Chapter 5: Legitimate Expectation Flashcards

Question

4.1.2 Past practices R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs [2011] UKSC 47

Answer 1

In R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs [2011] UKSC 47, Lord Wilson held that, in order to establish that the HMRC had a settled practice in respect of the claimant taxpayers, there would need to be: […] evidence that the practice was so unambiguous, so widespread, so well-established and so well recognised as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it. On the facts, the taxpayers’ evidence was far too thin and equivocal to establish such a practice.

Answer 2

A representation must be legal in the sense that it would be within the powers of the public authority to fulfil the ‘promise’ in question. Therefore, a LE can only arise on the basis of a lawful promise or practice.

Answer 3

An undertaking that any children already on a government-funded scheme at an independent school would be able to continue on that scheme was held not to have generated a legitimate expectation. One of the reasons given by Peter Gibson LJ was that it would have been contrary to the requirements of statutory provisions - the Education (Schools) Act 1997.

Answer 4

The claimant sought a declaration against the Environment Agency, after it changed its position on ownership of a stretch of waterway. For some years the waterway had been treated as a private right of way attached to the claimant’s property. However, the Agency later decided that it had always provided for public access. The Court of Appeal held that, as there had been no statutory power to extinguish the public access rights, the claimant could not rely upon the Agency’s past conduct to found a legitimate expectation.

Answer 5

* The promise giving rise to the alleged legitimate expectation does not in all circumstances necessarily have to have been made by the person or body who may be bound by it.For example, in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27 Lords Mance and Rodger, in the majority, held that a promise made by one government department (the Home Office) was binding upon another government department (the Department for Health).

Answer 6

An expectation can still be legitimate where the public authority made a promise in the mistaken belief it was under a statutory duty to do what it had promised to do. In R (Bibi) v Newham LBC [1996] EWHC Admin 4 the Court of Appeal held that, even though it had become apparent to the local authority that they did not have a statutory duty to provide permanent housing to the applicant ‘it lay within the powers of the local authority both to make the representation and to fulfil it’.

Answer 7

An agent is someone who is authorised to act on behalf of another person or body. The Court of Appeal in South Buckinghamshire District Council v Flanagan [2002] EWCA Civ 690 established that a public body will not be bound by a representation of one of its agents where the agent acted outside his authority in making the representation.

Answer 8

In this case, a solicitor had been appointed by the District Council to prosecute the defendant for breaching enforcement notices. The solicitor reached a settlement with the defendant’s lawyer, under which he agreed to the withdrawal of the enforcement notices.

Answer 9

The court held that the solicitor had not been given actual authority by the council to do so. Neither did he have ‘ostensible authority’, as it did not lie within the usual authority of a solicitor acting in these circumstances. Therefore, the Council was not bound.

Answer 10

The question here is whether a person can claim they had a legitimate expectation when they had no knowledge of the representation, or past practice, at the relevant time (before the action, decision etc).

Answer 11

The accepted position had been that knowledge was an essential prerequisite. In R v Ministry of Defence, ex parte Walker [2000] 1 WLR 806, the House of Lords held that the applicant did not have a legitimate expectation because he had no knowledge of the original criteria in the armed forces compensation scheme that he was trying to rely upon. His beliefs concerning compensation were not derived from the scheme.

Answer 12

However, knowledge has not always been required to found a legitimate expectation. While considering whether a legitimate expectation could be generated by signing a treaty, Hobhouse LJ opined in R v Secretary of State for the Home Department, ex parte Ahmed and Patel [1998] INLR 570 that: ‘[T]he principle of legitimate expectation […] is a wholly objective concept and is not based upon any actual state of knowledge of individual immigrants or would-be immigrants […]’.

Answer 13

In an interesting development of the courts’ approach to knowledge in the context of asylum and immigration policy, it was held in the case of R (Rashid) v Secretary of State for Home Department [2005] EWCA Civ 744 that the applicant could benefit from a policy of which he had no knowledge.

Answer 14

Accepted in his judgment that this was not a typical legitimate expectation case. Even so, the recognition of a legitimate expectation in the absence of knowledge in Rashid has divided opinion among legal commentators and has certainly not been met with universal acceptance amongst the judiciary.

Answer 15

In Secretary of State for the Home Department v Rahman [2011] EWCA Civ 814, Stanley Burnton LJ remained of the view that legitimate expectation as a concept normally served no purpose in cases where there had been no representation, by words or conduct, by the public authority to the claimant seeking to rely on it. It followed that the applicants in that case could not rely upon a policy they had no knowledge of.

Answer 16

A common argument in favour of the doctrine of legitimate expectation applying absent knowledge is that the principle of ‘good administration‘ requires public authorities to apply their own internal policies consistently to all cases.

Answer 17

However, there is already a principle of administrative law that a policy adopted by a public authority must be consistently applied and can only be departed from with good reason. It was first outlined by R v Secretary of State for the Home Department, ex parte Urmaza (1996) The Times 23 July, and was later endorsed by Lord Dyson in Lumba v Secretary of State for the Home Department [2011] UKSC 12

Answer 18

The current consensus is, therefore, that there are essentially two doctrines at play in this area: the more established doctrine of legitimate expectation, which, in the policy field, logically and intuitively requires an individual to know about a policy line on which they are seeking to rely; and a parallel, but different, doctrine of consistency in application of policy. (This approach has been reinforced in cases such as R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23 and Mandalia v Secretary of State for the Home Department [2015] UKSC 59.)

Answer 19

Is it necessary for a party to have relied on an expectation for it to be deemed legitimate? Early case law suggested that anyone seeking to benefit from a substantive expectation would have to demonstrate that they had relied upon that expectation to their detriment. This assumption has been eroded in subsequent cases.

Answer 20

In R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, Peter Gibson LJ accepted that detrimental reliance was not essential, but concluded that: […] it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation

Answer 21

(discussed above) adopted the view that detrimental reliance should normally be required, but not where, for example, a public body seeks to depart from an established policy. The court added that, in its judgement: […] the significance of reliance and of consequent detriment is factual, not legal […]. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation.

Answer 22

The current approach has evolved to one where reliance is a non-determinative factor, albeit one that the court must consider. In R Bancoult v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453, Lord Hoffmann observed that: It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power

Answer 23

Although a legitimate expectation may have arisen in a particular case, this does not necessarily mean that the court will ultimately protect the expectation; its frustration can be deemed not to have been unlawful by the court in certain circumstances.

Answer 24

It is notable that the courts impose the burden of proof in establishing that a frustration was lawful on the public body seeking to defend itself in this way. Lord Dyson made the following point in the Paponette case: The critical question in this part of the case is whether there was a sufficient public interest to override the legitimate expectation to which the representations had given rise. This raises the further question as to the burden of proof in cases of frustration of a legitimate expectation.

Answer 25

In this area, the courts have generally concluded that the importance of fairness will dictate that the expectation be fulfilled. The case of the Liverpool Taxi Operators’ Association provides a good example. (See the end of this chapter for more details on this case.)

Answer 26

However, the courts will accept that the frustration of a procedural legitimate expectation was not unlawful when there are compelling public interest reasons. This was the final result of the GCHQ case, where the law lords accepted the government’s argument that it had been necessary to frustrate the expectation of consultation, because significant national security interests dictated the need for speedy, executive action.

Answer 27

In such situations, the court will essentially consider the adequacy of the reasons advanced, taking into account what fairness requires.

Answer 28

Assessing the lawfulness of the frustration of a substantive legitimate expectation has proved more problematic. This has been because of judicial caution about fettering the ability of public authorities to change policy and more general concerns about the degree of appropriate judicial intervention in decisions made by the executive (in the wider context of the separation of powers balance). Competing judicial approaches, based on rationality and fairness, emerged and the evolution of the law in this area has not always been clear and consistent.

Answer 29

Concerned the introduction by the Home Secretary of a new policy to deny parole to certain classes of prisoners unless there were exceptional circumstances. This adversely affected the four applicants, who all had excellent prison records and had expected parole to be granted within the following year under the previous policy. The law lords approached the matter with what could be called a more cautious and deferential take on policy change.

Answer 30

It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy.

Answer 31

He denied that the decision in Re Findlay meant that no expectation, however reasonable, could survive a change in policy. He maintained that bare rationality, with reference to the Wednesbury standard, was not the only criterion, and that there was also a duty to exercise powers fairly.

Answer 32

Judicial debate continued, and in R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 WLR 906, the Court of Appeal criticised the approach in Hamble Fisheries and stated that, whilst a court could inquire into the fairness of the procedure followed, it could only interfere in a substantive decision if it was Wednesbury unreasonable.

Answer 33

This decision in Hargreaves was viewed by some commentators as virtually undermining the whole doctrine of substantive legitimate expectation, but the law moved on reasonably quickly thereafter, and the Court of Appeal provided further guidance in the important case of Coughlan.

Answer 34

In this case, the Court of Appeal held that the assessment of whether a legitimate expectation could be lawfully frustrated depended on the nature and context of the particular legitimate expectation

Answer 35

(a) Where the legitimate expectation is only that the public authority should bear in mind its previous policy or other representation, the court is confined to reviewing it on grounds of Wednesbury unreasonableness. (This is what happened in Re Findlay and Hargreaves.)

Answer 36

Where there is a procedural legitimate expectation, the court will require the procedure to be complied with, unless there is an overriding reason to resile from it. The adequacy of the reason will be assessed on the basis of fairness

Answer 37

(c) Where there is a substantive legitimate expectation, the court can now also decide whether the frustration of the expectation was so unfair as to amount to an ‘abuse of power’. The court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.

Answer 38

In the case the applicant had been left severely disabled after a car accident. She had moved to Mardon House, a purpose-built facility for young, long-term, severely disabled residential patients in 1993 with a number of residents from a hospital, after they had been promised that they would be able to live there for as long as they chose. By 1998, however, only three patients remained at Mardon House, and the health authority decided to close it for financial reasons

Answer 39

The Court of Appeal held that the decision was unlawful. Coughlan had been clearly promised a home for life at Mardon House. The health authority had not treated its promise to provide a home as distinct from its duty to provide care or funding for care. It had not even sought to offer the applicant a reasonably equivalent facility to replace what was promised to her. It was unfair for the health authority to have resiled from its promise in these circumstances – this amounted to an abuse of power.

Answer 40

The reasoning in Coughlan was applied and developed in R v Secretary for Education and Employment, ex parte Begbie [2000] 1 WLR 1115. Laws LJ stated that the categories in Coughlan were not ‘hermetically sealed’ and each represented a point on a scale. He suggested that decisions that lie within the ‘macro-political‘ field should attract a less intrusive approach by the courts (ie a Wednesbury standard of review), and those lying outside that field a higher intensity of review.

Answer 41

The discussion relating to the ‘macro-political‘ context reflects a continuing general wariness in the courts about interfering too deeply in areas which are constitutionally seen as the province of the executive and where the courts do not possess particular competence or expertise.

Answer 42

In R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, (a case considered in the context of prerogative power), the Court of Appeal held that a legitimate expectation arising out of government policy concerning diplomatic relations, whilst not inherently unjusticiable, would attract a particularly light intensity of review.

Answer 43

The courts’ approach to the question of the lawfulness of the frustration of a legitimate expectation has subsequently developed further to incorporate the concept of proportionality.

Answer 44

This development forms part of a trend towards the adoption of proportionality as a more structured form of review in domestic cases generally. It is reflected by parallel developments in the other main area of substantive judicial review, unreasonableness, as evidenced in the cases.

Answer 45

In the context of legitimate expectation, this is an important case. In obiter, Laws LJ said that a proportionality approach should be adopted to determine whether both procedural and substantive legitimate expectations can be lawfully frustrated.

Answer 46

Accordingly, a public body’s promise or practice as to future conduct may only be denied, where to do so is […] a proportionate response […] having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.

Answer 47

This approach makes no distinction between procedural and substantive expectations […] the question in either case will be whether denial of the expectation in the circumstances is proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case

Answer 48

Thus, where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure […]. On the other hand, where the government decision-maker is concerned to raise wide-ranging or “macro-political” issues of policy, the expectation’s enforcement in the courts will encounter a steeper climb.

Answer 49

Proportionality has been used as the standard of review in a number of subsequent cases of differing complexions.

Answer 50

The decision to implement a road scheme, which failed to follow the past practice of consultation, was held to be proportionate because of the need to deliver the scheme as soon as possible in order to avoid more fatal or serious accidents on that road. The order to implement the scheme was only temporary and would allow enough time for a public inquiry before a decision was made on whether or not to make it permanent.

Answer 51

Similarly, see R (W) v Secretary of State for Education [2011] EWHC 3256 Admin where the decision by the Secretary of State to prevent a teacher from working with children, despite a promise that no further action would be taken against him, was considered a proportionate response. This was because of the important public interest in protecting children from abuse by people in positions of trust; there was evidence against him, and there was an appeal process available.

Answer 52

It is important to note that, in high policy or macro-political contexts, where the court does not feel equipped or entitled to apply the more intrusive proportionality standard of review, it will revert to a rationality (ie Wednesbury) approach.

Answer 53

In this case, the applicant had been given an undertaking by the Secretary of State for Northern Ireland that a public inquiry would be held into allegations of collusion by the security forces in the murder of her husband, a prominent lawyer in Northern Ireland, by loyalist paramilitaries

Answer 54

Following a general election, a new government decided not to hold a public inquiry on the ground that it would be potentially lengthy, costly and procedurally difficult and might be unworkable in light of national security issues. It decided to hold a paper-based review by an independent person instead.

Answer 55

The Supreme Court held that, where a decision concerning macro-political issues was made in good faith on genuine policy grounds, it would be very difficult for a person to enforce compliance with a legitimate expectation. The decision not to hold the public inquiry was held to be lawful on this basis.

Answer 56

In this chapter we have considered aspects of legitimate expectation, including: * The two types of legitimate expectation: - Procedural: where a public body has either promised that a particular procedure will be followed, or past practice indicates that it should be followed. - Substantive: where a public body makes an assurance or a promise that has led a person to believe they will receive a particular, tangible benefit

Answer 57

- Has an expectation arisen? An expectation could arise in the context of an express promise (in a specific or policy representation), or through established past practice. - Is the expectation legitimate? Factors to consider may include clarity, legality, agency, reliance and knowledge.

Answer 58

- Has an expectation arisen? An expectation could arise in the context of an express promise (in a specific or policy representation), or through established past practice. - Is the expectation legitimate? Factors to consider may include clarity, legality, agency, reliance and knowledge.

Answer 59

The proportionality standard has increasingly influenced the courts’ assessment of the frustration of legitimate expectations.

Chapter 5: Legitimate Expectation Flashcards

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