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Legitimate Expectation Readings 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 publicprivate 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

UK

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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