Admin Law - Legitimate Expectation Articles

Question 1

Justification behind the law - criticism: lack of coherence - list

Answer 1

1. Uncertainty on role of detrimental reliance.
2. Uncertainty on the role of expectation.
3. Uncertainty of macropolitical area with less intensive review.
4. Double deference.
5. Mistaken representations not binding.
6. Not giving consideration to promise makes it more likely to be binding.

Question 2

Justification behind the law - criticism: lack of coherence - uncertainty on role of detrimental reliance

Answer 2

> Justification for it not being required does not seem convincing.
-Schiemann LJ in Bibi: reliance can be without change of position since the lack of action can be in reliance, furthermore the weakest in society will be penalised since they have less choices, detriment is in the form of moral detriment due to disappointment at result; but then the applicant has not lost anything as a result of his expectation.
-Lord Kerr in Finucane: detrimental reliance is not required since consistency of treatment is required by the standards of good administration.

Question 3

Justification behind the law - criticism: lack of coherence - uncertainty on the role of expectation

Answer 3

> In some cases it was held that a clear and unambiguous representation is required and the representation must be understood: Begbie & Bancoult.
-But in Bancoult there was a 3-2 split on whether the statement was clear and unambiguous.
But in other cases it was held that an existing practice/policy would also suffice (Coughlan).
-Clayton: this is unsatisfactory as it is not appropriate to use the principle of LE, the principle of consistency is more suited.
Then in Mandalia it was held that expectation is not required: new wider principle of consistency: this gave the area of law more clarity, but it is uncertain what are its requirements including the standard of review.

Question 4

Justification behind the law - criticism: lack of coherence - uncertainty of macropolitical area with less intensive review

Answer 4

> In Coughlan, the provision of assisted living facilities was held not to be in the field of policy & a substantive outcome was ordered, but in Bibi housing of homeless was held to be in the field of policy and only a procedural remedy was ordered.
In BAPIO policy relating to the training of doctors was not held to be in the field of policy and a substantive outcome was ordered, but in Begbie a decision on the funding of students was held to be in the field of policy and no remedy was ordered.

Question 5

Justification behind the law - criticism: lack of coherence - double deference

Answer 5

> In both substantive review & determining the outcome in SLE cases.

Question 6

Justification behind the law - criticism: lack of coherence - Mistaken representations not binding

Answer 6

> In some cases it was held that these cannot give rise to LE: Begbie & Nadarajah.
It suggests that the rationale is good administration (of preventing intentional departures), rather than fairness, the applicant is required to bear the burden of the mistake.
But shouldn’t the principle of good administration also deter mistakes?

Question 7

Justification behind the law - criticism: lack of coherence - not giving consideration to promise makes it more likely to be binding: Bibi

Answer 7

> Suggests that the focus is more on the procedure of the decision rather than the substantive outcome in an SLE case.
Goes against the rationale of fairness, more of ensuring good administration.

Question 8

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - intro

Answer 8

> The general approach in Coughlan was correct but the standard of review could be further refined in order to render it more precise.
1. Case Law prior to Coughlan
2. Coughlan: principled justification
3. Refining the Approach in Coughlan
4. Effect of HRA
5. Conclusion

Question 9

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - case law prior to Coughlan - 3 Qs

Answer 9

> There was controversy as to 3 Qs:
1. Is there a free-standing principle of substantive LE in English administrative law at all?
2. In what specific circumstances may an individual be said to hold a reasonable or LE?
3. Is the standard Wednesbury reasonableness, or should the courts apply a more exacting standard of review?

Question 10

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - first question - list

Answer 10

> Is there a free-standing principle of substantive legitimate expectations in English administrative law at all?

1. First category of cases.
2. General policy has been departed from in a particular case.
3. General policy replaced by another policy.
4. Another line of authority which casts the existence of SLE into doubt.

Question 11

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - first question - first category of cases

Answer 11

> The judgments in Preston, MFK and Unilever are clearly authority for the existence of a principle of SLE in relation to representations or course of conduct.
Even though they are couched in terms of abuse of power and substantive fairness than LE.
It is unclear what would be the test for review if PA were to argue that there was public interest rationale.

Question 12

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - first question - general policy has been departed from in a particular case

Answer 12

> Khan:
-Alleged departure from policy on adoption of family members from abroad, Denning LJ required a hearing to be granted & overriding public interest before going back on LE.

> Ruddock: telephone call case.
-The test for review is unclear: in Urmaza it was stated to not be bare rationality but disproved in Gangadeen.

Question 13

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - first question - general policy replaced by another policy

Answer 13

> In Hamble Fisheries Sedley J came out strong in favour of SLE in such cases.
The test is not bare rationality but fairness (whether LE is more important than policy choice).

Question 14

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - first question - another line of authority which casts the existence of SLE into doubt

Answer 14

> Hargreaves
- Rejected Hamble Fisheries as wrong in principle & the court could only interfere if the administration’s decision was irrational.

Question 15

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - Coughlan: principled justification - list

Answer 15

> The issue of principle.
Groundwork laid by 4 propositions
Principled justification for the approach in Coughlan

Question 16

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - Coughlan: principled justification - issue of principle

Answer 16

> Mark Elliot contends that the Wednesbury test provides the proper standard of review in terms of constitutional principle.

Question 17

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - Coughlan: principled justification - groundwork laid by 4 propositions

Answer 17

> Separation of powers based on relative competencies of different branches, to sanction general judicial intervention simply because the court would prefer a different choice would lead to a reallocation of power.
Courts feel less reticent about considering the propriety of purpose & irrelevancy:
-Rationale is that the courts are merely demarcating the 4 corners of power ascribed to the decision maker by the legislature.
-Courts will often have a choice as to whether to characterise the issue raised by a case as going to, for example, relevancy rather than rationality.
While there should not be substitution of judgment there should be control in terms of rationality.
The very fact that the intensity with which the Wednesbury test is applied varies in cases of fundamental rights, is a recognition that the standard of rationality review should be defined in accordance with the nature of the interest in question.

Question 18

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - Coughlan: principled justification - principled justification for the approach in Coughlan

Answer 18

> We have already seen that the courts will take account of the nature of the applicant’s interest when fashioning the appropriate standard of review.
-It is generally acknowledged that cases where individual rights are affected by the exercise of administrative discretion are at the top of the hierarchy of interests which the law should protect. Cases involving a proven substantive legitimate expectation should properly be next on the list.
-Such an expectation, while falling short of a right stricto sensu, nonetheless carries a moral force or weight which should not be ignored when determining the appropriate standard of review.

1. First, by acting contrary to what it has led an individual to expect, a public body may cause that individual severe hardship.
   -Compensation based on tort or statutory compensation schemes are not a satisfactory alternative to substantive protection of expectations.
   -How would a lost chance of adoption from abroad be compensated.
2. Secondly, protection of LEs is closely linked with the RoL.
   -Thus, to protect LEs by principles of administrative law is a way of giving expression to the requirements of predictability inherent in the RoL.
3. Thirdly, a lack of respect for LEs may undermine trust in public authorities.
   -Trust is highly valuable because individuals are more likely to participate in decision-making processes, to co-operate with initiatives, and to comply with regulations devised by authorities which are perceived as trustworthy.
4. Finally, public authorities must comply with the general principles of EU law, including that of LE, in situations which fall within the scope of Community law.
   - The EU law principle of LE requires the English courtrs to go beyond review of bare rationality or Wednesbury unreasonableness.
   -If the test of review in purely domestic situations is bare rationality, the courts and the administration will have to apply different public law principles to what may in practice be very similar fact patterns.

Question 19

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - Refining the approach in Coughlan

Answer 19

> The approach was correct to go beyond bare rationality.
-That undervalues the nature of the applicant’s interest, and would provide scant protection for the individual.
Abuse of power does not in and of itself, provide a criterion for deciding whether the reasons advanced by the PA are sufficient.

> Proposed approaches:

1. Reason by analogy from the more intense application of the Wednesbury test used in cases concerned with rights: heightened scrutiny but relaxed.
   -Expectations are not normatively equal to HRs. They should therefore not be subject to exactly the same standard of review.
2. Formulation of the Wednesbury test suggested by Lord Cooke in ITF: whether the decision was one which a reasonable authority could reach.
   -However, it does not provide a standard of JR for cases of the kind under consideration here.
3. Proportionality
   - More precise, structured test of review than the notion of abuse of power applied in Coughlan.
   - Consideration of necessity.
4. Weighing, or balancing, the requirements of substantive fairness against any overriding interest relied upon for taking an action which would disappoint the expectation:
   - This balancing approach is somewhat lacking in precision.
   - Unclear what the extent of imbalance should be.
   - It is submitted that the courts should interfere with the administration only if there is a significant imbalance between the public & private interests at stake.
   - Less structured type of analysis than proportionality, but it is clearly a more precise standard of review than the notion of abuse of power in and of itself.
   -Strikes an appropriate balance between administrative autonomy & judicial control.

Question 20

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - Effect of HRA

Answer 20

> When the article was written HRA had just come into effect.
Conjectures:
-Cases might concern both LE & HRA.
-The HRA may therefore lead to a drop in the number of applications for JR being based on LE arguments.
-If a case raises both a claim under the HRA and an independent claim based on LEs then they should be decided separately, according to the standard of review appropriate to each.
- This was the way in which the court approached the matter in Couhglan where it dealt with breach of promise and the right to a home separately.

Question 21

Craig & Schonberg, ‘Substantive Legitimate Expectations after Coughlan’ [2001] PL 684 - conclusion

Answer 21

> Only time will tell how the courts will articulate the standard of review which should apply in cases of the kind considered in this article. The available options have been considered in the preceding section.

Question 22

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - Introduction

Answer 22

> This area of law is mainly concerned with striking a fair balance between public interest (in the PA retaining flexibility of decision making) and the private interests of individuals who have expectations on the way power is exercised based on past representations.
The article aims to highlight:
-Both common features & some important differences between distinct sort of case grouped together under the “legitimate expectations” heading.
-And to propose an outline for a systematic hierarchy of LEs, according to their nature & by reference to the degree of protection afforded to them.

Question 23

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - Underlying principles - list

Answer 23

1. Discretion
2. Interest of the individual

Question 24

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - underlying principles - discretion

Answer 24

> A discretion is conferred by statute, as Parliament wishes to ensure that the decision-maker should have flexibility to modify its exercise of power, in the light of changing circumstances, changing political judgments by democratically accountable bodies at national or local level or emerging detailed information about individual cases.
There is, on the face of it, a tension between the rule against fettering of discretion (British Oxygen case) and the doctrine of LEs.
This tension is symptomatic of a deeper tension, between the doctrine of LEs and the very rationale of conferring discretion - ensuring flexibility.
The justification for legal protection of LE is the need for fairness, predictability, legal certainty.

Question 25

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - underlying principles - interest of the individual

Answer 25

> No scope for the simple transposition of private law estoppel rules into the public law field.
-Protection for mere expectation:
1. Unilever: PAs “are required to act in a high-principled way, on occasions being subject to a stricter duty of fairness than would apply as between private citizens.”
-PAs have to weigh up the public interest.

Question 26

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - Requirements for protections of SLE

Answer 26

> Conditions which should be satisfied before a decision-maker is bound to a LE to confer a substantive benefit:

1. That at the time of representation the decision-maker had specific and precise information and was in a position to make a full and accurate assessment of the implications.
   - There is less infringement in flexibility.
2. That the individual concerned has suffered significant detriment by acting in reliance on the assurance.
   -In PLE cases, the restriction on flexibility to change substantive results of decisions is minimal, hence there is no pressing reason why detrimental reliance should be taken into account.
   -But in SLE cases the intrusion is much greater: PA cannot reach any other conclusion so DR ought to be a prerequisite.
3. That there is no overriding public interest which would justify the decision-maker in departing from the assurance.

Question 27

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - categories of SLE - intro

Answer 27

> Intermediate category of SLE, the courts will impose a higher standard of protection than in category (a) cases, but the form of that protection will be less than in category (c) cases and will instead assume the form of procedural protections.
-LE may be defeated provided that procedural protection is provided.

> Laws LJ’s judgment in Begbie offers a useful sketch of the framework the category of a case can be identified.
-Solution: balance the interest in PAs retaining flexibility in their decision-making against the private interests of individuals.

Question 28

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - classes of cases - class a

Answer 28

1. Class A
   - Case falls in the ‘macropolitical’ field: precedence given to flexibility/public interest is less marked (Wednesbury). (As stated in Begbie).
   -Case where there is no detrimental reliance, although the precedence of flexibility/public interest is less marked (Wednesbury); as in Begbie.

Question 29

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - classes of cases - class c

Answer 29

> Significant detrimental reliance; PA has the onus of persuading the court that there is overriding public interest.
As in Hamble Fisheries, there was overriding public interest in the policy change.

Question 30

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - classes of cases - intermediate class

Answer 30

> No substantial weight attached to flexibility, but falling short of class a.
No significant detrimental reliance.
Less substantive intrusion by the court thus the requirement that the claimants be small in number is weaker.
Any protection here is also subject to overriding public interest.
As in Bibi.

Question 31

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - appropriate standard of review

Answer 31

> A class of hybrid expectation in the intermediate category to which we referred above, that is, an expectation of a substantive benefit which may warrant procedural rather than substantive protection (should be treated like category 3 in Coughlan).
The application of mere Wednesbury review would undermine the court’s finding that the individual has an important interest, founded on the constitutional idea of the rule of law, which requires a high degree of predictability as to the behaviour of a public authority.
ECHR type proportionality test.
Questions whether the CA in Coughlan carried out the relevant balancing test appropriately.

Question 32

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - appropriate standard of review - ECHR type proportionality test

Answer 32

> Advantage: more structured conceptual framework.
However, it would be inappropriate to import it wholesale into this context.
It is a model of reasoning which works best n relation to infringement of defined rights, and for specified legitimate objective.
But there is no instrument like the ECHR in the context of LE that defines things.
In some cases, the requirement of necessity is appropriate (no other means by which some particular legitimate aim may be satisfied).
But in other cases, the LE may be sufficiently weak as to be overridden by a competing public interest, so long as going back on the representation is in itself a reasonable way of meeting that interest (Wednesbury).

Question 33

Sales & Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’ [2004] PL 564 - appropriate standard of review - Questions whether the CA in Coughlan carried out the relevant balancing tests appropriately.

Answer 33

> It is unclear from the reasoning of the court quite why the interests of the applicant should outweigh those of others to whom the health authority also had to provide services, under conditions of limited resources.
Discretionary decisions as to the allocation of finite resources subject to many competing individual demands are generally left to bodies subject to democratic accountability.

Question 34

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - meaning of abuse of power - general

Answer 34

> An abiding principle which underpins the LE is that the power should not be abused.
However, it does not tell you case by case what is lawful and what is not.

> The term is deployed in 5 distinct senses:
1. Most general sense: a name for any act of a PA that is not legally justified.
2. Used not as an ex ante guide to judicial reasoning but as an ex post tool for justifying a decision that seems instinctively correct.
3. Used to loosen the requirements of the LE doctrine.
4. Used in a technical sense as in Coughlan.
5. Even more technical reading of abuse of power in Begbie.

Question 35

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - meaning of abuse of power - most general sense

Answer 35

1. Most general sense: a name for any act of a PA that is not legally justified.
   >It is empty of any specific meaning.

Question 36

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - meaning of abuse of power - used not as an ex ante guide to judicial reasoning but as an ex post tool for justifying a decision that seems instinctively correct

Answer 36

> Such as in Rashid and A where the applicant was unaware of the policy and there was no breach of LE.
But rather unfairness amounting to an abuse of power.
Hence, it is used when the facts do not engage the normative concerns underlying LE.
Elliot: Hence abuse of power was used to extend the LE doctrine into unsuitable territory.

Question 37

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - meaning of abuse of power - used to loosen the requirements of the LE doctrine

Answer 37

> It was applied in Unilever.
-On the facts no LE arose, but the superadded element of abuse of power permitted it to intervene.

Question 38

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - meaning of abuse of power - use in a technical sense as in Coughlan

Answer 38

> Reneging on the undertaking which had founded a LE was unlawful as it constituted an abuse of power.
It arises where the court takes the view that the justification for frustration is insufficient to outweigh the detriment occasioned to the claimant.
In Nadarajah, it was taken that proportionality is the operative principle in LE cases.
Hence, it is uncertain what abuse of power adds to proportionality.

Question 39

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - meaning of abuse of power - Even more technical reading of abuse of power in Begbie

Answer 39

> Laws LJ: if there has been an abuse of power, I would grant appropriate relief unless an overriding public interest is shown.
Hence, abuse of power is conduct that is prima facie wrongful but might still be lawful.
This is a wrongful analysis of Coughlan and situates at abuse of power at the same place in the adjudicative process as whether a LE had risen and been breached.
Hence, Laws LJ was right to doubt the usefulness of abuse of power in LE cases.

Question 40

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - meaning of abuse of power - conclusion

Answer 40

> The concept is either too general to be helpful, used to stretch existing principles which might better be supplemented or developed; or not distinctive, in that it adds little if anything to existing doctrinal tools. In the search for principle in LE cases, we must therefore look elsewhere.

Question 41

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - Proportionality - intro

Answer 41

> Laws LJ recognised that the legality in LE cases is determined by the doctrine of proportionality.
This analysis should be welcomed.
It makes explicit something which appeared to be sanctioned but not openly acknowledged as long ago as in 1999 in Coughlan.
However, it sits uncomfortably with ABCIFER which stated that Wednesbury not proportionality should be the test applied in a case that does not involve community law or convention rights.
Proportionality should be deployed in all LE cases as rightly stated by Laws LJ, whether procedural or substantive - this is open to question.
-Consequences on the ability of the PA to act in public interest is much greater when a court rules a particular decision was unlawful than when it rules that its process was defective.

> Courts have shown themselves more reluctant to recognise as LE as to the substance of a decision.
-CA in Coughlan stated that they only arise where the LE is confined to one person or a few people giving it the character of a contract.
-Bibi showed in the 2nd stage of the inquiry that the court could rightly evaluate the lawfulness of the decision to frustrate SLE other than by reference to the proportionality.

Question 42

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - Proportionality - reasons for different standards

Answer 42

> Certain factual matrices will raise polycentric questions that make the intensive review seen in Coughlan inappropriate.
Earlier in Begbie, Law LJ himself stated that certain “changes of tack” by a public body may raise such general questions of policy as to preclude judges from adjudicating on the frustration of legitimate expectations “save at most on a bare Wednesbury basis”.

Question 43

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - Proportionality - overall remarks

Answer 43

> It is now clear that a court may conclude that a substantive LE has arisen, but that it falls to be protected simply through judicial insistence that it be taken account of before a decision impacting upon it is taken.
-In Bibi, the court accepted that Cs had SLE held that due to the “social and political value judgment” the provision of housing involves the court’s role was confined to making an order requiring that the decision be remade taking due account of the promise made.
Proportionality has no place to play in such a case.
-Hence it is “judicial control of the reasoning process”
Thus, even when SLEs are in play, the court’s assessment of the legality of the decision to frustrate may turn upon considerations other than proportionality.

> Doubts extend to cases concerning procedural legitimate expectations.
-As in Ng Yuen Shiu, the court decides that if a public body’s representations have led individuals legitimately to expect that they will be accorded a form of hearing before being deported, the court will simply quash a decision reached in the absence of a suitable hearing, rather than asking whether a failure to provide such a hearing is proportionate to some competing public policy aim.

Question 44

Elliot, ‘Legitimate Expectations and the Search for Principle’ [2006] - Conclusion

Answer 44

> There is both empirical and principled grounds for questioning whether proportionality should be the overarching principle for the doctrine of LE.
Following Coughlan, proportionality is used in some SLE cases.
But other tools are available.
The tool used depends on the type of LE in play, and in light of the extent of the clash between the expectation holder’s and community’s interest is appropriate for the judges to assess.
These considerations inform:
-The difference in approach between SLE and PLE.
-And the differences within SLE.
-And rest on sound normative foundations.

Question 45

Sales, Legitimate Expectations - Intro

Answer 45

> The doctrine of LE is adapted to the weight of conflicting public law reasons in favour of greater or lesser decision-making flexibility for PAs at the point of actually deciding what to do in specific cases.
Distinction between PLE and SLE.
When may a LE be overridden.

Question 46

Sales, Legitimate Expectations - Distinction between PLE and SLE

Answer 46

> The balance which the doctrine of LE has to strike in concrete terms between treating a PA as bound by its earlier (rather than present) assessment of the overall public interest and allowing it freedom to decide how to behave in the light of its present assessment arrived at in light of the specific facts of particular cases, one would expect in principle to find a difference in approach as between procedural and substantive cases.

• The pressures for preserving freedom of choice for a public authority in the present are far less in the case of procedural LEs than in the case of substantive LEs (directed to the outcome on the merits).
  -The more the PA has had, at the advance stage, clearly in mind the particular ramifications of its representations or policy for the type of concrete decision which it eventually has to take and has deliberately chosen a particular outcome, the more readily one would regard it as legitimate for the courts to intervene.
  -Conversely, the further away one is from that situation, the stronger the argument for retention of freedom of action for the PA in the light of full information about current circumstances.

> On the analysis presented above, the dichotomy between procedure and substance does have important things to say about the reach of the duty of good administration, and there is good reason why that dichotomy should inform the test for determining when a protected LE will be held to have arisen.

Question 47

Sales, Legitimate Expectations - When may a LE be overridden

Answer 47

> A proportionality approach might be said to be rather narrowly expressed for other reasons as well.
Sometimes, the reason a LE may be departed from is that the PE behaves fairly in doing so, rather than because the departure is itself proportionate to some overriding public interest.

Question 48

Daly, ‘Vires Revisited’ [2016] - ultra vires theorists

Answer 48

> Their view is that through judicial review, the court is merely interpreting the statute enacted by Parliament which gives effect to the public body’s power.
As it is Parliament which provides, by implied intention, that the Courts should exercise JR, the overarching principle of Parliamentary Sovereignty is maintained.

Question 49

Daly, ‘Vires Revisited’ [2016] PL 190 - Common law constitutionalists

Answer 49

> The principles of JR are derived from common law.
The judiciary developed, what were to its mind, normatively defensible controls on grounds such as justice, good administration and the RoL.
Parliamentary sovereignty is also maintained, albeit in a negative form, as Parliament can specify when such judicially developed controls are not available.

Question 50

Daly, ‘Vires Revisited’ [2016] PL 190 - 2 schools of though

Answer 50

> 2 schools of thought emerge as to the proper remedy to this mischief.

1. The first advocates maintaining the orthodox position, but relieving the aggrieved citizen through an alternate channel,
   >For instance, by compensation:
   -This could be satisfied through invocation of the jurisdiction of the Parliamentary Ombudsman, through creation of a legislative remedy or by developing the tort of negligent misstatement.
   -Alternatively, a public authority could exercise its powers benevolently, so as to minimise as far as practicable the individual’s detriment: M. Elliot, Beatson, Matthews, & Elliott’s Administrative Law.
2. This is to be contrasted with the second school of thought, headed by Craig.
   >He proposes that the courts ought to entertain a “balancing” exercise between the principle of legal certainty on the one hand and the principle of legality on the other. In other words, the court could balance the detriment which would occasion the individual if an expectation were to be frustrated as against the public interest in ensuring that the law is applied consistently to all and not having to bear the expense of effectuating the expectation, financially or otherwise.
   >It might be noted that, in the case of tax, the detriment to the individual will be much greater than the detriment to the public, taken from a purely fiscal perspective.

> It should hardly be surprising that these 2 schools of thought broadly equate to those on separate sides of the debate as to the basis for JR.
The ultra vires theorists are wont to protect the principle of Parliamentary Sovereignty, whilst common law theorists are less constrained by this issue, thereby rendering the effectuation of unlawful representations more palatable for common law constitutionalists.

Question 51

Daly, ‘Vires Revisited’ [2016] PL 190 - this balancing approach should be applied to tax cases

Answer 51

> The cost for the public is small since it is spread out over the public.
On the other hand, individuals who have structured their long-term affairs on the basis of the previous HMRC guidance would be caused serious detriment in having such reliance rescinded,
-E.g. as it might be necessary to take out a loan, break-up a pension pot or sell assets, in order to pay the tax bill which some 10 years previously the individuals had been assured, by the PA itself, would not arise.
-This itself could be characterised as a misuse of powers, which would also be beyond the powers of the HMRC.
To this end, the “balancing” approach in the case of unlawful representations by HMRC may accord with the approaches of both the common law & ultra vires theorists.
-It seeks not to balance an ultra vires act against an intra vires act.
-Rather, it balances 2 acts which are simultaneously beyond HMRC’s powers, namely purposefully failing to collect tax and failing to effectuate a representation thereby causing significant detriment to an individual.

> Practical argument:
-The compensatory approach however is unmistakably circular.
-It would require public funds to be raised, inevitably from taxing the public, to compensate the impugned taxpayer, who would have already paid an amount equivalent to the compensation into the public purse!
-Not only is circularity, in and of itself, quite a nuisance, but it also places an additional pointless, administrative burden upon HMRC.