Introduction to Administrative Law

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Administrative law is about the public administration of life, in the sense that the state regulates what we do

It is mainly about principles or notions of good governance, fairness, accountability, transparency, the rule of law, parliamentary sovereignty, legality, and comity or respect for public office

  • There is a clear overlap with constitutional law

What is administrative law?

Administrative law comprises both court-based and ‘other’ practices

By ‘court-based’ practices, we are invariably speaking of judicial review

  • Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body - this is explored in depth later
  • Sometimes we feel administrative law is just about judicial review, but it is not just about the court

By ‘other’ practices there are administrative tribunals and ombudsmen (there are more, but these are of greatest significance)

  • So although we often think of administrative law comparison only judicial review, the principles of good governance, fairness, accountability, etc. can be pursued in law without a role for the courts

That said, judicial review is the main topic of administrative law as it is a cause of action which is particularly constitutionally significant

Also, historically speaking, judicial review has dominated the domain of administrative law and has had its remit extended by the courts massively in the last 50 years

  • Judicial review has gone through a renaissance, so the courts have made it increasingly important

But, that is not to say we should not be critical of judicial review’s prevalence

  • Evidently, good governance, fairness, etc. can be pursued without much of a role for the courts - why should we wait for things to go wrong, then bring an expensive case before the High Court in judicial review proceedings?
  • Perhaps we should be looking to improve and better governance (a belief of green light theorists)
  • Or, perhaps we should just better judicial review (red light theorists)

Who does the judicial reviewing?

Judicial review is carried out by the High Court – specifically, the Administrative Court which is part of the Queen’s Bench Division of the High Court

This is a senior court hearing claims in judicial review at first instance.

The High Court has an ‘inherent jurisdiction’ i.e. its powers are inherent to it and are not contingent on another source e.g. statute (although statute may seek to limit the court’s powers)

Who may be judicially reviewed?

Any public body may be judicially reviewed, except:

  • Senior Courts with inherent jurisdiction
  • Parliament (because Parliament is sovereign)

Some bodies which are not public bodies (or not bodies at all) but who carry out function that are public in nature may also be amenable to judicial review

Thus, in practice, this means the following legal persons are routinely judicially reviewed (i.e. these people are regular defendants in administrative law):

  • Crown Ministers or their departments or departmental agencies;
  • Local authorities (councils);
  • Health trusts, police forces, and educational authorities;
  • ‘Inferior courts’ and administrative tribunals;
  • Regulatory and investigatory bodies;
  • Other bodies established by statute or prerogative.

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Who may bring a claim in judicial review?

Only those with standing can bring a claim in judicial review

This will be explored further as a separate topic, but for now only those persons who have been affected by a decision of a public body (plus some other interested persons) may be granted ‘permission’ or ‘leave’ for judicial review.

What can the Administrative Court offer by way of remedy?

The Court has discretion to grant the following forms of relief:

  • A mandatory order i.e. where the court mandates a public body to act in a specific way
  • A prohibiting order i.e. the court stops a public body from doing something
  • A quashing order i.e. the court can quash a decision made by a local body and then the local body would have to remake their decision
  • A declaration e.g. set out the rights/responsibilities of a public body
  • An injunction i.e. prevent the public body from doing something they have already done
  • Damages i.e. award compensation

On what grounds can judicial review be conducted?

In the GCHQ case, Lord Diplock famously – and rather conveniently – collated a large sample of judicial review cases and placed them under three headings of ‘grounds’ for review:

  • Illegality;
  • Irrationality;
  • Procedural impropriety

These grounds suggest that it is not open to the court to ‘review’ the decisions, acts or omissions of public bodies because the court disagrees with that public body’s decision

  • This is important, because it make judicial review different from other types of scrutiny – it is not an appeal

The last thing the court wants to do is to remake decisions of a whole host of public bodies

  • The court has therefore developed limitations on its ability to judicially review by focussing instead on certain discrete interests in the decision making
  • In particular, the court reviews whether the public body had acted within its lawful powers, whether certain processes have been carried out to ensure the decision making had been fair, and whether the decision was within the reasonable discretion of the decision maker

Since the Human Rights Act 1998 (HRA) came into force the field of administrative law has been extended

  • In addition to the common law grounds of review, the court may appraise whether certain decisions have disproportionately affected the claimant’s rights under the European Convention on Human Rights (ECHR)
  • Proportionality may therefore be seen as an additional ground of review (perhaps this should be number four on Lord Diplock’s list?)
  • But remember, this ground of review under the HRA is limited to qualified convention rights i.e. Articles 8 – 11 ECHR

Judicial review not merits review

The ensuing picture is that the court has limited its own ability to review the decisions of public bodies since the grounds for review tend to point more towards the legality of decision making rather than the ‘merits’ of the decision

  • A public body is entitled to make bad decisions if it has the legal discretion to so decide - and the courts will not interfere (unless of course it is unlawful, procedurally irrational etc.)

So, to reiterate, the courts will interfere when a public body has acted:

  • Beyond its powers (ultra vires) e.g. your city council tries to make a decision that impacts another city council’s jurisdiction
  • Irrationally, capriciously, most unreasonably
  • In a way that is procedurally unfair e.g. not consulting those concerned when making planning permissions
  • And where qualified human rights are at stake → where a public body has acted disproportionally

However, even when the court is satisfied that there are grounds for review, the court exercises its discretion as to what remedy it should make available

Consequently, the court may decide that even though there are valid grounds for interfering with a decision, no remedy will be awarded

Or, if the court does decide to act, it will likely quash the decision, requiring the public body and not the court to remake the decision

  • If the decision was quashed because of procedural unfairness, it may be possible that the public body could make the same decision thereafter, following the requisite procedural requirements

Intensity of review

To make matters somewhat more complex, the Administrative Court - once satisfied that the claimant has standing, that there are grounds for review, and that there is a prospect of awarding some remedy - does not apply one ‘standard’ by which (for example) the public body must act reasonably, or with procedural fairness.

  • The intensity of review maybe somewhat different, depending on the case

The intensity of review (by the court of the public bodies decision) may be stronger where:

  • The claimant’s liberty is at stake;
  • The claimant’s human rights are at stake

The intensity of review may be weaker where:

  • The decision maker has been conferred considerable discretion by Parliament;
  • The decision maker is the constitutionally appropriate person to make the decision;

Other important matters in judicial review

Cases are brought in the name of the Crown on the application of the claimant – this is how you identify administrative law cases

There is an incredibly short limitation period of three months for most types of claim i.e. a claim must usually be brought within three months of the public bodies decision, act or omission

Permission to proceed is required from the court before full proceedings can take place.

Cases start at the High Court. Appeal lies to the Court of Appeal, then Supreme Court, on points of law.

Beyond judicial review

Perhaps the two most successful alternatives to redressing maladministration and poor governance has been ombudsmen and administrative tribunals.

Ombudsmen are empowered by statute to pursue complaints (or to initiate their own investigations) in relations to maladministration.

Tribunals are empowered by statute to hear appeals against the decisions of public bodies

  • Tribunals collectively hear cases running into the 100,000s - as such, they are the workhorses of administrative law
  • With each extension of the state there needed to be tribunals to hear appeal e.g. when you set up the NHS you set up a health tribunal
  • They are executive bodies set up by statute so a tribunal’s decision is technically possible to be subject to judicial review

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