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Legitimate Expectations in the Common Law World

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Legitimate Expectations in the Common Law World Legitimate Expectations in the Common Law World Edited by Matthew Groves and Greg Weeks OXFORD AND PORTLAND, OREGON 2017 Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Bloomsbury Publishing Plc Kemp House 50 Bedford Square Chawley Park London Cumnor Hill WC1B 3DP Oxford OX2 9PH UK UK www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland , OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © The Editors The Editors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright © . All House of Lords and House of Commons information used in the work is Parliamentary Copyright © . This information is reused under the terms of the Open Government Licence v3.0 ( http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3 ) excepted where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/ , 1998 – 2015. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-84946-778-0 ePDF: 978-1-50990-949-0 ePub: 978-1-50990-950-6 Library of Congress Cataloging-in-Publication Data Names: Groves, Matthew, editor. | Weeks, Greg (Law teacher), editor. Title: Legitimate expectations in the common law world / edited by Matthew Groves and Greg Weeks. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2016. | Series: Hart studies in comparative public law ; volume 12 | Includes bibliographical references and index. Identifi ers: LCCN 2016037626 (print) | LCCN 2016038121 (ebook) | ISBN 9781849467780 (hardback : alk. paper) | ISBN 9781509909506 (Epub) Subjects: LCSH: Common law. | Jurisprudence. Classifi cation: LCC K588 .L44 2017 (print) | LCC K588 (ebook) | DDC 340.5/7—dc23 LC record available at https://lccn.loc.gov/2016037626 Series: Hart Studies in Comparative Public Law, volume 12 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY To fi nd out more about our authors and books visit www.hartpublishing.co.uk. Here you will fi nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters. 1 The Legitimate Expectation as an Instrument and Illustration of Common Law Change MATTHEW GROVES AND GREG WEEKS HIS BOOK MIGHT be understood as an extended essay in family relations. After all, the countries within the common law world are Tunited to a signifi cant 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 infl uence 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 deci- sion 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 1 B v Auckland District Law Society (New Zealand) [ 2003 ] 2 AC 736, 759 [55]. The same point was acknowledged by Lord Robert Walker , ‘ Developing the Common Law : How Far is Too Far ? ’ ( 2013 ) 37 Melbourne University Law Review 232, 234 . 2 Auckland District Law Society , ibid. In the case at hand, the Lords deftly enforced English law by fi nding that the New Zealand courts had purported to apply rather than change English law. Since that law had been misunderstood, the decision of the New Zealand Court of Appeal was overturned. 3 Sir Robin Cooke , ‘ The Road Ahead for the Common Law ’ ( 2004 ) 53 International and Comparative Law Quarterly 273, 274 . 2 Matthew Groves and Greg Weeks 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 out- side 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 lim- ited to variations to common law principles and can sometimes identify the UK as a recipient rather than originator of change. In an infl uential 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 differ- ent 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 judi- cial supremacy by empowering legislatures to have the last word ’ . 5 A lit- tle 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 infl uence 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 4 Stephen Gardbaum , ‘ The New Commonwealth Model of Constitutionalism ’ ( 2001 ) 49 American Journal of Comparative Law 102 . 5 Ibid, 709. This analysis is also consistent with the human rights instruments that were adopted in some Australian jurisdictions after Gardbaum ’ s article. 6 Gardbaum extended this theory beyond those bills and charters of rights to constitutional doctrine more generally in Stephen Gardbaum , The New Model of Constitutionalism : Theory and Practice ( Cambridge University Press , 2013 ) . 7 Paul Mitchell , ‘ The Privy Council and the Diffi culty of Distance ’ ( 2016 ) 36 Oxford Journal of Legal Studies 26 . The Legitimate Expectation and Common Law Change 3 are the more open ones of what different approaches to legitimate expecta- tions 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 crimi- nal 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 benefi t 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 benefi tted from the legislative prohibition expected to continue to enjoy that benefi t. 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 other- wise regular law.
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