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Administrative Law: An Introduction to Administrative Law 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.

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. o 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.) o 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. o 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. o 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. o 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 2

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 respondent)? If not, the case cannot be brought via judicial review. But what is a public body? Does it have to be statutory?

3. Have they complied with the relevant procedural requirements (does the applicant have locus standi? Are they bringing their case within the short time limit? Are they using the right procedural route?)?

2 Judicial review: some initial perspectives

Much of this course will be concerned with the details of the law of judicial review. However, before we consider that, we need to consider some preliminary questions.

2.1 Development of JR

2.1.1 The prerogative remedies Prerogative remedies were originally used by the crown and the royal courts in order to prevent hierarchically inferior courts and tribunals from getting involved in disputes that it was thought should be handled elsewhere - namely further up the food chain. Their key purpose therefore was demarcating different jurisdictional areas. o o o o

Certoriari - quashing of a lower decision which was extra-jurisdictional or patently contrary to the law. Prohibition - prevents lower court(s) from deciding on an issue deemed outside of their jurisdiction. Mandamus - a command to a lower court or tribunal to carry out their legal duty if they were in default. Habeus corpus (only one still called this) - order to release an unlawfully detained individual.

They were called prerogative remedies because they were issued under the royal prerogative (there being no strict legal basis for their use), by the crown or royal courts. Where a prerogative remedy is utilised (as they still are, under different nomenclatural guises), the crown remains the nominal plaintiff in the action, as in the past. This makes them particularly useful where no recognisable individual is injured by the administrative illegality enough to bring their own action. (e.g. failure by a public cinema license authority have an appropriate test in place for identifying obscene films).

3 Prerogative powers are the common law powers of the crown. The common law allowed the prerogative writs too. Unlike the crown, subjects have no right to apply for judicial review. Applicants must go to the court and ask for permission to apply for judicial review. There were issues with the prerogative writs as a means of keeping the government under control. They had various deficiencies - primarily procedural ones. If you applied for a prerogative remedy, you won't be entitled to 'disclosure'. In ordinary private law litigation, you need to disclose all information - it is litigation with 'all the cards face up on the table'. This was another issue in regard to the lack of interim relief, as was the lack of cross-examination. In practice, this meant that in an action for certiorari, the government said A, while the individual said B, the former would be accepted. Anisminic, Ridge v Baldwin, Padfield - they all form the basis of Administrative Law, but they were all private law disputes - there was a feeling around the 60's that if you had a public law dispute, you had a choice between a prerogative remedy, or simply sue the defendant in private law proceedings. All of the above chose the latter - seeking declarations or injunctions.

2.1.2 The Application for JR For a long time, the remedies available in Administrative law belonged to three distinct families:?Private law remedies ? damages, injunction, declaration etc. Prerogative remedies ? certiorari, prohibition, mandamus. Statutory remedies ? used in special situations to exclude/extend other remedies such as in the HRA 1998. This - although W+F suggests it 'caused little difficulty in practice' - was clearly a target for reform. There needed to be one single procedure by which citizens aggrieved by administrative action or inaction could seek a single procedure which would allow for remedies of both families to become interchangeable. In 1977 the LC put together a proposal for a review procedure free of exclusive remedies, which were implemented by the Rule Committee of the Supreme Court- which was the creation of the 'application for judicial review'. Many of the reforms were then incorporated into the Senior Courts Act 1981. (Order 53). The application for judicial review is a particular procedure whereby the lawfulness of the exercise of discretionary powers is tested. But the key point is that the new, all singing and all dancing procedure lacked all of the flaws of prerogative remedies. (The only flaw it has inherited is the short time limit between a decision being made and JR being instigated). The intention is that it is a non-exclusive remedy - you could still sue privately if you wished. Then came O'Reilly v Mackman.

2.2 What is judicial review?

We will refine our definition, and understanding, of judicial review as the course progresses. But what amounts to a workable first approximation?
? Review by whom?
Review is carried out by independent courts and judges.4

Review of whom?

It's review of bodies exercising public, or governmental power. Where the demarcation between this kind of power and other actions lies is a fundamental issue.
? Review on what grounds?
Some examples may help to illustrate what judicial review is about. Consider (briefly for now---we will return to these cases later in the course) the following:
? R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 C tetraplegic, moved to a new home on the basis of a promise of a 'home for life'. But the new home was closed due to a lack of resources. As we know, she had an enforceable substantive legitimate expectation, and the home was kept open. The case illustrates some of the key functions of administrative law. Conscionable dealing between the state and the individual, but also the treading of a line between interests of the individual and the [official perception of] the public interest.
? Ahmed v HM Treasury (No 1) [2010] UKSC 2, [2010] 2 WLR 378 UN Resolution required states to freeze assets of those involved in terrorism. This lead to Parliament passing an Act authorising Orders in Council (executive leg) 'when necessary or expedient' for giving effect to UN Security Council directions. The gvt. made two orders. The first allowed the freezing of assets of anyone reasonably expected of being involved in terrorism (different to the wording of the resolution). The second authorised the freezing of assets of those on UN suspect lists. The case arose not on the legality of being put on that list, but on the creation of the executive legislation that gave the government that power under the UN act. The claimants argued that claimed they had exceeded the power that that act conferred on them. It was also held that the section 1(1) of the UN Act (which authorised the orders in council) should be construed narrowly and that there had therefore been a breach of the conferred power. Questions of the lawfulness of administrative action operated side by side with constitutional issues.
? R (Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350 Convicts recalled to prisons based on breach of license conditions. Procedure did not allow for an oral hearing. It was held that this was a breach of the right to a fair hearing. This is significant - it was on a micro-level an example of judicial insistence on the administrative principle of natural justice/procedural fairness. But the consequences rippled out far further than those involved in the case. The machinery of the parole board had to change - at huge expense - almost overnight. These cases illustrate that:?5

Public law plays an important counter-majoritarian role - protecting the interests of individuals. Constitutional and Administrative law form part of a wider notion of public law - serving a similar overarching function. Admin is a delicate line drawing exercise: o Individual interests v. public interests o Administrative autonomy v. judicial control o Legality v. merits o Political will v. judicial protection of the rule of law

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