TEXTBOOK ON ADMINISTRATIVE LAW. Peter Leyland LLB Course Director, University of North London. Terry Woods Senior Lecturer, University of North London

Transcription

1 TEXTBOOK ON ADMINISTRATIVE LAW Peter Leyland LLB Course Director, University of North London Terry Woods Senior Lecturer, University of North London and Janetta Harden Principal Lecturer, CPE Course Director, University of North London BLACKSTONE PRESS LIMITED

2 Contents Preface Table of Cases Table of Statutes xi xiii xxv 1 Introduction, Theory and History Introduction 1.2 Definition Functions and characteristics Examples 1.3 Law and context 1.4 Red and green light perspectives Red light theory Green light theory Conclusion 1.5 Administrative law and the origins of the modern state Administrative law and the reality of the modern state Conclusion 1.6 Judicial quietism and judicial activism 1.7 A grievance chain? 1.8 Further reading 2 Constitutional Concepts and Executive Power Introduction 2.2 Parliamentary sovereignty 2.3 The Westminster and Whitehall models 2.4 The assertion of judicial authority 2.5 Separation of powers: nature and implications The British Constitution The United States Constitution Judicial independence and the separation of powers 2.6 The rule of law Definition Dicey's theory 2.7 Conclusion 2.8 Further reading 3 The General Issue of Accountability: The Role of Parliament and MPs Introduction 3.2 Ministerial responsibility 3.3 The Crichel Down affair 3.4 The political implications 3.5 Legal implications

3 vi Contents 3.6 The role of MPs Established mechanisms The new mechanisms: the select committee system The Public Accounts Committee (PAC) 3.7 Parliamentary accountability of delegated legislation Scrutiny 3.8 Further reading 4 The Parliamentary Commissioner for Administration and Other Ombudsmen Preamble and definition 4.2 History and development of the Commissioner principle 4.3 Conflict with ministerial responsibility 4.4 The PCA's workload 4.5 Complaints procedure: the 'MP filter' Introduction Procedure on matters subject to investigation 4.6 Remit and limitations Introduction Schedules 2 and What is maladministration? Procedural and substantive maladministration: the question of 'merits' or 'quality' Maladministration: further limitations 4.8 The procedures used by the PCA under ss of the Act 4.9 Right to recommend a remedy: completed investigations The Fleet Street Casuals case The Sachsenhausen case The Court Line affair The Barlow Clowes affair The extension of the ombudsman principle Introduction Health Service Commissioners The Local Commissioners (Commissions for Local Administration) The other commissioners 4.11 Citizen's Charter 4.12 Market solutions? Next Steps/executive agencies 4.13 Evaluation and conclusions Direct access Limited powers Throughput time and staffing Market principles? Conclusions 4.14 Further reading 5 Tribunals and Inquiries Introduction 5.2 Tribunals Statistics The multiplicity of tribunals Historical development Why tribunals? Courts and tribunals Conclusion 5.3 Inquiries Introduction The Franks Committee and inquiries Procedures The role of the inspector Natural justice or fairness? Reasons for decisions A note on the supervision of tribunals and inquiries 5.4 Further reading 6 Institutions and Powers Introduction 6.2 The state, the Crown and the government 6.3 Institutions and agencies Central government departments Non-departmental public bodies Local government Police authorities 6.4 Powers The royal prerogative Legislation European Community law Delegated legislation Control of delegated legislation 6.5 Conclusion

4 Contents 7 Introduction to Judicial Review Introduction 7.2 Powers 7.3 Appellate/supervisory jurisdiction 7.4 Establishment of the doctrine English and French administrative law contrasted Continuing developments Application for judicial review: statistics 7.5 Discretions and duties 7.6 Remedies The old procedure The new procedure The importance of O'Reilly v Mackman 7.7 The public law/private law divide Sources or powers test What is a public authority? Public bodies exercising private functions 7.8 Conclusion 7.9 Further reading 8 Illegality Introduction 8.2 Simple ultra vires The fairly incidental rule Constitutional presumption 8.3 Abuse of power: general unreasonableness, purpose and relevance Ulterior purpose Improper purpose Improper purpose further defined 8.4 Relevant and irrelevant considerations What are 'relevant considerations': setting the parameters? Fiduciary duty/electoral mandate 8.5 Fettering discretion: deciding by reference to a policy The application of ex pane Kynoch Balancing interests Deciding by reference to a policy: circular cases Fettering discretion by policy: conclusion 8.6 Fettering discretion by contract 8.7 Fettering discretion by estoppel 8.8 Fettering discretion by wrongful delegation General principle Central and local government 8.9 Errors of fact: errors of law 8.10 Partial invalidity: severance 8.11 Further reading 9 Unreasonableness and Irrationality Introduction 9.2 Wednesbury: two types of unreasonableness 9.3 History of unreasonableness Planning and licensing cases The bounds of Wednesbury unreasonableness The effect of statutory words Variable standards: not total unreasonableness 9.4 Irrationality: Diplock's reformulation in GCHQ Irrationality as a ground for review Wednesbury unreasonableness/irrationality: when will it be upheld? 9.5 Proportionality 9.6 Conclusion 9.7 Further reading 10 Procedural Impropriety Introduction 10.2 Procedural ultra vires Mandatory and directory requirements Procedural requirements 10.3 The case law explained Prior notice Right of appeal The duty to consult Duty to give reasons Financial measures 10.4 A settled verdict? the common sense approach 10.5 Further reading

5 viii Contents 11 The Rules of Natural Justice I Introduction 11.2 History Establishing the rules Natural Justice in abeyance Judicial/administrative dichotomy Modern development of the principles: Ridge v Baldwin 11.3 Aftermath of Ridge v Baldwin: the sliding scale 11.4 Legitimate expectation Express undertaking Taking account of a published policy Consultation: the right to be heard The right to continue to enjoy a benefit 11.5 Student cases Academic fitness College discipline Admissions 11.6 Natural justice and national security Wartime Peacetime 12 Natural Justice II The Requirements of Natural Justice The right to a fair hearing Introduction When will a hearing be granted? The right to know the opposing case The right to legal representation Right to cross-examination The duty to give reasons Appeals 12.2 The rule against bias Introduction Direct pecuniary interest Tests to determine the likelihood of bias Political bias and decision making Bias and participation intermingling of functions Forming a concluding view in advance Conclusion 12.3 Further reading 13 Error of Law on the Face of the Record Introduction 13.2 Origins 13.3 What the record includes 13.4 Judicial control of tribunals and the Tribunals and Inquiries Act The effect of xheanisminic decision 13.6 Limits of the principle 13.7 Conclusion 13.8 Further reading 14 Exclusion of Judicial Review: Ouster and Time limit Clauses Introduction 14.2 Subjective words 14.3 Three types of ouster Finality Ouster clauses Time limit clauses 14.4 Conclusion 14.5 Further reading 15 Prerogative and Executive Power Introduction 15.2 Definition: the distinction between Blackstone and Dicey 15.3 History and context 15.4 Judicial control over the prerogative The prerogative and statute The prerogative and the courts 15.5 New directions or tradition reinforced? 15.6 Further reading

6 Contents 16 Public Interest Immunity What is public interest immunity? 16.2 Why is it important? 16.3 The development of the modern law Duncan v Cammell Laird & Co. Ltd The aftermath of Duncan v Cammell Laird Conway v Rimmer The impact of Conway v Rimmer 16.4 What is the public interest? The candour argument 16.5 Public interest immunity and the police Significant retreat from the candour argument Police communications 16.6 Contents and class claims: a summary 16.7 Public interest immunity in criminal cases The Matrix Churchill case 16.8 Conclusion 16.9 Further reading 17 Filter Mechanisms: Rationing the Remedies Available Introduction 17.2 Is it a public law matter? The public law/ private law divide 17.3 The requirement of locus standi The Fleet Street Casuals case Taxpayers and ratepayers Adjusting the criteria according to the remedy 17.3 A Locus standi: group interests 17.4Discretionary remedies 17.5Exhausting alternative remedies 17.6 Time limits 18 The Remedies Procedure for application 18.2 Public law remedies Certiorari Prohibition Mandamus 18.3 Private law remedies Injunctions Declaration Damages 18.4 Remedies: evaluation and conclusion 18.5 Further reading 19 Conclusion: The Effectiveness of the Various Methods of Redress for the Citizen Introduction 19.2 Background 19.3 Non legal versus legal channels Limitations on judicial review Replying to the sceptics 19.4 The future Pessimists Optimists The European Community dimension Comparison with other systems 19.5 Recommendations: a topical agenda for reform Substantive review Freedom of information Access and delay The filter Improving the remedies More radical steps? Improving administration 19.6 Further reading Glossary of Terms 336 Bibliography 339 Index 355