Con Ad Lecture Notes Term 2 PDF

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Lecture 24: Introduction to Administrative Law -Administrative law is branch of public law and is normally regarded as “the area of law concerned with the control of governmental powers” -By governmental powers we are referencing powers exercised by public authorities derived from: statute law (prim...

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Lecture 24: Introduction to Administrative Law -Administrative law is branch of public law and is normally regarded as “the area of law concerned with the control of governmental powers” -By governmental powers we are referencing powers exercised by public authorities derived from: statute law (primary and delegated); royal prerogative; EU legislation (up until Brexit) -Public authorities we are talking about: Central government; devolved government; local government; other bodies (e.g., police) -Administrative law has many functions: -Control: break or check with respect to unlawful exercise or abuse of governmental powers -Command: making public bodies perform their public duties including their exercise of discretion under statute law. -Embodies positive principles to facilitate good administrative practice ensures the rules of natural justice/procedural fairness are followed -Operates to provide for accountability and transparency -May provide remedy for grievances committed by public authorities. -With all that said, the central purpose is “to promote good administration.” Red and green light theories -Address a specific question: how do we/should we secure “good administration”? Help explain various approaches adopted by administrative systems to achieve that purpose. -Important to recognise that these theories are not an ‘either/or’ type of thing. Most systems don’t conform to one or the other. Better thought of as extremes rather than a classification. -Elliott and Varuhas: “The red and green light theories are presented here as polar opposites in order that their differences might be drawn out. In reality, most administrative systems reflect aspects of both traditions… Harlow and Rawlings… acknowledge that reality lies somewhere between the pure red and green light models… While the position is therefore more complex than choosing either a red or green light approach, this discourse remains useful because it forces us to confront fundamental questions about the purpose of administrative law.” -Red light theory: The “primary function of administrative law should be to control excesses of state power and, more precisely, to subject it to the rule of law courts.” -This theory originates from the laissez-faire political tradition of the 19th century (e.g., Dicey) which embodied suspicion of governmental power and aimed to minimise the encroachment of the state on individuals’ rights (particularly property rights) -Emphasis is on control (specifically control of the state); hence, red light (associated with the idea of stop) -Green light theory: Starts from a more positive, social democratic view of the state. Rather than seeing the state as a danger that needs to be controlled- seen as “a vehicle for political progress and welcomes the ‘administrative state.’” - “A corollary to this approach was a deep suspicion of judges, who as a class were seen as hostile to collectivism and the welfare state.” -Emphasis is on increased role of the state; hence, green light (go or proceed). -The theories differ in terms of how they view: the law, the state, notions of control, liberty.

Law -Red: Law is autonomous to and superior over politics -Green: Law is a sophisticated (or elite) discourse of politics State -Red: The administrative state needs to be kept in check by the law -Green: Public administration is a positive attribute to be welcomed; not a necessary evil to be tolerated Notions of control -Red: Rule based adjudication in courts is the preferred way of achieving the state -Green: Administrative law’s objective is to encourage and facilitate good administrative practices (in addition to stopping bad administrative practices); rule-based adjudication in courts is not necessarily the best way to achieve these objectives. Liberty -Red: Goal of the project is “to enhance individual liberty where liberty is conceived as being the right to be left alone, the absence of external constraints. -Green: Goal of the project is “to enhance individual and collective liberty where liberty is conceived of as something which is, if not constituted by the state, then is at least facilitated by it.” -Amber light theory? Somewhere in between the two extremes. Recognises both the “fire watching” and “fire-fighting” functions of administrative law.

Lecture 25: Introduction to Judicial Review -Judicial reviews is a means of holding public authorities accountable. -Recall distinction between political and legal accountability -Ministerial responsibility as political accountability -Judicial review as legal accountability -Judicial review is broader than ministerial responsibility because it is not limited to the executive branch of central government. - Focus is on review, not appeal -Principal focus is on “the way in which the decision is taken, rather than on the decision itself.” -Court cannot interfere with a decision because it would have come to a different conclusion/ made a different decision. -This distinction is stressed by the Courts and Tribunals Judiciary: - “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.” - “In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.” - “It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.” - “This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.”

- “If you want to argue that a decision was incorrect, judicial review may not be best for you. There are alternative remedies, such as appealing against the decision to a higher court.” -High profile judicial review cases, most notably Miller No 1 (Supreme Court required PM at the time (Theresa May) to obtain parliamentary approval before triggering Article 50); as well as the Miller/Cherry case (Supreme Court held that the PM Boris Johnson’s advice to the queen to prorogue parliament was unlawful). -These instances of judicial review were highly controversial. In 2019 manifesto, Conservatives committed to review. “We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics. By another means or to create needless delays.” Following up on this commitment, in July 2020 the government launched an independent review of the judicial review process. -Review will consider: -Whether the terms (including grounds) of judicial review should be codified into statute -Whether executive decisions should or should not be decided on by judges (justiciability/ non-justiciability) -Which grounds and remedies should be available in judicial review claims brought against the government -Any further procedural reforms to judicial review (timings etc). -Independent review has been highly controversial- appears the government doesn’t like it in reference to Miller No 1 and Miller/Cherry -Moreover, Labour has come out strongly against independent review. -Written in the Times: “Boris Johnson, Michael Gove and Dominic Cummings want to unpick our unwritten constitution to free Tory ministers from checks, balances and scrutiny just when they are needed most. The government’s incompetence has left the UK with the highest death toll and the biggest economic slump in Europe during the coronavirus crisis. This bare-faced power grab could stop grieving families from challenging its mistakes.” -Now awaiting the options put forward by the Independent panel.

Lecture 26: Constitutional Basis of Judicial Review -The UK does not have a codified constitution and so it does not have a codified document to which we can point to say these whatever that may be are the powers of courts to review the actions of public authorities for public bodies. -Contrast to other jurisdictions where the courts of authority in this regard it stems from either explicit constitutional provisions or it is inferred from the constitutional document. -If it's not codified like in other jurisdictions from where do courts obtain this power of judicial review. -There are three principal theories: Ultra vires doctrine: -Constitutional basis of judicial review comes from Parliament. The essence of the doctrine is that the courts via judicial review are doing Parliament’s bidding. Underlying idea is that Parliament delegates power to public authorities it does so, subject to certain limits. The courts via judicial review are enforcing or policing those limits. Where public authorities act

outside those limits is ultra vires. Baxter: “The self-justification of the ultra vires doctrine is that its application consists of nothing other than an application of the law itself, and the law of Parliament to boot.” -Problems: One problem associated with the ultra vires doctrine relates to implicit limits. The ultra vires doctrine offers arguably a strong justification for judicial review where the relevant limits are imposed by parliament are explicitly set out in the relevant statute. The statute expressly states a limit on the relevant powers but its justification for judicial review is arguably much weaker when the relevant limits are not explicit but rather, they are implicit. That is where the courts resort to parliamentary intention to read into vague statutory language limit on the exercise of a given power (so in those cases the ultra vires doctrine) by trying to attach judicial review to parliament is really hiding the true basis of judicial review and that true basis of judicial review is arguably the judiciary. As a result the ultra vires doctrine in these circumstances (where the relevant limits are implicit) so the ultra vires doctrine has been described as a “fig leaf” or a “fairy tale.” Now this is especially problematic where parliament has explicitly excluded judicial review with what we call an ouster clause. When we discuss the cases of Anisminic and Privacy International with respect to the rule of law. In cases where with such an ouster clause like Anisminic and Privacy International the courts are going beyond reading limits into vague statutory language with reference to parliamentary intention but or at least arguably going against parliament's expressed intention to impose their own limits. -Another problem: While it may justify judicial review of powers granted to public bodies under statute, it does not justify non-statutory powers (e.g., royal prerogative). -Inconsistent with the evolution of judicial review principles. Over time, the courts have evolved the principles of judicial review they used. E.g., common law constitutional rights. Under this doctrine, judicial review stems from limits parliament have imposed but if parliament did not legislate these evolutionary changes in the principles, leaves us with the question: from where do these changes derive? -The doctrine is indeterminate. Provides no real content to the principles. Particularly where they stem from legislative intent. From the doctrine, there is no way to figure out what precisely the principles are. Laws: It has “nothing to say as to what the court will count as a want of power in the deciding body; and so, of itself it illuminates nothing. It amounts to no more than a tautology, viz that the court will strike down what it chooses to strike down.” Common law theory: -Constitutional basis of judicial review is the primary common law. Where Parliament sets out explicit limits, the courts will enforce them. Otherwise, the courts will fulfil their duty to enforce the rule of law (depending on the judges’ conception of what that dictates). Principles of judicial review are thus “judicial creations.” If Parliament disagrees with the judges’ conception, it can legislate against it (making its intent clear). -Craig: “The principles of judicial review are in reality developed by the courts. They are the creations of the common law. The legislature will rarely provide any indications as to the content and limits of what constitutes judicial review. When legislation is passed the courts will impose controls which constitute judicial review which they believe are normatively justified on the grounds of justice, the rule of law, etc.” -He goes on to say: “…If the omnipotent Parliament does not like these controls then it is open to it to make this unequivocally clear. If it does so, then the courts will then adhere

to such dictates. If Parliament does manifest a specific intent as to the grounds of review the courts will also obey this…” -Strengths: It makes it unnecessary for us to rely on implicit statutory limits and thereby it allows for an open discussion of the principles of judicial review and it is also more transparent than the ultra vires doctrine. The common law theory also justifies judicial review of both statutory powers and non-statutory powers including prerogative powers so unlike the ultra vires doctrine it's not limited to statutory powers and unlike the ultra vires doctrine it also accounts for the evolution of judicial review principles. It does so by acknowledging that the nature and the level of judicial control of the administration changes overtime as circumstances change. -Problems: Indeterminate- provides no real content to the principles. -Potentially conflicts with parliamentary sovereignty. As Foresight has argued there is no grey area when we are talking about parliamentary authorisation. If parliament has prohibited an action in legislation, then it is prohibited. For a member of public to engage in that action it is unlawful. If it is not prohibited, then technically it is allowed by Parliament. If the action has been not prohibited for the courts to find that action unlawful, it would violate parliamentary sovereignty. If the action has been prohibited, the courts finding it unlawful would be redundant/unnecessary. No need to rely on common law as the prohibition already follows the law. -In response: Made tweaks to the common law theory. Alternative theory: -Advocated by Trevor Allan: “Neither the ultra vires nor the common school is yet entitled to claim a convincing victory…What is missing here is an appropriately nuanced account of the nature and limits of legislative power. For while we adhere to an entirely formal or literal conception of sovereignty…our constitutional theory can never reflect our knowledge of the legal and political landscape it is supposed to explain.” Parliament is not sovereign (at least, not in the traditional sense). -Sovereignty is bipolar. “Parliamentary supremacy should be accepted in the sense that the legislature alone enjoys the sovereign power to alter the law by enactment of general rules; but we should also recognise, as equally fundamental, that Parliament’s power to determine the outcome of particular cases is confined by the judges’ duty to make sense of the law as a whole. Each person’s rights and duties are those that relevant statutes confer or impose, when fairly construed in the light of general principles of justice deriving their constitutional status (at least primarily) from the common law.” -Ties back to the constitutional basis of judicial review- higher order constitutional principles/constitutional fundamentals. - “It is a mistake to suppose that language has a meaning independent of context; and the present context includes the constitutional rights and general principles that make up the enduring background of assumption and understanding that renders any legislation intelligible.”

Lecture 27: Scope of Judicial Review -What sort of decisions can be judicially reviewed? Two key considerations: justiciability; type of power

-Justiciability refers to whether a matter is “a matter upon which the court can adjudicate” (according to Lord Scarman). Most recently considered by the Supreme Court in the Miller and Cherry case. Whether the PM’s decision was justiciable. -Raises an important distinction between legal and political questions. Political questions are not justiciable. Courts should not be reviewing them. -What constitutes a political question? There is no closed set of criteria. However, primarily a justiciability determination is based on two elements: -The institutional legitimacy of the courts to review a decision (are the courts a legitimate authority to be making the decision in question). -The institutional competence of the courts to review a decision (what is the relative competence of the courts that is relative to the govt to decide the relevant question or issue). -Although courts cannot decide political questions, “the fact that a legal dispute concerns the conduct of politicians or arises from a matter of political controversy” this is non-justiciable. -Type of power (that is derived from statute, royal prerogative, EU legislation). -Statute: a statutory power, derived from legislation. Also, relevant to ask whether the statute has an ouster clause (a clause which prohibits judicial review). But this doesn’t necessarily rule out judicial review. Anisminic (1969): HL faced with statute stipulating that no decisions of the Foreign Compensation Commission could “be called into question in any court of law.” HL interpreted the provision very narrowly, refusing to accept that Parliament had meant to preclude judicial review where the Commission’s decision may be treated as “a nullity.” Essentially empowered courts to disapply ouster clauses. Privacy International (2019): Modern-day Anisminic (arguably clearer ouster clause). Majority held that clause did not prevent judicial intervention in respect of unlawful decisions. Plurality “judicial review can only be excluded by ‘the most clear and explicit words’” Carnwath et al says: “if Parliament has failed to make its intention sufficiently clear, it is not for us to stretch the words used beyond their natural meaning” goes on to say it is “ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.” -Prerogative power: For years, it was the courts’ position that the exercise of prerogative powers could not be judicially reviewed. However, with time, that position has changed. GCHQ (1985): Minister for the Civil Service made decision, taken under prerogative power, to ban GCHQ staff from belonging to a trade union. Decision challenged on “legitimate expectation” grounds. HL held that the prerogative in question was reviewable; and some Lords said prerogative powers in general were reviewable. However, appeal dismissed by the Lords because matters of national security were involved (therefore, nonjusticiable). -De facto power: powers exercised by government bodies under neither statutory nor prerogative powers, or by other actors (e.g., self-regulatory bodies). Body/actor must be performing a “governmental function.” Datafin (1987): Panel on Takeovers and Mergers was a self-regulatory body that oversaw activities of unincorporated associations in City of London. Panel lacked a “statutory, prerogative or common law” basis for its powers; but was “supported and sustained by a periphery of statutory powers.” Through this, it produced a code of rules and practices and exercised “immense power de facto.” Issue before the Court of Appeal was

whether the Panel had acted unlawfully in dismissing a complaint vis-a-vis a takeover. Court of Appeal held that Panel had acted lawfully. The fact that the Court was willing to consider the issue is significant because it means that the Panel was subject to judicial review. Donaldson: “No one could have been in the least surprised if the panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain…its lack of a direct statutory base is a complete anomaly.” Lloyd J it is necessary to ask whether “the body in question is exercising public law functions, or if the exercise of its functions have public law consequences.” Aga Khan (1993): Jockey club (another self-regulatory body vis-à-vis horse racing in the UK) issued sanction against the Aga Khan. Issue before...