A devastating storm recently struck the English coast. A river running through the town of Boswhellem burst its bank causing many properties to flood. Cars were swept into the sea, and outlying farmland rendered useless; the main bridge over the river was destroyed, and public buildings in the town became unusable for several months. The Government decided to create the 'Boswhellam Emergency Relief Scheme' (BERS) to make grants to repair private and public infrastructure. No statutory power permits this.
A minister nevertheless stated in Parliament: "the Crown's prerogative powers to make ex gratia payments have long been acknowledged, and this town is a deserving case. " She added that the scheme would probably be reviewed after eight weeks. Within two weeks of the ministerial announcement the evidence revealed that the scale of the damage is such that the scheme would be highly burdensome for the taxpayer. Upon being advised that this was so, the minister revoked BERS with immediate effect.
When challenged in Parliament about this reversal of policy she responded that individuals have a responsibility to purchase appropriate insurance cover and, as she put it, "the government cannot accept an unlimited liability to bale out the reckless few who fail to look after themselves". Jocasta's residence, which was inundated for two weeks, was not insured against flood damage. She understood that she fulfilled the BERS criteria. She accordingly posted an application for financial relief to assist her repair the property the day before the revocation of the scheme.
She had been notified that her application arrived too late to be considered. She seeks you advice as to whether she could bring an action for judicial review to quash the decision to revoke BERS, and a mandatory order compelling the minister to give proper consideration to her claim. She will claim that the purported revocation was unfair and consequently unlawful. The minister will argue, inter alia, that since BERS was set up under the prerogative powers, any decision relating to it is, for that reason, immune from judicial review. Advise Jocasta.
The role of public bodies in administrative law is often controversial and debatable due to the extent of power they exercise and the way in which this is done. In advising Jocasta, it is imperative to establish the extent to which she may legitimately expect to rely upon the policy representation or promise that has been made, explore the possible conflicts this will present and determine whether she is entitled to judicial review. Promises are generally more reliable than public policies due to only being aimed at a few individual people, and therefore having a moral aspect.
It is much easier for the public body to uphold a promise to an individual as the balance between public interest and individual interest is clear. This was shown in the case of R v North and East Devon Health Authority, ex p. Coughlan1, in which the claim of a substantive legitimate expectation was upheld due to the representation having only been made to a few individuals. On the other hand, a policy is made to an unspecified amount of people and as policies are liable to change, the representation attached to it cannot be sufficiently relied upon.
It is far more difficult for a substantive legitimate expectation to be upheld on the basis of a policy as this could ultimately lead to the restriction of the policy or an abuse of power. The representation made to the town of Boswhellam was to everyone who had been affected by the storm, which is unlikely to be classed as a few individuals, therefore Jocasta must rely upon the representation as a policy. Ultimately, there is a conflict between a public body acting in the best interests of the public and also trying to protect the individual who has relied upon a representation made by that public body.
This conflict forces the recognition of the principles of legal certainty and legality, which are manifested into the doctrine of legitimate expectation. The principle of legality is based upon the idea that public bodies should be free to change or amend policies in the interest of the public, as society changes will inevitably require this in the future. It is also reliant on the doctrine of ultra vires to prevent any unlawful use of powers which would cause detriment to the individual. Jocasta's minister acted under discretionary powers that are not governed by statute.
This means that she cannot be deemed to be acting ultra vires and as BERS was set up under prerogative powers it cannot be subjected to judicial review. This practice was recognised but not followed in the case of Council of Civil Service Unions v Minister for the Civil Service2 as it was held that "if the issue of the Instruction were treated as a direct exercise of prerogative power that of itself did not prevent judicial review"3. Although this was the view cited by the court, the case failed on the balance of public interest.
Legality conflicts with the principle of legal certainty which acts on the behalf of the individual to ensure they are protected when relying upon a public body policy. As demonstrated, the conflicts that arise within administrative law could suggest that a conclusive outcome is hard to find. However, if the claimant is able to prove that they have a legitimate expectation which is worthy of protection then the process becomes clearer. A legitimate expectation is the basic principle that if a public body has led the public to believe they can rely on a policy or promise; they should not deviate from it.
The doctrine is based upon the principles of legal certainty due to it traditionally acting in favour of the individual, it is rooted in fairness and "can arise from past conduct, e. g. regularly granting a hearing before issuing licenses, or an assurance"4. When considering the lawfulness of Jocasta's situation, it is useful to distinguish between the three categories of legitimate expectation. The first category will arise when a public body makes an express representation to an individual which they then revoke.
For the representation to be express the public body must take some form of action which, in Jocasta's case, is the creation of the Boswhellam Emergency Relief Scheme (BERS) which was subsequently revoked two weeks later. The support for this category is strong but relies heavily upon Inland Revenue cases. This may prove disadvantageous for Jocasta as "while Ex parte Preston has been followed in tax cases, using the vocabulary of abuse of power in other fields of law… has not all been approached in the same way. "5 The case of R v Inland Revenue Commissioners ex p.
Preston6 found in favour of a legitimate expectation and held that "the courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness be such as to amount to an abuse of power"7. The second category will arise when a public body departs from a policy under certain circumstances or in response to a particular case. This raises the question of legality and the extent to which the courts will intervene. This situation occurred in the case of R v Secretary of State for the Home Department ex p.
Ruddock8 in which it was held by Taylor J that "even where a person claiming some benefit has no legal right to it…. the courts will protect his expectation by judicial review"9. The third category, and most controversial, will arise when one policy is replaced by another. In this situation it is arguable whether the claimant should be allowed to rely upon the policy that created their expectation or the current policy. This was the argument in R v Secretary of State for the Home Department ex p. Hargreaves10 which held "their case to be considered in the light of whatever the current policy was".