#3501 - Legitimate Expectations - Administrative Law

INTRA VIRES REPRESENTATIONS

Procedural Protection of LE – existence of some process right which C claims to have due to PB’s behaviour generating the expectation

• C’s interest by itself doesn’t warrant protection but public body’s conduct, through its representation, provides foundation for it

• AG of HK v Ng Yuen Shiu – although rules of NJ/fairness don’t generally apply to illegal alien, he could claim some elements of fair hearing if he had LE which could arise if govt. announced each would be interviewed & case treated on merits w/out guarantee of success.

• Elias: LE arising from govt. assurances enabled court to intervene – C’s status as illegal immigrant not sufficient in itself

• Representation giving rise to LE may supplement C’s existing procedural rights

• Liverpool Taxi Fleet Operators – council ltd no of licensed taxis, told Cs wouldn’t increase without consultation but did. Unclear if would have had rights without rep but, if so, content enhanced by reps. Denning: council ought not to depart from undertaking except after most serious consideration & hearing what Cs have to say, and then only if overriding public interest demands it.

• Where PB established criteria for application of policy, C relied on it & PB then seeks to apply a different one, can argue LE

• Khan – C sought to adopt brother’s kid from Pakistan, HO provided circular stating criteria used by HS, then rejected entry clearance b/c used different criteria instead. Held, whilst no specific undertaking, Liverpool Taxi principle applied. If HS stipulated certain entry conditions, couldn’t resile without affording C a hearing + only if public interest demanded it.

• Schmidt v HO[1969] –general HO’s policy was to allow aliens enter UK for study, Cs studied scientology which HS then deemed harmful & refused their app to stay; held: no right to extension or fair hearing – no breach of fair procedure. Denning: whether admin body is bound to give person affected opportunity to make reps depends on whether he’s got some right, interest or LE of which he wouldn’t be fair to deprive him w/out a hearing.

• US Tobacco International [1992] – company making oral snuff challenged the ban successfully b/c during consultation required by statute wasn’t given grounds for it (required before Min. could introduce new regime)

• R v Devon, ex p Baker[1995] – LA considering closing of residential home didn’t have a duty to notify & consult each resident who might be affected but had duty to act fairly & give sufficiently prominent notice + allow opportunity to make reps, give objections & consider them.

• Decision as to whether it’s OK to resile will be largely fact sensitive – assessment to determine if there are overriding reasons to justify the departure.

Substantive Protection of LE – C seeks particular benefit or commodity (e.g. welfare benefit, licence) & claim is founded on government’s action said to justify the existence of LE

Pre-Coughlan Law

• Unclear if SLE existed in UK law, especially where general policy relied on by C was replaced with different policy choice

• Hamble Fisheries – HF bought 2 fishing vessels w/purpose of transferring licences to larger one, Min. then changed policy, C argued breach of LE b/c of intro of severe measures with immediate effect + expenditure in reliance. Sedley LJ: policy/practice created LE protected by admin law. Test to review legality of policy changed isn’t irrationality – court will intervene where new policy decision was irrational – court will intervene if expectation has legitimacy which out-tops the policy choice.

• Court could intervene only where new policy decision was irrational, perverse or Wednesbury unreasonable

• Hargreaves [1997] – HS changed policy on prisoners’ home leave w/immediate effect in light of crime concerns. Held it would have severely traumatising effect on some prisoners but HO acted lawfully. Approach in Hamble Fisheries was ‘heresy’ & ‘wrong in principle’.

• SLE may exist where gen. policy/practice was departed from in circs of particular case

• Khan; R v SS for Transport, ex parte Richmond [1994] – in acc with statutory policy Min. announced new regulations on overnight flying, applicable to certain planes, failing to comply w/statute requiring specification of some factors.

Laws LJ:

1. Procedural protection – PBs by express undertaking/past practice/combination has represented it will give C right to be head before making the change in policy = LE of being consulted courts will enforce unless other considerations, e.g. national security, prevails

2. Substantive protection (doesn’t like word ‘substantive’ b/c still a matter of allowing time for procedure before changing!) – where court finds an assurance, may deem it unfair for PB to change it unless announces it in advance allowing C to make reps.

• No actual substantive protection of LE – policy change didn’t also have to be in public interest b/c not for courts to decide.Wednesbury unreasonableness already existed to limit the exercise of discretion.

Post-Coughlan Law

• Coughlan [2000] – C seriously injured in traffic accident, persuaded to move to different hospital because of Health Authority’s representations that house would be appropriate for needs + permanent. HA decided to close it & C argued breach of LE to have a home for life + Art 8 ECHR. Held: court’s role dependent on what C could legitimately expect:

1. PB only required to bear in mind previous policy/other rep giving it weight it considered fit before changing course – review on “Wednesbury” grounds (Hargreaves)

2. LE of being consulted before decision is taken (procedural)– court will require consultation unless there’s overriding reason to depart from it. Adequacy of reasons judged taking into acc fairness + exercise of “full review” to decide if it was fair (Ng Yuen Shiu)

3. LE induced by a promise– court will decide if frustration of expectation was so unfair that it amounted to “abuse of power”. Usually, cases where LE confined to one or few people (a la Coughlan)

• Craig: recognition of SLE is to be welcomed & was acknowledged by HL in subsequent cases. But divide should be treated with caution. May be that 1^st category was created to deal w/cases like Hargreaves which might otherwise prevent recognition of SLE (NB: now seems confined to cases where promise was merely to consider taking action)

• Begbie [2000] – Laws LJ:

• Abuse of power is the root concept – difficulty is the question of how breach of LE may be justified

• Fairness & reasonableness are objective concepts but each is a spectrum + shade into each other

• Wedn is a sliding scale review, intrusiveness depending on nature & gravity of subject matter. Substantive & procedural LE categories aren’t hermetically sealed – facts, viewed in statutory context, will steer the court.

• Some cases may affect questions of gen. policy involving public @ large & judges may not be in position to adjudicate, save for bare Wedn, without donning a garb of policy maker which it can’t wear. In others, court’s protection of C won’t be an offence to democratic power – few Cs, envisage clear consequences etc

• Many cases falling b/w these extremes/sharing their characterisation - the more DM’s decision lies in macro political field, the less intrusive court’s supervision will be..

• Was the expectation reasonable & legitimate?

1. Clear, unambiguous promise, undertaking, representation

2. Source – the more specific, the better

3. C’s foresight of likely alteration by agency

4. Countervailing reasons for PB to act as it did

• R(Luton) v SS for Education [2011] – SS decision to cease funding for schools under BSF project quashed, requiring him to reconsider. Cs argued SS failed to conduct proper consultation, consider individual circs &comply w/statutory duties + acted irrationally & breached LE that funding will continue. Held: decision so unfair as to amount to abuse of power but Cs had no SLE that funding will continue.

Standard of Review

1. Coughlan– 3 categories (as above)

1. Hargreaves type - Wednesbury

2. PLE - Full review

3. SLE - Abuse of power – ensure power to alter policy wasn’t abused by defeating C’s LE. Abuse can take many forms, incl. reneging on promise w/out lawful justification. Policy reasons for changing it are a matter for PB – court simply asks if this was just exercise of powers and whether overriding public interest demanded frustration of LE. Factors:

1. Sufficient overriding interest which outweighs the representation/justifies the change in policy

2. Relevant/overriding policy imperative

• By importing concepts such as overriding & outweighing, court provides itself at least w/an element of DM function normally preserved by PB.

• Bare irrationality test rejected – i.e. court intervening to quash decisions which defy logic b/c where there are 2 lawful exercises of power, PB can’t be made a judge in his own cause – can always justify infringement of LE from his point of view! Wednesbury in original form doesn’t strike the right balance b/w needs of admin & fairness to C b/c would require C to show agency’s decision was so unreasonable no reasonable agency would have taken it.

• But in Bibi it was suggested the role of court when SLE is in play is no different from any other case where lawfulness of its actions is called into question

• Craig:abuse of power doesn’t in itself furnish a standard of review but merely expresses the conclusion.

• Abuse of power isn’t a magic ingredient able to achieve remedial results which other forms of illegality can’t match...