Equity's roving commission in administrative law: An analysis of the present and potential role of equity in the relationship between local authorities and their service users

This thesis explores the use of equity and its principles in the field of public law. It asks whether the relationship between local authorities and their service users can properly be understood as being a fiduciary relationship. In considering this question the thesis examines the extent to which the relationship is analogous to trusteeship or whether it is some other sui generis category. This requires exploration of core elements of trust and loyalty and analysis, within a local government context of the debate as to whether fiduciary duties are confined to having a proscriptive role or whether, as some advocate they have a wider prescriptive function. The relationship between local authorities and their service users is not considered to be a fiduciary relationship within the traditional class of relationships so classified. Notwithstanding, there are instances within that relationship where the characteristics resemble in part application of a sui generis label. For example, in the realm of local authorities and their interaction with the elderly, child care and youth counselling services it is possible to apply a quasi - trusteeship role. This categorisation cannot however be extended to the majority of interactions between local authorities and their service users which usually fall within a contract or tortious setting. The main reason in not being able to identify the relationship between local authorities and their service users as fully fiduciary is the inability to point to a central core of loyalty between the parties which is so necessary for a finding of the existence of a fiduciary relationship. The loyalty inhibitor is the polycentric essence of much of local authority decision making, which is made in a very diverse community group often with different complex needs and aspirations all clambering for attention. Further, as local authorities are public bodies they must accommodate the ‘public interest’ in any decision making process and outcome. These factors combine to make a very different decision making environment than the way fiduciary obligations can be exercised in private law and makes the hurdles higher for an exercise of translation to the public law sphere. The purpose of this analysis is to explore whether the roving commission of equity has any application to the public law field. Has equity died and shrivelled, or does equity still have the ability to flourish and accommodate new situations and changes in social morals and norms, ‘yet maintain its core values and norms, without which no society can survive, let alone flourish.’? Notwithstanding, these hurdles this author considers that equity still has a role to play in public law, none more so than in the day to day decision making of local authorities as well as in judicial review proceedings. Equity can bring a contextual approach so necessary when substantive review is applied. Equity has proved to be a robust flexible adaptable tool, even in a complex modern environment. For example, the remedies it has fashioned of injunctions, declaratory relief and freezing orders to mention a few , as well as aiding the common law in its application of trust principles to a deserted wife’s equity, where the title was in one party’s sole name. This author espouses a principle of stewardship which can be applied as an additional substantive review tool in the judicial tool box, along with Wednesbury and proportionality. Structuring substantive review is a major current debate in public law both judicially and academically: there is no valid reason why ethical principles such as stewardship-of person, place, property and purpose should not be a valid contributory player.