Legitimate Expectations in the Common Law World

Matthew Groves, Greg Weeks, Matthew Groves, Greg Weeks

• Publisher: Hart Publishing
• Year: 2017
• Print ISBN: 9781509929733
• eBook ISBN: 9781509909506
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

The recognition and enforcement of legitimate expectations by courts has been a striking feature of English law since R v North and East Devon Health Authority; ex parte Coughlan [2001] 3 QB 213. Although the substantive form of legitimate expectation adopted in Coughlan was quickly accepted by English courts and received a generally favourable response from public law scholars, the doctrine of that case has largely been rejected in other common law jurisdictions. The central principles of Coughlan have been rejected by courts in common law jurisdictions outside the UK for a range of reasons, such as incompatibility with local constitutional doctrine, or because they mark an undesirable drift towards merits review. The sceptical and critical reception to Coughlan outside England is a striking contrast to the reception the case received within the UK. This book provides a detailed scholarly analysis of these issues and considers the doctrine of legitimate expectations both in England and elsewhere in the common law world.

1

The Legitimate Expectation as an
Instrument and Illustration
of Common Law Change

MATTHEW GROVES AND GREG WEEKS

THIS BOOK MIGHT be understood as an extended essay in family relations. After all, the countries within the common law world are united to a significant extent by their shared heritage of English legal principles. As with all families, the younger members grow up and change but do so in different ways. Some stay close to their parents. Some do not. If the common law is placed within this analogy, it would be cast as a parent whose influence is imprinted deeply and hard to let go of. But as with all parents, the common law knew its children would leave home and change during that time.

Not long before it lost appellate jurisdiction over the courts of New Zealand, the Privy Council conceded that ‘the common law is no longer monolithic’.¹ The Law Lords accepted that one consequence of this change was that courts of other jurisdictions could ‘make a deliberate policy decision to depart from the English approach’ as part of the development of the common law of their own jurisdictions.² The distinguished New Zealand jurist Lord Cooke was not a judge in the just quoted Privy Council decision but, in a speech delivered around the same time, he approached the very same issue from a very different perspective. Lord Cooke suggested that the common law was becoming less English.³ The important subtlety of this point was not that Commonwealth courts could depart from principles of English common law, as the Privy Council suggested, but rather that the English courts might be losing control of the common law itself. One can easily understand why the Privy Council did not express the point in such terms. After all, it is one thing to lose territory acquired by an empire. It is quite another to accept that former colonies may have seized a cherished part of the old country. While the Privy Council’s admission anticipates that different common law jurisdictions may adopt differing principles, that possibility typically comes into sharpest focus when jurisdictions outside the UK decide to reject or change principles developed by courts within the UK.

The emergence of different approaches within the common law is not limited to variations to common law principles and can sometimes identify the UK as a recipient rather than originator of change. In an influential article, Gardbaum explained the different paths taken by some of the common law countries which had adopted bills or charters of rights in recent times.⁴ He examined the different such instruments adopted by Canada, New Zealand and the UK, all of which had deliberately departed from the model of rights protection, adopted in the US, that allows courts to invalidate legislation. He noted that different common law jurisdictions had incorporated different means within their new human rights instruments to enable courts to deal with legislation that contravened those instruments. A common theme of these instruments was that they had ‘decoupled judicial review from judicial supremacy by empowering legislatures to have the last word’.⁵ A little noticed aspect of Gardbaum’s analysis was the idea that the UK was only one of several nations that was following and adjusting the earlier model adopted in the US.⁶ That occurrence has a long history, not limited to UK legislation that draws from innovations elsewhere in the common law world. Recent empirical research on the Privy Council has found that it did not simply influence the law through much of the common law world but also provided a means by which English doctrines could be tested and sometimes adjusted by reference to the colonial variations that came before the Judicial Committee in its appellate jurisdiction.⁷ The key question about legitimate expectations therefore cannot focus simply on the departure of various jurisdictions from the English approach. Instead, the key questions are the more open ones of what different approaches to legitimate expectations have arisen in the common law world and why.

Much of the previous paragraph is at odds with a decision the Privy Council delivered shortly before this book was sent for copy editing. The case was yet another messy criminal prosecution that came to the Judicial Committee with much political baggage. In this instance, dispute arose about legislation that sought to repeal a legislative prohibition on criminal prosecutions for conduct alleged to have occurred more than 10 years earlier. The prohibition was repealed only two weeks after it commenced and seemed only to serve the purpose of giving those who stood to benefit from it a reason to launch further litigation to forestall their prosecution. The Privy Council dismissed every one of a swathe of objections, including a claim of legitimate expectations—the expectation being that those who benefitted from the legislative prohibition expected to continue to enjoy that benefit. Delivering judgment on behalf of the Judicial Committee, Lord Sumption accepted that parliaments could repeal legislation that they were empowered to enact. He explained:

The Constitution does not protect legitimate expectations as such, and there must be some doubt whether, and if so when, breach of a legitimate expectation can ever, in itself, be the basis of a constitutional challenge to the validity of an otherwise regular law.⁸

That reasoning was ostensibly directed to the Constitution of Trinidad and Tobago but also appeared to confirm the constitutional position of legitimate expectations more generally. The Privy Council seemed anxious to make clear that legitimate expectations sit below higher constitutional questions and, by implication, within constitutional fundamentals. That last point is made clear by the examination of different jurisdictions in this book and their common concern that legitimate expectations, especially their substantive enforcement, must sit within constitutional boundaries. It is, however, notable that the Privy Council felt the need to reiterate a basic limit on the legitimate expectation. The doctrine cannot provide a restraint on an otherwise plenary legislative power. The message is two-fold. First, to the extent that legitimate expectations restrain official power, they do so against executive or bureaucratic rather than legislative power. Second, legitimate expectations will not provide a form of bottom up reasoning in which a restraint on official power at one level of our constitutional arrangements may travel upwards to influence higher level constitutional doctrine.⁹

The Privy Council addressed the constitutional basis of legitimate expectations about a year earlier, when it located the doctrine within the common law constitutionalism. In Rainbow Insurance Company Ltd v Financial Services Commission (Mauritius),¹⁰ the Council rejected a claimed legitimate expectation in great detail. The expectation was claimed on so many different bases that it appeared to provoke the Council to explain what it regarded as the first principle of the doctrine. The Privy Council explained:

The courts have developed the principle of legitimate expectation as part of administrative law to protect persons from gross unfairness or abuse of power by a public authority. The constitutional principle of the rule of law underpins the protection of legitimate expectations as it prohibits the arbitrary use of power by public authorities.¹¹

This reasoning locates legitimate expectations firmly within the realm of the common law and in the particular realm of common law constitutionalism and all of its associated questions. The most obvious problem is the circular and self-reinforcing nature of principles of common law constitutionalism. They are defined by the courts, justified by the courts and protected by the courts.¹² The executive is subject to legitimate expectations but has little say in their content or application.

The role of the courts in legitimate expectations is controversial for another reason related to constitutional law at the higher level because it provides yet another example of the ‘last word’ debate that has always dogged constitutional law. A perpetual question in constitutional law, particularly constitutional judicial review, is who should have the last word on issues, the legislature or the courts? This question divides constitutional lawyers largely into opposing camps, so that one favours the last word on the legality and legitimacy of legislation being exercised by either the courts or parliaments.¹³ It is only more recently that some authors have accepted that the better approach might be a middle ground, in which all of the different institutions might serve distinct and complementary roles.¹⁴ That possibility aligns with recent suggestions that the age of a rigid approach to the separation of powers has passed, or should pass, into history.¹⁵ To the extent that the separation of powers is viewed as explicit within a written constitution, as is the case in Australia, history shows that its rigidity is not easily tempered.¹⁶

The legitimate expectation raises a similar problem but with a slight change, so that the question of who should have the final say involves the courts and the executive. That question is the administrative law equivalent of the perpetual question in constitutional law but is acutely felt in legitimate expectations because the traditional settlement of administrative law does not unfold as expected. That settlement accords the last word on the law to the courts and the last word on the facts to the executive. There will always be a hazy dividing line between the two but in itself does not mean the basic segmentation in this division and allocation of functions is not real or workable. As a former Chief Justice of Australia explained when he acknowledged that judicial review on the ground of unreasonableness can often edge close to a form of factual or merits review, the blur between judicial and other review ‘is not always clear cut; but neither is the difference between night and day; and twilight does not invalidate the distinction between night and day…’¹⁷ The enforcement of legitimate expectations, or principles that make actions contrary to legitimate expectations overly difficult, may still contradict this doctrinal fundamental. This is because, even though courts do not formally exercise the power vested in administrative officials, it is often argued that they nonetheless do so in a practical sense. Thomas contradicts that longstanding objection with two key arguments. First, that the steps of judicial reasoning taken in the more controversial legitimate expectations cases are actually modest in a doctrinal sense. His second and closely related point is that the few instances where substantive enforcement occurred can be entirely justified.

Weeks extends these possibilities by posing a question that is surprisingly neglected in the legitimate expectation cases, namely are the courts the best placed to provide the remedies that these cases typically require? Legal scholars typically approach this question from entirely the opposite direction, by arguing that courts can and should extend their form of adjudication (and, it follows, develop suitable legal principles) for those disputes which have traditionally been thought to be better determined by the executive. The classic example is the polycentric dispute, which raises a multitude of complex and often interrelated issues. Coughlan¹⁸ can be labelled as a prime example of polycentricity if the case is placed in the wider perspective of all of the many funding decisions the respondent authority had to make. What had to be allocated for Ms Coughlan’s home (Mardon House) would have to be taken from, or not allocated in the future to, another health programme or perhaps another area of the authority’s work. The authority’s capacity to develop its own policy, or to follow government policy more generally for the delivery of health services, was compromised. When these possibilities come into play, the continued operation of Mardon House can be seen to have affected many programmes and people other than the parties to Coughlan’s case. Many now argue that polycentric disputes are neither unique to public law disputes nor ones that the political process can invariably resolve in a better way than the courts,¹⁹ though such arguments have some notable unbelievers.²⁰ If the courts are able to undertake a context-sensitive balancing of finely weighed issues, or seemingly veer closer to deciding the factual merits of a decision, as arguably occurred in Coughlan, one can ask why the traffic should be all one way. Is the executive perhaps better suited to crafting remedies in many of the disputes that are currently argued as legitimate expectation cases?

At first glance, this book may be understood as providing competing narratives about the growing differences between the law of England and other common law jurisdictions. That is correct because, at one level, the book examines whether and why different jurisdictions have adopted the substantive legitimate e...

Table of contents

• Cover
• Title Page
• Foreword
• Contents
• List of Contributors
• 1. The Legitimate Expectation as an Instrument and Illustration of Common Law Change
• 2. In Search of a Doctrine: Mapping the Law of Legitimate Expectations
• 3. Legitimate Expectations and the Separation of Powers in English and Welsh Administrative Law
• 4. Substantive Fairness: A Case for Reconsidering the Breach between English and Australian Law
• 5. A Pluralist Account of Deference and Legitimate Expectations
• 6. Proportionality and Legitimate Expectations
• 7. What Can We Legitimately Expect from the State?
• 8. The Unruly Horse and the Gordian Knot: Legitimate Expectations in South Africa
• 9. Law of Legitimate Expectation in New Zealand
• 10. From Heresy to Orthodoxy: Substantive Legitimate Expectations in the United Kingdom
• 11. The (Fictitious) Doctrine of Substantive Legitimate Expectations in India
• 12. Contrasting Responses to the ‘Coughlan Moment’: Legitimate Expectations in Hong Kong and Singapore
• 13. Legitimate Expectations in Canada: Soft Law and Tax Administration
• 14. Legitimate Expectations in Australia: Overtaken by Formalism and Pragmatism
• Index
• Copyright Page