Substantive Legitimate Expectations
The CCJ began its discussion of legal protection for the legitimate expectations by asking �whether, and if so to what extent, the legitimate expectation of the respondent should produce a substantive benefit?’[628] The issue of whether the court should give effect to a substantive legitimate expectation, the court observed, �is still a matter of ongoing judicial debate,’ citing exp Hamble Fisheries.[629] If that issue was discussed in the context of the approaches of final courts of different jurisdictions, then that remark would be unassailable, but it is clearly understood that ever since ex p Coughlan the debate relating to whether the English common law should recognize substantive legitimate expectations had ended in favour of allowing such expectations.
The CCJ correctly referenced ex p Coughlan, noting that the legitimate expectation therein was �rooted in an express promise, repeatedly made to a select, identifiable group of persons, that had the character of a contract’ and that �unwarranted frustration of the legitimate expectation [was equated] with an abuse of power and the case was treated almost like an estoppel in private law, justifying a standard of review by the courts that was higher than would normally be the case.’[630]The review of the authorities dealing with the question of the standard of review was scant indeed, with the court referring to only two other decisions, one being that of Simmons CJ in Leacock v AG.[631] There was no question that the decision of the CCJ was rooted in substantive legitimate expectations, contrary to the view that �[t]he CCJ perhaps confused the question of whether such an expectation was substantive or procedural.’[632] This, however, does not detract from the real issue being raised. The issue raised in this decision concerned whether the appellants had a substantive right that the state would not execute them pending the determination of their petitions before the international human rights bodies. This clearly is a substantive legitimate expectation. It was not rooted in any expectation that they would be allowed a right to be heard or make representations before they are executed. The CCJ can be faulted for not being as rigorous as one might have expected, since the court was accepting that substantive legitimate expectations form part of Barbados law. However, the court was very cognizant of its role in relation to substantive legitimate expectations and how it was to resolve the legal and policy implications of accepting that doctrine.
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