Good Faith in Public Law

23-24 September 2021

Institute of European and Comparative (Online)

Convenors: Philipp Renninger (University of Lucerne), Ewan Smith (Oxford) and Nick Barber (Oxford)

 

Good faith is a general principle of law. It refers to “a sense of loyalty to, and respect for, the law”; to “the absence of dissimulation, deception and fraud”; and to the “sincere belief that one acts in accordance with the law.”[1]

In many civil law and some common law jurisdictions, good faith is a cornerstone of private law. In certain jurisdictions, good faith is also recognized in public law. For example, a fundamental right of good faith binds the Swiss state to its citizens. In turn some rights are contingent on the duty to act in good faith towards the state.

English law has traditionally rejected good faith as a general principle of private law, though good faith standards abound. Lord Bingham described this patchwork of good faith obligations as “piecemeal solutions … to demonstrated problems of unfairness.”[2]

Like private law, English public law lacks a general doctrine of good faith and fairness.[3] However, English courts have been willing to quash administrative decisions for bad faith since at least Kruse v. Johnson.[4] Bad faith is an explicit component of both Lord Greene’s classic approach to irrationality[5] and Lord Reid’s classic approach to illegality.[6] Connected ideas such as “good administration” and “abuse of power” and the idea that public bodies ought to keep their promises, underpin the law of legitimate expectation.[7]

Good faith is also a feature of UK constitutional law. Last October, two key government law officers resigned because they thought the government’s policy of breaking international agreements in bad faith breached UK constitutional convention. Recent constitutional cases such as Miller v. PM[8] address behaviour that is unconstitutional, in part, because it is disingenuous. Landmark constitutional cases such as Lumba,[9] Corner House,[10] Bancoult,[11] World Development Movement[12] and M v. Home Office[13] arguably confront similar issues.

This conference explores good faith in public law. We will consider whether these “piecemeal solutions”  braid together into something more substantial, drawing on research in private law. We will consider how EU law and public international law have shaped good faith in member states and more widely. We will also consider what a constitutional principle of good faith – or a human right to good faith – might add, drawing on research in comparative law.

If you are interested in good faith, in its public, private or comparative dimensions, and would be willing to present a paper, act as a discussant, or chair a panel, please contact us at:

philipp.renninger@unilu.ch

ewan.smith@law.ox.ac.uk

nick.barber@law.ox.ac.uk

 

[1] J. Basdevant (ed.) Dictionnaire de la Terminologie du Droit International (Paris, Sirey 1960) 91-92

[2] Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 at 439

[3] R (Gallaher Group) v Competition and Markets Authority [2018] UKSC 25

[4] [1898] 2 Q.B. 91

[5] Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 K.B. 223 at 229

[6] Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C. 147. See also Padfield v. Minister for Agriculture Fisheries and Food (1968) AC 997

[7] See e.g. Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [68]

[8] Miller v. Prime Minister [2019] UKSC 41

[9] R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12

[10] R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 A.C. 756

[11] R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61

[12] R (World Development Movement) v. Secretary of State for Foreign Affairs [1995] 1 W.L.R. 386

[13] M v. Home Office [1994] 1 A.C. 377