1 What is Administrative Law?

Topics will be covered in the following order in this lecture course:

• The constitutional foundations and legitimacy of judicial review

• Jurisdiction

• Collateral challenge and nullity

• Bias and procedural fairness

• Legitimate expectations

• Retention of discretion: dictation, delegation, over-rigid policies, fettering by contract

• Abuse of discretion I: irrelevant considerations, improper purposes

• Abuse of discretion II: unreasonableness and disproportionality

• The scope of the public law principles

• Remedies I: restrictions, including permission, exhaustion, time limits, standing and ouster

• Remedies II: remedies available in judicial review proceedings

Public Law = Administrative Law + Constitutional Law (+ Criminal Law, on some views)

• Constitutional law is about the structure and operation of the 3 branches of government, to which is always added human rights and civil liberties.

• What is unique about administrative law is that it concerns the exercise of discretion.

1.1 Administrative Law

• Can be used as a broad term to describe the whole range of methods by which the process of governance is subjected to legal regulation and control; this would include, for example, ombudsmen, tribunals, and inquiries – and indeed JR.

  • All governmental power (excluding parliament) is subject to legal control. The primary purpose of administrative law then, is to keep this power in check protecting citizens against it’s abuse. (‘Abuse’ doesn’t imply maliciousness – often decisions and actions performed in good faith can be beyond the prescribed legal boundaries. The law in this area is often complex and uncertain.)

  • As well as power there is duty – administrative law also sees that public authorities can be made to carry out there duty, if this is able to remedy the situation of an aggrieved person.

• Can also be used to describe the broad set of underlying principles that govern the exercise of governmental power by state bodies.

  • This is a narrower definition, distinguishing the law regarding the manner of governance from the much wider body of law concerning its structure. Under this definition, law concerning the process of by-elections or the process of rejecting a planning application are not part of the body of administrative law. Instead, the principles that underlie those processes are.

  • This definition isn’t perfect though – sometimes the structure of governmental processes can be very relevant to whether the process of governance is meeting it’s aims and goals with regard to the citizen. The machinery of statutory inquiries and special tribunals is often key when it comes to whether appropriate justice is being dispensed.

Characteristics of administrative law:

• Ordinary courts, and not special administrative courts, decide cases involving the validity of governmental action. This is the Anglo-American system.

  • Pros

    • Citizens can turn to courts they know and trust

    • Highly efficient remedies available

    • No demarcation issues between areas of the law

    • Government perceived to be governed by and operate under the same law as everybody else – inspires confidence in the provision of effective administrative justice.

  • Cons

    • Judges may not have specialist knowledge

    • The key underlying principles of administrative law may be lost under the mass of miscellaneous legal considerations ordinary courts are accustomed to administering.

The Continental system used in France and elsewhere utilises discrete administrative courts, able to develop the law along their own lines, free from the ‘constraints’ of ordinary private law and legal machinery. But remedies can be narrow in scope and not always effective, plus the public may not have he same level of confidence in the justice administered through courts they may view as less independent and trustworthy.

• How far can public law now be seen as a distinct branch of law, separate from private law?

The Anglo-American system provides that ordinary courts, and not special administrative courts decide cases involving the validity of administrative action – alongside disputes involving private bodies. In that sense the overarching legal framework and mechanism is the same – useful for inspiring confidence and suggesting true independence.

But as to whether public law can be seen as a distinct branch, we must recognise the special position of government. Public bodies are monopoly providers, with no competition, no possibility of exit short of emigration and particularly no choice on behalf of consumers/citizens. This inherently places public bodies in a powerful position liable to abuse. It’s clear therefore that although legal regulation is necessary in both spheres, it needs to take a different form in the public context. (P.43 privatisation, and therefore increased contractualisation of government.)

Much of what government does can be – and is – regulated by ordinary private law. When public bodies enter into contracts, and carry out tortious behaviour for example, they are governed in exactly the same way as a private body. But sometimes their unique position enables them they make decisions and commit acts that can’t be meaningfully regulated under the same body of law. The body of law that regulates these powers is public law (first definition above).

1.2 Judicial Review

Judicial Review is just one of those methods of regulation falling under that first definition of Administrative Law. It is a procedure where the independent judiciary review the action or inaction of a body exercising public or governmental power.

In assessing whether judicial review will lie in any particular case, it is necessary to ask whether three conditions have been complied with:

1. Does the applicant [the public law word for claimant] have a substantive ground of review (illegality, procedural impropriety, irrationality, proportionality, breach of human rights, etc.)?

2. Are they challenging an exercise of public power by a public body (the...

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