Administrative Law
Timothy Endicott
Trinity Term 2002
Important books:
Craig, Administrative Law (4th ed. 1999) ("Craig")
Wade and Forsyth, Administrative Law (7th ed. 1994) ("WF") [a bit out of date but still helpful for discussions of main cases and introductions]
Richardson and Genn, Administrative Law and Government Action (1994)
1 Delegated Legislation
2 The Rule of Law, Separation of Powers and Parliamentary
Sovereignty
3 Error of Law
4 Natural Justice; legitimate expectation
5 Control of Discretion
6 Standing and Procedural Exclusivity
7 Ombudsmen
8 Liability of Public Authorities
1. Delegated legislation
You should learn about the non-judicial forms of control by reading Craig ch.12 and following references that he gives (at your discretion, but especially Baldwin, Rules and Government 1995).
On judicial review, read the following cases-- all of them, carefully. At the tutorial Iíll ask one of you to read your essay, and the other(s) to explain the reasons for one or more of these cases.
Judicial review of rule making
Liversidge v Anderson [1942] AC 206 HL [see WF 453-458]
McEldowney v Forde [1971] AC 632
Kruse v Johnson [1898] 2 QB 91
R v HM Treasury ex p Smedley [1985] QB 657
DPP v Hutchinson [1990] 3 WLR 196
R v SS Environment ex p Nottinghamshire CC [1986]
AC 240
R v SS Environment ex p Hammersmith and Fulham LBC
[1991] 1 AC 521
R v Home Secretary ex p Leech [1993] 4 All ER 539
R v SS Social Security ex p Joint Council for the
Welfare of Immigrants [1997] 1 WLR 275
Boddington v British Transport Police [1998] 2 WLR
639
Essay
How and why should delegated legislation be controlled? (Make sure you explain what role the courts should play.)
Discussion Questions:
Is an act passed under the Parliament Acts 1911 and 1949 delegated legislation?
What provision is made for securing publicity for delegated and sub-delegated legislation?
Can delegated legislation be overturned for unreasonableness? If so, is there a special standard of reasonableness?
2. The Rule of
Law, the Separation of Powers, and Parliamentary Sovereignty
Craig, Chapter 1
Governmental Control of murderers:
http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000330/hind.htm
[Note the beginning of Lord Wilberforceís speech
in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, and compare
the beginning of Lord Pearceís speech. Do they offer competing explanations
of judicial review?]
Craig Chapter 20
Boddington v British Transport Police [1998] 2 WLR
639 [see Craig p. 657]
Essay: "Judicial review is the exercise of the courtís inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law." R v Judicial Committee ex p Vijayatunga [1988] 1 QB 322 per Simon Brown J at 343. Discuss. To what extent does the ideal of the rule of law justify the standards of judicial review in English law?
--
Discussion:
Compare the following remark from Wade and Forsyth,
1994 p.301: "If the High Court could not control [excesses of jurisdiction],
there would be no means of enforcing the doctrine of ultra vires?in
other words, the rule of law. This is the true logical basis of the jurisdictional
doctrine and it follows necessarily from constitutional fundamentals."
3. Error of Law
Craig Chapters 15, 24
Cranston, "Reviewing Judicial Review", Administrative
Law and Government Action Chapter 3
Anisminic to Page
Beatson (1984) 4 OJLS 22
Woolf [1995] PL 57
Forsyth (1996) 55 Cam LJ 122
Laws in Judicial Review (Supperstone and
Goudie, 2nd ed. 1997) Chap.4
Edwards v Bairstow [1956] AC 14 HL
Khawaja v Home Secretary [1984] AC 74 HL
Endicott, ëQuestions of Lawí (1998) 114 LQR 292
Yeats, Administrative Law and Government Action
Chapter 6
Essay
"Any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law." (Page v. Hull University Visitor per Lord Browne-Wilkinson)
What is the source of the power Lord Browne-Wilkinson claims? What are its limits?
Discussion Questions
In Anisminic, can you think of an error of law that would have been within the Commissionís jurisdiction?
After Anisminic, the Foreign Compensation Act 1969 provided that a determination included "anything which purports to be a determination" (s.3(3)). Would that have stopped Lord Reid from interfering?
When can a court interfere with an administrative tribunalís findings of fact? What is the difference between questions of law and questions of fact? Why does it matter?
On what standard(s!) will a court interfere with another public authorityís findings of fact? ósee Craig pp.488-496
4. Natural Justice
Craig ch.14, 15, 19
Richardson, Administrative Law and Government
Action Chapter 5
Beloff and Elias, ëNatural Justice and Fairnessí
in Supperstone and Goudie, Judicial Review (1992)
Bias
Right to a hearing
Legitimate expectations
R v Gaming Board of Great Britain ex p Benaim [1970]
2 QB 417
*R v Liverpool ex p Liverpool Taxi Fleet [1972]
2 QB 299
McInnes v Onslow-Fane [1978] 1 WLR 1520
Cinnamond v British Airports Authority [1980] 1
WLR 582
A-G for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
GCHQ
* Re Findlay [1985] AC 318 HL
R v Home Secretary ex p Ruddock [1987] 1 WLR 1482
at 1484-89 and 1493-99
R v SS Health ex p U.S.Tobacco [1992] 1 All ER 212
R v SS Transport ex p Richmond [1994] 1 All ER 577
QB
R v MAFF ex p Hamble Fisheries [1995] 2 All ER 714
QB
R v IRC ex p Unilever [1996] STC 681
R v SS Home Department ex p Hargreaves [1997] 1
WLR 906
R. v. North and East Devon Health Authority ex p.
Coughlan 16 July 1999 --find it at:
http://tap.ccta.gov.uk/courtser/judgments.nsf/2e7baaf5a21cab02802565590072b4d7/c3e12da1f63048cc802567b000352a21?OpenDocument
Craig, "Substantive legitimate expectations and the
principles of judicial review" in English Public Law and the Common
Law of Europe, ed. M. Andenas 1998
S. Foster, "Legitimate expectations and prisoners'
rights" (1997) 60 M.L.R. 727
Forsyth, [1997] PL 375
Padfield [1968] AC 997, 1061-2 HL
R v Lancashire CC ex p Huddleston [1986] 2 All ER
941
R.v.SS Trade and Indus. ex p. Lonrho [1989] 2 All
ER 609 HL
*R.v.SS Home Office ex p. Doody [1993] 3 All ER
92 at 111 HL
R.v. HEFC ex p. Institute of Dental Surgery [1994]
1 All ER 651
R v SS Home Department ex p Fayed [1997] 1 All ER
228 [note: the Home Secretary decided that reasons should be given for
refusing British citizenship, and withdrew an appeal to the HL from the
decision in Fayed-- see [1998] PL 325]
Essay Do both:
1. "The rules of Natural Justice-- or of fairness-- are not cut and dried. They vary infinitely." (R v Santillo [1981] QB 778) What determines their variation?
2. What substantive protection does the doctrine of legitimate expectation give?
Note: You need to be familiar with the types of procedural protection that an applicant for judicial review might seek. When will a court require: an oral hearing? notice of a hearing? notice of the case against the applicant? an opportunity to call witnesses? an opportunity to be represented by counsel? See Craig 425-438.
Discussion Questions
"Judicial review is concerned, not with the decision, but with the decision-making process." (Evans at 1173) Is that true? Should it be true?
Is a hearing available for the
(a) cancellation of
(b) renewal of
(c) initial application for
a licence?
Should a general requirement to give reasons be added to the requirements of natural justice?
Can an authority fetter its discretion by creating a legitimate expectation?
Did Lord Diplock change the grounds on which judicial review is available in his speech in GCHQ?
5. Control of
Discretion
Craig Ch.16, 17, 18
Abuse of Discretion
*Associated Provincial Picture Houses v Wednesbury
[1948] 1 KB 223
*British Oxygen v Minister of Technology [1971]
AC 610
*Secretary of State for Education v Tameside MBC
[1977] AC 1014
R v Home Secretary ex p Pierson [1997] 3 WLR 492
HL
R v Home Secretary ex p Brind [1991] 1 AC 696 (HL
only)
Laws [1993] PL 59, [1995] PL 72
Sedley [1995] PL 386
***On the effect of the Human Rights Act, read
Craig Chapter 17 section 7
De Burca, ëProportionality and Wednesbury UnreasonablenessÖí in English Public Law and the Common Law of Europe, Andenas ed. (1998)
Lord Hoffmann, ëThe Influence of the European Principle of Proportionality upon UK Lawí The Principle of Proportionality in the Laws of europe Ellis ed (1999)
Essay
When will a court interfere with an exercise of discretion on the ground that it was unreasonable? How does that differ from interfering on the ground that it was wrong?
Discussion Questions
Should the courts give local governments greater leeway than other authorities in the purposes for which they may act? If central government owes no fiduciary duties to taxpayers, why do local authorities owe fiduciary duties to ratepayers? (see Cane pp.155-7)
Is there a difference between extraneous purposes and improper purposes?
What test is applied when there is a mixture of (i) proper/improper purposes? (ii) relevant/irrelevant considerations?
Do the courts play a political role when they control administrative discretion?
Is the law of control of administrative discretion a matter of statutory interpretation, or common law rules?
Does that fact that a decision infringes a fundamental human right affect the standard of judicial review? If so, what effect does it matter that the decision also affects national security? [see McQuillan] What is the effect of the ECHR on judicial review?
Is proportionality a ground for judicial review?
6. Standing and Procedural Exclusivity
**Note: You need to understand the major prerogative remedies (certiorari, prohibition, mandamus) and declarations and injunctions. Read Craig Ch.22.
Order 53 óAJR Procedure
Law Commission Report No.73, Cmnd 6407; LCCP 226
Law Commission "Judicial Review and Statutory Appeals"
(Consultation Paper No.126, 1993)
RSC O.53
Supreme Court Act 1981, s.31
*O'Reilly v Mackman [1983] 2 AC 237
Woolf [1995] PL 57 at 61-5
H.W.R.Wade, ëJudicial review and alternative remediesí
[1997] PL 589
National Federation of Self-employed and Small Business
Ltd, [1982] AC 617 ("Fleet Street Casuals")
R v HM Treasury ex p Smedley [1985] QB 657 at 669-70
EOC [1993] 1 All ER 1022
Child Poverty Action Group [1990] 2 QB 540
R v Secretary of State for the Environment ex p
Rose Theatre Trust Co. [1990] 1 QB 504
R.v.SS Foreign Affairs ex p. World Development Movement
[1994] 4 All ER 611, [1995] 1 All ER 611 (see 617c-620h)
R.v.SS Foreign and Commonwealth Affairs ex p. Rees-Mogg
[1994] 2 WLR 115
Essay
"Lord Diplockís speech [in OíReilly] was a brilliant judicial exploit, but it turned the law in the wrong direction, away from flexibility of procedure and towards a rigidity reminiscent of the bad old days of the forms of action a century and a half ago." (WF 694)
Discuss, explaining what, if anything, was brilliant about Lord Diplockís exploit. What have the courts done with it?
Discussion Questions
Why wasnít Anisminic an application for judicial review?
Why was Order 53 introduced? Why was SCA s.31 enacted? How does Order 53 affect the availability of the prerogative remedies?
What is exclusivity? Is the doctrine a necessary interpretation of Order 53, or could a different view have been taken? (compare Pain Jís reasons at first instance in OíReilly)
Has European law changed the availability of injunctions in U.K. public law?
Why do the courts have discretion in awarding public
law remedies?
7. Ombudsmen
Craig Ch.8 sections 3 and 5
Marshall [1973] PL 32
Gregory and Hutchesson, The Parliamentary Ombudsman,
ch. 8, 14
Parliamentary Commissioner Act 1967 22.4-8,
11, 12(3) and Sch.3
http://www.parliament.ombudsman.org.uk/
R v Local Commissioner for Administration ex p Bradford
City Council [1979] QB 287
*R v Local Commissioner for Administration ex p
Eastleigh BC [1988] QB 855
R v Local Commissioner for Administration ex p Croydon
LBC [1989] 1 All ER 1033
*R v Parliamentary Commissioner for Administration
ex p Dyer [1994] 1 WLR 621
*R v Parliamentary Commissioner for Administration
ex p Balchin [1997] JPL 917
AND Balchin (No.2)! óGet it from
me.
Clothier [1986] PL 204
Drewry & Harlow (1990) 53 MLR 745
Marsh [1994] PL 347
Bradley [1995] PL 345
Amos, "The P.C.A., redress and damages for wrongful
administrative action" [2000] Public Law 21
Essay
Discuss the decisions in the Balchin cases, and the reasons for them.
Discussion questions
What is good administration? (see Administrative Justice: Some Needed Reforms ch.2) What is maladministration? What is the difference between maladministration, and an unlawful administrative action?
How do local ombudsmen differ from the PCA in powers
and functions? In their place in the constitution?
8. Liability of
Public Authorities (Contract, Estoppel, Tort, and Restitution)
Government contracts
Nuisance and strict liability
Amos, "The P.C.A., redress and damages for wrongful
administrative action" [2000] Public Law 21
Winfield and Jolowicz, ch.7
Buckley (1984) 100 LQR 204
Matthews (1984) 4 OJLS 429
Calveley v Chief Constable of Merseyside [1989]
AC 1228 HL
R v Deputy Governor of Parkhurst Prison ex p Hague
[1992] 1 AC 58
*Woolwich v IRC (No.2) [1992] 3 WLR 366 HL
WLG v Islington BC [1994] 1 WLR 938
Woolwich, supra
*Marshall v Southampton and Southwest Hampshire
Health Authority [1986] QB 401 (ECJ); (No.2) [1993] 3 WLR 1054 (ECJ)
Francovich v Italy [1993] 2 CMLR 66 (ECJ)
Essay
Discuss the scope of an action for damages in negligence as a remedy in the area of administrative decision-making. How might the law be reformed?