Comments on: The concept of ‘legitimate expectations’ http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/ Mon, 13 Feb 2012 03:49:30 +0000 http://wordpress.org/?v=2.6.3 By: The Irish Economy » Blog Archive » Legal challenge to cancelled retirement scheme http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-9767 The Irish Economy » Blog Archive » Legal challenge to cancelled retirement scheme Wed, 01 Jul 2009 19:02:23 +0000 http://www.irisheconomy.ie/?p=1808#comment-9767 [...] have previously discussed on this blog whether groups disadvantaged by fiscal policy cutbacks might seek to protect their [...] [...] have previously discussed on this blog whether groups disadvantaged by fiscal policy cutbacks might seek to protect their [...]

]]> By: Alan Matthews http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-6921 Alan Matthews Fri, 08 May 2009 06:59:27 +0000 http://www.irisheconomy.ie/?p=1808#comment-6921 Just a comment to say thanks to all those above who contributed very useful comments on the original post. The Irish Times were sufficiently interested in the issue to request a print version, which appeared today http://www.irishtimes.com/newspaper/finance/2009/0508/1224246116913.html It should be clear from the article that I drew on some of the issues raised in the contributions above, so thanks again. Just a comment to say thanks to all those above who contributed very useful comments on the original post. The Irish Times were sufficiently interested in the issue to request a print version, which appeared today
http://www.irishtimes.com/newspaper/finance/2009/0508/1224246116913.html
It should be clear from the article that I drew on some of the issues raised in the contributions above, so thanks again.

]]> By: Pat Cooper http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5870 Pat Cooper Thu, 23 Apr 2009 11:45:52 +0000 http://www.irisheconomy.ie/?p=1808#comment-5870 Last night Tuesday April 22nd Conor Lenihan, on The Late Debate used 'legitimate expectation' to justify the continued payment of long service payments to TDs and also with reference to the ministerial pensions. Surely if it applies in the above it also applies in the reduction in REPs payments and the "pension levy" in the Public Sector? It seems a double standard is being applied. None of this affects me personally as I am currently abroad but is anybody analysing current norms in the context of "society elites" who are determined to maintain the staus quo and their share of the national cake while lower income groups are being "conned into taking the pain". Last night Tuesday April 22nd Conor Lenihan, on The Late Debate used ‘legitimate expectation’ to justify the continued payment of long service payments to TDs and also with reference to the ministerial pensions. Surely if it applies in the above it also applies in the reduction in REPs payments and the “pension levy” in the Public Sector?

It seems a double standard is being applied. None of this affects me personally as I am currently abroad but is anybody analysing current norms in the context of “society elites” who are determined to maintain the staus quo and their share of the national cake while lower income groups are being “conned into taking the pain”.

]]> By: Lefournier http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5775 Lefournier Tue, 21 Apr 2009 23:08:54 +0000 http://www.irisheconomy.ie/?p=1808#comment-5775 @Gavin Barrett - I find it inconceivable that the judiciary could use the doctrine of "legitimate expectations" to block changes to social welfare rates or entitlements which have been embodied in an Act of the Oireachtas. It would precipitate a major constitutional crisis. There have been a series of instances in recent months where legal objections have been mooted to Government action on the current economic crisis. I'm thinking, for example, of obstacles facing the ODCE investigating Anglo-Irish, the proposed changes in pay and benefits for public representatives, and difficulties in dismantling tax shelters (the McCaughey CGT scam was particularly egregious). I am not suggesting anything draconian - even in dire circumstances we must respect legal rights - but it is crucial the legal system is not used to delay or impede the urgent economic measures which are endorsed by our legislature. In this case, I suspect that officials are using the fear of legal action to deter necessary change. It is a weakness of our system that there is no speedy way to settle this question definitively. @Gavin Barrett - I find it inconceivable that the judiciary could use the doctrine of “legitimate expectations” to block changes to social welfare rates or entitlements which have been embodied in an Act of the Oireachtas. It would precipitate a major constitutional crisis.

There have been a series of instances in recent months where legal objections have been mooted to Government action on the current economic crisis. I’m thinking, for example, of obstacles facing the ODCE investigating Anglo-Irish, the proposed changes in pay and benefits for public representatives, and difficulties in dismantling tax shelters (the McCaughey CGT scam was particularly egregious).

I am not suggesting anything draconian - even in dire circumstances we must respect legal rights - but it is crucial the legal system is not used to delay or impede the urgent economic measures which are endorsed by our legislature.

In this case, I suspect that officials are using the fear of legal action to deter necessary change. It is a weakness of our system that there is no speedy way to settle this question definitively.

]]> By: Gavin Barrett http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5772 Gavin Barrett Tue, 21 Apr 2009 21:23:01 +0000 http://www.irisheconomy.ie/?p=1808#comment-5772 Actually, I am not so sure that it is all that spurious. One could argue that the same deferential approach ought to be taken to financial resolutions by the courts as to legislation in applying the doctrine of legitimate expectations, but in fairness, the point does not appear to have been decided by the courts yet. The Irish Times article does also make the point about the difficulty of applying means tests, which I imagine is also a serious difficulty. On a non-legal note, the unfairness of making the extent of one's contribution to the resolution of Ireland's financial problems depend directly on how many children one has seems to have been little considered... Actually, I am not so sure that it is all that spurious. One could argue that the same deferential approach ought to be taken to financial resolutions by the courts as to legislation in applying the doctrine of legitimate expectations, but in fairness, the point does not appear to have been decided by the courts yet. The Irish Times article does also make the point about the difficulty of applying means tests, which I imagine is also a serious difficulty.

On a non-legal note, the unfairness of making the extent of one’s contribution to the resolution of Ireland’s financial problems depend directly on how many children one has seems to have been little considered…

]]> By: Lefournier http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5723 Lefournier Mon, 20 Apr 2009 22:43:17 +0000 http://www.irisheconomy.ie/?p=1808#comment-5723 The "legitimate expectations" argument is utterly spurious. Changes in Social Welfare rates announced in the budget are incorporated into an annual Social Welfare Act usually entitled The Social Welfare (Miscellaneous Provisions) Act. In contrast, budget tax changes are introduced by Financial Resolutions which are adopted on the day by the Dail, thereby giving immediate effect to e.g. excise duties. The Finance Act supercedes these Financial Resolutions in due course. I can only wonder what games the mandarins in Social Welfare are playing. It sounds like they're throwing the kitchen sink at the prospect of serious social welfare cuts. I think it's a symptom of Mary Hanafin not wanting to go down with Ernest Blythe by cutting pensions. The “legitimate expectations” argument is utterly spurious.

Changes in Social Welfare rates announced in the budget are incorporated into an annual Social Welfare Act usually entitled The Social Welfare (Miscellaneous Provisions) Act. In contrast, budget tax changes are introduced by Financial Resolutions which are adopted on the day by the Dail, thereby giving immediate effect to e.g. excise duties. The Finance Act supercedes these Financial Resolutions in due course.

I can only wonder what games the mandarins in Social Welfare are playing. It sounds like they’re throwing the kitchen sink at the prospect of serious social welfare cuts. I think it’s a symptom of Mary Hanafin not wanting to go down with Ernest Blythe by cutting pensions.

]]> By: Pat Cooper http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5709 Pat Cooper Mon, 20 Apr 2009 20:31:04 +0000 http://www.irisheconomy.ie/?p=1808#comment-5709 I totally agree with the assertion that government would be impossible if their hands were tied legally with regard to expectations. It is extremely difficult for farmers in that Reps is cut and the building grants are being paid over three years. However, the government seems to think they cannot do anything about the pensions paid while earning a TDs salary or the long service increment due to the legal implications. The judges were able to excuse themselves from the 'pension levy' due to, I believe, a dubious interpretation of the law. I put forward the following scenario 'Judges salary remain at the same level in 2009 and 2010 and the government introduces a new top rate of tax of 50%. Could the judges refuse to pay this tax because it will reduce their salary? I'd be interested in a response to this question. We have had many excuses in the vein of 'he is entitled; legally we had no option; he didn't do anything illegal; our hands are tied. I totally agree with the assertion that government would be impossible if their hands were tied legally with regard to expectations. It is extremely difficult for farmers in that Reps is cut and the building grants are being paid over three years. However, the government seems to think they cannot do anything about the pensions paid while earning a TDs salary or the long service increment due to the legal implications. The judges were able to excuse themselves from the ‘pension levy’ due to, I believe, a dubious interpretation of the law. I put forward the following scenario ‘Judges salary remain at the same level in 2009 and 2010 and the government introduces a new top rate of tax of 50%. Could the judges refuse to pay this tax because it will reduce their salary? I’d be interested in a response to this question.

We have had many excuses in the vein of ‘he is entitled; legally we had no option; he didn’t do anything illegal; our hands are tied.

]]> By: Mark Dowling http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5685 Mark Dowling Mon, 20 Apr 2009 15:33:46 +0000 http://www.irisheconomy.ie/?p=1808#comment-5685 The thing I noted about the IT article is that SW favours taxation (administrative burden goes to Revenue, i.e. Finance) and Finance favours means testing (administrative burden goes to Social Welfare). I suspect the Sir Humphreys in Social Welfare might be torn between fobbing off a need for new personnel recruitment or the melee of intra-departmental redeployment onto Revenue, and the possibility that Revenue might assume the eligibility assessment role entirely with consequent diminution in the size of Social Welfare as a department. Personally, I don't have much time for means testing. Having experienced it in my youth for both educational grants and employment benefits, it is frequently a pretty demeaning process, and the income that is included and excluded is often quite different - confusingly so - to how taxation is handled. I think all state benefits - student grants, rent allowance, unemployment assistance, child benefit etc. should be automatically notified as income to the Revenue Commissioners, with medical cards treated as BIK and assigned a value. Exemption and allowance rates should then be raised and re-structured to ensure equitable treatment of those on welfare and maintaining incentives to join the workforce. At present, "A" who has been on benefits for, say, three months and gets a paying job for the rest of the year pays no tax on that first three months of income, so "B" in a lower wage job whose income leaves net cashflow lower than benefits claimed by A (factoring for medical card eligibility and other social benefits) may pay more tax on the 12 months of working than "A" did for 9 months. I don't have the mathematical model to prove this but I'd love to see that equation crunched, as phrases such as welfare entitlement lead me to think that incentive to work is going to become a key phrase in the next five years - already awareness of benefits fraud is percolating back up through media consciousness from bottom of page 10, where it had lain dormant since the mid 90s, to front page lead. The thing I noted about the IT article is that SW favours taxation (administrative burden goes to Revenue, i.e. Finance) and Finance favours means testing (administrative burden goes to Social Welfare).

I suspect the Sir Humphreys in Social Welfare might be torn between fobbing off a need for new personnel recruitment or the melee of intra-departmental redeployment onto Revenue, and the possibility that Revenue might assume the eligibility assessment role entirely with consequent diminution in the size of Social Welfare as a department.

Personally, I don’t have much time for means testing. Having experienced it in my youth for both educational grants and employment benefits, it is frequently a pretty demeaning process, and the income that is included and excluded is often quite different - confusingly so - to how taxation is handled.

I think all state benefits - student grants, rent allowance, unemployment assistance, child benefit etc. should be automatically notified as income to the Revenue Commissioners, with medical cards treated as BIK and assigned a value. Exemption and allowance rates should then be raised and re-structured to ensure equitable treatment of those on welfare and maintaining incentives to join the workforce.

At present, “A” who has been on benefits for, say, three months and gets a paying job for the rest of the year pays no tax on that first three months of income, so “B” in a lower wage job whose income leaves net cashflow lower than benefits claimed by A (factoring for medical card eligibility and other social benefits) may pay more tax on the 12 months of working than “A” did for 9 months.

I don’t have the mathematical model to prove this but I’d love to see that equation crunched, as phrases such as welfare entitlement lead me to think that incentive to work is going to become a key phrase in the next five years - already awareness of benefits fraud is percolating back up through media consciousness from bottom of page 10, where it had lain dormant since the mid 90s, to front page lead.

]]> By: Gavin Barrett http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5626 Gavin Barrett Sun, 19 Apr 2009 22:21:54 +0000 http://www.irisheconomy.ie/?p=1808#comment-5626 Colin is absolutely correct re the non-application of the doctrine of legitimate expectations (at least the domestic law doctrine) to legislative action. Keane J confirmed that non-application in the Pesca Valentia case in 1990. The doctrine of legitimate expectations cannot be relied upon against the adoption of legislation until the doctrine is accorded the status of a constitutional principle. This can be regarded as an aspect of the separation of powers. Maybe the original intention had been to proceed by way of ministerial order? Colin is absolutely correct re the non-application of the doctrine of legitimate expectations (at least the domestic law doctrine) to legislative action. Keane J confirmed that non-application in the Pesca Valentia case in 1990. The doctrine of legitimate expectations cannot be relied upon against the adoption of legislation until the doctrine is accorded the status of a constitutional principle. This can be regarded as an aspect of the separation of powers. Maybe the original intention had been to proceed by way of ministerial order?

]]> By: Colin Scott http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5603 Colin Scott Sun, 19 Apr 2009 09:06:04 +0000 http://www.irisheconomy.ie/?p=1808#comment-5603 The doctrine of legitimate expectation, though its precise nature and ambit is contested, is generally held to apply to the exercise of administrative discretion delegated under legislative power. As far as I am aware it has no application to the exercise of legislative power by the legislature. From a legal perspective the doctrine could not therefore apply to the provisions of the Finance Act. It is clearly of considerable importance that the legislature can legislate freely, provided that it acts within the terms of the Constitution. The doctrine of legitimate expectation, though its precise nature and ambit is contested, is generally held to apply to the exercise of administrative discretion delegated under legislative power. As far as I am aware it has no application to the exercise of legislative power by the legislature. From a legal perspective the doctrine could not therefore apply to the provisions of the Finance Act. It is clearly of considerable importance that the legislature can legislate freely, provided that it acts within the terms of the Constitution.

]]> By: Pat Donnelly http://www.irisheconomy.ie/index.php/2009/04/18/the-concept-of-legitimate-expectations/#comment-5598 Pat Donnelly Sun, 19 Apr 2009 05:49:30 +0000 http://www.irisheconomy.ie/?p=1808#comment-5598 Good point. More corrupt utterances said to be from cabinet advisors. Yet we have cabinet secrecy. Corruption is obvious, but may not itself jeopardize our rating. But it does suggest that there is no chance of practical remedy. Unless the crumbs from the table are sufficiently rich. the gombeens will not allow it. Maybe Peter Sutherland can enlighten us? Good point. More corrupt utterances said to be from cabinet advisors. Yet we have cabinet secrecy. Corruption is obvious, but may not itself jeopardize our rating.
But it does suggest that there is no chance of practical remedy. Unless the crumbs from the table are sufficiently rich. the gombeens will not allow it.
Maybe Peter Sutherland can enlighten us?

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