BCL Law Notes Comparative Public Law Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Lecture MT1: Overview & Theory
Background notes: defence of the ultra vires doctrine
Ultra vires doctrine – except for error of law on the face of the record, the constitutional basis for judicial review stems from the presumption that where power is conferred, it must be exercised within jurisdiction, reasonably (in a Wednesbury sense) and in accordance with procedural requirements
Criticisms
Doesn’t capture application to non-statutory bodies exercising non-legal powers (eg Takeovers board)
BUT common law provided for restrictions of power of those exercising monopoly – eg ports, wine cases, Hale LCJ – because it becomes a public right rather than simply a private one
Recognise that common law provides basis for some forms of judicial review
Eg error of law on face of the record – although nearly all errors now subsumed into JE in England
Does not subvert parliamentary supremacy – can always intervene legislatively
“Weak” criticisms – that there is nothing in parliamentary intention that necessitates limits on power prescribed by JR – the source of JR is the common law, not ultra vires
“Strong” criticisms – that it follows further that there is a limit on parliamentary supremacy insofar as the courts can strike down legislation
Comparative administrative law – three levels of abstraction
General principles & ideology
Protect need to protect fairness, human rights, accountability, rule of law, democracy, equality
Common to all 3 systems
Eg need to protect hearing
General forms of legal challenge / heads of judicial review
Dependent on history, constitutional structure etc
Greatest differences start to emerge between systems
Eg Natural justice – rule against bias & right to fair hearing
Detailed articulations of what those individual heads mean
Substantive rights constituting right to fair hearing
Eg right to oral hearing
Less differences – actual outcomes
Eg. Discretionary exercise of power
Proportionality control in Europe, Rationality in UK & France – but similar outcomes eventuate
Common to each jurisdiction – creative courts
UK – developed from common law – since about 17th century at latest – more than most of European countries
More difficult to justify as Courts of inherent jurisdiction
Tribunals and Supreme Court have statutory jurisdiction
ECJ – not complete account of principles of judicial review in treaty
Historically – scope of decision-making has expanded gradually necessitating greater levels of JR
Developed from constituent States
France – Also not in Code
Creation of Conseil d’Etat – head of Admin courts in France – developed admin law principles
Question as to jurisdiction of courts to act in that way – common law or ultra vires
EU: “There is no State”
History of EU important to evolution of JR – when originally set up didn’t have
Democratic input from European Parliament
International arrest warrants
Wide scope of decision-making power
Dealing with two levels
EU bodies
Different member State administrative institutions making decisions within sphere of EU law
All regulation administered at national level
Those national officials bound by EU law
Directives which member States are supposed to implement by legislation: see Digital Rights Ireland (striking down Data Retention directive)
Consequence that difficult to get standing before the Court directly
Can get indirect challenges via domestic courts uplifted to ECJ
EU influenced by domestic jurisdictions
Not always common between states – particularly problematic in human rights protection
Conflicts between EU
Unlike France & UK which derives power from sovereignty, has to derive powers from treaty (similar to Federalism)
Art 263(2) TFEU confers jurisdiction on the ECJ for: “lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.”
Derived from French system
Article unchanged since 1958 – Travaux praparatoires not released for 30 years and still not properly analysed
Court doesn’t refer to source of power
Activism of Court extends to this
Pragmatic reason – they don’t know because sources not available?
Court filling in gaps to reflect administrative constraints in domestic systems
Justifiable in respect of EU institution
Has less federalist attraction when acting in respect of domestic officials / legislatures implementing EU law
Academic literature – assumes based on this provision
UK: “State is bad”
Wary of giving power to administrative bodies that may take freedoms away from individuals – liberal democratic theory
Starting point – ultra vires theory
Administrative bodies set up to perform certain functions by legislation
Court ensures that administrative bodies acting within those pockets of power
Now – administration more centralised and complete
Anisminic case – broad & narrow judicial review – so flawed that no decision in the first place
Ouster clauses – difficult therefore to reconcile with ultra vires theory
Unlawful exercise of discretion nonetheless susceptible to JR
Concern about Courts getting involved in policy/democratic processes
Judicial activism – UK
Political constitutionalism v legal constitutionalism
Tomkins v Craig articles
Political constitutionalism – Parliamentary supremacy
BUT no theory that gives no control over legislative power
Still give some role to legal (judicial) controls
Legal constitutionalism – more legal controls, natural justice, rule of law
Always recognises that some level of defence to parliament required
Still give some role to political controls
Query whether theories are actually separate – both come from different starting points and end up in the middle
Modified ultra vires theory v Common law theory
Common law theory –
courts have the power to develop common law in private...
Buy the full version of these notes or essay plans and more in our Comparative Public Law Notes.
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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