Trinity Term 2002
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Wade and Forsyth, Administrative Law (7th ed. 1994) ("WF") [a bit out of date but still helpful for discussions of main cases and introductions]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
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  AC 206 HL [see WF 453-458]
McEldowney v Forde  AC 632
Kruse v Johnson  2 QB 91
R v HM Treasury ex p Smedley  QB 657
DPP v Hutchinson  3 WLR 196
R v SS Environment ex p Nottinghamshire CC  AC 240
R v SS Environment ex p Hammersmith and Fulham LBC  1 AC 521
R v Home Secretary ex p Leech  4 All ER 539
R v SS Social Security ex p Joint Council for the Welfare of Immigrants  1 WLR 275
Boddington v British Transport Police  2 WLR 639
How and why should delegated legislation be controlled? (Make sure you explain what role the courts should play.)
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:
[Note the beginning of Lord Wilberforceís speech
in Anisminic v Foreign Compensation Commission  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  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  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?
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  PL 57
Forsyth (1996) 55 Cam LJ 122
Laws in Judicial Review (Supperstone and Goudie, 2nd ed. 1997) Chap.4
Edwards v Bairstow  AC 14 HL
Khawaja v Home Secretary  AC 74 HL
Endicott, ëQuestions of Lawí (1998) 114 LQR 292
Yeats, Administrative Law and Government Action Chapter 6
"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?
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)
Right to a hearing
R v Gaming Board of Great Britain ex p Benaim 
2 QB 417
*R v Liverpool ex p Liverpool Taxi Fleet  2 QB 299
McInnes v Onslow-Fane  1 WLR 1520
Cinnamond v British Airports Authority  1 WLR 582
A-G for Hong Kong v Ng Yuen Shiu  2 AC 629
* Re Findlay  AC 318 HL
R v Home Secretary ex p Ruddock  1 WLR 1482 at 1484-89 and 1493-99
R v SS Health ex p U.S.Tobacco  1 All ER 212
R v SS Transport ex p Richmond  1 All ER 577 QB
R v MAFF ex p Hamble Fisheries  2 All ER 714 QB
R v IRC ex p Unilever  STC 681
R v SS Home Department ex p Hargreaves  1 WLR 906
R. v. North and East Devon Health Authority ex p. Coughlan 16 July 1999 --find it at:
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,  PL 375
Padfield  AC 997, 1061-2 HL
R v Lancashire CC ex p Huddleston  2 All ER 941
R.v.SS Trade and Indus. ex p. Lonrho  2 All ER 609 HL
*R.v.SS Home Office ex p. Doody  3 All ER 92 at 111 HL
R.v. HEFC ex p. Institute of Dental Surgery  1 All ER 651
R v SS Home Department ex p Fayed  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  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  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.
"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
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
Craig Ch.16, 17, 18
Abuse of Discretion
*Associated Provincial Picture Houses v Wednesbury
 1 KB 223
*British Oxygen v Minister of Technology  AC 610
*Secretary of State for Education v Tameside MBC  AC 1014
R v Home Secretary ex p Pierson  3 WLR 492 HL
R v Home Secretary ex p Brind  1 AC 696 (HL only)
Laws  PL 59,  PL 72
Sedley  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)
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?
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)
Supreme Court Act 1981, s.31
*O'Reilly v Mackman  2 AC 237
Woolf  PL 57 at 61-5
H.W.R.Wade, ëJudicial review and alternative remediesí
 PL 589
National Federation of Self-employed and Small Business
Ltd,  AC 617 ("Fleet Street Casuals")
R v HM Treasury ex p Smedley  QB 657 at 669-70
EOC  1 All ER 1022
Child Poverty Action Group  2 QB 540
R v Secretary of State for the Environment ex p Rose Theatre Trust Co.  1 QB 504
R.v.SS Foreign Affairs ex p. World Development Movement  4 All ER 611,  1 All ER 611 (see 617c-620h)
R.v.SS Foreign and Commonwealth Affairs ex p. Rees-Mogg  2 WLR 115
"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?
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
Craig Ch.8 sections 3 and 5
Marshall  PL 32
Gregory and Hutchesson, The Parliamentary Ombudsman, ch. 8, 14
Parliamentary Commissioner Act 1967 22.4-8,
11, 12(3) and Sch.3
R v Local Commissioner for Administration ex p Bradford
City Council  QB 287
*R v Local Commissioner for Administration ex p Eastleigh BC  QB 855
R v Local Commissioner for Administration ex p Croydon LBC  1 All ER 1033
*R v Parliamentary Commissioner for Administration ex p Dyer  1 WLR 621
*R v Parliamentary Commissioner for Administration ex p Balchin  JPL 917
AND Balchin (No.2)! óGet it from me.
Clothier  PL 204
Drewry & Harlow (1990) 53 MLR 745
Marsh  PL 347
Bradley  PL 345
Amos, "The P.C.A., redress and damages for wrongful administrative action"  Public Law 21
Discuss the decisions in the Balchin cases, and the reasons for them.
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)
Nuisance and strict liability
Amos, "The P.C.A., redress and damages for wrongful
administrative action"  Public Law 21
Winfield and Jolowicz, ch.7
Buckley (1984) 100 LQR 204
Matthews (1984) 4 OJLS 429
Calveley v Chief Constable of Merseyside  AC 1228 HL
R v Deputy Governor of Parkhurst Prison ex p Hague  1 AC 58
*Woolwich v IRC (No.2)  3 WLR 366 HL
WLG v Islington BC  1 WLR 938
*Marshall v Southampton and Southwest Hampshire Health Authority  QB 401 (ECJ); (No.2)  3 WLR 1054 (ECJ)
Francovich v Italy  2 CMLR 66 (ECJ)
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?