BCL Law Notes Comparative Public Law Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
The following is a more accessible plain text extract of the PDF sample above, taken from our Comparative Public Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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
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
Departure from policy in individual case
General policy less likely to guide conduct
BUT additional consideration of equality — even if no detrimental reliance
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
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...
Buy the full version of these notes or essay plans and more in our Comparative Public Law Notes.
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started