Towards an Administrative Estoppel

TOWARDS AN ADMINISTRATIVE ESTOPPEL

Lucy Jackson*

[The author of this article is the joint winner of the 2015 AIAL National Essay Prize. The article by Christopher Ellis, the other winner, will be published in a later issue of the AIAL Forum.]

What happens when a person relies upon a representation made by a government which is later departed from? To the extent that the answer is more than ‘nothing’,
the position in Australia is unclear. Through a discussion of the existing Australian and English authorities on estoppel, legitimate expectations
and procedural fairness, and the recent development of the law of abuse of process in the United Kingdom, this paper argues that, in an appropriate
situation, an ‘administrative estoppel’ should lie against a public authority. This estoppel differs from an equitable estoppel because its public
law context must be taken into account.

The first part of this paper very briefly surveys the current Australian law on estoppel, legitimate expectations and procedural fairness, with reference
to key English cases in the development of these actions in that jurisdiction. The question of what remedy is sought in an action of this kind is also
briefly canvassed.

The second half of the paper considers the recent development of the law of ‘abuse of process’ in the United Kingdom, with particular focus on the facts
and reasoning in R v Downey [2014] EW MiscC (CCrimC). I argue that ‘abuse of process’ clarifies the interrelationship of the rules with respect
to government promises and, ultimately, when taken with the Australian authority, that a stand-alone rule of ‘administrative estoppel’ can be distilled.
Finally, objections such as those arising from the doctrines of separation of powers, ultra vires and fettering discretion are also considered.

Estoppel against a public authority

In Australia, estoppel can operate at common law^[1] and in equity.^[2] The effect of an estoppel is to prevent a party from departing from a previous representation, provided that certain requirements are met.

The elements needed to ground an estoppel are that:

1)a clear and unambiguous representation is made about an existing or future state of affairs, with the knowledge or intention that the representation
would induce reliance;

2)the representation has been reasonably relied upon by the representee; and

3)the representee has suffered detriment when the representation is not fulfilled by the representor.^[3]

It is possible for an estoppel to lie against a public authority. In Commonwealth v Verwayen the Commonwealth was estopped from relying on a statutory
defence that it had represented that it would not rely upon.^[4] When the Commonwealth sought to change its policy and to rely upon the defence, the majority of the High Court held that it could not do so.^[5]

An earlier example comes from 1949, when Denning J at first instance upheld the estoppel raised by Mr Robertson, a war veteran, who had relied upon the
representation made to him in a letter from the War Office that his injuries were attributable to military service, and that therefore he would receive
the appropriate pension.^[6] In the words of Denning J, ‘[c]an it be seriously suggested that, having got that assurance, he was not entitled to rely on it?’^[7]

In Brickworks Ltd v Warringah Corporation,^[8] Windeyer J accepted that an estoppel by representation cannot preclude the operation of a statutory discretion, following the Privy Council’s decision
in Maritime Electric^[9]that,
‘where the statute…imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which
the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it.’^[10] Our relationship with government today is quite unlike that understood by the Privy Council in 1937 and, as such, it may be that the suggestion that
a statutory discretion cannot be affected by an estoppel is now incorrect.

In Kurtovic,^[11] Gummow J said that, where there is a duty to exercise a discretion, an estoppel cannot be raised to interfere with that discretion beyond what is required
by statute.^[12] Justice Gummow’s statement should be read to say that the decision-maker cannot expand or reduce his or her power beyond that created by statute by
way of estoppel,^[13] not that an individual cannot be protected by the intervention of an estoppel when the party estopped is a public authority.

The doctrine of legitimate expectations

A legitimate expectation differs from an expectation arising from a representation which grounds an estoppel in that the former arises out of the usual
operation of a policy or the requirements of a statute: what, in all the circumstances, could the citizen legitimately expect?[14] This distinction is made clear in the facts of Downey, below. In Kurtovic, Gummow J also drew this distinction between ‘the planning
or policy level of decision-making wherein discretions are exercised’ and ‘the operational decisions which implement decisions made in exercise of
that policy’.^[15] In deciding whether an applicant can raise an estoppel or a legitimate expectation, the question to ask is: what is the source of the expectation?

However, the position of legitimate expectations has been clouded by the High Court. In Lam,^[16]the
applicant was led to believe that the family members caring for his children would be contacted before the decision cancelling his visa was made.
^[17]


When this was not done, and his visa was subsequently cancelled, Mr Lam sought prohibition to prevent the cancellation on the basis of the representation.
His application was unsuccessful, and this seems to have turned on two points: first, that Mr Lam had not relied upon the representation to his
detriment; and second, that even if the carers had been contacted, this would not have changed the outcome.^[18] Although it is questionable whether refraining from providing further information did not amount to detrimental reliance, what Lam seems
to stand for is that, to make out an action based on a legitimate expectation, there must be proof of detrimental reliance, and probably also that
the decision would have been different but for the reneged promise.

Whilst in Australia an action based in the doctrine of legitimate expectations seems to have little chance of success following Lam, in England
this area has developed as a more useable body of law which has the potential to ameliorate the power imbalance between government and citizen.

The key English case is Coughlan.^[19] Ms Coughlan had been hospitalised for several years as a result of her severe physical disabilities but in 1993 had agreed to move into a care facility,
Mardon House, in reliance on the local health authority’s representation that this would be her ‘home for life’.[20] Within five years, the health authority changed its policy and decided to close Mardon House. Ms Coughlan’s expectation would clearly be breached by
this decision, but the relevant question for the court was what the terms of that expectation legitimately were, and, subsequently, how that expectation
could be protected.[21]

In the Court of Appeal, Lord Woolf MR outlined standards of protection for different types of legitimate expectations.^[22] The first is where the citizen can legitimately expect that the public authority is required to give weight to its previous policy or representation
when making its decision. The second, where an opportunity for consultation with the affected applicant is required; and the third, where if a substantive
benefit is expected, the question of whether frustrating that expectation would be so unfair as to amount to an abuse of power must be considered by
the court. In Coughlan, the third category applied and the writ of certiorari was upheld. The reasons that led the Court to hold that this
was within the third category were: (a) the importance of the content of the promise made to Ms Coughlan (in the context of the Human Rights Act 1998);
(b) that the promise was only made to a limited number of individuals; and (c) that the consequences to the health authority of enforcing the promise
would be financial only.[23]

The decision in Coughlan is a departure from the more confined role of judicial intervention in government decision-making envisaged by the Wednesbury principle.[24] That principle is that if a decision is sought to be challenged on its content, rather than its procedure, then the court should only intervene if
that content is entirely unreasonable. Coughlan, however, says that where an administrative decision deprives a citizen of his/her legitimate
expectation of a substantive benefit, the court’s role when looking at the content of that decision is to balance ‘the requirements of fairness against
any overriding interest relied upon for the change of policy.’[25]

In Begbie,[26] Laws LJ offered a more nuanced analysis of the standards of protection of expectations than the tripartite scheme coined in Coughlan.[27] In this approach, Laws LJ emphasises the central importance of the facts of the individual case in ascertaining what protection ought to be afforded
to the citizen’s expectation. For example, if only a small number of people held the legitimate expectation (as in Coughlan), the court can
more easily foresee the consequences of any order it might make with respect to the breach of that expectation. Likewise, the weight to be given to
the overriding public interest (if any) in the change of policy will differ according to the facts of the case at hand.

Procedural Fairness

Finally, if neither an estoppel nor a legitimate expectation can be made out, it may be open to an applicant to establish procedural unfairness. In NAFF,
^[28]


the applicant was made the representation by a Tribunal member that she would be given 21 days to respond to further questions that would be sent
to her following her hearing. In fact, the questions were never sent to her and instead the Tribunal member proceeded to affirm the decision to
refuse her protection visa. The High Court was unanimous in agreeing that the applicant was denied procedural fairness,^[29] despite there being no evidence of detrimental reliance by the applicant. However, although what can be said from NAFF is that an action
in procedural unfairness does not require detrimental reliance, it is unclear why the High Court did not consider the refusal of a protection visa
to be a detriment.

Remedies

Finally, something needs to be said to the question of what remedy one seeks in pursuing an action of this type, though an analysis of the different types
of remedies available in public law is beyond the scope of this paper.^[30] Presumably, in the situation where one has relied upon a representation made by the executive, the solution sought will be that the contents of the
representation are upheld by the executive, rather than a money remedy such as damages or equitable compensation. Substantive remedies of this type
were dismissed by Mason CJ in Quin.^[31] Likewise, in Lam,^[32] although Mr Lam did not claim a substantive remedy,^[33] McHugh and Gummow JJ (with Callinan J agreeing) dismissed the idea that a denial of procedural fairness could attract a substantive remedy.^[34]

In fact, this is another reason why estoppel is appropriate in this context. The remedy when an equitable estoppel is made out is the ‘minimum equity to
do justice’.^[35] As Finn and Smith explain, this remedy:

would allow, as the persisting ‘public law’ orthodoxy does not, pecuniary relief against a government which induces detrimental reliance. In other words,
the government, if still not to be compelled to honour the expectation it has created, would nonetheless be able to be held liable for loss occasioned
by reasonable reliance on that expectation… While the public interest may necessitate a refusal to enforce the representation or undertaking,
it should not allow government with impunity to occasion loss to a person who has relied upon that representation.^[36]

The better way to conceive of the remedy sought is as a means of preventing departure from the representation. When understood in this way, it may be that
it is the Constitutional writ of prohibition that is sought.^[37] As a public law remedy, perhaps this would be more appropriate as a remedy against a public authority.

Additionally, in Quin and Kurtovic, the applicants sought to compel a positive act. In contrast, in Downey (below) the representation
made was that the government would refrain from acting. This may be an important factual difference in whether the breach can be remedied, and what
that remedy would be.

The facts in Downey

John Downey was prosecuted in February 2014 for four charges of murder and one charge of doing an act with intent to cause an explosion, arising out of
the Irish Republican Army (IRA)’s bombing in Hyde Park, London, on 20 July 1982. However, Sweeney J stayed the prosecution as being an abuse of process,
the reasons for which will be discussed below, and should become apparent from the facts.

Mr Downey had been convicted for membership of the IRA in 1974,^[38] and in 1982 there was some evidence to link Mr Downey to at least the car used for the Hyde Park bombing.^[39] In May 1983, the fact that Mr Downey was wanted was circulated on the Police National Computer (PNC) and, in October 1984, his photograph was published
in the Sunday Times with the statement that he was at the top of Scotland Yard’s Most-Wanted list.^[40] Further articles to the same effect were published in national newspapers in June 1985, March 1986 and October 1987.^[41] In September 1993 the UK prosecuting authorities decided that ‘the subject is not extraditable but is obviously arrestable should he be detained within
the UK jurisdiction’.^[42] Mr Downey’s record remained in circulation on the PNC until his arrest at Gatwick Airport in May 2013.

On 10 April 1998 the Good Friday Agreement was signed. This was a major achievement in the peace process. Part of the Agreement created a framework for
the early release of serving prisoners whose convictions arose out of IRA activity prior to the Agreement who would now not serve more than two years
in prison after the commencement of the Agreement.^[43] Equivalent provisions were in place in the Republic of Ireland. However, this did not apply to people who had not yet been charged with relevant offences,
or to those who had been charged but had escaped the jurisdiction. This latter group became known as the ‘on the runs’ or ‘OTRs’.^[44]

The position of the OTRs was anomalous and troublesome. In the negotiations that were ongoing through 1998-1999, Sinn Fein argued that as many OTRs were
strong supporters of the Good Friday Agreement and their presence in the United Kingdom would promote the peace process in Northern Ireland,^[45] this would require a means by which OTRs could return to, or go to, Northern Ireland without the risk of arrest or prosecution for pre-Good Friday
Agreement activity.

Initially, it was considered that a legislative scheme would be the most efficient solution. However, the question of whether or not to pursue a prosecution
was recognised as a matter for the Department of Public Prosecutions for Northern Ireland (DPP (NI)) and not for the legislature.^[46] Eventually it became clear that the solution for the OTRs would be an individual assessment of each case by the prosecuting authorities and the Attorney
General, and there would be a legal not political decision on the merits of each case.^[47]

It was decided that a letter would be sent to each OTR when a decision was reached on his/her case. The first was sent out in 2000 and despite ongoing
attempts to create a legislative scheme, the letters continued to be the politically preferred means of dealing with the OTRs. This became known as
‘the administrative scheme’.^[48]

The process initially involved a person’s name being put forward by Sinn Fein, then the DPP (NI) and Crown Solicitors considered all files they had on
the individual. Next, the police carried out a full evidentiary review, and the DPP (NI) checked whether the individual was wanted by any police force
in the UK (by checking the PNC) or by any other country (by checking with Interpol).^[49]

In January 2002 Mr Downey’s name was put forward by Sinn Fein and investigation of his file commenced. However, work on the administrative scheme was halted
in 2004.

In July 2005 the ceasefire was ordered and the UK Government announced that legislative measures would be undertaken to implement further protections for
people wanted for relevant offences.^[50] This included the introduction of the Northern Ireland (Offences) Bill 2005, which would have provided protection for all persons liable to prosecution
for those offences, including members of the police and armed forces. The protection for persons within these latter categories was the reason that
the Bill was withdrawn in January 2006.^[51]

In February 2007 the administrative scheme recommenced and was known as Operation Rapid.^[52] The idea was to expedite the review of the remaining OTRs, including Mr Downey. The process essentially was intended to be the same as before – establishing
whether or not an individual was wanted in the United Kingdom by checking the relevant files and databases.

Meanwhile, in April 2002, Mr Downey’s PNC records were printed and it was recorded that he was wanted for murder in the jurisdiction of the Central Criminal
Court. In September 2002 the DPP (NI) wrote to the Police Service of Northern Ireland (PSNI) (the new name for the RUC) that Mr Downey was also named
as a suspect in a bombing at Enniskillen in 1972, but that a direction for no prosecution had been issued in relation to the incident unless further
evidence came to light.^[53] In March 2003, enquiries into that incident were recorded as ongoing. In July 2004 it was recorded that Mr Downey was wanted for interviewing in respect
of a number of Northern Ireland incidents, including Enniskillen, and that he had been identified in relation to the Hyde Park bombing. Communications
between the Attorney General and the Secretary of State for Northern Ireland (SSNI) (Mr Hain) and between the Northern Ireland Office (NIO) and Sinn
Fein in February and March 2006 respectively, stated that the defendant was wanted for questioning in relation to serious offences if he returned to
Northern Ireland.^[54]

In March 2007 a check made within Operation Rapid on the status of Mr Downey confirmed that he was the subject of a current alert on the PNC.^[55] In May 2007, Operation Rapid’s Acting Detective Chief Inspector reviewed Mr Downey’s file and concluded that he was not wanted by PSNI but that an
updated report from the Metropolitan Police should be requested. Eventually, in June 2007, an entry was made by the Operation Rapid team that Mr Downey
was ‘not currently wanted by PSNI unless a new appropriate alert is created by an Investigating Officer.’^[56] At around the same time a request was received from the NIO requesting confirmation that all checks with outside forces had been carried out in accordance
with the Operation Rapid terms.^[57] In July 2007 confirmation was sought again by the NIO, with the Operation Rapid Officer replying ‘To confirm, these checks have been carried out on
the ten names in the 11 July letter’ – clearly implying that the results of the checks were negative.^[58]

On this basis, letters were sent out, including one to Mr Downey. The terms of this letter were:

The Secretary of State for Northern Ireland has been informed by the Attorney General that on the basis of the information currently available, there is
no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence nor are you wanted in Northern Ireland for arrest,
questioning or charge by the police. The Police Service of Northern Ireland are not aware of any interest in you from any other police force in the
United Kingdom.^[59]

In giving evidence, Mr