitimate Expectations” Forsyth argued that English law should protect substantive legitimate expectations. However, he was concerned that too great an expansion of legitimate expectations could lead to incoherence and intuitive decision-making. I argue that recent case law, and Forsyth’s analysis, have clarified some of these inconsistencies. Nevertheless, the doctrine of legitimate expectations stands at a crossroads. Should it adopt a rules-based approach and narrow legitimate expectations, or a principled approach that embraces a broader conception? I argue that English law needs both for legitimate expectations effectively to balance legal certainty and substantive equality.