Admin Law - Legitimate Expectation Flashcards
Two different kinds of LE
- Procedural LE:
> Existence of a process right as a result of a promise or behaviour by the public body that generates the expectation. - Substantive LE:
> Expectation to obtain a benefit or commodity such as a welfare benefit or licence as a result of some promise, representation or behaviour made by the public body.
- Applies to the exercise of discretion.
Substantive LE
> Arises only when the representation or behaviour by the public body was lawful (within jurisdiction).
Does not arise when the representation was ultra vires; not actionable.
- This can cause hardship to an individual who bona fide relied on the representation and had no reason to suspect that it was ultra vires.
- However, there are limited exceptions.
Types of LE cases - list
- The general policy has been altered (least moral force).
- The general policy has been departed from in a particular case.
- An individual representation to the person which the public body seeks to resile from due to change in general policy.
- An individual representation followed by an inconsistent individualised decision (most moral force).
Types of LE cases - the general policy has been altered
> Least moral force.
Example cases = Hamble Fisheries, Hargreaves.
Bancoult:
- The government had previously stated that it had accepted a prior court ruling requiring the Chagossians to return home to the Chagos Islands.
- However, the government later decided that resettlement was not feasible and the territory was wanted for defence and enacted Orders in Council preventing the Chagossians’ return.
- The Lords decided by a 3–2 majority to uphold the new Order in Council, stating that it was valid and, although judicial review actions could look at Orders in Council, the national security and foreign relations issues in the case barred them from doing so. In addition, Cook’s statement had not been clear and unambiguous enough to provide legitimate expectation.
-Bancoult brought a second case, arguing that this Order was again ultra vires and unreasonable, and that the British government had violated legitimate expectation by passing the second Order after giving the impression that the Chagossians were free to return home.
Types of LE cases - The general policy has been departed from in the particular case
> There is debate as to whether these cases should be regarded as coming within LE since considerations of equality and consistency should suffice (Bibi) and there may be instances where the claimant did not know of the policy departed from.
Recognised in Mandalia:
-Lord Wilson held that LE is strained in cases where the individual is unaware of the policy until after an adverse decision, the claim should be grounded on a principle of consistency that the PB or minister will follow a declared policy.
Types of LE cases - an individual representation followed by an inconsistent individualised decision
> Most moral force.
Easer to hold the PB accountable to the individual representation as less likely to have serious consequences for administration.
Examples:
1. Re Preston [1985].
2. MFK (R V IRC, EX PARTE MFK UNDERWRITING [1990])
- Inland Revenue told applicants that their investments would be taxed as capital instead of income but later taxed it as income.
- Lord Bingham held that the claim must fail if the representation was in breach of IR’s statutory duty. However, it was not, and the Revenue could be liable for breaching its promise.
- However, the applicant failed on the facts.
Held: The court found that to bind the IR to its own advice would be ‘unfair’(!). This is odd because we usually associate fairness with fairness to the claimant, but here it is about the public body.
⇒ Bingham LJ (as he then was) set out when a legitimate expectation would arise:
1. When the taxpayer has “put all his cards face upwards on the table;”
2. When “the ruling or statement relied upon [is] clear, unambiguous and devoid of relevant qualification.”
3. But also… “The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen.” → so it is FAIR for a public body to change their mind.
LE - Underlying Policy - Rationale - list
- Principle of Certainty
- Principle of Legality
LE - Underlying Policy - Rationale - principle of certainty
> Actual retroactive effect: cases where a rule is applied to cover events that have concluded prior to its introduction.
- Strong policy argument against as against the rule of law as it hampers the ability of people to plan their lives.
> Apparent retroactivity: person may have planned her actions on the basis of a policy that was later altered (LE).
-The alteration of the law is prospective and not retrospective.
-Future rule change affected a plan that was made in the past.
- Weaker policy argument against: the state must have the power to change its policy for the future.
LE - Underlying Policy - Rationale - Principle of legality
> Clashes with certainty.
When the representation is intra vires, the individual should not be able to rely on it since the fettering of the exercise of discretion by the public authority would itself be ultra vires.
When the representation is ultra vires, the representation should not bind the public body.
Policy arguments in favour of LE - list
- Fairness in public administration
- Promoting reliance and trust in government.
- Equality.
- Formal conception of the rule of law.
Policy arguments in favour of LE - fairness in public administration
> Sedley J in Hamble Fisheries:
-It is not more unfair to frustrate a LE on the exercise of discretion than a LE on that the individual will have a fair hearing.
-The doctrine does not risk fettering a public body in the discharge of duties as no individual can legitimately expect that the discharge of duties should stand still because of an individual’s position.
Policy arguments in favour of LE - promoting reliance and trust in government
> Especially when there is detrimental reliance on a specific representation.
Policy arguments in favour of LE - equality
> Applicable in cases where PB departs from general policy in relation to a particular individual.
Like cases should be treated alike.
Policy arguments in favour of LE - formal conception of the rule of law
> As found in Raz’s work.
Policy arguments agains LE
> Government should be free to make policy changes.
- However, PFI contracts are long term and more restrictive than LE.
- LE has to be proven on the facts.
- PB can resile if it can prove that there are sufficient reasons.
- Thus, the impact is not that restrictive.
Development of LE - prior to Coughlan - list
- Hamble Fisheries [1995]
- Hargreaves:
- CA strongly disapproved Hamble Fisheries. - But there was authority for LE in cases of deviation from general policy in individual cases:
-Khan.
-Ruddock [1987]. - There was also authority for deviation form particular representations.
-R v IRC ex p. Preston [1985].
Development of LE - prior to Coughlan - Hamble Fisheries
> Sedley J argued strongly in favour of substantive LE.
-It is no less unfair than frustration of procedural LE.
Development of LE - prior to Coughlan - Hargreaves
> CA strongly disapproved of Hamble Fisheries.
Held that Hamble Fisheries was a ‘heresy’ and ‘wrong in principle’.
It could be read as opposing a doctrine of substantive LE.
Development of LE - prior to Coughlan - but there was authority for LE in cases of deviation from general policy in individual cases
> Khan.
Ruddock [1987]:
-The applicant sought JR of decision to intercept her telephone calls that conflicted with published criteria for telephone interception.
-There was a LE that the police should comply with the criteria unless a departure was required for national security.
Development of LE - prior to Coughlan - there was authority for LE in cases of deviation from particular representations
> R v IRC, ex p. Preston [1985] AC 835:
-The applicant was assured in 1978 by the IRC that it would not raise further inquiries on certain tax affairs if he agreed to forgo the interest relief he had claimed and to pay certain capital gains tax.
- However, it applied the provision of tax legislation in 1982 after receipt of new information on the same transaction.
-HL held that the Revenue couldn’t bind itself not to perform its statutory duty.
-But an intra vires exercise of statutory duty that frustrates LE would generate unfairness and amount to an abuse of power.
Development of LE - Coughlan
> Clarifies that there are 3 situations:
- LE does not arise in any form. The PB is only required to give weight to its representation as it sees fit before changing course. Review is conducted on the Wednesbury standard.
- Hargreaves and Findaly fit here. - Procedural LE arises
- Ng Yeun Shiu fits here.
- The PB cannot resile unless there is an overriding reason.
- The court must judge for itself whether the decision was fair. - Substantive LE arises.
-Frustration must be so unfair that it would amount to an abuse of power.
-The court must weigh the requirements of fairness against any overriding interest.
LE - Inquiry - steps
- Is the expectation legitimate?
-Factors taken into consideration. - Can the PB resile from the LE?
LE - Inquiry - steps - determining legitimate - factors
- Nature of the representation:
-Clear and unambiguous provides the strongest claim. Eg. Nadarajah.
-But the expectation can also arise from consistent conduct over a long period of time, even if not clear and unambiguous. - The more specific the representation the easier to establish LE: Hamble Fisheries.
- The expectation is not legitimate if:
-The applicant could have foreseen that the subject matter of representation was likely to alter or that it would not be respected by the PB.
-The applicant knew that the representor did not intend his statements to create an expectation. - If the applicant knew or ought to have known that an assurance could only be obtained in a particular way but the purported assurance was obtained in a different way, no LE: Matrix Securities [1994].
- Detrimental reliance will normally be required: Bibi.
- Does not need to be monetary loss.
-It can be a moral detriment flowing from disappointment when expectation is not honoured (Bibi [2002]).
- While in a strong case there is both detriment and reliance, there may be cases where there is reliance without measurable detriment: Bibi.
-Exception: when general policy is departed from in a particular case, detrimental reliance is not required. The values of fairness require protection irrespective of the presence of LE: Bibi. - The potential beneficiary must place ‘all cards face up on the table’, all relevant issues must be disclosed: MFK [1990]; Matrix Securities [1994].
- The courts will not readily infer a LE if it would confer an unmerited or improper benefit: Kingsley; Matrix Securities.
- LE could arise from the conduct of a local planning authority only in exceptional circumstances, such as where there was no 3rd P or public interest: R (Wandsworth LBC) v SoS for Transport [200].
LE - Inquiry - steps - can the LE be defeated? - list
> The standard of review:
1. Coughlan
2. Nadarajah
3. Bibi
