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Legitimate Expectation Readings Notes

BCL Law Notes > Comparative Public Law Notes

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Legitimate Expectations Nature of problem Actual & Apparent Retroactivity --- general policies
? Actual retroactivity ---
o Where rule introduced & applied to past events --- eg retrospective application to events or earlier commencement date o Violates Rule of Law tenet that law should guide conduct
? Apparent retroactivity ---
o 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 o 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 ---
o If representation intra vires --- Holding public body to representation amounts to fetter on discretion which is ultra vires o 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 o BUT limits type of contracts that can enter, doesn't void all contracts [?]
limit types of representations that create LE o Public bodies enter PFI contracts that fetter discretion for 20+ years
? Remedy based on LE still requires o proof of actual expectation etc o 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 o 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 o Departure from policy in particular case {2} offends equality o Departure from final decision {4} not tolerable even if no reliance
? Even in other cases shouldn't be determinative o 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 o Unless certainty guaranteed & flexibility reduced to some degree, a policy/representation is meaningless and application is arbitrary o 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 o 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 o Trust in government is a good in itself o Trust in government's representations can make it more efficient &
make economy more fluid, investment more attractive, etc o Makes more likely to be perceived as legitimate o 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 o Consistency w EU law Normative justifications by category

1. Shift of general policy

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

2. Departure from policy in individual case o General policy less likely to guide conduct o BUT additional consideration of equality --- even if no detrimental reliance

3. Individual representation o Rule of law justification strong --- gives impression of finality so long as facts fully disclosed/true & don't change o If ultra vires, positioned weakened by legality o Even if intra vires, possibly offends equality because mere representation not subject to full consideration & procedures

4. Individual finalised determination o Rule of law justification is strongest --- very likely to guide conduct even if no detrimental reliance o If ultra vires, position is weakened by legality


Legitimate expectation = control on discretion by guaranteeing legal certainty Intra vires <> ultra vires representations o Intra vires representation --- can give rise to LE in certain circs o 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 ---
o 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) o Unilever (1996) (IRC accepted tax refund claims after deadline for 25 years ? could not change)
? Generally accepted that LE in o {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)

o {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 o C debilitated in traffic accident & cared for at hospital o Patients accepted move of facilities in reliance on rep that could live there for life o 5 years later, new facility closed & patients moved again HELD (CA), finding LE & granting remedy o Present case gave substantive LE
? Fairly creative decision
? Had to distinguish Harbury's (CoA) & Findley (HL) which both denied existence of the doctrine o 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 o Preston (HL); HTB per Denning LJ - where representations by public bodies & court considered that representations were binding o 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 o 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 o Clear & unambiguous promise --- enforced unless good reason not to do so o Consistent conduct over a long period of time
? Specificity of representation o Individual statements / Reports / Agreement

?Stability ---
o If knew that intended not to create LE / might change o 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 o In 3rd class of case --- frustration of legitimate expectations = abuse of power = unlawful o 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 o Only in 1st class of case in Coughlan --- where previous policy just a consideration --- no LE o 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 o Nadarajah (2005)
? Asylum case
? Legislation --- if UK is 2nd asylum application, would return to country of 1st asylum application provided safe to do so
? {3} Policy --- would not return if applicant's spouse in UK, incl under asylum
? N's wife in UK, appealing rejection of asylum claim
? N made 2nd asylum claim in UK without knowledge of Policy
? Policy not applied because
? N's wife's claim rejected & on appeal
? N didn't know of policy so didn't rely on it HELD, dismissing N's appeal
? Detrimental reliance only a factor to be weighed in determining whether departure proportionate
? In this case, departure not disproportionate
? Also in Secretary's view of facts policy had no application in any event o Promise or consistent practice must be honoured unless good reason not to do so, incl where---

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