Introduction
The decision of the recently-established Caribbean Court of Justice (CCJ) in AG v Joseph and Boyce[566] has been hailed as revolutionary by legal practitioners and academic lawyers.
And in many respects it is. It has clearly given public lawyers much food for thought and it will take some time before the full ramifications for constitutional, human rights, and administrative law areas are fully explored.[567] The focus of this chapter is the exploration of the CCJ’s approach to legitimate expectations. Notwithstanding that the discussion of legitimate expectations was obiter, the decision still indicates the approach the CCJ might take if the issue arises directly for consideration in the near future.[568] Although the CCJ did not engage in any rigorous analysis of the issues that lie at the heart of legal protection for substantive legitimate expectations, its approach seems to be in accordance with the evolving approach to legitimate expectations in England and elsewhere. And, even if it is accepted that the boundaries of substantive legitimate expectations are still being drawn, as will be seen in due course, the CCJ’s approach is forward thinking since it anticipated subsequent developments in England.This chapter is an examination of the treatment by the CCJ of the doctrine of legitimate expectations, in particular, the standard of review the courts must deploy when faced with a substantive, as opposed to a procedural, legitimate expectation.[569] Before the CCJ explored that issue, it delineated its view on the role of legitimate expectations and unincorporated treaties, accepting that such treaties do create legitimate expectations - a notion that has been rejected in most Commonwealth countries. In any event, the result in the decision is almost inevitable, in light of the issues that the court dealt with. This chapter, first, examines how the Judicial Committee of the Privy Council (Privy Council) has dealt with the issue of legitimate expectations and international treaties; and, second, critically examines the standard of review articulated by the CCJ in Joseph to determine when a legitimate expectation can prevail over any compelling state interest advanced. It will also outline the central arguments accepted by the CCJ in relation to unincorporated treaties and legitimate expectations.
2.