#14842 - Legitimate Expectation Readings - Comparative Public Law

Legitimate Expectations

Nature of problem

Actual & Apparent Retroactivity — general policies

• Actual retroactivity —

  • Where rule introduced & applied to past events — eg retrospective application to events or earlier commencement date

  • Violates Rule of Law tenet that law should guide conduct

• Apparent retroactivity —

  • Where rule applies to events at the end of a transaction that is already in train — people have conducted their affairs according to policy expecting it to stay the same

  • Less objectionable — there is never a time when a policy can change without affecting plans

Tension — Legal Certainty <> Principle of Legality — representations

• Principle of legal certainty — individual should be able to conduct affairs in reliance on representations of public bodies

• Principle of legality —

  • If representation intra vires — Holding public body to representation amounts to fetter on discretion which is ultra vires

  • If representation ultra vires — Representation is beyond power so authority can’t be held to it

Justifications

Considerations militating against broad recognition of LEs

Flexibility of administration

• Argument arises from principle that public body precluded from making contract if is foreseeably incompatible with statutory functions — contract representation

  • BUT limits type of contracts that can enter, doesn’t void all contracts limit types of representations that create LE

  • Public bodies enter PFI contracts that fetter discretion for 20+ years

• Remedy based on LE still requires

  • proof of actual expectation etc

  • that public body not justified in resiling

Legality — for ultra vires representations/policies

• Authorities not bound by unlawful decisions

• Powers vested in public bodies on implicit condition that will be exercised lawfully

Arguments in favour

• Fairness in public administration

Legal certainty — reliance theory

• Individual representation — should be able to rely

  • Interesting that no Walton Stores v Maher in UK, so public<>private divide

• Derives from harm principle — government shouldn’t cause avoidable harm — akin to estoppel rationale

• BUT reliance is not & should not be necessary for protection

  • Departure from policy in particular case {2} offends equality

  • Departure from final decision {4} not tolerable even if no reliance

• Even in other cases shouldn’t be determinative

  • Shift in general policy — would be arbitrary to grant remedy to those who have relied but not others — eg prisoners after shift in release policy in Hargreaves

• Can’t be absolute — clearly public authorities will have to frustrate reliance of some individuals by changing policies — not all will be compensated

• Two theories merge at the edges — if ‘reliance’ includes mere disappointment ability to plan affairs = rule of law objection

Rule of law — autonomy & predictability

• Raz — law & policy should be capable of guiding conduct & individuals should be capable of conducting their affairs to comply with law

• Particularly important in public law to counterbalance broad discretionary powers

• Requires stability

  • Unless certainty guaranteed & flexibility reduced to some degree, a policy/representation is meaningless and application is arbitrary

  • Sedley J in Hamble Fisheries — substantive LEs do not fetter administration because not legitimate to expect public policy to stand still because of an individual’s particular position

• Requires equality — fairness

  • Like cases should be treated alike — ie no {2} departure from general policy without good reason

• Instrumental slant — trust in government & promotion of good administration

  • Trust in government is a good in itself

  • Trust in government’s representations can make it more efficient & make economy more fluid, investment more attractive, etc

  • Makes more likely to be perceived as legitimate

  • Threat of remedy under LE will make more likely to provide accurate advice, policies, etc

    • OR might incentivise to have no policies at all & act in arbitrary way — but to do so would threaten legitimacy / democratic popularity

  • Consistency w EU law

Normative justifications by category

1. Shift of general policy

   • Less likely to guide conduct — unless supported by specific undertaking policy would continue

     • Although nature of policy & therefore LE is the same as in {2} — only difference is nature of departure

   • Departure probably not unjust — flexibility arguments strong — but notice/presence of transitional provisions aid personal autonomy

2. Departure from policy in individual case

   • General policy less likely to guide conduct

   • BUT additional consideration of equality — even if no detrimental reliance

3. Individual representation

   • Rule of law justification strong — gives impression of finality so long as facts fully disclosed/true & don’t change

   • If ultra vires, positioned weakened by legality

   • Even if intra vires, possibly offends equality because mere representation not subject to full consideration & procedures

4. Individual finalised determination

   • Rule of law justification is strongest — very likely to guide conduct even if no detrimental reliance

   • If ultra vires, position is weakened by legality

UK

• Legitimate expectation = control on discretion by guaranteeing legal certainty

• Intra vires <> ultra vires representations

  • Intra vires representation — can give rise to LE in certain circs

  • Ultra vires representation — general rule that no LE, subject to certain exceptions

Intra vires representations

Background

Pre-Coughlan — procedural LE only

• Mixed authority as to LE in {1} shift in general policy —

  • Hamble Fisheries (1995) per Sedley J (H bought 2 small boats – intended to transfer fishing licence to larger boat – policy of Minister as to allow – policy changed policy can create LE)

    • Expressly rejected by CA in Hargreaves (1997) (sudden change in policy on prisoners’ leave no LE)

  • Unilever (1996) (IRC accepted tax refund claims after deadline for 25 years could not change)

• Generally accepted that LE in

  • {2} exception to general policy — Khan (policy re adoption of family members from abroad could not derogate in particular case except in overriding public interest)

  • {4} departure from individual representation — Preston (HL 1985) (P assured by IRC that would not demand certain taxes if forfeited interest relief IRC could not bind itself not to perform statutory duty – but could be if amounts to abuse of power)

    • No terminology of LE – but underlying reasoning clear

Coughlan — Sedley LJ recognised substantive LE

• Coughlan [2001] QB 213

  • C debilitated in traffic accident & cared for at hospital

  • Patients accepted move of facilities in reliance on rep that could live there for life

  • 5 years later, new facility closed & patients moved again

HELD (CA), finding LE & granting remedy

• Present case gave substantive LE

• Fairly creative decision

• Had to distinguish Harbury’s (CoA) & Findley (HL) which both denied existence of the doctrine

  • Where only expectation that C had was that would be treated fairly in accordance with the rules in place at the time – essentially Wednesbury unreasonableness

• Looked to decisions which didn’t use the terminology ‘legitimate expectation’ but could be justified on that basis

  • Preston (HL); HTB per Denning LJ – where representations by public bodies & court considered that representations were binding

  • Explained that reason was that representation had created legitimate expectation

    • Interestingly cf the private law – haven’t adopted Waltons v Maher as founding estoppel as a sword // Aus hasn’t adopted legitimate expectation

Categories of case in Coughlan

• Previous policy/representation a mere consideration — party left to rely on Wednesdbury unreasonableness

  • BUT really only to hive off previous cases: now only where original promise just to consider taking action

• Representation gives procedural LE — authority must consult unless overriding reason

• Representation gives substantive LE — cannot resile if would amount to abuse of power

2-stage analysis

1. Expectation reasonable & legitimate

• Clarity of representation

  • Clear & unambiguous promise — enforced unless good reason not to do so

  • Consistent conduct over a long period of time

• Specificity of representation

  • Individual statements / Reports / Agreement

• Stability —

  • If knew that intended not to create LE / might change

  • If alternative mechanism for obtaining proper representation

• Context can make LE difficult — eg where policy or conduct of authority rendered less significant by existence of comprehensive statutory code as in planning authorities

2. Unreasonable to defeat LE

Rationale

• Legality / abuse of power / need to ensure good administration

  • In 3^rd class of case — frustration of legitimate expectations = abuse of power = unlawful

  • BUT Abuse of power does not identify standard of review

    • Only that Court doesn’t find argument for departure from LE convincing = conceptual rationale

    • “Abuse of power” is conclusory only

Standard

• Rationality — rejected as too narrow in Coughlan

  • Only in 1^st class of case in Coughlan — where previous policy just a consideration — no LE

  • Where two intra vires exercises of power (making representation & resiling from it) — from point of view of authority, second decision will always be rational

    • = Wednesbury standard would require applicant to show that departure from representation so unreasonable that no reasonable agency would have done so

• Proportionality / or if legal duty to depart

  • Nadarajah (2005)

    • Asylum...