Admin Law - Legitimate Expectation

Question 1

Two different kinds of LE

Answer 1

1. Procedural LE:
   > Existence of a process right as a result of a promise or behaviour by the public body that generates the expectation.
2. 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.

Question 2

Substantive LE

Answer 2

> 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.

Question 3

Types of LE cases - list

Answer 3

1. The general policy has been altered (least moral force).
2. The general policy has been departed from in a particular case.
3. An individual representation to the person which the public body seeks to resile from due to change in general policy.
4. An individual representation followed by an inconsistent individualised decision (most moral force).

Question 4

Types of LE cases - the general policy has been altered

Answer 4

> 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.

Question 5

Types of LE cases - The general policy has been departed from in the particular case

Answer 5

> 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.

Question 6

Types of LE cases - an individual representation followed by an inconsistent individualised decision

Answer 6

> 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.

Question 7

LE - Underlying Policy - Rationale - list

Answer 7

1. Principle of Certainty
2. Principle of Legality

Question 8

LE - Underlying Policy - Rationale - principle of certainty

Answer 8

> 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.

Question 9

LE - Underlying Policy - Rationale - Principle of legality

Answer 9

> 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.

Question 10

Policy arguments in favour of LE - list

Answer 10

1. Fairness in public administration
2. Promoting reliance and trust in government.
3. Equality.
4. Formal conception of the rule of law.

Question 11

Policy arguments in favour of LE - fairness in public administration

Answer 11

> 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.

Question 12

Policy arguments in favour of LE - promoting reliance and trust in government

Answer 12

> Especially when there is detrimental reliance on a specific representation.

Question 13

Policy arguments in favour of LE - equality

Answer 13

> Applicable in cases where PB departs from general policy in relation to a particular individual.
Like cases should be treated alike.

Question 14

Policy arguments in favour of LE - formal conception of the rule of law

Answer 14

> As found in Raz’s work.

Question 15

Policy arguments agains LE

Answer 15

> 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.

Question 16

Development of LE - prior to Coughlan - list

Answer 16

1. Hamble Fisheries [1995]
2. Hargreaves:
   - CA strongly disapproved Hamble Fisheries.
3. But there was authority for LE in cases of deviation from general policy in individual cases:
   -Khan.
   -Ruddock [1987].
4. There was also authority for deviation form particular representations.
   -R v IRC ex p. Preston [1985].

Question 17

Development of LE - prior to Coughlan - Hamble Fisheries

Answer 17

> Sedley J argued strongly in favour of substantive LE.
-It is no less unfair than frustration of procedural LE.

Question 18

Development of LE - prior to Coughlan - Hargreaves

Answer 18

> 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.

Question 19

Development of LE - prior to Coughlan - but there was authority for LE in cases of deviation from general policy in individual cases

Answer 19

> 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.

Question 20

Development of LE - prior to Coughlan - there was authority for LE in cases of deviation from particular representations

Answer 20

> 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.

Question 21

Development of LE - Coughlan

Answer 21

> Clarifies that there are 3 situations:

1. 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.
2. 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.
3. 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.

Question 22

LE - Inquiry - steps

Answer 22

1. Is the expectation legitimate?
   -Factors taken into consideration.
2. Can the PB resile from the LE?

Question 23

LE - Inquiry - steps - determining legitimate - factors

Answer 23

1. 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.
2. The more specific the representation the easier to establish LE: Hamble Fisheries.
3. 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.
4. 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].
5. 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.
6. The potential beneficiary must place ‘all cards face up on the table’, all relevant issues must be disclosed: MFK [1990]; Matrix Securities [1994].
7. The courts will not readily infer a LE if it would confer an unmerited or improper benefit: Kingsley; Matrix Securities.
8. 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].

Question 24

LE - Inquiry - steps - can the LE be defeated? - list

Answer 24

> The standard of review:
1. Coughlan
2. Nadarajah
3. Bibi

Question 25

LE - Inquiry - steps - can the LE be defeated? - the standard of review - Coughlan

Answer 25

> Coughlan: the court is to determine for itself whether there was an abuse of power, weighing it against any overriding public interest.
-Rationality review is rejected. It would embrace decisions that frustrated LE since prioritising policy change over LE will almost always be rational even if arbitrary.
-Craig: abuse of power was used as the criterion for whether the public body acted unlawfully, however, abuse of power captures the conclusion that the public body’s reason for frustrating LE was unconvincing, it does not furnish a standard of review.

Question 26

LE - Inquiry - steps - can the LE be defeated? - the standard of review - Nadarajah

Answer 26

> A proportionality test was employed.
PB could frustrate expectations only when to do so was its legal duty or there was a strong public interest.
Detrimental reliance is a factor to be considered but not a necessary condition.
The underlying rationale of good administration was cited instead.

Question 27

LE - Inquiry - steps - can the LE be defeated? - the standard of review - Bibi

Answer 27

> The court might decide to remit the case back to the original decision-maker.
-Where a PB departs from LE, without even considering that it is in breach of a promise giving rise to LE, it is abusing its power.
-The decision is remitted back to the primary decision maker, with a duty imposed that it consider the breach of promise.
- There is an assumption that the public body will give effect to the expectation. If it is to depart from its promise it has to provide reasons that can be assessed in court.
-Craig: remitting the case sidesteps the problem of the standard of review.

Question 28

Ultra vires representation - list

Answer 28

1. Jurisdictional principle
2. Change of language
3. ECHR qualification

Question 29

Ultra vires representation - jurisdictional principle

Answer 29

> The agent acting for the public authority must have authority, actual or apparent to make the representation (law of agency).
Was the representation intra vires or ultra vires.
-It can be ultra vires if the representation is outside jurisdiction or the decision making cannot be delegated to the representor.
-If delegation is forbidden by statute apparent authority will not bind the principal since the representation is UV.
1. Western Fish:
- The planning officer did not have the authority to accept the user right of the applicant in running a fish farm.
- Under statute only the Planning authority could do so.

Question 30

Ultra vires representation - change of language

Answer 30

> Initially, the language of estoppel was borrowed from private law and applied in cases such as Western Fish.
In Reprotech, Lord Hoffmann stated that the language of estoppel was used as the public law concept of LE was underdeveloped, and stated a shift to the language of LE.
-However, estoppel cannot be more than an analogy since remedies against public authorities have to take into account the public interest.

Question 31

Ultra vires representation - ECHR qualification

Answer 31

> A legitimate expectation relating to property could be protected by Art .1 First Protocol of the ECHR even if the representation was ultra vires.
-First laid down by the ECtHR in Stretch, later followed in Rowland v Environment Agency [2005] Ch 1.

Question 32

Underlying Policy - argument against the jurisdictional principle

Answer 32

> Hardship to the individual when he reasonably relied on a representation and is left without a remedy.
-An individual is not always able to ascertain the scope of a PB’s power.
- Courts might overcome this by interpreting legislation so as to render the PB’s action intra vires rather than ultra vires.

Question 33

Underlying Policy - rationale for the jurisdictional principle

Answer 33

> To protect the ultra vires doctrine, as stated by Lord Greene MR in Hulkin (cited in Mathews [1950]).
-PBs would otherwise be bound to ultra vires representations.
-This would lead to the collapse of the UV doctrine as public officers will be enabled to extend their powers at will.
-The jurisdictional principle thus protects the public.
-The PB might extend its power intentionally.

> Counter argument by Craig:
-When the extension of power is intentional the doctrine unjustly imposes the loss on the innocent representee instead of the guilty PB.
-When it is inadvertent the doctrine does not have little deterrent effect.

> LE cannot be applied to prevent a PB from exercising its statutory duties or powers.
To allow an ultra vires representation to bind a public body could prejudice 3rd parties who might be affected.
-However, there are circumstances where the detriment to the public is outweighed by the detriment on the individual.