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The genuine exercise rule
Page 292: Does the genuine exercise rule impose procedural or substantive duties on administrative authorities?
- Consider the three requirements of the genuine exercise rule: no refusal to consider using a power, no fettering of a discretion, and no delegation that is incompatible with the purpose of a power.
- Delegation is a process. Refusal to consider is a process (or more precisely, a refusal to engage in a process).
- Is fettering a discretion a matter of process or substance?
World Development Movement and Hammersmith and Fulham
Page 297: Can you distinguish R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 from R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521? Both were challenges to government funding decisions under statutory powers, but in Hammersmith and Fulham, the House of Lords refused to interfere with a funding decision unless it was ‘so absurd that he must have taken leave of his senses’. Why wasn’t the same hands-off standard applied in World Development Movement?
- The difference is the statutory purpose of development in World Development Movement. The Court concluded that the decision had not been made for development purposes and did not promote development. How was the purpose of the statute in Hammersmith and Fulham different?
- Moreover, note that the government’s own advisers had reported that the expenditure would not promote the statutory purpose in World Development Movement. The judges always find it easier to interfere with a government decision when it is inconsistent with advice from within government, or inconsistent with government practice.
Estoppel of public authorities
Page 317: What if a public authority does the very things that would create an estoppel if they were done by a private person? Is the public authority estopped from asserting its right to the property? Or does the other party need to ask the court for protection of its legitimate expectation?
- Is public ownership of land the same as private ownership of land? Why might it matter to a user of land whether the owner is a public authority or a private concern?
- Should a public authority that owns land be able to say that its public purposes require it to be free to use the land in a different way than it had represented to the user (subject to the doctrine of legitimate expectations)?
Consistency and legitimate expectations
Page 325: The doctrine adopted in Mandalia and Lee-Hirons is that a public authority may not lawfully depart from a policy that favoured the claimant, unless it has good reason. After Mandalia, should we conclude that there is no need for a doctrine of legitimate expectations, since unfairly disappointing a legitimate expectation will count as an instance of departing from a policy without good reason?
- We can at least say that if the claimant knew about the policy, that fact may make a significant difference. In the Coughlan, if the defendant had adopted a policy of making Mardon House a home for life for persons in Miss Coughlan’s situation, but had not told her that it would be her home for life, then her case would have been very different (how do you think such a case ought to be decided?).
- Would you say that the doctrine of legitimate expectations is a subset of the doctrine of consistency in giving effect to policy?
- Can you explain the difference, in a case like Mandalia, between changing a policy and failing to apply a policy?