Administrative Law in UK

Administrative law

A.P. Le SueurI. Loveland

LLB 2660008 BSc Management with Law/Law with Management 2770301 BSc Accounting with Law/Law with Accounting 2770301

2005

This subject guide was prepared for the University of London External System by:

� A.P. Le Sueur, LLB, Barrister, Professor of Public law, Queen Mary, University of London.

� I. Loveland, Barrister, Professor of Law, City University, London.

This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.

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Published by the University of London Press © University of London 2005. Reformatted and reprinted 2010 Printed by Central Printing Service, University of London

All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.

Administrative law page i

Contents

1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Why study Administrative law? . . . . . . . . . . . . . . . . . . . . . . . . 3

Overall aims of this subject . . . . . . . . . . . . . . . . . . . . . . . . . . 3

How to use this subject guide to study effectively . . . . . . . . . . . . . . . 5

2 Theoretical and empirical perspectives on Administrative law . . . . . . 9

Why is constitutional theory important? . . . . . . . . . . . . . . . . . . .11

Getting started on the theoretical reading. . . . . . . . . . . . . . . . . . .11

How much time should be spent on this material . . . . . . . . . . . . . . .11

Empirical research: what really happens and why? . . . . . . . . . . . . . .12

Judicial review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

3 The legal status and powers of administrative authorities . . . . . . . 13

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

4 Decision-making processes in public administration . . . . . . . . . . 17

Overview of the topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Legislation and delegated legislation . . . . . . . . . . . . . . . . . . . . .19

Rule-making. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

5 Introduction to judicial review . . . . . . . . . . . . . . . . . . . . . 23

The importance of judicial review in the subject as a whole . . . . . . . . . .25

Perspectives on judicial review . . . . . . . . . . . . . . . . . . . . . . . .25

Socio-legal approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

Constitutional theory to do with judicial review . . . . . . . . . . . . . . . .26

Void and voidable decisions . . . . . . . . . . . . . . . . . . . . . . . . . .27

Classifying the grounds of judicial review . . . . . . . . . . . . . . . . . . .28

Should the grounds be codified? . . . . . . . . . . . . . . . . . . . . . . .29

6 Judicial review: Order 53/Part 54 procedures and remedies. . . . . . . 31

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Recent reform proposals . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Judicial review remedies . . . . . . . . . . . . . . . . . . . . . . . . . . .36

7 Illegality as a ground of judicial review . . . . . . . . . . . . . . . . . 39

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Statutory interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Examples of illegality arguments . . . . . . . . . . . . . . . . . . . . . . .41

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8 Procedural impropriety as a ground of judicial review . . . . . . . . . 47

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

Types of procedural impropriety arguments. . . . . . . . . . . . . . . . . .49

‘Bias’ arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

Participation in decision-making . . . . . . . . . . . . . . . . . . . . . . .50

Legitimate expectations. . . . . . . . . . . . . . . . . . . . . . . . . . . .51

Duty to give reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52

9 ‘Irrationality’: substantive grounds of judicial review . . . . . . . . . . 55

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57

Types of substantive review arguments . . . . . . . . . . . . . . . . . . . .57

Variable degrees of scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . .57

10 Exclusion of judicial review . . . . . . . . . . . . . . . . . . . . . . . 59

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61

Ouster clause argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .61

Non-jurisdictional error argument. . . . . . . . . . . . . . . . . . . . . . .62

Amenability argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

Standing argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

Justiciability argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

11 Ombudsmen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67


12 Tribunals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71


13 Inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75


14 Contract, tort, restitution and estoppel . . . . . . . . . . . . . . . . . 79

Overview of the topics. . . . . . . . . . . . . . . . . . . . . . . . . . . . .81

Crown Proceedings Act 1947 . . . . . . . . . . . . . . . . . . . . . . . . .81

Contract liabilities and duties of public authorities . . . . . . . . . . . . . .81

Tort liabilities and duties of public authorities . . . . . . . . . . . . . . . . .81

Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83

Estoppel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84

15 The impact of the European Convention on Human Rights . . . . . . . 85

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

The ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

16 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 89

Limited scope of the topic in this module . . . . . . . . . . . . . . . . . . .90

Overall view of the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . .90

Statutory interpretations and declarations of incompatibility . . . . . . . . .91

Public authorities and horizontal effect . . . . . . . . . . . . . . . . . . . .91

Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92

Administrative law page iii

17 The impact of European Community law . . . . . . . . . . . . . . . . 93

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

The ‘impact’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

‘General principles’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

Procedural fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

Legitimate expectation . . . . . . . . . . . . . . . . . . . . . . . . . . . .96

Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96

Fundamental human rights . . . . . . . . . . . . . . . . . . . . . . . . . .96

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Co

rre

ctio

n Administrative lawFebruary 2006, first correction to the 2005 edition

Reference to the Craig textbook entitled Administrative Law should now be to the fifth edition which was published in 2003. Please note the correct references to the textbook:

p.14, para.2

Reference to Craig’s Administrative Law should be to Chapters 4 and 6.

p.15, para.1 under heading ‘Discretion’

Reference to Craig’s Administrative Law should be to Chapters 16–18.

p.18, reference to Craig should be:

� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X] Chapter 1.


� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X] pp.789–822.

p.36, last sentence before ‘Activity’

Reference to Craig should be: pp.457–465.

p.62, para.1 under heading ‘Estoppel’

Reference to Craig should be: pp.639–662.


pp.568–603.

p.68, first reference to Craig:

delete chapter number, page numbers are correct.

page SUPP:II University of London External System

Notes

Contents

Why study Administrative law? . . . . . . . . . . . . . . . . . . . . . . 3

Overall aims of this subject. . . . . . . . . . . . . . . . . . . . . . . . . 3

How to use this subject guide to study effectively . . . . . . . . . . . . . 5

1 Introduction

page 2 University of London External System

Administrative law 1 Introduction page 3

Why study Administrative law?

These days, administrative law is rarely far from the news headlines in the United Kingdom. At a level of high political controversy, problems in the prison service, environmental issues and claims for political asylum (to take just three areas) are bound up with legal issues. On a more mundane level, administrative law is with us from cradle to grave: from the system for the registration of births to the rules on the conduct of coroners’ inquests into the cause of deaths and much in between.

The subject is going to appeal to you if you enjoyed studying Constitutional law in the first year of your degree. Indeed, the borderline between ‘Constitutional law’ and ‘Administrative law’ is not precise. Some topics studied in the first year core subject (such as judicial review) are explored again in Administrative law, though now you will be expected to gain a much more detailed and sophisticated understanding of it. The syllabus also deals with topics already considered in other subjects such as Law of tort† and Common law reasoning and institutions.†

As a basic starting point, it is useful to think about Administrative law as having two facets.† One is the use of law by government to implement its policies; item (c) of the syllabus, for instance, looks at delegated legislation, rule-making and the use of discretion by public authorities. The other aspect of Administrative law is concerned with the ways in which people (including individuals, businesses and pressure groups) use law to seek redress of grievances against government. Here judicial review is important, as is the work of the ombudsmen and tribunals.†

Overall aims of this subject

The particular learning objectives for each topic on the syllabus are dealt with in the chapters that follow.† Our overall aim can be said to be threefold:

� to explore the case-law

� to examine the theoretical basis of administrative law

� to evaluate institutions and processes used to implement government policy through law, and to redress grievances against public bodies.

Recommended readingFor each part of the syllabus, reading is recommended as ‘essential’ and ‘supplementary’. By the time you sit the examination, you should aim to have read and thought carefully about the essential reading for all the topics and the supplementary reading for some.

Essential readingThe essential reading for most topics comes from three books – a textbook, a collection of essays and a case book. You ought to consider purchasing them all. The recommended introductory text is:

� Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London: Butterworths, 2003) third edition [ISBN 0406959528].

This text covers most parts of the syllabus in more than sufficient detail, and also offers the advantage of tying administrative law topics firmly into the more theoretical issues of constitutional law which those topics raise. The textbook also has a web-linked casebook (www.butterworths.com) in which you will find edited versions of many of the leading cases.

There are numerous other general textbooks available, some of which are acceptable alternatives, but the best balance between rigorous analysis of case-law (for those parts of the syllabus where this is important) and theoretical perspectives on the subject is:

† For example, the tortious liability of public authorities.

† For instance, tribunals.

† See also Harlow and Rawlings’ distinction between ‘red’ and ‘green’ light approaches to the subject, discussed in the next chapter.

† Please note that the syllabus is subject to change. Always check the current edition of the Regulations for the correct syllabus listings.

† Learning objectives are listed in this subject guide as ‘Learning outcomes’.


� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X].

� Harlow, C. and R. Rawlings Law and Administration. (London: Butterworths, 1997) second edition [ISBN 0406045895] Chapters 2 and 3.

Students seeking an advanced text might also refer to:

� Wade, W. and C. Forsyth Administrative Law. (Oxford: Oxford University Press, 2004) ninth edition [ISBN 019927021X].

Another book which you ought to consider purchasing is a collection of essays, many of which are recommended as Essential reading for topics on the syllabus:

� Richard, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

For the parts of the syllabus dealing with judicial review, a case book will be useful to you, especially if you do not have easy access to a law library. Although it does not look like a conventional case book, one option is:

� Fordham, M. Judicial Review Handbook. (London: Wiley Chancery Law Publishing, 1995) [ISBN 0471962031 (pbk)].

Fordham sets out, sometimes in a slightly idiosyncratic fashion, 50 ‘principles’ of judicial review which he supports with very short extracts from judgments. Another section of the book has brief synopses of the leading cases. He writes with a very clipped, analytical style and tends to use a lot of jargon. We do not suggest that you use his style or his sometimes idiosyncratic terminology! Nevertheless, as long as you use the book with caution, and are prepared to read some of the more important cases in full in a law library, you should find this a useful and enjoyable source book. It is worth spending an evening sitting in your favourite armchair leafing through this book before you start using it in earnest.

If, for whatever reason, you or your tutors do not like the approach taken by Fordham’s Judicial Review Handbook – which may not be to everyone’s taste – then a more conventional source book is:

� Allen, M. and B. Thompson Cases and Materials on Constitutional and Administrative Law. (Oxford; New York: Oxford University Press, 2002) seventh edition [ISBN 0199255253].

Supplementary readingThe material recommended as supplementary reading on each topic is often only the tip of an iceberg. There is a vast and constantly growing body of literature on most aspects of administrative law. Inevitably the choice of what to suggest to you has sometimes had to be rather arbitrary. If you come across other material† which you think is relevant and interesting, do not hesitate to read it and, if appropriate, refer to it in the examination.

Bear in mind that what is important is more the quality, rather than merely the quantity, of your reading. You must think carefully and critically about the material you read.

Law reports and legal journalsMost of the cases referred to in this guide can be found in one or more of the standard series of law reports (Law Reports, Weekly Law Reports or All England Reports). For one or two, you may need to refer to the specialist publication, the Administrative Law Reports (abbreviated to ‘Admin LR’ and published by Barry Rose Publishers Ltd), though The Times will normally have also published a summary of the case. The Crown Office Digest (abbreviated to COD and published by Sweet & Maxwell) appears six times a year and has summaries of judicial review cases.

The ‘leading cases’ are not systematically listed under the Essential reading sections at the beginning of the chapters in this subject guide. This is not to suggest that you should not read them! On the contrary, where it is clear from the discussion of a case in Craig or

† For instance, referred to in a footnote in a textbook.


other textbooks that a case is of great significance, it is clearly sensible for you to read it carefully in full. Important cases that have been decided since the third edition of Craig (in mid-1994) are, however, listed under Essential reading. This subject guide states the law as at 1 January 2005.

Some of the academic articles you will need to read are, of course, in the general journals such as the Modern Law Review, Law Quarterly Review, Cambridge Law Journal, New Law Journal, Current Legal Problems. Many are in Public Law, the leading specialist academic journal for the subject (published by Sweet & Maxwell four times a year). You should also be aware of the journal called Judicial Review (John Wiley & Sons Ltd, ISSN 1085-4681), launched in 1996. Although written ‘for and by busy lawyers’, it contains short, snappy articles that will also be of interest to you.

How to use this subject guide to study effectively

This subject guide is not intended to replace a textbook and other readings. The aim of this guide is to steer you through the LLB Administrative law syllabus. It recommends reading for each topic and suggests ways of studying them. Learning outcomes and sample questions from past examinations are included to help you understand what you will need in order to do well in the examination. It is a good idea for you to read the whole of this guide quickly from beginning to end before you start work on this subject; there are overlaps and links between different topics on the syllabus which you ought to be aware of from the outset.

Study timeYou should set aside a specific amount of time each week to study this subject, increasing the amount in the six weeks before the examination. Remember, though, that individuals vary greatly in their needs; the time to stop studying is when you know the topic thoroughly, and not until then. It is very important to plan your time carefully. Do not forget to leave time every week and month for revision in addition to the period before the examination. Revision must be a continuous process.

Format of the examinationImportant: the information and advice given in the following section are based on the examination structure used at the time this guide was written. However, the University can alter the format, style or requirements of an examination paper without notice. Because of this, we strongly advise you to check the rubric/instructions on the paper you actually sit.

You will be asked to answer four out of eight or nine questions in the examination. Most questions will be in the form of essays. You may also be asked problem questions. The paper is not divided into separate parts. You are not allowed to take any materials into the examination.

Answering examination questionsTo do well in the examination you need to understand what the examiners are looking for. The very best way to understand this is to spend time considering past examination questions (many of which are set out in this subject guide) together with the comments made in the Examiners’ reports. Although it is important for you to make and memorise good notes as you work through this subject, remember that the examination tests how well you respond to particular questions (which is not really the same thing as how good your notes are). You should therefore ensure that you give yourself very regular practice in writing essays and answering problem questions on this subject. Sometimes you may want to do this as a timed exercise, allowing yourself 45 minutes to plan and write out your answer. At other times you may just want to write out an essay plan. Regard this as a core part of your work.† Remember that the Examiner’s report on the particular question you have tackled will provide invaluable guidance as to the approach you should have taken.

† Bear in mind that even an Internal student will only receive feedback on two or possibly three pieces of written work during the year.


Essay answersThe examiners attach great importance to the way in which you express yourself. As in any other law subject, you need to structure your essay appropriately. Good essays explain your own informed and reasoned viewpoint, rather than just setting out a bland and aimless description of the topic. Whenever possible, you should draw upon the work of the major commentators. A good way to do this is to say things such as:

‘As Bloggs argues, a strict rule on standing is essential to prevent the High Court from becoming overloaded with judicial review applications by pressure groups seeking to advance their political causes...’

Or you may be able to pick up on some debate, for instance by writing something like this:

‘Bloggs advocates the retention of a firm rule limiting access to the court to those people very directly affected by a public law decision. However, as Muggins demonstrates, in practice very few applications for judicial review are refused at the leave stage solely on the basis that the applicant lacks ‘a sufficient interest in the matter to which the application relates’ (the test set down by Supreme Court Act 1981, s.31). That this is so should not be surprising because in the National Federation case in 1981 the House of Lords held that issues to do with standing should normally be dealt with at the full hearing of an application for judicial review, because it was so often tied up with the factual background to the case...’

The Examiners’ reports often lament a lack of application and detailed analysis of case-law. For many topics on the syllabus, especially judicial review, you need to know the case-law very well; it is not enough merely to list names of cases. You will often need to explain how a series of judgments fit together. To do well, you will also need to take a critical stance to the case-law. Do not assume that judgments are uncontroversial: by reading case notes and articles in academic journals, you should begin to develop opinions of your own about the law and be prepared to criticise it in an appropriate and informed way.

Another common weakness in the past has been that some candidates have had an inadequate understanding of public law theory. What this means is discussed further in Chapter 2 and (in relation to judicial review in particular) in Chapter 5.

Answering problem questionsMost of the advice just given about answering essay questions applies just as much to problem questions. It is essential that you structure your answer in a clear and appropriate way. Bear in mind that if you are asked to advise a person, this is what you must do: this is a difference exercise from sitting in judgment! What you ought to try to do is evaluate the arguments that could be put forward on behalf of ‘your client’ if the matter goes to court.

Obviously if you fail to spot and advise on important issues raised by a problem, you are just throwing away the opportunity to earn marks. One way to avoid this is to devise a checklist of the points that may arise.† In Chapter 5 we suggest that you work out a checklist of the various grounds of judicial review. Other issues may also arise on a judicial review problem, including:

� whether the potential applicant has standing

� whether the potential respondent is amenable to judicial review.

Remember that not all problem questions deal with judicial review – others may raise issues to do with the tortious liability of a public body, and so on. You ought to devise checklists for these as well.

† Be clear: checklists are to help you spot relevant issues; your actual answer should not be written in the style of a checklist.


How much time to spend on this subjectYou should set aside a specific amount of time each week to study this subject, increasing the amount in the six weeks before the examination. Remember, though, that individuals vary greatly in their needs; the time to stop studying is when you know the topic thoroughly, and not until then. It is very important to plan your time carefully. Do not forget to leave time every week and month for revision in addition to the period before the examination. Revision must be a continuous process.


Notes

Contents

Why is constitutional theory important? . . . . . . . . . . . . . . . . . .11

Getting started on the theoretical reading . . . . . . . . . . . . . . . . .11

How much time should be spent on this material . . . . . . . . . . . . .11

Empirical research: what really happens and why? . . . . . . . . . . . . .12

Judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

2 Theoretical and empirical perspectives on Administrative law


Essential reading � Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London:

Butterworths, 2003) third edition [ISBN 0406959528] Chapter 3.



Supplementary reading � Cooper, D. ‘Institutional Illegality and Disobedience: Local Government

Narratives’ (1996) 16 Oxford Journal of Legal Studies 255.

� Craig, P.P. Public Law and Democracy in the United Kingdom and the United States of America. (Oxford: Clarendon Press, 1990) [ISBN 019825637X].

� Dicey C. ‘Unitary, Self-Correcting Democracy and Public Law’ (1990) 106 LQR 105.

� Dicey, A.V. Introduction to the Study of the Law of the Constitution. Tenth edition. Several publishers print this classic text.

� Forsyth, C. ‘Of Fig Leaves and Fairy Tales: the Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) CLJ 122.

� Loughlin, M. Public Law and Political Theory. (Oxford: Clarendon Press, 1992) [ISBN 0198762682].

� Loveland, I. ‘Irrelevant Considerations? The Role of Administrative Law in Determining the Local Connection of Homeless Persons’, Chapter 9 in Richardson. G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

Administrative law 2 Theoretical and empirical perspectives on Administrative law page 11

Why is constitutional theory important?

Issues to do with constitutional theory pervade Administrative law. From time to time, the examiners ask very broad questions about the nature and scope of administrative law in Britain. To tackle such questions effectively, you need to have a good understanding of constitutional theory and the changing nature of government and public administration.† In Chapter 5, some of the theoretical debates about judicial review (which, of course, is only one aspect of Administrative law) are outlined; here we look at the broader picture. As we will see later in this subject guide, ‘theoretical’ perspectives are also required on the more applied subjects: past examination questions have, for instance, asked about the relationship between the concept of the rule of law and the rules on standing to use the Order 53 Application for judicial review procedure.†

Getting started on the theoretical reading

There is a great deal of interesting writing on theoretical aspects of administrative law. One good starting point is Chapter 1 of Craig’s Administrative Law or Chapter 3 of Loveland’s Constitutional Law, Administrative Law and Human Rights. Another is Harlow and Rawling’s book Law and Administration, published in 1984. This is now out of print and some of the chapters dealing with substantive law are very out of date. The first two chapters, however, have had a great influence on how law teachers and students approach administrative law and are still well worth careful reading. Harlow and Rawlings open by saying: ‘Behind every theory of administrative law there lies a theory of the state’. They then go on to survey academic writing and judicial decisions, attempting to expose the theoretical underpinnings of this literature. The terms they have coined for the three broad strands of theorising have now passed into common parlance among administrative lawyers: red light, green light and amber light theories.

There have since been a number of other attempts to survey academic writing and the case-law with a view to explaining the constitutional basis for the subject. In Public Law and Political Theory, Loughlin identifies two basic approaches to the subject, each of which has variants. He calls these main approaches ‘normativism’ and ‘functionalism’. Another important book exploring the connections between administrative law and political theory is Craig’s Public Law and Democracy in the UK and USA. His major theme is that:

‘the different conceptions of public law reveal themselves to be reflections of deeper controversies about different conceptions of the democratic society in which we live’.

He examines several different type of democratic theory, each of which has been used to explain the function of law.

How much time should be spent on this material

The study of administrative law and its relationship to political thought is an enormous exercise and, obviously, you have only a finite amount of time to spend on the subject as a whole. Bear in mind that you also have to get to grips with a variety of substantive topics (ombudsmen, tribunals, judicial review and so on). Nevertheless, time spent on reading and reflecting on the theoretical aspects of the subject is likely to be well spent. Many questions about substantive topics on the syllabus require you to approach them from a theoretical standpoint, as well as showing that you have mastered the relevant case-law and other more applied material.

At what stage of your studies should you attempt the recommended reading on administrative law theory? This is a bit of a chicken and egg situation. Until you have studied some of the substantive topics, much of the theoretical material may seem rather abstract and unconnected to real life and its problems. Equally, unless you have some awareness of the theoretical issues that pervade the subject, it may be difficult to gain a deep understanding of the more applied topics. In any event, it is likely that you will need to read and think about the theoretical material more than once.

† On administrative authorities, see the next chapter. On constitutional theory, see especially Chapters 1–3 of Loveland’s Constitutional Law, Administrative Law and Human Rights.

† See further Chapter 6.


Empirical research: what really happens and why?

So far what has been outlined is material dealing with constitutional theory and administrative law. A rather different set of concerns also pervades the topics on the syllabus: you need to be curious about how law influences the day-to-day behaviour of public authorities and citizens. For instance, if officials actually carry out their work with little or no regard to the rules set down in Acts of Parliament, delegated legislation and the common law, what is the point of having laws? In Britain there is administrative law. A good starting point is to read Loveland’s chapter in Administrative Law and Government Action and Cooper’s article in (1996) 16 OJLS 255.† Both authors suggest that non-compliance with the law by public bodies is a complex phenomenon.

Judicial review

Because judicial review is such an important topic on the syllabus, comments about constitutional theory and empirical approaches to this particular aspect of the subject are made separately.† You may find it useful to look briefly at Chapter 5 now to see how it fits into the broader picture.

Learning outcomesBy the time you sit the examination, you should be able to:

� suggest ways in which English administrative law is connected to constitutional theory

� explain the political assumptions which underpin the work of influential academic writers and judges in the field of administrative law. (An understanding of the frameworks used by Harlow and Rawlings or Loughlin will help you to do this.)

� comment on the influence law may have on work of public authorities.

Sample examination questions1. Dicey’s theories as to the role to be played by administrative law in regulating

the relationships between citizens and the state may have had considerable relevance a hundred years ago, but of how much value are they to the government process in the Britain of the 1990s?

2. Assess the usefulness of ‘red light’ and ‘green light’ theories in explaining the constitutional dimension of administrative law.

3. Compare and contrast the theoretical arguments over the ‘correct’ scope of discretionary government powers in modern British society.

4. ‘To talk of “red light” and “green light” theories of administrative law may be helpful in identifying theoretical extremes, but it provides little useful guidance concerning the practical role that legalistic models of decision-making might play in the government of a contemporary democratic state.’ Discuss.

† See ‘Supplementary reading’ above.

† See Chapter 5.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

3 The legal status and powers of administrative authorities


Essential reading � Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition

[ISBN 042179920X] Chapters 2 and 4.

� Wade, W. and C. Forsyth Administrative Law. (Oxford: Oxford University Press, 2004) ninth edition [ISBN 019927021X] Chapter 3.

Supplementary reading � Black, J. ‘Constitutional Self-Regulation’ (1996) 59 MLR 24.

� Freedland, M. ‘Government by Contract and Public Law’ (1994) PL 86.

� Freedland, M. ‘The Rule against Delegation and the Carltona Doctrine in an Agency Context’ (1996) PL 19.

� Graham, C. ‘Self-Regulation’, Chapter 8 in Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

Administrative law 3 The legal status and powers of administrative authorities page 15

Introduction

It is impossible to understand the law relating to administrative authorities without having an awareness of what those bodies are and what they do. You should already be familiar with some of the basics from first-year Constitutional law. You are strongly advised to revisit those parts of the Constitutional law syllabus at this point.

During the 1980s and 1990s there were far-reaching changes in government institutions in the United Kingdom. It is difficult to overestimate the importance of this transformation. Government-owned industries, utilities and infrastructure have been privatised and new schemes for regulating these activities have had to be established. Many of the service-delivery functions of local authorities are now required to be put out to competitive tender; the result is that in many areas private businesses now undertake important activities such as refuse collection. At a national level, the civil service has been restructured with almost all service-delivery functions now being carried out by executive (or ‘Next Steps’) agencies under framework agreements with departments. An internal market has been created within the National Health Service. Craig’s Administrative Law provides a good account of these and other changes.

Your studies in this area are important for two main reasons:

Questions may be set in the examination directly about the legal status and powers of one or more of the main administrative authorities in Britain. One sub-issue here is whether particular bodies are subject to judicial review. This is considered later.† For the time being, you may want to give careful thought to the status of self-regulatory bodies which are an important feature in many areas of economic and social life, such as the financial services industries and the regulation of sport.

1. A second reason why this general topic is important is that it provides the context for many other parts of the syllabus. Problem questions often raise issues to do with particular (mostly fictitious) legal powers of local authorities and it is useful for you to understand what functions councils perform in general and how they relate to central government. Essay questions sometimes use general terms such as ‘public authorities’ and ‘public bodies’; to tackle these intelligently, it will often be necessary for you to specify what, more precisely, these terms may mean. Attempts to generalise about all public bodies usually end up being inaccurate.

ActivityBriefly define the following terms:

� local authorities

� executive agencies

� the Crown

� the Secretary of State

� self-regulatory organisations

� government

� public bodies.

Learning outcomesHaving read the material relating to administrative authorities, you should be able to:

� describe the main changes that have occurred since 1979

� explain the significance of these changes for administrative law

� evaluate the effectiveness of methods for redressing grievances against administrative authorities.†

† See Chapter 10.

† See further Chapters 5–10 (judicial review), 11 (ombudsmen), 12 (tribunals), and 13 (inquiries).


Sample examination questions1. To what extent should public authorities be granted special treatment under

the law of tort and contract?†

2. What is the difference between a public and a private body in administrative law?†

3. Evaluate the efficacy of institutions other than the courts in ensuring that government bodies exercise their powers in conformity with legal principles.†

† See further Chapter 14.

† See further Chapter 10. Note that this question is about ‘administrative law’ not just about ‘judicial review’.

† See Chapters 11 (ombudsmen), 12 (tribunals) and 13 (inquiries).

Contents

Overview of the topic . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Legislation and delegated legislation . . . . . . . . . . . . . . . . . . .19

Rule-making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

4 Decision-making processes in public administration



[ISBN 042179920X] Chapters 4 and 6.


Supplementary readingThere are several ‘classic’ journal articles and books dealing with pros and cons of governmental discretion. The following have been mentioned in recent Examiners’ reports as some of the literature upon which good answers drew.†

� Dicey, A.V. Introduction to the Study of the Law of the Constitution. Tenth edition. Several publishers print this classic text

� Hayek, F. The Road to Serfdom. First published in 1944, now available in many editions.

� Jones, H.W. ‘The Rule of Law and the Welfare State’ (1958) 58 Columbia Law Review 143.

� Reich, C. ‘The New Property’ (1964) 73 Yale Law Journal 733.

� Titmuss, R.M. ‘Welfare “Rights”, Law and Discretion’ (1971) 42 Political Quarterly 133.

Numerous books dealing with aspects of governmental decision-making processes have been written by or for lawyers. The following are of particular interest:

� Baldwin, R. Rules and Government. (Oxford: Clarendon Press, 1995) [ISBN 0198259093].

� Davis, K.C. Discretionary Justice: a Preliminary Inquiry. (Chicago: University of Illinois Press, 1971) [ISBN 0252001532].

� Galligan, D.J. Discretionary Powers: a Legal Study of Official Discretion. (Oxford: Clarendon Press, 1990) revised paperback edition [ISBN 0198256523].

� Galligan, D.J. (ed.) A Reader on Administrative Law. (Oxford: Oxford University Press, 1996) [ISBN 019876409X].

� Ganz, G. Quasi-legislation: Recent Developments in Secondary Legislation. (London: Sweet and Maxwell, 1986) second edition [ISBN 0421298502].

� Hawkins, K. (ed.) The Uses of Discretion. (Oxford: Clarendon Press, 1992; paperback edition 1994) [ISBN 0198259506].

� Loveland, I. ‘Administrative Law, Administrative Processes and the Housing of Homeless Persons: a View from the Sharp End’ (1991) Journal of Social Welfare Law 4.

There is also a large body of literature in British legal journals dealing with governmental decision-making processes. The following are some of the more influential contributions which you ought to find useful. Lon Fuller’s seminar article was written in the USA in the 1950s but not published until after the author’s death; it is discussed in the Galligan and Jowell articles, but is well worth reading in full if you have access to it.

� Baldwin, R. and J. Houghton ‘Circular Arguments: the Status and Legitimacy of Administrative Rules’ (1986) PL 239.

� Baldwin, R. ‘Why Rules Don’t Work’ (1990) 53 MLR 321.

� Fuller, L. ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353.

� Galligan, D.J. ‘The Nature and Function of Policies within Discretionary Power’ (1976) PL 332.

� Hawkins, K. and R. Baldwin ‘Discretionary Justice: Davis Reconsidered’ (1984) PL 570.

� Jowell, J.L. ‘The Legal Control of Administrative Discretion’ (1973) PL 178.

† See Sample examination questions 2 and 3 on page 16 of this subject guide.

Administrative law 4 Decision-making processes in public administration page 19

Overview of the topic

Topic (c) on the syllabus is concerned with methods used by governmental bodies to carry out their decision-making functions. In other words, we are concerned here primarily with how decisions are made by public bodies (rather than how people complain about them). This issue is connected with aspects of topic (g)† – because some tribunals are involved in primary decision-making – and with topic (h) on inquiries,† which are also a method by which governmental decisions are made.

This topic is an interesting one, requiring you to combine theoretical and practical approaches to the issues raised. Chapters 7 and 11 from Craig’s Administrative Law, recommended above as Essential reading, adopt what for our purposes are rather narrow perspectives; to really get to grips with the issues you will need to do at least some of the ‘supplementary reading’. As you see from the list above, which is in fact only the tip of an iceberg, there is a great deal of reading you could usefully do. One challenge in studying this topic is to make sensible decisions about what to read and how much time to spend on it. If you have access to it, Chapter 1 of Galligan’s A Reader on Administrative Law (see above) provides a very useful overview of the literature and a good starting point.

Legislation and delegated legislation

Your studies for Constitutional law should have given you a basic understanding of the legal status and processes by which Acts of Parliament and statutory instruments are made. Both types of legislation may:

1. set down rules to be followed by government bodies

2. confer discretion on government bodies.

The focus of your studies should be the techniques of discretion and rule-making, rather than the details of how statutes and statutory instruments are made in themselves. Also, bear in mind that just because legislation is enacted does not mean that administrative authorities will understand what is required of them, or even if they do, that they will be able or willing to follow what is stipulated: consider Loveland’s Chapter 9 in Richardson and Genn, and Cooper (1996) 16 OJLS 255.†

Rule-making

As we have just noted, ‘rules’ may be set down by Acts of Parliament and statutory instruments. They may also be made more informally, without parliamentary scrutiny, by the administrative authorities themselves, and set out in documents such as ministerial circulars, guidance notes, codes of practice, and so on. This is sometimes called ‘quasi-legislation’ or ‘tertiary legislation’. You need to understand the legal status and significance of these informal rules. You also need to be able to compare and contrast the benefits and disadvantages of the technique of rule-making with that of discretion. (The first of the Sample examination questions on p. 16, provides a practical example for you to consider.)†

Discretion

You will be aware, from Constitutional law, that Dicey was opposed to granting wide discretionary powers to governmental bodies; he believed that this would lead to arbitrary decisions. Dicey was writing mainly in the nineteenth century and today academic lawyers are much less critical of the conferring and exercise of discretion. Indeed, discretion is generally regarded as essential for carrying out modern government functions. The discussion of discretion in Chapter 11 of Craig’s Administrative Law focuses on judicial control of discretion, rather than the broader issue of discretion as a method for performing governmental functions. You therefore need to do at least some of the suggested Supplementary reading on the subject.

† See further Chapter 12.† See further Chapter 13.

† For publishing details, see Chapter 2.

† A sensible reading programme would be to begin with Harlow and Rawlings Chapters 6 and 7. You could then go on to read and think about Baldwin and Houghton (1986) PL 239, Jowell (1973) PL 178 (which considers, among other things, the possible role of rules in restricting the exercise of discretionary power) and Baldwin (1990) 53 MLR 321. Gantz’s book Quasi-legislation also contains much useful discussion, as does Baldwin’s Rules and Government.


For discussion of discretion at a theoretical level, you may find the ‘classic’ books and articles listed above under Supplementary reading (Dicey, Hayek, Jones, Reich and Titmuss) a useful starting point. Alternatively, you could look at Galligan’s book Discretionary Powers or the collection of essays by Hawkins (The Uses of Discretion). All of these works contain a wealth of interesting material, some of it quite difficult. Davis’s book Discretionary Justice, originally published in the USA in 1964, has sparked off a great deal of discussion and you need to be familiar with his ideas about the need to ‘confine, structure and check’ discretion. Two articles written in the 1970s are also still well worth careful reading: Jowell (1973) PL 178 and Galligan (1976) PL 332.

Policies

Where a public authority has been conferred with discretion, it may choose to adopt a policy on how to exercise that discretion. For instance, a licensing authority may be given power to grant licences ‘to such persons as it thinks fit’. The authority may want to draw up a list of criteria to help it in the decision-making process – for instance, one criterion should be that no licence will be issued to any person who has been convicted of a criminal offence in the previous ten years. The courts will permit authorities to adopt policies as to how they use discretion, but only so long as they do not fetter their discretion. British Oxygen v Board of Trade is the leading case, discussed in Chapter 7. For broader perspectives on this issue, read Galligan (1976) PL 332 and Baldwin and Houghton (1986) PL 239. A policy may be struck down by the courts on the ground of its irrationality.†

Where a decision-maker has adopted a lawful policy (one that does not fetter discretion and is reasonable), the courts will generally require the decision-maker to follow it – either on the basis that a person affected by the policy has a legitimate expectation that it will be followed or because the legal principle of consistency requires this.†

Adjudication

You are probably most familiar with the process of adjudication in the context of the procedures courts use to hear and decide cases. The technique of adjudication can, however, also be used by administrative authorities as a way of making decisions. An administrative decision-making scheme may involve a public official acting impartially, hearing representations, and then applying rules and/or discretion to the facts of an individual’s situation.† Sometimes the official is part of the public authority with primary responsibility for making the decision (for instance, a social fund officer making decisions about entitlement to a social fund payment).† In other situations, the official may be independent from the primary decision-maker and be acting as an appeal or review body (for instance, an Immigration Adjudication hearing appeals from immigration officers). Tribunals,† rather than single officials, may be set up to perform adjudication functions.†

Consultation

Public authorities may be under a legal obligation to consult people as part of their decision-making processes either because there is a specific requirement to do so imposed by an Act of Parliament, or because this is demanded by the common law on ‘natural justice’.† Craig’s Chapter 7 contains a useful discussion.

† See for example R v Ministry of Defence ex parte Smith (1996) QB 517 where it was unsuccessfully argued that a ban on homosexual people serving in the armed services was unreasonable. See the discussion in Loveland’s Constitutional Law, Administrative Law and Human Rights on pp.450–52.

† See for example R v Secretary of State for the Home Department ex parte Urmaza (1996) COD 479 or The Times 23 July 1996.

† For a much fuller explanation of what is meant by ‘adjudication’, see Jowell (1973) PL 173 at 195–9.

† On this area generally, see further Sainsbury’s Chapter 12 in Richardson and Genn (1994).†On tribunals, see Chapter 12.

† A good starting point generally is still Jowell (1973) PL 173; then go on to consider Lon Fuller’s article in (1978) 92 Harvard Law Review 353.

† On which, see Chapter 8.

Administrative law 4 Decision-making processes in public administration page 21

Learning outcomesHaving read and thought about the literature on processes in public administration, you should be able to:

� explain the concepts of ‘discretion’, ‘rules’, ‘policies’, ‘adjudication’ and ‘consultation’ as techniques of public administration

� critically evaluate these techniques from the point of view of constitutional theory

� compare and contrast the practical benefits and disadvantages of these techniques.

Sample examination questions1. Suppose that the government has decided to set up a scheme to provide

compensation for deserving claimants who suffer injury in the course of medical treatment by the NHS. Two schemes are being considered: the first would provide very detailed rules as to eligibility; the second would leave very wide discretion. Under the first, decisions on individual claims would be made by an independent tribunal; under the second, decisions would be made by officials in the government department.

Explain the advantages and disadvantages of these rival schemes.

2. Compare and contrast the theoretical arguments over the ‘correct’ scope of discretionary government powers in modern British history.

3. ‘To talk of “red light” and “green light” theories of administrative law may be helpful in identifying theoretical extremes, but it provides little useful guidance concerning the practical role that legalistic models of decision-making might play in the government of a contemporary democratic state.’ Discuss.

4. The legislative choice between making a statutory rule and conferring a statutory discretion is very important for the legal control of administrative activity. Rules create duties which authorities must perform; discretions confer choice. Both rules and discretions have their advantages and disadvantages.’ (P. Cane) Discuss.


Notes

Contents

The importance of judicial review in the subject as a whole . . . . . . . .25

Perspectives on judicial review. . . . . . . . . . . . . . . . . . . . . . .25

Socio-legal approaches . . . . . . . . . . . . . . . . . . . . . . . . . .25

Constitutional theory to do with judicial review . . . . . . . . . . . . . .26

Void and voidable decisions . . . . . . . . . . . . . . . . . . . . . . . .27

Classifying the grounds of judicial review . . . . . . . . . . . . . . . . .28

Should the grounds be codified? . . . . . . . . . . . . . . . . . . . . . .29

5 Introduction to judicial review


Essential general readingThis chapter of the subject guide covers several different topics. The main recommended reading comes from:

� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X].

� Fordham, M. Judicial Review Handbook. (London: Wiley Chancery Law Publishing, 1995) [ISBN 0471962031 (pbk)].

� Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London: Butterworths, 2003) third edition [ISBN 0406959528].

� Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

Supplementary general readingIn addition to the books just mentioned, reading from three other books are recommended as further reading on some of the judicial review topics. Access to these books in a library will be useful, though not absolutely essential.

� Harlow, C. and R. Rawlings Law and Administration. (London: Butterworths, 1997) second edition [ISBN 0406045895].

� De Smith, S., Lord Woolf and J. Jowell Judicial Review of Administrative Action. (London: Sweet and Maxwell, 1995) fifth edition [ISBN 0420466207].

� Hadfield, B. (ed.) Judicial Review: a Thematic Approach. (Dublin: Gill and MacMillan, 1995) [ISBN 0717123111].

Administrative law 5 Introduction to judicial review page 25

The importance of judicial review in the subject as a whole

Although only two of the items on the syllabus, namely (d) and (e), deal expressly with the topic of judicial review, this topic has often dominated examination papers in recent years. Note also that the final item on the amended syllabus is the impact of the European Convention on Human Rights (ECHR) on English administrative law; one influence the ECHR is having is on the grounds of judicial review and this topic is considered further in Chapter 15. The coming into force in October 2000 of the Human Rights Act 1998 has also had a profound effect on ordinary understandings of administrative law and judicial review. The Human Rights Act 1998 is now the subject of a new, separate chapter – 16 – in this guide. The present chapter deals with three matters:

� socio-legal and constitutional theory perspectives on judicial review

� the distinction between void and voidable decisions

� the categorisation of the grounds of review.

Perspectives on judicial review

Academics study judicial review in a number of ways. Much work has been concerned with analysing the legal doctrine in the case-law, and you too will have to do this. There are, however, also two other important ways in which judicial review may be studied: empirically and in terms of constitutional theory. Before reading any further, you may find it useful to look back at Chapter 2, which considered these approaches in relation to administrative law as a whole.

Socio-legal approaches

Recommended reading � Bridges, L., G. Meszaros and M. Sunkin Judicial Review in Perspective. (London:

Cavendish Publishing, 1995) [ISBN 18594120303].

� Galligan, D.J. (ed.) A Reader on Administrative Law. (Oxford: Oxford University Press, 1996) [ISBN 019876409X] especially pages 1–60.

� Loveland, I. ‘An Irrelevant Consideration? The Role of Administrative Law in Determining the Local Connection of Homeless Persons’ in Genn, H. and G. Richardson (eds) Judicial Review and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

� Sunkin, M. and A. Le Sueur ‘Can Government Control Judicial Review?’ (1991) 44 CLP 161.

� Sunkin, M. and G. Richardson ‘Judicial Review: Questions of Impact’ (1996) PL 79.

Investigating judicial review from a socio-legal perspective means looking at how it operates in practice, especially how and why people use judicial review to challenge public bodies and what sort of impact it has on the way government operates. Until now, the examiners have not asked questions expressly about matters such as these, although there is no reason why they should not do so in the future. (This is not to suggest that they will do so!) There is a growing body of interesting literature, some of which is set out above.


Constitutional theory to do with judicial review

Essential reading � Cotterell, R. ‘Judicial Review and Legal Theory’, Chapter 1 in Richardson, G. and H.

Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

� Craig, P.P. Administrative Law. (London: Sweet and Maxwell, 1994) third edition [ISBN 9421510005] Chapter 1.

� Cranston, R. ‘Reviewing Judicial Review’, Chapter 3 in Richardson and Genn (see above for publishing details).

� Forsyth, C. (ed.) Judicial Review and the Constitution. (Oxford: Hart, 2000) [ISBN 1851131059].

� Sedley, Sir Stephen ‘Governments, Constitutions and Judges’, Chapter 2 in Richardson and Genn (see above for publishing details).

Supplementary reading � Craig, P.P. ‘Dicey: Unitary, Self-Correcting Democracy and Public Law’ (1990) 106

LQR 105.

� Forsyth, C. ‘Of Fig Leaves and Fairy Tales: the Ultra Vires Doctrine, Sovereignty of Parliament and Judicial Review’ (1996) CLJ 122.

� Irvine, Lord ‘Judges and Decision-makers: the Theory and Practice of Judicial Review’ (1996) PL 556.

� Laws, Sir John ‘Is the High Court the Guardian of Fundamental Constitutional Rights?’ (1993) PL 58.

� Laws, ‘Law and Democracy’ (1995) PL 72.

� Laws, ‘Judicial Remedies and the Constitution’ (1994) 57 MLR 213.

� Sedley ‘The Sound of Silence: Constitutional Law without a Constitution’ (1994) 110 LQR 270.

� Sedley ‘Human Rights: a Twenty First Century Agenda’ (1995) PL 386.

Many questions in past examinations have required candidates to show an understanding of the broader constitutional setting within which judicial review operates. From the Intermediate Constitutional law, you should be familiar with the ultra vires doctrine, its relationship to judicial review, and the difference between appeal and review. Other topics studied in that subject, such as the concept of the rule of law and parliamentary supremacy, are again highly relevant here. You will find the interlinkages between the two modules clearly brought out in Loveland’s Constitutional Law, Administrative Law and Human Rights. Now you will need to explore these matters in much greater detail and take a more sophisticated approach – and also to go on to explore some other aspects of constitutional theory.

One notable feature of the literature is the important contributions made by two serving High Court judges – Laws and Sedley JJ. Before appointment to the bench, John Laws was ‘Treasury Devil’ – the barrister in private practice who is instructed to represent central government departments in judicial review cases and other litigation.


Activity1. In your opinion, to what extent does the ultra vires principle adequately explain

the power of the courts to carry out judicial review?

2. Summarise the views of (a) Laws, and (b) Sedley on the role of judges and judicial review in the modern British constitution. How far, if at all, do you agree with them?

Learning outcomesBy the time you have read the recommended material on constitutional theory and judicial review, you should be able to:

� explain and evaluate the ultra vires doctrine and parliamentary supremacy as a constitutional justification for judicial review

� explain and evaluate other possible constitutional justifications for the powers of the court to carry out judicial review

� describe various concepts of ‘the rule of law’ and suggest how these may relate to particular legal rules, including those on locus standi,† ouster clauses† and the grounds of judicial review.†

Sample examination questions to do with theoryYour understanding of the theoretical debate about the basis of judicial review will help you answer a range of questions. Some, such as this one from the 1993 overseas examination, deal with theoretical issues in their own right: ‘Does judicial review give too much power to the judges?’ Other questions may require an appreciation of how particular legal rules can be explained by constitutional theory. Consider the following two questions, also from the 1993 paper:

1. ‘The courts’ responses to ouster clauses may appear at times to challenge the doctrine of parliamentary sovereignty, but in so doing the judges display laudable devotion to the principle of the rule of law.’ Discuss.

2. ‘The effective preservation of the rule of law demands that any citizen should be seen as having a “sufficient interest” in seeking judicial review of government decisions which she considers unlawful. Standing rules should therefore be abolished.’ To what extent do you agree with this contention?

Void and voidable decisions


[ISBN 042179920X] pp.692–712.


Although it does not feature explicitly as a discrete item on the syllabus, questions about the distinction between void and voidable decisions have appeared regularly in past examinations. The issue that needs to be tackled is whether the decision or action held to be unlawful by the court is a complete nullity, or whether it ought to be regarded as valid up to the time it is held unlawful by the court. This topic is closely connected to the law on ouster clauses† and ‘non-jurisdictional errors’.† Students are advised that this is an area where examiners are particularly keen to see discussion of the policy issues underlying the case law as well as description of the leading cases themselves.

ActivityCan you suggest any practical reasons why the decision between a void and voidable decision may be an important issue?

† See Chapter 6.

† See Chapter 10.

† See Chapters 7–9.

† See Chapter 10.

† See Chapter 10.


Learning outcomesIn relation to the void/voidable distinction, you should be able to:

� summarise and evaluate the case-law dealing with this issue

� explain why the distinction is of importance

� suggest reforms to this area of law.

Classifying the grounds of judicial review

Essential reading � Fordham, M. Judicial Review Handbook. (London: Wiley Chancery Law Publishing,

1995) [ISBN 0471962031 (pbk)] 263–275.

Finally in this chapter, we turn to consider how to classify ‘the grounds of judicial review’. These are the legal reasons on which it is open to a judge to grant an application for judicial review. The grounds are not just important for lawyers appearing in court; public bodies making decisions or taking actions that are potentially subject to judicial review need to know what the grounds are if they are to act in accordance with the law (which, one hopes, they should always attempt to do). Unfortunately, for public bodies, practising lawyers and law students, there is no simple and definitive statement of the grounds for review. They have emerged over years and now form a sophisticated and dynamic set of common law principles. To understand what they are, you need guidance. The textbook writers provide one such service. From time to time, the judges themselves have attempted to give some overview of the grounds. Lord Diplock’s summary in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) is the best known and ought to be familiar to you from Constitutional law.

‘Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety”. That is not to say that further development on a case-by-case basis may not in course of time add further grounds...By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By “irrationality” I mean what can now be succinctly referred to as “Wednesbury unreasonableness”...It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it...I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.’

Lord Diplock’s analysis is followed in this subject guide because it is a convenient framework, and is the one used by the syllabus. Students are also advised to read carefully the judgment of Lord Green MR in the oft-cited case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA). As should be clear from your reading of the cases in Fordham’s Judicial Review Handbook,† there are, however, many other ways of classifying the arguments and principles at work in this area of law.

† See Essential general reading above.


Should the grounds be codified?

It would be possible to set down the grounds of judicial review in a statute. One advantage of this is that it might make this field of law more readily understandable by non-lawyers and lawyers with no special expertise in it. A disadvantage is that a statutory codification might stifle the development of new principles by the courts, something that might be a necessary reaction to changing circumstances. To see what a codification might look like, however, consider s.5 of the Australian Administrative Decisions (Judicial Review) Act 1977 which was enacted as part of a package of radical reforms to public law in that country.

‘5(1) A person who is aggrieved by a decision to which this Act applies...may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

a. that a breach in the rules of natural justice occurred in connection with the making of the decision

b. that procedures that were required by law to be observed in connection with the making of the decision were not observed

c. that the person who purported to make the decision did not have jurisdiction to make the decision

d. that the decision was not authorised by the enactment in pursuance of which it was purported to be made

e. that the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made

f. that the decision involved an error of law, whether or not the error appears on the record of the decision

g. that the decision was induced or affected by fraud

h. that there was no evidence or other material to justify the making of the decision

i. that the decision was otherwise contrary to law.

‘(2) The reference in paragraph 1(e) to an improper exercise of power shall be construed as including a reference to:

a. taking an irrelevant consideration into account in the exercise of a power

b. failing to take a relevant consideration into account in the exercise of a power

c. an exercise of a power for a purpose other than a purpose for which the power is conferred

d. an exercise of a discretionary power in bad faith

e. an exercise of a personal discretionary power at the direction or behest of another person

f. an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case

g. an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power

h. an exercise of a power in such a way that the result of the exercise of the power is uncertain, and

i. any other exercise of a power in a way that constitutes abuse of the power.’

Be clear that this is a statement of Australian law, not that of England and Wales. There are, however, many similarities between the two jurisdictions. Some grounds of review now available in England and Wales, such as legitimate expectation, are not expressly mentioned in the Australian statute.


ActivityAs you work through the material on the grounds for judicial review in Chapters 7–9, draw up a checklist of the types of argument that may be advanced in court to allege that a decision or action is unlawful. (Section 5 of the Australian statute, above, may provide you with a useful starting point.) You may find it useful to work systematically through your checklist when you are analysing problem questions; this should ensure that you do not miss points.

Learning outcomesBy the time you have worked through this section of the chapters, and studied the material in Chapters 7–9, you should be able to:

� describe the schemes for classifying specific legal grounds into categories

� explain the nature and scope of each ground of review

Sample examination questions on judicial reviewQuestions about the grounds of judicial review are set out below in Chapters 7 (illegality), 8 (procedural impropriety) and 9 (irrationality).

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Recent reform proposals . . . . . . . . . . . . . . . . . . . . . . . . . .33

Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Judicial review remedies . . . . . . . . . . . . . . . . . . . . . . . . . .36

6 Judicial review: Order 53/Part 54 procedures and remedies


Essential general reading � Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London:

Butterworths, 2003) third edition [ISBN 0406959528] Chapters 16 and 17.


Supplementary general reading � Chayes, A. ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard LR

1281.

� Gordon, R. ‘The Law Commission and Judicial Review: Managing the Tensions Between Case Management and Public Interest Challenges’ (1995) PL 11.

� Griffith, J.A.G. ‘Judicial Decision-making in Public Law’ (1985) PL 565.

� Law Commission Report No. 226 Administrative Law: Judicial Review and Statutory Appeals. (London: HMSO, 1994) [HC 669].

� Le Sueur, A. and M. Sunkin ‘Applications for Judicial Review: the Requirement of Leave’ (1992) PL 102.

� Woolf, Lord Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO, 1996) [ISBN 0113800991] Chapter 18.

Administrative law 6 Judicial review: Order 53/Part 54 procedures and remedies page 33

Introduction

Part (d) of the syllabus deals with the adjectival or ‘procedural’ aspects of judicial review. ‘Procedures’ are the steps that must be taken by people, or their lawyers, in order to get their case argued in court. It includes the important issues of the requirement of standing and the rules to do with procedural exclusivity. ‘Remedies’ are the formal orders made by the court at the end of the case; interim remedies may also be granted pending the final determination of an application for judicial review.

Recent reform proposals

Since the early 1990s, there have been several major enquiries into the reform of judicial law procedures and remedies: first, the Law Commission published a report (Law Com No. 226) in October 1994;† secondly, in July 1996, judicial review was considered by Lord Woolf’s far-ranging investigation into the whole civil justice system in England and Wales. For the purposes of the examination, you will need to be familiar with two elements of what was until recently known as the ‘Order 53’ (now ‘Part 54’) application for judicial review. The first of these relates to the issue of ‘Procedural Exclusivity’. The second concerns the question of ‘Locus Standi (Standing)’. Both issues raise interesting points of policy, and are illustrated by substantial bodies of case law. These are topics that might be examined separately or in combination with each other.

Standing


[ISBN 042179920X] Chapter 21.

� R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed Small Businesses [1982] AC 617.

� R v HM Inspectorate of Pollution ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329.

� R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg [1994] QB 552 (on the standing issue only).

� R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement [1995] 1 WLR 386.

Supplementary reading � Cane, P. ‘Standing, Legality and the Limits of Public Law’ (1981) PL 322.

� Feldman, D. ‘Public Interest Litigation and Constitutional Theory in Comparative Perspective’ (1992) 55 MLR 44.

� Schiemann, Sir Konrad ‘Locus Standi’ (1990) PL 342.

� Sunkin, M. ‘The Problematic State of Access to Judicial Review’, Chapter 1 in Hadfield, B. (ed.) Judicial Review: a Thematic Approach. (Dublin: Gill and MacMillan, 1995) [ISBN 0717123111].

The rules to do with standing are fascinating. They determine who may be an applicant in judicial review proceedings. Only a person with a ‘sufficient interest in the matter to which an application relates’ may be given leave to start judicial review litigation by the High Court. The recent trend has been towards liberalising the requirements, but the case-law reveals considerable disagreement among the judiciary about what the rules are or ought to be. The reason for this, which has often been picked up by examination questions, is different views about the constitutional role of judicial review in England and Wales.

† Craig includes discussion of the Law Commission’s Consultation Paper, but not its final report.


Both the Law Commission Report No. 226 and the Woolf Access to Justice Report make recommendations about standing. In Chapter 18, Woolf writes:

‘20. I support the Law Commission’s recommendation that the present generous practice of the courts in interpreting the requirement that the applicant must have a “sufficient interest” in the matter to which the application relates should be incorporated into the new rules [of court]...I agree with the Commission that the applicant will have standing if he has been or will be adversely affected or if it is in the public interest that the proceedings be brought...[T]he question of the applicant’s standing can ultimately be treated as secondary to the merits of the case.

‘21. Consideration should be given to conferring on the court a discretion to allow third party intervention, both in the applicant’s interest and in the public interest. If this is thought desirable, it should be a principle of general application, although the courts’ approach should be more cautious when considering whether to allow intervention in proceedings concerning private rather than public law rights.’

Activity1. Imagine you are a lawyer advising a pressure group. Its Board of Management is

considering using judicial review challenges as part of a strategy to influence the government and public opinion. Write a short memorandum explaining in what types of situation pressure groups are now permitted to use judicial review.

2. Assume a local authority has statutory powers to grant licences permitting shops (so-called sex shops) to sell pornographic material. It may impose ‘such conditions as it considers appropriate’ on any licence it grants. Which of the following has a sufficient interest enabling them to challenge a licensing decision?

a. A company granted a licence made subject to a condition that it may only open for an hour a week. It seeks certiorari to quash the decision on the grounds of irrationality.

b. A person living next door to a shop which is granted a licence. This neighbour wants certiorari to quash the decision on the ground that the proper statutory consultation procedure had not been followed by the local authority before it granted the licence.

c. A national pressure group which campaigns for a complete ban on the sale of pornographic literature. None of its 50 members live near to the shop granted a licence. It seeks a declaration on the decision to grant a licence was invalid because a member of the local authority was biased in favour of the shop.

In reaching your conclusions, what if any weight do you attach to:

1. the ground of challenge

2. the remedy sought?

Learning outcomesHaving read and thought about the material on standing, you should be able to:

� summarise and apply the English case-law on the meaning of ‘sufficient interest in the matter to which the application relates’ in Supreme Court Act 1981, s.31

� explain the constitutional justifications for, and objections to, the rules on standing (including arguments to do with the rule of law)

� evaluate proposals for reform to the standing rules.

Sample examination questions on standing1. Why are applicants for judicial review required to have standing? Are the

present English rules of standing satisfactory?

2. ‘The preservation of standing rules is incompatible with the rule of law.’ Discuss.


Procedural exclusivity

Essential reading � British Steel plc v Customs and Excise Commissioners [1996] 1 All ER 1002 (in an

unreported decision of 20 December 1996 the Court of Appeal allowed an appeal by British Steel).

� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) third edition [ISBN 0421510005] pp.549–62 and 577–93 only (it makes no sense to read the whole of Chapter 15).

� Mercury Telecommunications Ltd v Director General of Telecommunications [1996] 1 WLR 48.

Supplementary reading � Emery, C. ‘Public Law or Private Law? The Limits of Procedural Reform’ (1995)

PL 450.

� Forsyth, C. ‘Beyond O’Reilly v Mackman: the Foundations and Nature of Procedural Exclusivity’ (1985) Cambridge Law Journal 415.

� Forsyth, C. ‘The Scope of Judicial Review: “Public Duty” not “Source of Power”’ (1987) PL 356.

� Fredman, S. and Morris, G. ‘The Costs of Exclusivity: Public and Private Re-examined’ (1994) PL 69.

� Law Com No. 226, Part III.

� Tanney, A. ‘Procedural Exclusivity in Administrative Law’ (1994) PL 51.

� Woolf, Lord Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. (London: HMSO, 1996) [ISBN 0113800991] p. 250.

Since the procedural reforms to judicial review in 1978, the courts and academics have expended considerable effort trying to decide in what circumstances it is, or ought to be, mandatory for litigants to use the Order 53 Applications for Judicial Review procedure when they want to challenge the legality of a public body’s decision. The reasons for the difficulties are explained clearly by Craig. Since Craig’s Administrative Law was published there have been further developments. In the courts, two recent cases show that the issue continues to be a complex and important one.†

‘...there...needs to be greater uniformity between the procedures in public law cases and those in private law cases. The procedural exclusivity rule, whereby it is normally an abuse of the process not to use judicial review when it is the appropriate procedure, has led to wholly undesirable procedural wrangles and has been much criticised by distinguished commentators. It continues to cause problems, notwithstanding some clarification by the House of Lords in the Roy case.’

His proposed solution is as follows:

‘26. The recommendations which I have made are intended to bridge the divide between public law and private law claims by bringing the two procedures together. The same statements of case will be used in both, so that there will be no need for the claim in one area to be treated as though it had been begun by another procedure. It is nevertheless important that the safeguards of the three month time limit and of standing, which are necessary in judicial review claims, should not be bypassed, but these can be retained without making it an abuse of process to adopt the wrong procedure.

‘27. If a question arises as to whether the proceedings should have been brought by judicial review it will be possible to transfer the claim to the Crown Office for a case management conference, at which the same filtering process, with the court having to consider whether the issues are ones of public or private law, will apply, unless the answer is obvious or unless the issue needs to be resolved for substantive as opposed to procedural reasons. If the case is without merit, it can be dismissed irrespective of whether it raises public or private law issues; if it has merit the judge can direct it to

† See the House of Lords’ decision in Mercury Communications Ltd and that of Laws J in the British Steel case (above).


proceed without determining whether it is a public or private law case. Furthermore, if the court thinks this is the best course to adopt in all the circumstances, it will be possible to leave consideration of standing and time limits until the final hearing, This is often necessary at present because the merits can affect both questions of standing and delay.’

Learning outcomesIn relation to the topic of procedural exclusivity, you should be able to:

� explain the reasons for the rules

� summarise and apply the case-law flowing from O’Reilly v Mackman

� evaluate the proposals that have been made for reform of this area of law.

Sample examination questions on procedural exclusivity1. How might s.31 of the Supreme Court Act 1981 be reformed in order to reduce

the amount of litigation generated since O’Reilly v Mackman on the question of which procedural route an applicant should follow when seeking to challenge ‘public law’ decisions?

2. To what extent have the courts’ decisions post-O’Reilly v Mackman fashioned a coherent distinction between matters of public law and private law?

Judicial review remedies



� Wade, W. and C. Forsyth Administrative Law. (Oxford: Oxford University Press, 2004) ninth edition [ISBN 019927021X] Chapters 15 and 16.

Supplementary reading � Bingham, Sir Thomas ‘Should Public Law Remedies be Discretionary?’ (1991) PL

64.

� Lewis, C. ‘The Exhaustion of Alternative Remedies in Administrative Law’ (1992) CLJ 138.

Note that in addition to seeking certiorari, prohibition, mandamus, injunctions and declarations, an applicant may also request damages.† Both the Law Commission Report No. 226 and the Woolf Access to Justice Report make recommendations about reform of the remedial orders which the court may make in judicial review applications. The Law Commission proposed to rename the orders. Thankfully, Woolf disagrees with this bizarre idea, stating:

‘25. Although I am an enthusiast for adopting modern English, I am not in favour of the Law Commission’s proposal to replace the names certiorari, prohibition and mandamus with a quashing, prohibiting and mandatory order. The Latin names are used throughout the common law world and have become synonymous with the duty of the courts to protect the public against the abuse of power. I am not sure the proposed alternatives are that much easier to comprehend...’

The Law Commission and Access to Justice also both recommend that the court should have an express power to grant advisory declarations when it is in the public interest to do so.

One of the most interesting aspects of the judicial review remedies topic is the fact that the court has discretion to refuse a remedy to an applicant who is able to demonstrate that a public body has acted unlawfully.

† Issues to do with damages are dealt with in Chapter 14 of this subject guide.


The Law Commission did not view the existence of this discretion as a problem; the majority of people who responded to its consultation paper supported its retention. One reason for refusing a remedy (or refusing leave at an earlier stage) is that the applicant has failed to use an alternative form of redress (such as a statutory appeal to a tribunal) for his or her grievance before applying for judicial review. Woolf’s Access to Justice report states:†

‘...applicants should be encouraged to resolve their complaints without resorting to litigation. There is an increasing number of grievance procedures and ombudsmen available for this purpose. Applicants should normally use these procedures first. Judicial review ought to be conserved as a remedy of last resort.’

This may well signal that the courts are likely to regard use of the ombudsmen† as preferable to judicial review.†

Learning outcomes on remediesHaving studied the material on judicial review remedies, you should be able to:

� advise which judicial review remedies are appropriate in a given fact situation

� explain and evaluate what factors may influence a judge to withhold a remedy from an otherwise successful applicant

� suggest and evaluate proposals for reform.

Sample examination questions on remediesIssues to do with the nature and scope of particular review remedies may arise in problem questions. There is, however, no reason why examiners may not set essay questions on this topic.

† See page 251.

† See Chapter 11.

† See also R v London Borough of Lambeth ex parte Crookes (1996) COD 398.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Statutory interpretation . . . . . . . . . . . . . . . . . . . . . . . . . .41

Examples of illegality arguments . . . . . . . . . . . . . . . . . . . . . .41

7 Illegality as a ground of judicial review




� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X] Chapter 16; Chapter 17, pp.551–62.


Supplementary reading � Bell, J. and G. Engle Cross on Statutory Interpretation. (London: Butterworths,

1995) [ISBN 0406049718].

� Cooper, D. ‘Institutional Illegality and Disobedience: Local Government Narratives’ (1996) 16 Oxford Journal of Legal Studies 255.

� Loveland, I. ‘Irrelevant Considerations? The Role of Administrative Law in Determining the Local Connection of Homeless Persons’, Chapter 9 in Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

Administrative law 7 Illegality as a ground of judicial review page 41

Introduction

Public authorities are different from private individuals. Whereas you and I, in our capacity as ordinary citizens, are free to do everything that is not prohibited by the law, the rule is the reverse for public bodies. If central or local government wants to regulate, tax, inspect, license and so on, it needs specific, positive legal authority to do so. This authority may come from an Act of Parliament, delegated legislation, European Community Law or (in the case of central government) the prerogative.†

In the GCHQ case (see p.21), Lord Diplock said that by ‘illegality’ as a ground of review he meant:

‘that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.’

It is difficult to know which more particular arguments should be included under this broad chapter heading. Essentially, though, we are concerned here with the courts ensuring that decision-makers act in accordance with the Act of Parliament or the delegated legislation that confers permission on them to take action. As we have already noted,† just because an Act of Parliament stipulates that a public authority must do or refrain from doing something, does not mean that this will happen (or not happen) in practice.†

Statutory interpretation

You need to understand how courts approach the task of interpreting (or ‘construing’) statutes. This is a topic you should already have considered when studying English legal institutions. In practice, the courts rarely refer to the ‘literal’, ‘golden’ and ‘mischief’ rules that are still sometimes discussed in student textbooks; see Loveland’s Constitutional Law, pp.67–69. Craig’s Administrative Law has little directly on statutory interpretations as such. You may therefore want to read or consult a textbook such as Cross on Statutory Interpretation.† The trend over recent years is for English courts to adopt increasingly ‘purposive’ – rather than literal – approaches to statutory construction.

Examples of illegality arguments

One task that you may be asked to undertake in the examination is to advise a person on whether there are grounds for seeking judicial review in a given set of facts and legislative provisions.† To do this effectively, it is vital that you are able to advance arguments, supported by appropriate case-law. To help you, some of the main arguments often grouped under the general head of ‘illegality’ are set out below. All these arguments require the courts to interpret statutes or statutory instruments in order to understand the intention behind the legislation.

Argument: a public body has done something for which it has no positive legal authority (‘pure ultra vires’)†

If the public body cannot point to specific legal authorisation for what it has done, or proposes to do, then it acts unlawfully or ultra vires. It is, of course, for the court – not the public authority – to determine whether or not there is legal authorisation.† Many cases argued on the basis of pure ultra vires are not reported because the legal issues raised are so straightforward. If, for example, a statute specifies that a local authority may grant licences to pleasure boat operators between April and September, then clearly it cannot use that statutory provision to grant a licence for the month of December. The cases which are reported tend to be the difficult ones, where both the public body and the applicant are able to advance cogent arguments as to the scope of a statutory power. By way of illustration, consider the following.

† In some situations central government may possibly also be able to claim a ‘freedom to act’ (in other words, like private citizens, to do anything not specifically prohibited by law): see Harris, B. ‘The “Third Source” of Authority’ (1992) 109 LQR 626.

† See Chapter 2.

† See Loveland (1994) and Cooper (1996).

† See Supplementary reading above.

† The legislation in problem questions is often fictitious.

† Fordham (1995) 276–80.

† See also the comments on jurisdiction and non-jurisdictional errors of law in Chapter 10.


Illustration � R v Secretary of State for Foreign Affairs ex parte World Development Movement Ltd

[1995] 1 WLR 366. Section 1(1) of the Overseas Development and Co-operation Act 1980 provides:

‘The Secretary of State shall have power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people, to furnish any person or body with assistance, whether financial, technical or of any other nature.’

Held, it was unlawful for the minister to give aid towards the construction of an economically unsound hydroelectric station on the Pergau dam in Malaysia. If Parliament had intended the minister to be able to disburse money for unsound developmental purposes, the Act would have said so expressly.

Illustration � R v Secretary of State for Social Security ex parte Joint Council for the Welfare of

Immigrants [1996] 4 All ER 385.

The minister made a statutory instrument withdrawing welfare benefits from people seeking political asylum in Britain. He purported to rely on powers conferred by the Social Security (Contributions and Benefits) Act 1992. The Court of Appeal, by a majority, held that, although the enabling power in the 1992 Act was widely drawn, the statutory instrument made by the minister was so draconian that it would on occasion defeat the rights to claim asylum conferred by the Asylum and Immigration Appeals Act 1993. The delegated legislation was therefore ultra vires.

Argument: an Act of Parliament places a duty on a public body and that duty has not been carried out†

Again, this argument may be very straightforward. If a public body persists in its failure to carry out its duty, the court may issue an order of mandamus to compel it to do so. There may, however, be uncertainty about how the words of a statute ought to be interpreted. There may also be policy factors that discourage a court from intervening to enforce a duty.

Illustration � R v Inner London Education Authority ex parte Ali (1990) 2 Admin LR 822 (summarised

in [1990] COD 317).

The Education Act 1944, s.8 placed a duty on local education authorities to secure the availability of sufficient schools for providing primary and secondary education. The ILEA failed to provide enough school places for all the children in one part of London, mainly due to a rapid increase in the school-age population there. A parent applied for judicial review.

The Divisional Court held that the broad duty imposed by s.8 was not absolute:

‘An authority which is faced with a situation where, without any fault on its part, it has for a limited period not complied with the standard which the section sets is not automatically a breach of duty.’

Illustration � R v Gloucestershire County Council ex parte Barry [1996] 4 All ER 421.

Section 2 of the Chronically Sick and Disabled Persons Act 1970 places a duty on councils to provide such assistance, for example home helps, ‘that it is necessary in order to meet the needs’ of disabled people in their area. Because of lack of money, a council reduced the services it was willing to provide. The Court of Appeal held (by a majority) that this was unlawful. The ‘need’ was to be judged objectively and, once a council had done so, it had a duty to provide appropriate assistance. The Act did not give the council any discretion.

† Fordham (1995) 276–80.


Argument: the decision-making body has used its statutory powers for a purpose other than that intended by the Act of Parliament†

The leading cases about extraneous purposes include the House of Lords’ decision in:

� Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.

� R v Hillingdon London Borough Council ex parte Royco Homes Ltd [1974] QB 720.

Illustration � R v Somerset County Council ex parte Fewings [1995] 1 WLR 1037.

A local authority decided to ban stag hunting on its own land because the majority of councillors had moral objections to it, believing hunting to be cruel. Laws J. and then the majority of the Court of Appeal held this was unlawful. The power relied upon by the council was s.120(1)(b) of the Local Government Act 1972 which empowered councils to acquire and manage land for the purposes of the benefit, improvement or development of their area. Because the council was motivated by considerations of cruelty to animals in imposing the ban, rather than because they believed the ban would confer a benefit on their area, its decision did not further the object prescribed by the statute.

There can be complications in trying to work out the ‘purpose’ or ‘object’ of an Act of Parliament. The legislative scheme may be set out in several Acts and pieces of delegated legislation, each of which needs to be considered. Finding out the purpose of an Act is not the same thing as interpreting particular words. Note that the still quite restrictive rules about the use of parliamentary material as an aid to construction set out in Pepper v Hart (Inspector of Taxes) [1993] AC 539 are therefore not directly relevant: see Three Rivers District Council v Bank of England, [1996] 2 All ER 363 where Clarke J. held that the strict criteria on the admissability of parliamentary materials did not apply where the court was attempting to discover the general purpose or objective of an Act.†

Argument: the decision-maker took into account an irrelevant factor or failed to take into account a relevant factor†

� Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.

Some textbooks classify this argument under ‘irrationality’ rather than ‘illegality’, but it is closely connected to the idea of legislative purpose (on which, see the previous paragraph, above). In Tesco Stores the House of Lords held that whether a consideration is relevant is a matter for the courts to decide, but it is entirely for the decision-maker to give as much or little weight as he or she thinks fit to a relevant consideration; unless he or she acts unreasonably in doing so, the courts will not hold the decision to be unlawful.

† Read Craig (2003) 555–62; Fordham (1995) 133–45.

† A later judgment by Clarke J. in this litigation is considered in Chapter 14; see Three Rivers DC v Bank of England (No 3) [1996] 2 All ER 558.† Fordham (1995) 315–18.


Argument: the Act of Parliament confers the power to make a particular decision or carry out a particular function on person A; in actual fact the decision was taken by person B†

Leading cases on improper delegation include:

� Carltona v Commissioner for Works [1943] 2 All ER 560.

� R v Secretary of State for the Home Department ex parte Oladehinde [1991] 1 AC 254.

� Lavender v Ministry of Health and Local Government [1970] 1 WLR 1231.

The Latin maxim delagatus non potest delagare (an agent cannot delegate his authority) is sometimes used to refer to the rules against unlawful delegation.

Argument: the Act of Parliament confers a discretion on the decision-maker, but he or she had adopted a rigid rule/policy/contractual obligation fettering that discretion†

The leading case is the House of Lords’ decision in British Oxygen Co. Ltd v Board of Trade [1997] AC 610. A public body is allowed to adopt rules or a policy as to how it will exercise its discretion provided it is ‘always willing to listen to anyone with something new to say’. Discretion may also be unlawfully fettered if a public body enters into a contract which limits how it will be able to use its public law discretion in the future: for a case where such an argument narrowly failed, see R v Hammersmith and Fulham London Borough Council ex parte Beddowes [1987] QB 1050.

Argument: the decision-maker failed to follow a procedure stipulated by the Act of Parliament†

Legislation quite often imposes obligations on a decision-maker to follow certain steps before making a decision – for instance, to consult, to place advertisements in the press inviting comments about a proposed decision, to give reasons for a decision and so on. A failure to follow these requirements may give grounds for a person to seek judicial review. This argument is distinct from ones based on the common law on ‘natural justice’ (dealt with in Chapter 8) but it may also be classified appropriately under the chapter head ‘procedural impropriety’.

One area of difficulty here relates to the consequences of a failure by a decision-maker to follow a stipulated statutory procedure.† The courts have held some provisions to be ‘mandatory’ (a failure to follow leading to the decision being void) and others to be ‘directory’ (where a failure may not be fatal to the validity of a decision). You should read and understand London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182.

Learning outcomesBy the time you have finished studying illegality as a ground of judicial review, you should be able to:

� analyse a set of facts and legislative provisions and advise whether there has been a breach of the law

� explain and evaluate the constitutional justifications for this ground of review

� suggest reasons, drawing on academic writing, why public authorities may fail to comply with the statutory obligation placed upon them.

Sample examination questions† 1. The [fictitious] Education Reform Act 1994 makes every state school an

autonomous legal entity managed by its governors. Under s.2, governors must provide ‘an efficient, integrated and economic education’ to their pupils. Section 2(1) requires governors to pay particular attention to equipping children with skills in maths and science. A circular from the central government’s Department of Education suggests this requires schools to employ experienced teachers. Under s.3, each school’s basic running costs are met by central

† Craig (2003) 522–62; Fordham (1995) 314–15; Freedland, M. ‘The Rule against Delegation and the Carltona Doctrinae in the Agency Context’ (1996) PL 19.

† Craig (2003) 530–40; Fordham (1995) 250–51.

† Fordham (1995) 326–29.

† See also the distinction between void and voidable decisions, in Chapter 5.

† Note that, like most problem questions, this raises several grounds of review – not just those to do with ‘illegality’. You may therefore not be able to deal with all the points raised until you have done the work relating to the next two chapters.


government; this sum enables schools to employ a mix of experienced and inexperienced teachers, although under s.3(2) governors may spend it ‘as they think fit’. Under s.4, local authorities may make such payments ‘as they consider reasonable’ to any school in their area. The same circular suggests that, when allocating this money, councils should attach considerable weight to achieving ‘the essential task of promoting maths education’.

Last month the governors of Austin school (located in a marginal ward in Blankshire whose Conservative councillor has just died) announced an ‘Arts First’ policy. All the s.3 budget previously allocated to employing maths teachers is to be spent on extra music and dance teachers. At the same time, Blankshire County Council, which is controlled by the Conservative Party with a majority of one, announces that it will use s.4 to pay ‘whatever it takes’ to maintain Austin’s maths teaching at its previous level since Austin is to become the county’s ‘leading school’.

You are approached by Smith, chair of the board of governors at Morris School in another part of Blankshire. Morris School has found that it cannot attract experienced teachers unless it pays them enhanced salaries. It has asked Blankshire County Council for a s.4 grant for this purpose. The council declines to make the grant, saying that experienced teachers are unnecessary. Smith alleges that Blankshire County Council and Austin School are trying to ‘bribe the electorate’ in the forthcoming Austin ward by-election to maintain Conservative control of the council.

Advise Smith as to:

a. the legality of Blankshire County Council’s grant to Austin School and of the ‘Arts First’ policy adopted by the governors of Austin School

b. whether Blankshire County Council must provide Morris School with a sufficient s.4 grant to enable it to attract experienced maths teachers.

2. To what extent, if at all, is it true to say that a decision-maker is not allowed to fetter the exercise of a discretion conferred on him or her by statute?


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

Types of procedural impropriety arguments . . . . . . . . . . . . . . . .49

‘Bias’ arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

Participation in decision-making . . . . . . . . . . . . . . . . . . . . . .50

Legitimate expectations . . . . . . . . . . . . . . . . . . . . . . . . . .51

Duty to give reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . .52

8 Procedural impropriety as a ground of judicial review


Essential general reading � Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London:


� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X] Chapters 13 and 14.

� Wade, W. and C. Forsyth Administrative Law. (Oxford: Oxford University Press, 2004) ninth edition [ISBN 019927021X] Chapters 13 and 14.

Supplementary general reading � Clark, D. ‘Natural Justice: Substance or Shadow’ (1975) PL 27.

� Richardson, G. ‘The Duty to Give Reasons...’ (1986) PL 437.

� Richardson, G. ‘The Legal Regulation of Process’, Chapter 5 in Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

� de Smith, S., Lord Woolf and J. Jowell Judicial Review of Administrative Action. (London: Sweet and Maxwell, 1995) fifth edition [ISBN 0420466207].

Administrative law 8 Procedural impropriety as a ground of judicial review page 49

Introduction

As in the previous chapter, here we will consider some of the arguments that may be advanced under the general heading of ‘procedural impropriety’. In essence what is important here are the processes of decision-making used by public authorities. There have been significant developments in the common law over the past decade, in particular the refinement of ‘legitimate expectation’ as a ground of review and a greater willingness to impose duties on decision-makers to give reasons to explain and justify the decisions they make.

ActivityCan you suggest reasons why the law concerns itself with the methods used by decision-makers?

Bear in mind that the courts have discretion to withhold remedies from an applicant even if he or she demonstrates there has been a procedural impropriety.† Worryingly, one reason for refusing a remedy is that consultation, etc. would not have made any difference to the outcome of the decision.

ActivityIn your opinion, is there anything objectionable about this?

Types of procedural impropriety arguments

As in the previous chapter, we will list some of the main arguments that may be advanced to say that a public body has acted unlawfully – here on the basis that it has failed to follow the decision-making procedures stipulated by the common law.

‘Bias’ arguments


Butterworths, 2003) third edition [ISBN 0406959528] pp.483–90.



� R v Inner West London Coroner ex parte Dallaglio [1994] 4 All ER 139.

� R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304.

� R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (no. 2) [2000] 1 AC 119.

� Jones, T. ‘Judicial Bias and Disqualification in the Pinochet Case’ (1999) PL 391.

� R v Gough [1993] AC 646.

� Porter v Magill [2002] AC 357.

There are two broad arguments:

1. that the decision-maker was biased for or against the person affected by the decision

2. that the decision-maker had a financial or other personal interest in the outcome of the decision.

† See Chapter 6.


Note also that it may be argued that the decision-maker had strong predetermined views (or a ‘policy’) on an issue and so did not approach the decision-making with an open mind. This argument alleges, in effect, that the decision-maker fettered his or her discretion.† The relationship between these two grounds of review is considered by Sedley J. in the Kirkstall Valley case.

This ground of review attracted considerable public attention in the late 1990s as a result of the Pinochet legislation. The Porter case has also made something of a change in the previous law. Students should additionally be aware of the impact of Art 6 ECHR on this issue. The main cases on that latter point are helpfully addressed in Craig on pp.465–74.

Activity1. Draw up a list of authorities that you could use to support the two main forms of

bias argument.

2. What purpose is served by the legal rules on bias? Do you think that there is any need for the bias rules to apply in situations where a decision-maker is required to give reasons for the decision or action taken?

3. Briefly explain the way in which the House of Lords’ decision in Porter altered the conclusion reached in Gough.

Participation in decision-making


Butterworths, 2003) third edition [ISBN 0406959528] pp.456–70; 480–83.


There are several different arguments which may, potentially, be put forward to the effect that a decision is unlawful because the decision-maker failed to consult adequately, hear representations, etc. before making the decision. Consider the following:

a. the decision-maker failed to allow the applicant to make oral and/or written representations before a final decision was made

b. the decision-maker failed to disclose to the applicant sufficient information about the ‘case against him’ for the applicant to be able to answer it before a final determination was made†

c. the decision-maker refused to allow the applicant to be represented by a lawyer or other person at a hearing

d. the decision-maker refused to allow the applicant to cross-examine (or question) people who supplied the decision-maker with information.

Activity1. Draw up a list of authorities which may be used to support each of the

arguments sketched out above.

2. Can you suggest reasons why the law requires decision-makers to allow people to participate in the decision-making process in the ways listed above?

The rights to participate in the decision-making process in the ways listed above do not exist in all situations. De Smith, Woolf and Jowell list the exceptions to requirements of procedural fairness:†

a. express statutory exclusion of a fair hearing

b. where the legislation expressly requires notice and hearing for certain purposes but imposes no procedural requirement for other purposes

† This was considered in the previous chapter.

† On this, see R v Secretary of State for the Home Department ex parte Hickey (No. 2) [1995] 1 All ER 490, R v Secretary of State for the Home Department ex parte Fayed [1997] 1 All ER 228 and Abdi v Secretary of State for the Home Department [1996] 1 All ER 641.

† See de Smith, Woolf and Jowell (1995) Chapter 10.


c. where disclosure of information would be prejudicial to the public interest

d. where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action

e. where for other reasons it would be inappropriate to give prior notice or opportunities to be heard

f. where a procedurally flawed decision has been followed by an ex post facto hearing or by an appeal which complies with the requirements of fairness

g. where the decision complained of is only a preliminary to a decision subject to procedural fairness

h. where the defect of natural justice has made no difference to the result

i. where the absence of a hearing is not due to any fault on the part of the decision-maker.

Activity1. Draw up a list of authorities which may be used to support each of these

exceptions.

2. Explain which, if any, of the exceptions to procedural fairness listed above are justifiable.

Legitimate expectations



� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X] pp.418–21 and Chapter 19.

� R v Commissioners of Inland Revenue ex parte Unilever plc [1996] Simons Tax Cases 681 (summary in [1996] COD 421).

� R v Devon County Council ex parte Baker [1995] 1 All ER 73.

� R v Ministry of Agriculture, Fisheries and Food ex parte Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, especially at 724.

� R v Secretary of State for Transport ex parte Richmond-upon-Thames LBC [1994] 1 WLR 74, especially 92–94.

� R v Secretary of State for the Home Department ex parte Hargreaves [1997] 1 All ER 397.

� R v North and East Devon Health Authority ex parte Coughlan [2003] 3 All ER 850.

Supplementary reading � Craig, P. ‘Legitimate Expectations: a Conceptual Analysis’ (1992) 108 LQR 79.

� Craig, P. ‘Substantive Legitimate Expectation in Domestic and Community Law’ (1996) CLJ 289.

Arguments based on legitimate expectation have flourished in recent years. The idea, essentially, is that, if a public body leads a person to believe that they will be treated in a certain way (either by making an express statement or through regular past contact), it would be wrong to allow the public authority to go back on this – unless there are good reasons for allowing it to do so.†

There are still a number of important unresolved questions about the scope of legitimate expectation. One issue is whether the doctrine operates only to protect procedural benefits (such as a right to be heard) or whether in appropriate

† See also the topic of ‘estoppel’ considered in Chapter 14.


circumstances it is also capable of protecting substantive benefits (for instance that a person is actually to be allocated a licence). Laws J. in the Richmond-upon-Thames case suggests that legitimate expectation is confined to procedure; Sedley J. disagrees.† The Court of Appeal’s judgment in Coughlan now seems to have settled the point – in some circumstances – a legitimate expectation may have a substantive dimension. The question of substantive legitimate expectation is considered further, in Chapter 15 (impact of ECHR).

ActivityDraw up a list of the pros and cons of English law enforcing substantive legitimate expectation.

Duty to give reasons


[ISBN 042179920X] pp.436–44.

� Richardson, G. ‘The Duty to Give Reasons...’ (1986) PL 437.

The term ‘duty to give reasons’ is so broad that it is apt to confuse. There are essentially three distinct situations in which a decision-maker may be under an obligation to ‘give reasons’:

1. First, there may be a duty to tell a person about the case against him or her before the decision-maker makes a final determination: this has already been considered, above. It is best to refer to this as a duty of disclosure.

Second, there may be an obligation placed on a decision-maker to explain and justify a decision which has already been made to the person affected by it. This obligation may come from an Act of Parliament† or the common law. It is this type of obligation with which this section of the chapter is concerned. Be clear: the common law does not yet recognise a general obligation to give reasons for all decisions. There are still many, many situations where a public body is entitled to give no reasons for its actions without contravening the law. There are two broad types of argument:

a. the decision-maker has failed to give any reasons in a situation where reasons are required by statute or the common law

b. the decision-maker has failed to give adequate reasons. For a recent case, see R v Secretary of State for the Home Department ex parte Follen [1996] COD 169 (the Home Secretary gave inadequate reasons for his decision to reject the Parole Board’s recommendation that the applicant, a sex offender, should be released from prison on licence).

3. A third meaning of ‘duty to give reasons’ is that a decision-maker may be said to be under an obligation to explain to the court the reasons for a decision in the event that a person commences an application for judicial review. If the decision-maker refuses to give reasons to the court, then the court may infer that there is no justification for the decision which has been taken and hold it to be unlawful.† In Ex parte Ermakov, above, the Court of Appeal held that a court should be wary of allowing a public body to give new or better reasons for its decision to the court when it had unlawfully failed to give reasons to the applicant in the first place. The message to public bodies is clear: if a statute or the common law requires reasons to be given to people affected by a decision, a failure to do this cannot easily be cured by giving reasons to the court later on.

† See R v Ministry of Agriculture, Fisheries and Food ex parte Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, at 723–24.

† For example the Tribunals and Inquiries Act 1992, section 12.

† See for example, Lord Pearce in Padfield [1968] AC 997 at 103–04.


ActivityImagine you are a solicitor in a firm which specialises in advising local authorities. Your clients are confident that they understand their statutory duties to give reasons to people affected by certain decisions. What they are not clear about, however, are (a) the types of situations which may give rise to a common law duty to give reasons, and (b) how full and detailed such reasons will have to be. Write a memorandum explaining the current requirements in English law.

Learning outcomesHaving studied procedural impropriety as a ground for judicial review, you should be able to:

� analyse a hypothetical fact situation by constructing arguments and counter-arguments, supported by case law, to suggest whether there are grounds for seeking judicial review on the basis of procedural irregularities

� explain and evaluate the constitutional justifications for this ground of review

� suggest and evaluate reforms to this area of law.

Sample examination questions1. In what ways, and for what reasons, does administrative law ensure that

government decision-makers are not motivated by ‘bias’?

2. ‘The rules of natural justice require only that a decision be fair in all the circumstances.’ Discuss and illustrate.

3. ‘Natural justice is neither natural nor just. Procedural impropriety is neither procedural nor improper. The judges merely decide when they would like to intervene with the substance of an administrative decision and then manipulate this head of judicial review accordingly.’ Discuss.

4. Access the arguments for and against judicial recognition of a common law requirement that government bodies offer reasons for their decisions.

5. Would judicial recognition of a ‘substantive legitimate expectation’ pose an unacceptable threat to the ultra vires doctrine?

6. The [fictitious] Administrative Law (Fair Licensing) Act 1993 requires designated bodies to ensure that their decision-making processes ‘accord with the requirements of natural justice’. You are approached by several designated bodies to assist them in ensuring that their administrative behaviour meets legislative requirements.

The Gaming Board (GB) seeks advice concerning the licensing of casino operators. The newly established National Parole Board (NPB) requests assistance in respect of its power to release long-term prisoners on parole. The British Airports Authority (BAA) wishes to devise new procedures for licensing taxi drivers to collect passengers from airports.

All three clients ask for general advice, but request you pay particular attention to applicants’ access to the information on which decisions are based, the necessity for an oral hearing, the availability of legal representation at such hearings and the revocation or non-renewal of licences.

Advise the GB, NPB and BAA.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57

Types of substantive review arguments . . . . . . . . . . . . . . . . . .57

Variable degrees of scrutiny . . . . . . . . . . . . . . . . . . . . . . . .57

9 ‘Irrationality’: substantive grounds of judicial review


Essential reading � Associated Provincial Picture Houses v Wednesbury Corporation [1984] 1 KB 223.

� Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London: Butterworths, 2003) third edition [ISBN 0406959528] pp.446–55.


� Fordham, M. Judicial Review Handbook. (London: Wiley Chancery Law Publishing, 1995) [ISBN 0471962031 (pbk)] pp.319–25.

� R v Commissioners of Inland Revenue ex parte Unilever plc [1996] STC 681 (summarised in [1996] COD 421).

� R v Ministry of Defence ex parte Smith [1996] QB 517.

� R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER 385.

� R v Secretary of State for the Home Department ex parte Pierson [1996] 1 All ER 837.

Supplementary reading � Carnwath, Sir Robert ‘The Reasonable Limits of Local Authority Powers’ (1996) PL

244.

� de Smith, S., Lord Woolf and J. Jowell Judicial Review of Administrative Action. (London: Sweet and Maxwell, 1995) fifth edition [ISBN 0420466207] Chapter 13.

� Irvine, Lord ‘Judges and Decision-Makers: the Theory and Practice of Wednesbury Review’ (1996) PL 59.

� Jowell, J. ‘Is Equality a Constitutional Principle?’ (1994) 47 CLP (Part 2) 1.

� Jowell, J. and A. Lester ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ (1987) PL 386.

� Walker, P. ‘What’s Wrong with Irrationality?’ (1995) PL 556.

Administrative 9 ‘Irrationality’: substantive grounds of judicial review page 57

Introduction

Of all the grounds of judicial review, those under the broad category of ‘irrationality’ (the term used by Lord Diplock in the GCHQ case) are perhaps the most controversial. The judges are careful to remind their audience that judicial review is not the same as an appeal; the court is not concerned with the ‘merits’ of the decision under challenge. Yet ‘irrationality’ requires the courts to consider the substance of decisions. You should think carefully about the constitutional justifications for this form of review.

You need to make a close link between ‘irrationality’ and the material discussed in Chapters 15 and 16, on the impact of general principles of European Community law and the European Convention on Human Rights on proportionality, substantive legitimate expectations and fundamental rights.

Types of substantive review arguments

As with the other two chapter headings in Lord Diplock’s scheme for classifying the grounds of judicial review, there is no definite statement of what arguments should be considered under irrationality. (Some could just as well be classified under ‘illegality’.) Indeed, some commentators are unhappy with the terms ‘irrationality’ and ‘unreasonableness’.

ActivityConsider the following arguments, all of which may be classified under the broad heading of ‘irrationality’. What legal authority would you use to support each of these arguments?

a. The decision is ‘perverse’, ‘absurd’, ‘illogical’, ‘arbitrary’ – it is so unreasonable that no reasonable authority could ever have come to it.

b. The decision cannot be objectively justified – it is unsupported by any or adequate evidence, or there are no good reasons for it.

c. The decision is oppressive – a disproportionate response (proportionality).

d. The decision breaches the constitutional principle of legal certainty.

e. The decision breaches the constitutional principle of equality.

Variable degrees of scrutiny

One important point is the flexibility of substantive review. The judgments and academic literature reveal several factors that are to be taken into account.

First, the degree of scrutiny will vary, depending on (among other things) the nature of the applicant’s interest that is affected by the decision-maker’s actions. Life and liberty are obviously the most important. The courts have also attached importance to the rights of people to carry on their livelihoods.

Second, substantive review is also flexible in that the court’s scrutiny will vary according to the policy content of the decision under challenge. As Sir Thomas Bingham M.R. put it in ex parte Smith:

‘The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are an issue, even greater caution than normal must be shown in applying the test, and the test itself is sufficiently flexible to cover all situations.’


A third factor is time. In ex parte Smith the Master of the Rolls stated, in relation to the total ban on homosexual people serving in the armed services, that ‘the existing policy cannot in my judgment be stigmatised as irrational at the time when these applicants were discharged’ (emphasis added). Attitudes and evidence informing official decisions may well change over a period of time; what may be a legally acceptable decision in year X may not be so in year Y. This is important to bear in mind when considering the case-law.

Learning outcomesIn relation to judicial review on substantive grounds, you should be able to:

� describe the differences between the ‘merit’ and ‘legality’ of a decision

� explain the possible constitutional justifications for this type of judicial review

� advance arguments and counter-arguments, supported by case-law, for substantive review in a given hypothetical fact situation.

Sample examination questions1. Discuss the proposition that allowing the High Court to quash executive

decisions on the basis of Wednesbury unreasonableness grants too much power to the judges.

2. ‘The Wednesbury case was wrongly decided and now Wednesbury unreasonableness means whatever the judges want it to mean. It is time to forget Wednesbury and to establish a more rational basis for the principle of irrationality.’ Critically assess this statement in the light of relevant cases.

3. ‘Judicial review is concerned with the legality of a decision and not with its merits.’ Discuss. Is it possible to distinguish legality from merits?

4. Would the introduction of ‘proportionality’ as a ground of review in administrative law necessarily embroil the judiciary too closely in an examination of the ‘correctness’ rather than simply the ‘legality’ of government decisions?

5. Suppose that the facts of the 1948 Wednesbury case were repeated in 1988. Advise the cinema owners as to whether an argument based on proportionality would enable them to succeed in an application for judicial review of a ban on under 15 year olds entering the cinema on Sundays.

‘Fairness requires consistency: a decision-maker should always act consistently with what he has done before and consistently with what he has promised.’ Do you agree that consistency is desirable in principle? Does English law require a decision-maker to be consistent?†

† As well as considering legal certainty, to write a good answer to this question you should examine legitimate expectation (see Chapter 8) and estoppel (Chapter 14).

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61

Ouster clause argument . . . . . . . . . . . . . . . . . . . . . . . . . .61

Non-jurisdictional error argument . . . . . . . . . . . . . . . . . . . . .62

Amenability argument . . . . . . . . . . . . . . . . . . . . . . . . . . .64

Standing argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

Justiciability argument . . . . . . . . . . . . . . . . . . . . . . . . . . .65

10 Exclusion of judicial review


Administrative law 10 Exclusion of judicial review page 61

Introduction

The final element in topic (e) of the syllabus is the ‘Exclusion of judicial review’. This is a broad phrase, capable of encompassing many issues.

Imagine you are a lawyer advising an organisation against which a person is threatening to apply for judicial review. You may well have arguments against the applicant to say that your organisation has not actually breached any ground of review (for instance, that a fair hearing was indeed given to the applicant, or that the decision was made in a situation where the law does not require there to be a hearing). As well as arguments such as these, you may also want to launch an even bigger counter-attack on the applicant’s case. You could try to argue that the High Court should not even begin considering the applicant’s allegations. As well as having great practical purpose (which you may be able to draw upon when answering problem questions), issues to do with the exclusion of judicial review have profound significance for constitutional theory.†

There are several ways in which it may be possible to argue that the High Court does not have the power to use its public law supervisory jurisdiction. Here we survey some of them. The strongest potential arguments are those which say the court lacks legal power (or ‘jurisdiction’) to intervene. These arguments are often highly technical and the case-law underpinning them is very confusing – until you spend time working through it carefully. The reason for this complexity is partly to be explained by history: since the 1960s the courts have wanted to be increasingly interventionist. The judiciary have therefore had to accept ingenious, sometimes convoluted, reasoning in order to sidestep either the plain language of Acts of Parliament apparently excluding the court, or to get around pre-existing case-law that placed restrictions on the ambit of the court’s supervisory power.

Other arguments concede that technically the court does have the legal power to intervene, but that it should use its discretion to refuse to do so.

Ouster clause argument




Supplementary reading � Wade, W. and C. Forsyth Administrative Law. (Oxford: Oxford University Press,

2004) ninth edition [ISBN 019927021X] pp.712–27.

It is possible for Parliament to enact legislation which expressly takes away the court’s inherent legal power to apply the grounds of judicial review and grant judicial review remedies. Because of the principle of parliamentary supremacy, orthodox constitutional theory holds that it is not open to a judge to question the constitutional validity of such a provision. Nevertheless, the British courts have – when they wanted to – found ingenious ways to evade the impact of such legislation. In order to understand this topic fully, you also need to consider the distinction between ‘void’ and ‘voidable’ and the theoretical basis for judicial review.† Legislation may also enact strict and short time limits, typically six weeks, after which no judicial review challenge may be made. (Under Order 53 the normal time limit for judicial review is a requirement that the application be made promptly and in any event within three months of the decision or action which is challenged. The court here has a discretion to hear an application even if it is outside the three month period.)

† See further Chapters 2 and 5, and especially Harlow and Rawlings’ analysis of ‘green light’ theory.

† On both of which, see Chapter 5.


Learning outcomesHaving read and thought carefully about the chapter in Craig, and the leading cases he discusses, you should be able to:

� summarise and evaluate the case-law on ouster clauses and other legislative provisions restricting the courts’ supervisory jurisdiction

� explain the constitutional justifications and objections to such clauses.

Sample examination questions on ouster clauses1. ‘The Courts’ responses to ouster clauses may appear at times to challenge

the doctrine of parliamentary sovereignty, but in so doing the judges display laudable devotion to the principle of the rule of law.’ Discuss.

2. To what extent are the powers of the courts in judicial review cases affected (a) by the existence of an alternative statutory remedy, or (b) by a statutory provision purporting to oust the jurisdiction of the courts?

3. ‘Statutory attempts to exclude the judiciary from reviewing administrative action are a threat to the rule of law. Judges rightly interpret such clauses liberally.’ Discuss.

4. ‘Ouster clauses are a necessary ingredient of the government process in a complex, modern society. Judicial attempts to circumvent them are thus not only incompatible with the principle of parliamentary sovereignty, but are also inimical to efficient government decision-making.’ Discuss.

5. In what ways, if at all, might one expect the courts’ attitude towards ouster clauses to have altered following the decision in Page v Hull University Visitor?

6. See the problem involving Local Government Revenue Act 1992, set out below.

Non-jurisdictional error argument



Supplementary reading � de Smith, S., Lord Woolf and J. Jowell Judicial Review of Administrative Action.

(London: Sweet and Maxwell, 1995) fifth edition [ISBN 0420466207] Chapter 5.

� Laws, Sir John ‘Illegality: the Problem in Jurisdiction’, Chapter 4 in Supperstone, M. and J. Goudie (eds) Judicial Review. (London: Butterworths, 1991) [ISBN 0406102600]

� Yeats, I. ‘Findings of Fact: the Role of the Courts’, Chapter 5 in Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

At first sight, this may strike you as a strange argument. As we saw in the previous chapter, the courts allow public authorities to have a ‘margin of appreciation’ in the way they exercise their discretion. It may, however, surprise you to learn that not every ‘error’ or ‘mistake’ made by a public authority will necessarily provide a ground for quashing a decision. You will encounter several difficulties in studying this area of law. Much of the law in this area is still highly technical. The terminology can be confusing – for example, ‘jurisdiction’ sometimes refers to the legal power of the public body to make a decision; at other times, it describes the legal power of the High Court to judicially review the public body’s decision. This area is also intertwined with other topics, especially ouster clauses† and the distinction between void and voidable decisions.† Finally, be cautious when reading older cases – there have been radical changes in this field of law.

† See above.

† See Chapter 5.


An administrator may have been given a power by Parliament to make a decision and, as Lord Reid has said, ‘if [the tribunal] has jurisdiction to go right [it] has jurisdiction to go wrong.† To what extent is this true today? The issue is whether a public authority has ‘jurisdiction’ (legal power) to make legal and factual errors which the High Court has no ‘jurisdiction’ (legal power) subject to judicial review.

In the past lawyers believed that it was possible for a decision-maker to make an error of law and for the court to refuse to grant judicial review because the decision-maker has not ‘exceeded his jurisdiction’. De Smith, Woolf and Jowell comment that:

‘the concept of jurisdictional error has become one of the most elusive in administrative law, largely because it calls for analytical distinctions which have, as judicial review has developed, become more difficult if not impossible to sustain.’†

There is now a broad consensus that almost all errors of law are ‘jurisdictional errors’ and ought to be regarded as being subject to judicial review.† When you are answering problem questions, you will therefore normally be able to assume that any error of law made by a decision-maker is subject to review.

In contrast to the position just described in relation to errors of law, there is still an important distinction to be made between jurisdictional and non-jurisdictional errors of fact.†

Learning outcomesHaving done the relevant reading on jurisdiction, you should be able to:

� summarise and critically evaluate the case-law dealing with the courts’ powers to review errors of law

� summarise and critically evaluate the case-law dealing with the courts’ powers to review errors of fact.

Sample examination questions on non-jurisdictional error argument1. To what extent are the courts in judicial review proceedings able to review

findings of fact?

2. ‘Administrative lawyers still await a set of logistical principles with which one can distinguish questions of law from questions of fact.’ Discuss.

3. In what ways, if at all, might one expect the courts’ attitude towards ouster clauses to have altered following the decision in Page v Hull University Visitor?

‘Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’ (Puhlhofer v Hillingdon London Borough Council (1986), per Lord Brightman.)†

4. Section 312(5)(g) of the [fictitious] Local Government Revenue Act 1992 requires local authorities to exempt from the new council tax ‘any house which by reason of its disrepair cannot be occupied in the present financial year’. Section 319 provides that the council’s decision ‘shall be final’.

Section 3 of the [fictitious] Unfit Premises Restoration Act 1991 obliges councils to grant £5,000 towards the cost of renovating ‘unfit houses’. Section 7 entrusts the question of determining unfitness to the council. Section 8(1) provides that the council decision is ‘final’. Section 8(2) further provides that the reference to ‘final’ in sub-section (1) ‘shall preclude initiation of proceedings for judicial review’.

Smith has recently acquired two bungalows (70 and 72 Acacia Avenue) in identical states of disrepair in the area of Eastham Borough Council. Smith seeks council tax exemption and improvement grants for both dwellings. The following decisions are made (in chronological order).

† R v Governor of Brixton Prison, ex parte Armah [1968] AC 192, 234.

† de Smith, Woolf and Jowell (1995) 223.

† Subject to only a few exceptions, including decisions made by Visitors to Universities (as in R v Hull University ex parte Page [1993] AC 689).† Remember that a decision may also be held unlawful if the decision-maker had no evidence for a finding of fact or a decision-maker gives unreasonably inappropriate weight to a particular fact in reaching his decision; see Chapter 9.

† A good answer would combine discussion of the courts’ powers to review facts and consideration of relevant issues to do with irrationality (see Chapter 9).


a. The council approves a grant for number 72, noting that it has rarely seen so unfit a dwelling.

b. The council refuses to exempt number 70 on the ground that ‘a bungalow is, by definition, not a house, and therefore not covered by s.312(5)(g)’.

c. The council refuses to exempt number 72 on the ground that ‘despite being in severe disrepair, this dwelling could reasonably be expected to be occupied within six months’.

d. The council, noting the second decision (above), refuses to approve a grant for number 70. The council accepts that the bungalow is uninhabitable, but that since it is a ‘bungalow’ and not a ‘house’ it is not eligible for a grant.

Advise Smith if he might successfully challenge any of these decisions by judicial review.

Amenability argument


[ISBN 042179920X] pp.822–35.


Supplementary reading � Black, J, ‘Constitutionalising Self-Regulation’ (1996) 59 MLR 24.

� de Smith, S., Lord Woolf and J. Jowell Judicial Review of Administrative Action. (London: Sweet and Maxwell, 1995) fifth edition [ISBN 0420466207] pp.167–72.

Broadly speaking, a court only has power to judicially review ‘public law’ decisions or actions – though what exactly counts as public law begs many fundamental and practical questions. The rules on amenability determine what decisions of which bodies may be subject to challenge by way of judicial review. As with procedural exclusivity,† the case law and constitutional theory which underpins it are both interesting and controversial.

Learning outcomesHaving studied the material on amenability, you should be able to:

� summarise and apply the case-law

� explain the constitutional reasons for the limits of judicial review.

Sample examination questions on amenability1. Over what bodies, and in respect of what kinds of functions, can the courts

exercise powers of judicial review?

2. What is the difference between a public and a private body in administrative law?

3. Assess the extent to which the activities of sporting bodies are subject to judicial supervision via the mechanism of the application for judicial review. Is this area of law in need of reform?

4. Anna believes that she has been unfairly and unreasonably treated by a number of bodies. She seeks your advice as to whether she would be successful, if the claims of unfairness or unreasonableness could be substantiated, in applications for judicial review against these bodies, namely:

a. The British Broadcasting Corporation

b. Panel on Take-overs and Mergers

† See Chapter 6.


c. University of London

d. The Arts Council

e. The Welsh Rugby Football Union.

5. Following the inclusion of beach volleyball as an exhibition sport at the 1998 Olympics, two national sporting bodies – the British Beach Volleyball Association (BBVA) and Brits on the Beach (BOB) – are established in 1993. The International Olympic Committee recognises both organisations as legitimate governing bodies of the sport, jointly responsible for selecting the British Olympic team. Olympic competitors must join one or the other organisation.

The BBVA is run by private individuals, but receives financial support from the Department of the Environment. The Minister for Sport is quoted as saying that she considers it important that the government ‘keeps an eye’ on the BBVA’s activities to maximise the chances of Britain increasing its tally of Olympic medals. In its first publicity campaign, the BBVA stresses that skilled players might soon earn a substantial living from the sport. BOB is run and financed entirely by private individuals; it stresses that it rejects the commercialism of the BBVA.

In January 1995,† Faith, one of Britain’s top players, following her recent successes on the American circuit, applies to join both BOB and the BBVA. Her applications are accepted; she pays the £10 membership each body requires and signs contracts with each organisation which state that membership may be granted, renewal or revoked on such terms as the organisation thinks fit. On 1 May 1995 she is expelled from the BBVA; no reason is given.

Hope, who plays beach volleyball for fun, applies on 12 March 1995 to join BOB. Her application is rejected without explanation on 17 March. She then goes on holiday and thinks she will do something about the application when she gets back.

Faith and Hope come to you for advice today. Advise them whether they can challenge the decision made by BOB and the BBVA via an application for judicial review.† (You are not asked to comment on the merits of their respective cases.)

Standing argument

Issues to do with standing have already been considered in Chapter 6, but are also relevant here. Strictly speaking (look at the words used in s.31 of the Supreme Court Act 1981), the High Court has power to grant leave to apply for judicial review only to those applicants who have ‘a sufficient interest in the matter to which the application relates’. In other words, standing goes to the court’s jurisdiction. As we saw, however, this provision is now interpreted so widely that the applicant’s status will not usually be a restriction on the court’s powers.

Justiciability argument

Reading � Allison, J. ‘The Procedural Reason for Judicial Restraint’ (1994) PL 452.

� Cranston, R. ‘Reviewing Judicial Review’, Chapter 3 in Richardson, G. and H. Genn (eds) Administrative Law and Governmental Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771] especially pp.50–53.

� Dickson, B. ‘Judicial Review and National Security’, Chapter 7 in Hadfield, B. (ed.) Judicial Review: a Thematic Approach. (Dublin: Gill and MacMillan, 1995) [ISBN 0717123111].

� Le Sueur, A.P. ‘Justifying Judicial Caution: Jurisdiction, Justiciability and Policy’,

† This is the date used when this question appeared in the 1995 examination; no issues to do with delay in applying for judicial review are intended to be raised.

† As well as considering the issue of the bodies’ amenability to judicial review, you need to deal with the rules on procedural exclusivity (on which see Chapter 6).


Chapter 8 in Hadfield, B. (ed.) Judicial Review: a Thematic Approach (see above for publishing details).

� Council for the Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374.

� R (Abassi) v Secretary of State for Foreign Affairs [2002] EWCA Civ 1598.

The ‘nature and subject matter’ of some decisions taken by public authorities is said to be such as to make them not subject to judicial review. The notion of ‘non-justiciability’ is that there are some essential and inherent limits on what the courts may review. It is the courts themselves that have established where the boundaries lie. These boundaries may, however, be shifted. In the GCHQ case, Lord Roskill held that some functions authorised under the prerogative were non-justifiable. He listed:

‘the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers’.

Yet within a few years, the High Court decided that the prerogative of mercy was justiciable.† As well as the matters listed by Lord Roskill, the courts may be loathe to intervene and review decisions which directly involve discretionary decisions as to how public funds ought to be allocated.

Learning outcomesHaving considered the material on non-justiciability, you should be able to:

� explain the concept of non-justiciability

� explain why types of government decisions have been held to be non-justiciable

� suggest and evaluate reasons of constitutional theory for the courts’ approach in this area.

Argument: the High Court should not hear the applicant’s allegations against the organisation because the application has failed to use an alternative remedy before or instead of using the Order 53 Application for Judicial Review procedure has already been considered in Chapter 6. The existence of an alternative remedy does not mean the court lacks jurisdiction to hear an application for judicial review, merely that it may well use its discretion to refuse to do so.

ActivityCan you suggest reasons why judges turn cases away on each of the bases listed above?

† See R v Secretary of State for the Home Department ex parte Bentley [1994] QB 349.

Contents


11 Ombudsmen



[ISBN 042179920X] pp.233–52.


Supplementary reading � Birkinshaw, P. Grievances, Remedies and the State. (London: Sweet and Maxwell,

1995) second edition [ISBN 0421485108] especially Chapter 5.

� Brown, P. ‘The Ombudsmen: Remedies for Misinformation’, Chapter 13 in Richardson, G. and H. Genn (eds) Administrative Law and the Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

� Gregory, R. and G. Drewry ‘Barlow Clowes and the Ombudsmen’ (1991) PL 192 and 408.

� Harlow, C. and G. Drewry ‘“A Cutting Edge?” The Parliamentary Commissioner and MPs’ (1990) PL 745.

� Rawlings, R. ‘The MPs’ Complaints Service’ (1990) 53 MLR 22 and 149.

Administrative law 11 Ombudsmen page 69


Questions to do with ombudsmen – topic (f) on the syllabus – are frequently set in the examination. They tend to be popular with candidates, though the Examiners’ report suggests that few manage to obtain upper second and first class marks. One reason for this is that candidates tend to go onto autopilot: they write all they know about the topic, rather than responding carefully and precisely to the particular question posed. Once you have studied this topic, practise adapting your knowledge to the sample examination questions set out below.

Questions often require you to make links between the work of the ombudsmen and that of the courts carrying out judicial review and appeal tribunals. In answering such a question, it is vital that you consider how the work of ombudsmen may add to or complement the jurisdiction of the courts.

It is also important that you illustrate your answers with appropriate references to particular ombudsmen investigations. Gregory and Drewry [1991] provide a case study, as does Brown’s chapter in Richardson and Genn. All the ombudsmen produce annual and special reports which are good sources of up-to-date information.

Learning outcomesHaving read and thought about the material on ombudsmen, you should be able to:

� explain succinctly the jurisdiction of the Parliamentary Commissioner for Administration, the Health Service Commissioner and the Local Commissioner for Administration

� explain and evaluate the concept of ‘maladministration’ (making reference to particular ombudsmen investigations)

� discuss the functions performed by the ombudsmen, in particular redress of individual grievances and promotion of standards of good administration

� compare and contrast the role of the ombudsmen with that of tribunals, inquiries, courts, internal complaints procedures and other mechanisms for redressing grievances

� suggest and evaluate proposals for reform of the ombudsmen.

Sample examination questions1. Are the local and central government ombudsmen at present making a valuable

contribution to the task of ensuring accuracy and efficiency in government decision-making?

2. Evaluate the efficacy of institutions other than the courts† in ensuring that government bodies exercise their powers in conformity with legal principles.

3. How important a role is played by ombudsmen in promoting good government? How might their role be reformed?

4. Do ombudsmen play a significant role in promoting good government? Would this task be facilitated if the courts were to accept that ‘maladministration’ should amount to a ground for judicial review?

5. ‘The ombudsmen system should not be seen as a cheap substitute for courts. Its role should be quite different.’ Discuss.

6. ‘Many of the problems of administrative law, which are in the course of receiving judicial answers, are at the same time coming before the ombudsman, there to be answered for his own purposes. For the time being, parallel processes exist, each having certain advantages and disadvantages relative to the other.’ (A.W. Bradly) Discuss.

7. Compare and contrast the various ombudsmen within the United Kingdom.

8. How do ombudsmen interpret ‘maladministration’? Illustrate your answer by reference to specific investigations.

† The ombudsmen are, of course, only one such institution.


9. Local councils have statutory power to make grants to elderly and disabled residents to help with the payment of winter heating bills. The closing date for applications for grants each year is 31 March. On 30 March Wendy went to her local council office and received a form which a council official helped her to fill in. One of the questions on the form asked for the details of her mortgage payments. Wendy explained that she did not remember the details, but the official said, ‘They never really bother with that. You can leave that bit blank.’ Wendy left the form and on 1 May received a letter from the council saying that her application had been rejected because she had not given all the details required on the form. Advise Wendy.† † A complaint to the local

ombudsman is only one possibility. What are the others?

Contents


12 Tribunals


This topic has not been examined in recent years. It nevertheless remains on the syllabus, and students should not assume that it has become obsolete for examination purposes. Students should also recognise the possibility that this topic might be examined in a question which also requires consideration of the role of ombudsmen.



� Harlow, C. and R. Rawlings Law and Administration. (London: Butterworths, 1997) second edition [ISBN 0406045895] Chapter 12.


Supplementary reading � Genn, H. ‘Tribunal Review of Administrative Decision-Making’, Chapter 11 in

Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

� Sainsbury, R. ‘Internal Review and the Weakening of Social Security Claimants’ Rights of Appeal’, Chapter 12 in Richardson and Genn (see above for publishing details).

Administrative law 12 Tribunals page 73


You may already have some familiarity with the tribunal system from your studies on the English legal system. For topic (g) on the Administrative law syllabus you will need a much more detailed and sophisticated knowledge of the subject. A careful reading and thoughtful response to the reading recommended above should equip you well. As with ombudsmen,† questions in the examination often require you to compare and contrast the functions performed by tribunals with that of other grievance redressing institutions.

Learning outcomesHaving studied the material on tribunals, you should be able to:

� explain what is meant by the term ‘tribunal’

� compare and contrast the functions performed by tribunals with that of the courts, ombudsmen, inquiries, internal complaints procedures and other mechanisms for redressing grievances

� suggest and evaluate proposals for reform of the tribunal system.

Sample examination questions1. Evaluate the efficacy of institutions other than the courts in ensuring that

government bodies exercise their powers in conformity with legal principles.

2. What are the advantages and disadvantages of tribunals, in comparison with other methods of determining disputes and establishing entitlements.

3. In 1957 the report of the Committee on Administrative Tribunals and Enquiries (the Franks report) described the advantages of tribunals as ‘cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject.’ Discuss the role of tribunals and courts in administrative law.

4. ‘If tribunals are as good as they are often claimed to be – cheaper, quicker, more efficient, better informed – then there is no need for courts.’ Discuss the different roles and relative merits of tribunals and courts in administrative law.

5. Suppose that the government has decided to set up a scheme to provide compensation for deserving claimants who suffer injury in the course of medical treatment by the NHS. Two schemes are being considered: the first would provide very detailed rules as to eligibility; the second would leave very wide discretion; under the first, decisions on individual claims would be made by an independent tribunal; under the second, decisions would be made by officials in the government department.

Explain the advantages and disadvantages of these rival schemes.†

† See the previous chapter.

† This question was also considered in Chapter 5.


Notes

Contents


13 Inquiries


Like tribunals, this topic has not been examined often in recent years. It nevertheless remains on the syllabus, and students should not assume that it has become obsolete for examination purposes. Students should also recognise the possibility that this topic might be examined in a question that also requires consideration of the role of tribunals.



� Harlow, C. and R. Rawlings Law and Administration. (London: Butterworths, 1997) second edition [ISBN 0406045895] Chapter 12.


Supplementary reading � Blom-Cooper, Sir Louis ‘Witnesses and the Scott Inquiry’ (1994) PL 1.

� Clothier, Sir Cecil ‘Fact-finding in inquiries – the PCA’s perspective’ (1996) PL 384.


� Drewry, G. ‘Judicial Inquiries and Public Reassurance’ (1996) PL 368.

� Howe, Lord ‘Procedure at the Scott Inquiry’ (1996) PL 445.

Administrative law 13 Inquiries page 77


Public inquiries have been used as part of decision-making schemes for many years, particularly in relation to land-use planning. (Chapter 22 of de Smith, Woolf and Jowell provides a succinct account of town and country planning, including the use of inquiries.) Such inquiries have a statutory basis and written rules of procedure. As with the word ‘tribunal’, the term ‘inquiry’ is, however, used to cover several different types of activity. Ad hoc inquiries conducted by judges or senior lawyers are sometimes set up to look at particular disasters and scandals; the nature of their terms of reference vary. Often such inquiries have no statutory basis.

One general characteristic of inquiries is that they tend not to have the power to make binding decisions, but rather make recommendations that may or may not be accepted by a government body (such as a local authority or Secretary of State). Many of the interesting issues concern the procedures adopted by inquiries, especially the extent to which they are or should be similar to those used in courts of law – for instance, whether lawyers represent individuals and interest groups, whether there is cross-examination of witnesses and so on.†

The recent public inquiry into the ‘arms for Iraq’ affair, conducted by Sir Richard Scott, provides a great deal of useful new material for this topic. The Report of the Inquiry into the Export of Defence Equipment and Dual Use Goods to Iraq and Related Prosecutions (HC 115) was published on 16 February 1996. There is no need for you to read the whole of this massive five-volume work, but the commentary on it, listed under Supplementary reading above, should be of use to you. In February 1996 the Lord Chancellor’s Department invited views on Sir Richard Scott’s recommendations concerning the conduct of public inquiries. At the end of the consultation period, in May 1996, the Council on Tribunals was asked to consider the issues raised and to offer advice to the government.

Learning outcomesHaving studied the material on inquiries, you should be able to:

� explain what is meant by the term ‘inquiry’

� describe and evaluate the functions performed by inquiries

� compare and contrast the procedures adopted at inquiries with those used by tribunals, courts and ombudsmen

� suggest and evaluate proposals for reform of inquiries.

Sample examination questions1. What is the purpose of a local inquiry? What control do courts exercise over the

procedures of a local inquiry?

2. ‘The point of inquiries is to give the illusion of participation.’ Discuss.

3. Compare and contrast the contributions of tribunals and inquiries to administrative law in the years since the Franks Report.

† See, for example, Bushell v Secretary of State for the Environment [1981] AC 75.


Notes

Contents

Overview of the topics . . . . . . . . . . . . . . . . . . . . . . . . . . .81

Crown Proceedings Act 1947 . . . . . . . . . . . . . . . . . . . . . . . .81

Contract liabilities and duties of public authorities. . . . . . . . . . . . .81

Tort liabilities and duties of public authorities . . . . . . . . . . . . . . .81

Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83

Estoppel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84

14 Contract, tort, restitution and estoppel


Administrative law 14 Contract, tort, restitution and estoppel page 81

Overview of the topics

Item (i) on the syllabus contains several topics which are, at least initially, best regarded as distinct. As we will see, however, examination questions sometimes require you to consider them together. Some of the issues, especially in relation to tort, should be familiar to you from studying Tort; as has been said several times before, where there is overlap with work in other subjects, Administrative law requires a deeper and more detailed understanding of the topic. The chapters from Craig’s Administrative Law, recommended below, provide a really good basis for your work in this area. This area of administrative law has also been quite significantly affected by the coming into force of the Human Rights Act 1998. Students should be able to invoke recent Human Rights Act case-law in answering a question on this topic.

Students should be alert to the possibility of an exam question in this area that combines two or more of the topics considered in this chapter.

Crown Proceedings Act 1947

The Crown Proceedings Act was passed to make it easier for people to sue central government, including in contract and tort disputes. There are, however, still some limitations. You ought to be familiar with the scope of the Act and its main provisions. The discussion in Craig’s Administrative Law (trace the relevant pages through the index) ought to be sufficient for most purposes. Commenting on the 1947 Act would be one aspect of a good answer to essay questions such as:

� to what extent should public authorities be granted special treatment under the law of tort and contract?

A question such as this requires more than merely a discussion of the Crown Proceedings Act.

ActivityDraw up a list of institutions and office-holders which, in addition to ‘the Crown’, ought to be considered as ‘public authorities’ for the purpose of this topic.

Contract liabilities and duties of public authorities


[ISBN 042179920X] Chapter 5; especially pp.146–65.

In addition to considering the contractual capacity and liabilities of public bodies, bear in mind that contract-related issues arise in respect of two other aspects of the syllabus. First, we have already noted the importance of contracting out as a technique of service delivery and decision-making by public bodies, especially local authorities.† Second, entering into contracts is one way in which public bodies may be alleged to have improperly fettered their public law discretion.†

Tort liabilities and duties of public authorities




† See Chapter 3.

† See Chapter 7.


Supplementary reading � Cane, P. ‘Suing Public Authorities in Tort’ (1996) 112 LQR 13.


� Barrett v Enfield LBC [2001] 2 AC 550.

� Phelps v Hillingdon LBC [2001] 2 AC 619.

� Craig, P. and D. Fairgrieve ‘Barrett, Negligence and Discretionary Powers’ (1999) PL 626.

� Fairgrieve, D. ‘Pushing Back the Frontiers of Local Authority Liability’ (2002) PL 288.

In the past few years, the House of Lords has produced several important judgments in this area. In the Bedfordshire case, the House of Lords considered the law relating to local authorities’ liability in negligence and breach of statutory duty. Some aspects of the decision are obscure, even for Cane.† The implications of X have been further teased out in Barrett and Phelps. Both cases have been the subject of extensive academic comment and analysis. The Three Rivers District Council case concerns the tort of misfeasance in public office.

When you are studying this topic, it is worthwhile remembering that tort liability may arise in two different sets of circumstances. The first is where the plaintiff is seeking judicial review as well as bringing a claim for damages – this may well be the situation in the first of the two problem questions set out below. Chapter 19 of de Smith, Woolf and Jowell’s Judicial Review of Administrative Action provides an overview of the relationship between the grounds of judicial review and claims for damages. Be clear: the fact that a public authority has breached a ground of judicial review does not of itself give a person harmed any right to claim damages. That person will have to establish that a tort has also been committed (such as negligence, the tort of breach of statutory duty, misfeasance in public office, trespass and so on). A second situation is where the facts of the case do not give rise to any issues of judicial review; in other words, where there is no direct allegation of ‘unlawfulness’ in a public law sense. This is the situation in the second of the problem questions below, in which you need deal only with negligence law.

Learning outcomesHaving studied the tortious liability of public authorities, you should be able to:

� explain how, if at all, the general law of tort is modified in its application to public bodies

� suggest and evaluate the justifications for differences in treatment between public authorities and private individuals and businesses

� give advice about tortious liability in a hypothetical fact situation by advancing arguments and counter-arguments.

Sample examination questions to do with tort1. A market and funfair is held each month in Barchester. A limited number of

licences is available for those who wish to set up stalls and sideshows. The licences are awarded by the Barchester District Council and each licence is valid for a year.

George applied for one of the licences. His application was photocopied and copies were distributed to the members of the licensing committee. By mistake the last few lines of one page of the application were cut off in the photocopying process and the members of the committee wrongly concluded that George did not have sufficient experience to meet the council’s requirements. In any case, the committee knew that George held many political views that were unpopular in Barchester. It therefore rejected his application.

† See his very useful case note in (1996) 112 LQR 13.

Administrative law 14 Contract, tort, restitution and estoppel page 83

Harold was awarded an annual licence in January. In April the council was informed that he was selling toys at his stall that did not meet approved safety standards and, without offering Harold an opportunity to explain, revoked his licence.

Advise George and Harold what remedies, if any, may be available and whether they would be entitled to compensation† for any losses they have suffered.

2. The [fictitious] Building Inspection Act 1990 empowers local councils to inspect new buildings to ensure they meet statutory standards. In May 1991† Northam Council decided to exercise this power. In December 1991, council surveyors inspected a new Basset plc housing development in the village of Sunnyside. Acting on instructions from the planning committee of the council, the surveyors inspected only one in three of its houses. In January 1992, the council stopped all inspections claiming it could no longer afford the service.

The council learned in March 1992 that one surveyor had falsely reported inspecting some houses. The council took no action. This information was subsequently leaked to the local government ombudsman who concluded that the council’s failure to act was maladministration. The council still took no action.

In May 1993, Sunnyside was battered by a hurricane. Fred’s Basset house collapsed entirely. Jill, who was staying with Fred at the time, was hit by falling masonry. In addition to suffering a broken leg, she was hospitalised for three weeks and was unable to go on the foreign holiday she had booked in April. Ben’s house remains intact, but repair costs are estimated at £10,000.

Fred and Ben subsequently discovered that the houses’ foundations did not meet national standards, being two rather than three feet deep. They also established that Fred’s house would have been inspected in February 1992 had the service not been discontinued, and that Ben’s house was one of the properties falsely reported as inspected.

Advise Fred, Ben and Jill if they could successfully establish a claim for liability in negligence against the council.

3. Are public bodies treated differently from private citizens in the law of tort? If so, why? If not, should they be?

Restitution


[ISBN 042179920X] pp.921–28.

� Wade, W. and C. Forsyth Administrative Law. (Oxford: Oxford University Press, 2004) ninth edition [ISBN 019927021X] pp.798–802.

� Western Fish Products v Penwith DC [1981] 2 All ER 204.

� R (Reprotech) v East Sussex CC [2002] UKHL 8.

Supplementary reading � Beaton, J. ‘Mistakes of law and ultra vires public law receipts: the Law

Commission Report’ (1995) Restitution Law Review 280.

� Toubes, F. ‘Restitution for Public Lawyers’ (1996) Judicial Review 92.

No question has been set on this topic since it was included on the syllabus.

† Why do you think the broad term ‘compensation’ is used, rather than ‘damages’?

† These are the dates used in the question when it appeared in the 1993 examination. The problem is not intended to raise any issues to do with limitation of tort actions!


Estoppel



The topic of estoppel can be studied very productively at the same time as substantive legitimate expectation (considered as a ground of review in Chapter 8). Craig explains the relationship between the two concepts in Administrative Law on pages 669–70. The linkages between this concept and that of substantive legitimate expectation have become much closer in the light of the House of Lords’ judgment in Reprotech. That decision – and the body of academic writing directed towards it – merit close attention.

Consider also the relationship between this topic and the rule that a public authority must not fetter its discretion.†

Sample examination questions to do with estoppel1. Are the concepts of legitimate expectation and estoppel in effect simply

different labels for the same substantive principle?

2. According to Schwarz, the rule that estoppel operates in only a very limited way with regard to public authorities combines ‘all the beauty of logic and all the ugliness of injustice’. Does this fairly describe the approach of the English courts?

3. What future do the principles of estoppel and substantive legitimate expectation have within English administrative law following the House of Lords’ judgment in R (Reprotech) v East Sussex CC [2002] UKHL 8?

Sample examination questions1. To what extent should public authorities be granted special treatment under

the law of tort and contract?

2. ‘Public authorities should be treated like any other body or individual.’ Discuss with reference to any one of the following: contract, tort, estoppel.

† See Chapter 7.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

The ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

15 The impact of the European Convention on Human Rights


Essential general reading � Browne-Wilkinson, Lord ‘The Infiltration of a Bill of Rights’ (1992) PL 397

� Grief, N. ‘The Domestic Impact of the ECHR as Mediated through Community Law’ (1991) PL 555.

� Laws, Sir John ‘Is the High Court the Guardian of Fundamental Constitutional Rights?’ (1996) PL 59.

� Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London: Butterworths, 2003) third edition [ISBN 0406959528] Chapter 19.

� Boyle, A. ‘Sovereignty, Accountability, and the Reform of Administrative Law’, Chapter 4 in Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771] especially pp.96–101.

� R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696.

� Derbyshire County Council v Times Newspapers Ltd [1993] AC 534.

� R v Ministry of Defence ex parte Smith [1996] QB 517.

Supplementary general reading � de Smith, S., Lord Woolf and J. Jowell Judicial Review of Administrative Action.

(London: Sweet and Maxwell, 1995) fifth edition [ISBN 0420466207] pp.324–30.

� Farran, S. The UK Before the European Court of Human Rights: Case Law and Commentary. (London: Sweet and Maxwell, 1996) [ISBN 1854314556].

� Harris, D.J., M. O’Boyle and C. Warbrick Law of the European Convention on Human Rights. (London: Butterworths, 1995) [ISBN 0406259305].

Administrative law 15 The impact of the European Convention on Human Rights page 87

Introduction

English law is becoming more international, especially European, in its outlook. This trend is now reflected in the Administrative law syllabus. In this chapter we examine the impact of the European Convention on Human Rights (ECHR); in the next, the impact of the general principles of European Community law. Discussion of these two separate bodies of law sometimes takes place under the broad heading ‘European’. It is, however, very important that you understand the difference between the ECHR and the European Community/Union. They are distinct, but nevertheless connected to one another, and to the English legal system.†

ActivityImagine you are a legal adviser to a newspaper. Every few weeks the editor receives complaints from well-informed readers saying that journalists have confused the European Convention on Human Rights with the European Community/Union. The editor asks you to write a short memorandum for your colleagues which clearly explains the distinctions, and also how these bodies of law are connected to the English legal system.

The ECHR



Topic (j) is ‘the impact of ECHR case-law on the development of English administrative law’. From your past studies in Constitutional law, you should already have a basic knowledge of:

� the contents of the ECHR

� the procedures by which people may make applications to the Commission and the court based in Strasbourg

� the relationship between ECHR law and English law

� problems over whether it would be possible to entrench a Bill of Rights into English law should we ever decide to incorporate the ECHR (or an amended version of it) into domestic law.

For the purposes of the Administrative law syllabus, the focus is now on the influence the Convention, together with the decisions of the European Commission on Human Rights and the European Court of Human Rights, is having on English administrative law. Of particular importance is the impact of the ECHR on the development of the grounds of judicial review.† To be able to understand what is going on, you need knowledge of:

1. the English case-law which makes reference to the ECHR

2. the main provisions of the ECHR

3. the more important judgments of the European Court of Justice. Some of these against the UK have been conveniently collected together in a book.†

A strategy for studying the topicA good starting point is to read and think carefully about the articles by Lord Browne-Wilkinson, Grief and Sir John Laws. You could then go on to look at the case-law – some of which will already be familiar to you. Chapters 18 and 19 in Loveland’s textbook also provide a good introduction to this topic.

† See Grief (1991) PL 555.

† On which see Chapters 7–9.

† See Farran (1996).


Activity1. How, if at all, may a lawyer appearing before a court in England and Wales use

the provisions of the ECHR?

2. Explain the following statement made by Sedley J. in ex parte McQuillan [1995] 4 All ER 400, 422. To what extent do you agree with him?

‘Once it is accepted that the standards articulated by the European Convention [on Human Rights] are standards which both march with those of the common law and inform the jurisprudence of the European Union, it becomes unreal and potentially unjust to continue to develop English public law without reference to them.’

Learning outcomesHaving studied the impact of ECHR on English administrative law, you should be able to:

� summarise the main provisions of the ECHR, illustrating your explanation with references to some of the case-law of the ECHR

� explain the circumstances in which it is possible to rely upon the ECHR in courts in England and Wales

� compare and contrast the extent to which fundamental rights are protected by the ECHR and English common law.

Sample examination questionsThis topic should now be seen as coupled with the topic discussed in Chapter 16: the Human Rights Act 1998. Students could expect to be examined by a question which involves knowledge of both the pre- and post-Human Rights Act position. Sample examination questions of this sort can be found at the end of the next chapter of this guide.

Contents

Limited scope of the topic in this module . . . . . . . . . . . . . . . . .90

Overall view of the topic . . . . . . . . . . . . . . . . . . . . . . . . . .90

Statutory interpretations and declarations of incompatibility . . . . . . .91

Public authorities and horizontal effect . . . . . . . . . . . . . . . . . .91

Proportionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92

16 The Human Rights Act 1998


Limited scope of the topic in this module

Since coming into force in October 2000, the Human Rights Act 1998 has generated a substantial amount of litigation in many areas of domestic law. Students taking this subject are not expected to have an encyclopedic knowledge of that case-law. Such an expectation would be quite unrealistic. This subject guide focuses on several key areas of the Act, and also directs students’ attention to the Act’s significance in a broader constitutional sense.

Overall view of the topic

Students can expect to find that questions on this topic take a broad, constitutional sweep over the impact of the Human Rights Act. Students are therefore advised to revisit relevant parts of the Public law syllabus.

Essential reading


Supplementary reading � Craig, P. ‘The Courts, the Human Rights Act and Judicial Review’ (2001) LQR 589.

� Lord Irvine ‘The Impact of the Human Rights Act: Parliament, the Executive and the Courts’ (2003) pl 308.

� Klug, F. and K. Starmer ‘Incorporation through the front door...’(2001) PL 654.

Administrative law 16 The Human Rights Act 1998 page 91

Statutory interpretations and declarations of incompatibility

Essential reading � R v A [2001] 3 All ER 1 (HL).

� Wilson v First County Trust [2001] 3 All ER 229 (CA).

� R v A [2001] 3 All ER 1 (HL).

� R (H) v Mental Health Tribunal [2001] 3 WLR 512.

� R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837.

� Bellinger v Bellinger [2003] 2 AC 437.

� Craig, P. Administrative Law. (London: Sweet and Maxwell, 2003) fifth edition [ISBN 042179920X] Chapter 5; especially pp.570–81.

� Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London: Butterworths, 2003) third edition [ISBN 0406959528] pp.624–28; 644–50.

Supplementary reading � Kavanagh, A. ‘Statutory Interpretation and Human Rights After Anderson: a More

Contextual Approach’ (2004) PL 537.

� Nicol, D. ‘Statutory Interpretation and Human Rights After Anderson: a More Contextual Approach’ (2004) PL 273.

This is perhaps the most important issue raised by the Act. To what extent have the courts accepted that s.3 requires them to abandon traditional attachments to literalist approaches to statutory interpretation and adopt instead a teleological technique in which the telos (purpose) is to uphold Convention Rights? The linkage with s.4 declarations of incompatibility is clear. The more expansive the interpretive techniques used by the courts, the less likely it is that a declaration of incompatibility will be made.

Public authorities and horizontal effect



� Loveland, I. Constitutional Law, Administrative Law and Human Rights. (London: Butterworths, 2003) third edition [ISBN 0406959528] pp.628–36; 650–54.

� Popular Housing Association v Donoghue [2001] 4 All ER 604.

� Aston Cantlow Parochial Church Council v Wallbank [2004] 1 AC 546.

� R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936.

� R (Beer) v Hampshire Farmers Markets [2004] 1 WLR 233.

Supplementary reading � Beyleveld, A. and S. Pattinson ‘Horizontal applicability’ (2002) LQR 623.

� Young, A. ‘Remedial and substantive horizontality’ (2002) PL 221.

� Oliver, D. ‘Functions of a Public Nature Under the Human Rights Act 1998’ (2004) PL 328.

� Sunkin, M. ‘Pushing Forward the Frontiers of Human Rights Protection’ (2004) PL 643.


The crucial issue arising here is which bodies/persons can be defendants in human rights litigation. The question turns in part on the interpretation given to the notion of a ‘public authority’ in s.6 of the Act, and also to broader ideas as to horizontality.

Proportionality

Essential reading � R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER 433.

� R (Alconbury Properties) v SSETR [2001] 2 WLR 1389 (Art 6).



� Leigh, I. ‘Taking rights proportionately’ (2002) PL 265.

Students should refer back to Chapter 9 of this guide to refresh their memories on the significance of proportionality as a ground of review in domestic law. Proportionality has long been an accepted head of review under the ECHR. The way in which that principle is translated into the Human Rights Act by domestic courts has therefore become a matter of considerable significance.

Learning outcomesHaving studied the Human Rights Act 1998 itself and its early implementation by the courts, you should be able to:

� discuss the interrelationship between ss.3 and 4 of the Act

� explain the extent to which the Act has horizontal effect and which bodies are regarded as public authorities within s.6

� explain the way in which the Act has altered the role of proportionality as a ground of review in domestic law

� analyse the impact of the Act on traditional understandings of such broad concepts as the separation of powers and the sovereignty of Parliament.

Sample examination questions1. How has the coming into force of the Human Rights Act 1998 affected the

intensity with which courts will review the merits of government decisions?

2. Discuss the proposition that the Human Rights Act 1998 has greatly increased the power of the courts and equally substantially reduced the powers of the executive.

3. Assess the proposition that the courts’ interpretation and application of the Human Rights Act 1998 has – to all intents and purposes – revolutionised the nature of the relationship between the government and the courts.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

The ‘impact’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

‘General principles’ . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

Procedural fairness. . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

Legitimate expectation . . . . . . . . . . . . . . . . . . . . . . . . . .96

Proportionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96

Fundamental human rights . . . . . . . . . . . . . . . . . . . . . . . .96

17 The impact of European Community law



[ISBN 042179920X] Chapter 5 and parts of Chapter 11 (specific passages recommended below).

� Hartley, T.C. The Foundations of European Community Law. (Oxford: Clarendon Press, 1994) third edition [ISBN 0198763255] Chapter 5.†

� Williams, D. ‘The Influence of European Union Law upon United Kingdom Administration’, Chapter 10 in Richardson, G. and H. Genn (eds) Administrative Law and Government Action. (Oxford: Clarendon Press, 1994) [ISBN 0198762771].

Supplementary reading � Craig, P. ‘Substantive Legitimate Expectations in Domestic and Community Law’

(1996) CLJ 289.

� Grief, N. ‘The Domestic Impact of the European Convention on Human Rights as mediated through Community Law’ (1991) PL 555.

� Jowell, J. ‘Is Proportionality an Alien Concept?’ (1996) European Public Law 2, 401.

� Mather, I. ‘National Courts as European Community Courts’ (1994) Legal Studies 14, 226.

� R v Ministry of Agriculture, Fisheries and Food ex parte First City Trading Ltd., The Times, 20 December 1996.

† The relevant chapters in other good textbooks on Community law make acceptable alternatives to this recommended reading.

Administrative law 17 The impact of European Community law page 95

Introduction

The final topic on the amended syllabus is:

‘(k) The impact of EC general principles of law on English Administrative law, especially procedural fairness, legitimate expectations, proportionality and fundamental human rights.’

The work on this topic is very closely connected to some of the material covered in Chapters 7–9 on the grounds of judicial review. You may therefore find that it is a good idea to tackle this chapter immediately after you have finished dealing with those earlier ones.

You should already have knowledge of European Community law. From your studies of Constitutional law, you will be familiar with the basic ideas of the supremacy of Community law over national law and of direct effect. Chapter 5 of Craig’s Administrative Law is a good starting point to refresh your knowledge of these and other matters. You may also have studied, or be studying, EU law as a subject in its own right. As with several other topics where there is some degree of overlap between the Administrative law syllabus and those in other subjects, your task here should be to delve deeper into particular issues.

The ‘impact’

The focus is on the impact of Community law on administrative law in England and Wales. Most of the litigation that uses Community law arguments takes place not in the European Court of Justice or the Court of First Instance (though cases in these courts may be very important), but in national courts and tribunals.† Where a national court or tribunal has to deal with a difficult issue to do with the interpretation of the EC Treaty, it may seek guidance from the European Court of Justice in the form of a ‘preliminary ruling’ under Article 177 of the Treaty.

What will soon be apparent to you is that in relation to some of the legal arguments, which may be advanced by applicants seeking judicial review of governmental action, there is a difference according to whether or not the litigation has a Community law aspect to it. For instance, in cases governed only by domestic law, the English courts are reluctant to recognise proportionality as a distinct ground of review.† Where, however, Community law rights or obligations are raised in a case, English judges will apply the principle of proportionality.†

‘General principles’

The general principles of Community law are those developed by the judges of the European Court of Justice. Hartley comments that ‘they are an important source of Community law and will in all probability play an increasing role as the Community develops’.† Judges in national courts are obliged to apply these general principles when they are adjudicating on cases involving Community law rights and obligations. The general principles of Community law do not apply to government action ‘unless and to the extent that the action was taken in order to implement powers or duties conferred or imposed by Community law’: see ex parte First City Trading Ltd The Times, 20 December 1996.

Procedural fairness

On the English common law relating to procedural impropriety, look back at Chapter 8. For Community law approaches to the right to a fair hearing, and the ‘rights of the defence’, see Hartley (1994) 158–60.

† See Maher (1994) 14 Legal Studies 226.

† See R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696.

† See for example Stoke-on-Trent City Council v B&Q plc [1991] 4 All ER 221.

† See Hartley (1994) 96.


Legitimate expectation

This topic has already been dealt with in Chapter 8, above. As we saw there, a debate exists in English law over whether substantive legitimate expectations (as opposed to purely procedural ones) can and ought to be protected by the courts. On Community law aspects of this topic, you should read Hartley (1994) and Craig (1996) CLJ 289.

Proportionality

Again, the concept of proportionality in English administrative law has already been touched upon.† For Community law aspects, read Hartley (1994) 139–49, Craig (2003) 617–30 and Jowell (1996) 2 EPL 401.

Fundamental human rights

A good strategy for studying this topic is first to read Craig (2003) 562–69, Hartley (1994) 139–49 and then Grief (1991) PL 555. It is very important that you keep clear in your mind the distinction between European Community law and the European Convention on Human Rights. These are separate bodies of law, each with different status in English law. As the readings from Craig and Grief show, however, they are interconnected.

ActivityImagine that you are a lawyer in the Home Office. Shortly after a Cabinet reshuffle, you are asked to prepare a briefing document for new ministers explaining what, if any, differences exist between English common law and general principles of Community law on the following grounds of judicial review:

1. procedural fairness

2. legitimate expectation

3. proportionality

4. fundamental human rights

Learning outcomesHaving studied the impact of European Community law, you should be able to:

� explain how the general principles of Community law may be used in litigation conducted in courts and tribunals in England and Wales

� explain the differences and similarities between Community law and English law relating to procedural fairness, legitimate expectations, proportionality and fundamental human rights.

Sample examination questionsIssues to do with the impact of Community law may arise either in essay questions or problem questions.

† See Chapter 9.

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