Administrative
Law Tutorial One
What is administrative law?
Law relating to control of administration – public power
and government, e.g. local, central, hived off or privatised.
What is judicial review?
English courts è develop set of principles è admin bodies have to observe when
making decisions. If rules are breached, applicant may apply for JR è may grant a remedy at court’s
discretion.
Rules for JR set out by Lord Diplock in Council of Civil Service Unions v Minister
for the Civil Service [1985] (GCHQ case)
JR
government by Part 54.1(2) Civil Procedure Rules (CPR). A claim for judicial
review means a claim to review the lawfulness of
·
An
enactment
·
A
decision,
·
Action
or failure to act è exercise of public function
How does judicial review differ from an appeal?
Judicial review è Legality of decision, heard in the
‘administrative court’ (High Court div)
Appeal è Merits of decision, heard in CA or
higher courts
Associated Provincial Picture Houses
Ltd v Wednesbury Corpn per
Lord Greene:
‘… power of the court, … not as an
appellate authority to override a decision of the local authority, but as a
judicial body which is concerned … only to see whether the local authority
have contravened the law by acting in excess of powers which Parliament has
confided in them.’
R v CC of North Wales, ex p. Evans
[1982] per Lord
Hailsham:
‘… relevant authorities use their
power in a proper manner.’
‘ Judicial review is concerned, not
with the decision, but with the decision-making process.’
Quoting
Lord Evershed
‘… a danger of usurpation of power
on the part of the courts, under the pretext of having regard to the principles
of natural justice…’
R v Secretary of State ex p. Brind [1991] per Lord Lowry:
‘courts duty not to interfere with discretion [entrusted
by Parliament to a statutory body] … but to maintain a check on excesses in
the exercise of discretion.’
·
These
decisions uphold the separation of powers è courts should not take decisions properly entrusted
to government (for reasons of democracy and institutional competence).
·
However,
the principle would come under strain, theorists doubt that judges can help but
examine merits of decision when facing questions of ‘reasonability’ and
‘proportionate’.
·
What
gives judges the right to subject officials to the principles of JR?
o
Judges
giving effect to parliament intent? Or
o
Judges
giving effect to common law principles, independent of Pmt intent.
What difference, if any, is there between administrative law and
constitutional law?
Admin
law can be seen as a sub-category to constitutional law, which concerns the
relationship between the individual and the state. Admin law concerns the set
of principles that govern administrative decisions.
Describe in outline the different ‘grounds’ of judicial review and
their effect.
GCHQ per
Lord Diplock:
-
Illegality
– whether public body has misdirected itself in law
-
Irrationality:
decision too outrageous, Wednesbury reasonableness vs HRA 1998 proportionality
test.
-
Procedural
impropriety - failure to observe basic rules of natural justice (fundamental
unfairness), or failure to observe procedural rules expressly laid down by
legislative instrument.
The
main rules of natural justice are:
(i) nemo judex in causa
sua potest (no man can be a judge in his own cause), which will be breached
where the decision-maker has a direct financial interest or has acted both as
prosecutor and judge, or where there is a real danger of bias. See: R v Altringham Justices ex parte Pennington
(1975)(ii) audi alteram partem (hear the other side), which requires prior notice to be given of a decision adverse to individual interests together with an opportunity to make representations. See: Ridge v Baldwin (1964).
Insight
Illegality: decision maker must understand
correctly the law hat regulates his decision making power and must give effect
to it.
e.g.
-
Misdirect
on extent of his jurisdiction (Khawaja)
-
Purports
to exercise power he does not have (Animistic)
-
Misdirect
itself on proper use of powers e.g. discriminatory use
-
Functus officio (‘having performed its office’) è power has expired, used up
-
Use
not for purpose power was conferred,
-
Acts
in a way that frustrates original purpose
o
Failure/delay
o
Fettering
(restraining)
o
Abdicating
exercise of powers
-
Not
compatible with HRA 1998, or infringes one or more of general principles of EU
law
Irrationality
-
Wednesbury
unreasonableness è ‘decision was 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’
o
In
short è “so unreasonable that no reasonable
authority could have come to it”
-
Decision
maker took into account irrelevant matters or failed to consider relevant
matters (based on what a reasonable public body would have considered relevant,
must have taken reasonable steps to acquaint itself to relevant info Newlaw, Tameside)
-
Error
of fact – erroneous factual error or erroneous factual conclusion (JR not
concerned with merits of decision itself, however there are exceptions to this
rule)
-
Disproportionate
interference with ECHR rights
-
“where
the decision maker is an expert operating in a highly technical field, the
court will be very slow to impugn the decion.”
-
See
(Great NE Railway ltd v Office of rail
regulation [2007])
Conflict with
proportionality test (HRA 1998) è ‘whether
action pursues a legitimate objective, and whether it is nonetheless excessive
in all the circumstances, including by reference to the existence of less intrusive
means of achieving the legitimate objective.’
Procedural
unlawfulness (ultra
vires, unfair, improper)
-
Lord
Diplock: ‘whether the process by which a
decision maker has reached its decision or otherwise exercised its powers is a
fair one.’
e.g.
-
Fails
to observe relevant statutory procedures – procedural ultra vires,
-
Fail
to notify, provide sufficient information, consult affected parties
-
Fail to observe a procedural legitimate expectation (whether good
administration requires that the promise or practice of a decision maker should
be honoured)
-
Not
being impartial, or biased and prejudiced decision
-
Predetermined
decision
-
Fails
to provide sufficient reason where there is an express, implied statutory duty,
or specific duty in Common Law to do so.
What are the rules on standing (or locus standi) and why are they
important? How far is it true to say that the law on standing has been
liberalised in recent years?
·
Under
CPR 54.5, the applicant must seek permission to apply “within 3 months after
the grounds to make the claim first arose”
·
Must
also have locus standi è ‘sufficient interest in the matter
to which the application relates’ Supreme Court Act 1981 s31(3)
In IRC v
National Federation of Self Employed and Small Businesses [1982] AC
617 the House of Lords held that standing should be considered in two stages.
Firstly, at the leave stage the court should refuse locus standi to
anyone who appears to be a mere busybody or mischief maker (per Lord Scarman).
Secondly, if leave is granted, the court may consider standing again as part of
the hearing of the merits of the case, where it may decide that in fact the
applicant does not have a sufficient interest.
Where interest or
pressure groups are concerned the issue of locus standi has been more
complicated. Where a group is acting in relation to a decision which directly
affects its own interests, no problem arises as it is acting in the same way as
an individual (eg R v Liverpool Corporation ex parte Liverpool Taxi Fleet
Operators' Association [1972] 2 QB 299). However, where the group has been
formed simply to challenge a decision which does not directly concern its
members, it will not have sufficient standing (R v Secretary of State for the
Environment, ex parte Rose Theatre Trust [1990] 1 QB 504. Yet, where the
group can demonstrate that some or all of its members are personally interested
in the decision locus standi will be found (R v HM Inspectorate of
Pollution ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 329. Furthermore,
even where the group cannot demonstrate personal interest on the part of its
members, if it is a highly respected ‘expert' group standing is still likely to
be found (R v Secretary of State for Foreign Affairs, ex parte World
Development Movement Ltd [1995] 1 All ER 611)
Lawteacher.net
***
Can groups (or individuals on behalf of groups) bring
judicial review action? Should they be
able to do so?
KEY
CASE: R v. Secretary
of State for the Environment ex parte Rose Theatre Trust [1990] 1
All ER 754
Concerning: The standing of interest groups
Facts
The Rose Theatre Trust was set up to preserve the remains of an ancient theatre that was found during some development works. The group made an application to the Secretary of State for an order under the Ancient Monuments and Archaeological Act 1979 that would give the remains protected status. The application was refused and the Trust sought to challenge this decision by way of judicial review.
Legal
principle
The Divisional Court ruled that the Trust did not have standing to challenge the decision. An individual does not have sufficient interest in an executive decision just because they are concerned about it or its effect. A collection of people without sufficient interest could not obtain standing as a result of grouping together or forming an organisation. In essence, if the individual members do not have standing, the group will not have standing. (R v Inland Revenue ex p Federation followed) |
KEY
CASE: R v. Inspectorate
of Pollution ex parte Greenpeace [1994] 4 All ER 329
Concerning: The standing of interest groups
Facts
The environmental pressure group, Greenpeace, sought to bring judicial review proceedings against the decision of the Inspectorate of Pollution to authorise the discharge of radioactive waste from the Thorp nuclear plant in Cumbria. Greenpeace had 2500 members or supporters living in the area likely to be affected by the decision.
Legal
principle
The Divisional Court held that the court should take into account the nature of the applicant, its interests in the issues raised, the remedy it sought to achieve and the nature of the relief sought. Greenpeace was a responsible organization with an established reputation for its interest in environmental matters and some of its members, who would have had standing in their own right, lived in the area affected. |
KEY
CASE: R v. Secretary of State for Foreign and
Commonwealth Affairs Ex p. World Development Movement Ltd [1995] 1
W.L.R. 386
Concerning: The standing of pressure groups
Facts
An organization obtained financial aid from the Secretary of State to construct a hydro-electric power station on the Pergau river in Malaysia despite concerns that this was not a good use of the overseas aid budget as the project was uneconomic and not a sound development project. The World Development Movement, an anti-poverty campaign group, sought judicial review of the decision to grant aid for the project. The issue was whether the group had standing to challenge the decision.
Legal
principle
It was held that the challenge was a meritorious one that ought to be heard by the courts and that this was to be treated as an important factor when considering whether a group had standing. Further factors that supported a finding that the group had sufficient interest to mount a challenge were the likely absence of any other challenger and the prominent role of the group in terms of the knowledge, expertise and resources to mount a challenge. (this is widening of the rule)(busy-body principle?) |
Gonna make my own case briefs and add them later I can't do everything in one day.
