Administrative Law

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A: Introduction:

JRA 5(3)(m)

Recently recognized

Deemed to be the 3rd limb of natural justice

LE takes validity in the form of representation

It is the relationship between the public administration and the individual during the course of there dealings

Fueled by the promise made or the conduct of the public authority causing the and expectation

Propelled in Caribbean courts from the perspective of human rights (Joseph & Boyce v AG, Andrews v DPP-private criminal matter that the DPP stopped, no bad faith)

Courts recognize it but hesitant to expand its scope

Gives rise to estoppel (bear in mind it’s a private law remedy); right to bind PA to its promise

Not everyone entitle to it (Clarke v Commissioner of Police: history of behavior problems cannot claim LE) 2

Person could apply for a process and legitimately expect that the proper process would be followed in reaching a decision: re license (Digicell v Telecommunications regulatory commission)

B) Legitimacy requirements

Requirements for LE to have legitimacy

1. Clear, ambiguous and unqualified

Must be effective –essential since the claim must be clear

Must have evidence to claim LE

Air Caribbean v Air transport authority – no LE to be the sole air carried of the region because was ambiguous

Persad v Comptroller of Customs: whether memo informing officer of posting fulfilled the requirements of LE – it did not

Procedural/practice consultation

PA makes promise they are bound by it

Original position before LE, right to be heard, seems to fetter discretion

Opposition: PA should have the flexibility to change their mind(created resistance)

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1990: no standard to gauge expectation or say if they are protected (ExMurrphy)????

2. Doctrine of Estoppel

Estoppel private law doctrine and not public law

Sometimes described as equivalent to LE

LE is not a subset of estoppel and is not estoppel

LE=good administration with fairness of action

LE was characterized as similar to estoppel because of its effects of being fair and reasonable

3. Unlawful Expectation

Cannot have LE if it is unlawful eg PA makes a promise they were not authorize to make Air Caribbean v Air Transport

Was the expectation legitimate (Auburn Court v Kingston & Andrew Corporation – No LE because PA was not authorize to make promise that building license would be granted; Elcock v AG TT: cab could change policy whenever and old policy was unlawful, No LE to operate under recommendation of the President of the industrial court)

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4. Actual/Ostensible Authority:

Promise maker must have the authority to do so (Air Caribbean v Air transport

C: Procedural LE

Right to a fair hearing – long standing practice of consulting

are evidence of past practices

Expectation to be heard before a benefit is lost or a decision is made (Sawmillers Cooperative v Director of Forestry: Expectation to be consulted about concession as was the practice(unless there is overriding reason CCSU case, note Coughland test applied: 2nd

category, promise inducing the LE of being consulted)

Is consultation adequate(Guana Cay Reef Association v The Queen: LE to be consulted must be adequate: 2 public meetings was adequate – no breach existed; ExP Jamaica Bar Association: established practice of consultation then they should be consulted -obiter)

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D: Substantive LE

Expectation giving rise to a substantive benefit, more than procedural(cannot be denied regardless of policy)

Courts could enforce the promise of the PA

More constraining

Standard of proof high-because of the constraining nature where the court can enforce the promise (TT Civil Rights Association v Manning: LE to get farmer and residential land-beneficial-promise enforced; Leacock v AG (p168): LE to attend law school after getting degree even though a policy existed, state has no good reason to resile from the promise, then court will enforce)

Remedy not an issue for the court but rather the behaviour of the state (Leacock v AG)

E: Standard of Review

1.Introduction:

1960-1990: (argument for PE v SE)

Procedural Expectation amplified but for SE court seems reluctant to honour

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No specific indication that a benefit was being conferred only rather the right to be heard

Inferred prob: SE ran the risk of fettering the discretion of the PA whereas policy making was concerned

Conclusion: SE protected by CL

Criticism of SE:

Fetters the discretion of the PA in policy making

Amounts to estoppel (courts enforce the promise because it has a beneficial aspect and the state has no reasoning why it resiles from it)

Courts become the decision maker rather than the executive

2. The UK

SE played out: Sedley LJ & Laws LK

i. Wednesbury reasonableness

ExP Richmond: Laws J: rejected that SE had any place in English law 7

Test to be applied Wednesbury reasonableness (is the decision so absurd that a reasonable man with the same circumstances would not consider it

Issue: regulating aircraft noise at night:

Comments: justification of the police must fall within the Wednesbury test (seem to dismiss entitlements/benefits on the general principle of admin law)

Challenge in applying test showing absurdity

No principled distinction between SE/PE-both must be guarded because they promote issues of fairness

ii. Standard of review:

Hamble fisheries:

Sedley LJ: SE should be protected.

Issue: whether it is fair for the PA

Test: grounded in fairness

Case deemed that ExP Richmond was wrongly decided

Note that ExP Richomond did not accept SE whereas Hamblefisheries did, hamble also indicated that the standard of review must be fairness and that was the essential role of the court

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Exp hargreaves: overruled Hamble indicating that the correct test was

Wednesbury reasonableness Approach: balancing exercise (matters of substance and

fairness) Sedley seem to support substance of a decision which was

purportedly the worn principle – deemed Hamble fisheriescase to be wrong

iii. Compromised view Exp Couglan PA closed authority by virtue of new policy after it had told the

Claimant that she could live there until she dies. On appeal Sedley J: attempt to laid the issue to rest Test created:

Was the promise lawful (who made it, does it bind the successor)

Was the action of the PA so unfair as to amount to an abuse of power

CA : whether to frustrate LE amount to an abuse of power Summary:

Three categories to consider:

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1. Wednesbury test (decide on the previous policy/representation giving it the weight it is required)

2. Procedurally unfair(LE to be consulted, no reason to resile from it it must be granted)

3. Court( determine there is a legitimate expectation will weigh the requirement, whether to frustrate LE is an abuse of power)

iv. Misgiving:

Exp Begbie

Revisited Coughlan (trying to tame the unruly horse)

Stated that abuse of power firmly rooted in public law-cat 1&3 not sealed (difficulty translating the concept into law)

Must allow court to fashion a standard of review and how it affects individual

Sedley questioned Coughland and argued with Laws on that matter over Wednesbury reasonableness

Exp Bibi:

Criticism:

Test does not bring certainty10

Where the court finds out that there is SE, may not enforce it itwhere it assumes the powers of the executive

Three practical question What has the Pa committed itslef to whether by

promise/representation. Does the PA purpose to act contrary What should the court do

V. The retreat Rowland v Environmental Agency

LE premised on good administration and requires that Pa adheres to its promise

PA has no power to confer promise there can be no LE Some instances court cannot give relief and may order

compensation rather than give effect to LE Exp Nadarajah: revisited the principle of LE Exp Murrphy: re-stated LE as presented in Coughland and

Nadarajah (requirement of this expectation) 1. PA distinctly promise to consult those that are

ordinarily affected then it must consult 2. SLE: distinctly promise to preserve policy which would

affect a group/individual-promise must be kept No promise but policy that affects group/indv – promise

must be kept 11

Commonwealth Caribbean

Joseph & Boyce

CCJ accepted express representation that it will not execute until hearing based on:

Statement made by cabinet

Practice over the years

Barbados amendment to Consti = LE

Justification for the LE:

Process of rights engendered and so expectation substantive

Engendered by state because of the obligation of the treaty

Cases:

Paponette: court found that members of a taxi association was deprived to there right of property given that there was a legitimate expectation created, Lord Brown dissented: he agreed that they had a right but did not find that the fecharged was unreasonable (Ventose agreed with Lord Brown)

F: Secondary Cases of Procedural Protection:

PE not always easy to differentiate 12

No promise/practice = No LE

Cases:

Commonwealth Trust v Financial: no promise or practice could be evidence neither by the facts or what the applicant has said: LE settled, those must be proved

G: renewal of magistrate contract:

Magistrate had contracts that were renewable

Maglorie v JLSC: court found that there was LE because of the practice of having magistrate work pass there expired contract and the almost automatic renewability; there was also no contract with the JLSC thus no authority to make a call on this

H: Exceptions:

Public police may determine that there are no SE/PE (exist but is outweighed by some other interest)

Mohammed v Commissioner Prisoner: a faculty of special diet was a LE but that the prison was not a democracy, thus CP had discretion dependent of the circumstances

CCSU: Prerogative power and national security trumped LE for some employees to join a union

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