Conad Term 2 Summaries - ADMIN side PDF

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Used for 2019/2020 exam - high 2.1 achieved...

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nCONAD Term 2 Summaries – Administrative Law Defining Administrative Law 

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Addresses two opposing arguments: o Effective government requires large amounts of discretionary power allocated in different ways to different agencies/gov bodies  too much discretionary power could create authoritarian gov  too little discretion may tie the government up in red tape, excessive litigation, and fear of risk – decision making becomes difficult o Administrative law must provide sufficient rules to mediate the exercise of discretionary powers and permit due process, the rule of law and constitutional forms of accountability Paul Craig – “for some it is the law relating to the control of government power, the main object of which is to protect individual rights” ---- “others place greater emphasis upon rules that are designed to ensure that the administration effectively performs tasks assigned to it”--- “yet others see the principal objective of administrative law as ensuring government accountability…” Administrative Law applies to Public Bodies AND MAY APPLY TO Private Bodies carrying out Public Functions o Public Bodies – prerogative or statutory powers, including regulations or statutory instruments – can include agencies, governmental departments, local and central gov, quangos (outside civil service but receive gov support), wide range of organisations and bodies exercising public functions or powers – Freedom of Information Act 2000 schedule 1 o Private Bodies with Public Law Functions – may include those under government powers or licensees (IT contracts or tenders for supply of services and goods) – each case decided on its facts o R (on application of Weaver) v London and Quadrant Housing Trust 2009 – Assured tenants sought to challenge possession order made for rent arrears – said that as public body landlord had duty under human rights law to pursue all possible alternate solutions before seeking possession - Non-profit making charity with benefit of community and providing housing for the poor or disabled/sick a private body or public? – Held that Trust received public money, operated based on statutory guidance, acted as sector of social renting market, but set its own rules, entered into private law contracts with tenants, and operated outside rules of commercial business, LJ Richards held it fell into s6(1) of HRA - exercising a public function

Historical Developments 

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Pre-1978 o Application for public law remedy seen before Queen’s Bench Division of High Court o Jurisdiction based on one of remedies such as – certiorari, prohibition, habeas corpus, mandamus and declaration o Roberts v Hopwood 1925 – salaries that took into account size of family or family’s financial situation reviewed by court – district auditor sought to quash payments as not allowable under the law, decided to surcharge councillors for making illegal payment – CA disagreed with auditor, as children’s allowances were a legitimate payment paid by many employers and normal in salary payment, and as norm of payment this allowance fell within powers of local authority Post-1978 o What is the source of legal power? o Should claimant raise public or private law matters? If private, then application to be made to Admin law court, within 3-month time limit and having obtained leave based on sufficient interest in the case After 2000 o HRA 1998 provides important basis for setting rights at heart of administrative system o R (on application of UNISON) v Lord Chancellor 2017 – Lord Chancellor imposed fees on Employment Tribunals based on s4(2) of Tribunals, Courts and Enforcement Act 2007 – wide ranging system of hearing for all manner of employment disputes – fees applied to every level of tribunal system including appeals to Upper Tribunal – UNISON argued fees have undue influence on access to justice; that LC unjustified in intervening with right to justice through access to court, implied interference with common law rights, legislation of employment rights, and would discriminate against women, disabled, other protected groups – also higher fees impacted court’s ability to ensure employers followed rule of law – exceptional circumstance exemptions, but since many cases didn’t involve major financial reward, fee system didn’t make allowance for disincentive to litigate  SC decision – two principles which underpin legality of the decision – (1) access to the courts, (2) statutory rights shouldn’t be reduced by statutory instruments – right to access court is also part of rule of law, system of fees curtailed this like an ouster or exclusion clause - as courts ensure Parliamentary created law are applied and enforced s42(1) of 2007 Act used by LC doesn’t allow prevention of court access – LC order led to reduction of tribunal cases, as claimants with low or average incomes couldn’t afford claims  Fees order also contradicts ECHR – LC held to have acted illegally and gov agreed to repay fees paid during period they were active

Judicial Review   

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Provides a means of holding government to account – encourages good admin and favours positive, legitimate approaches to decision making, as these conform well to considered legal rules and proportionate (reasonable responses) If taken to extremes, however, may result in substitution of political/admin decisions by judicial decisions – problematic as judges are appointed, not elected – in UK final decision rests with Parliament Upholds rule of law and ensures fairness and proportionality apply to public decision makers – holds gov to account, protects citizens against arbitrary decision making – power discretionary, as even if there’s strong argument in favour of challenge, court may choose to decline review Discretionary powers limited by law – boundaries set by legal controls – but abuse of discretionary powers must be prevented in accordance with the rule of law – Parliament grants authority to make rules and decisions, but doesn’t intend such powers to be unreasonable or illegal/ultra vires – classic examples of discretionary power control in Laker Airways 1977 – in Laker Airways, held that new policy directions issued by Sec of State were ultra vires, after Laker granted licence by CAA, even though s3 Civil Aviation Act 1971 allowed Sec of State to do this, with Commons’ approval - and Padfield 1968 – in Padfield, Minister acted unreasonably by refusing to refer complaint to committee, to avoid review of policy of milk prices by milk marketing board o Inherently good concept – ability and freedom to make good decision aids good admin – Judge Over Your Shoulder (2016) states Admin Law governs public authorities and decisions they make – decisions typically relate to a particular matter affecting an individual person or group, e.g. grant of planning application, determination of immigration status, allocation of school place, assigning prisoner to particular security category o JR extends beyond these direct decisions, to subordinate legislation, policies, reports, recommendations, or advice and guidance – when department issues such guidance it is obliged to observe the same high standards as it does when making decisions concerning individuals, e.g. tax o When Minister of Department takes action, they are exercising discretion, and the discretion may appear to be unfettered/unlimited – e.g. statutory provision conferring discretion may say “secretary of state shall grant or refuse the application” – there are legal limits on this – no unfettered decision in public law, discretion subject to rule of law, and must promote policy and objectives set by an Act of Parliament – scope of discretion includes police powers, licensing powers, powers of local authorities to enter financial arrangements  Some limitations on discretion may be express (purposes for which power was given, criteria applied in exercising it), but others will be implied by statutory scheme – others will be derived from HR law, e.g. ECHR Article 6  Public bodies also have duty of equality under Equality Act 2010 – gov’s austerity policy in reducing budgets couldn’t have been justified if it didn’t regard equality of opportunity between genders o Roberts v Hopwood 1925 and R (on application of UNISON) v Lord Chancellor 2017 deal with discretionary power and its use o R v ILEA ex parte Westminster City Council 1986 – Inner City London Authority (ILEA) determined rates for education spending, including Westminster CC – ILEA opposed to gov’s plans to limit its spending through rate cap system which cuts amount of money local authorities are to spend – ILEA engaged in policy making which was in opposition to central gov policy – hired company to advertise ILEA’s views on the spending cuts they opposed – Westminster CC sought declaration that incurring of expenditure was ultra vires, aim not to provide information about gov, but provide platform on rate capping,, which ILEA opposed – LJ Glidewell held ILEA acted illegally when taking into account “irrelevant considerations when reaching their decisions” – two purposes, providing information and opposing rate cuts – court reviewed material published and came to decision that one was illegal, based on what was reasonable and expected o Hazell v Hammersmith and Fulham 1992 – Hammersmith, and many other local authorities, were engaged in speculative financing – s111 of Local Government Act 1972 stated local authorities “shall have power to do anything (whether or not involving the expenditure, borrowing or lending of money…) which is calculated to facilitate or is conducive or incidental to the discharge of any of their functions – HL concluded that local authority investments were illegal – caused major concern about legality of many arrangements leaving banks with debts to consider went market went down in value – as transactions fell outside powers of local authority each was potentially void and this left the banks with debt o Discretion inherently good means to subject decisions to boundaries set by Parliament and rule of law – mustn’t exceed what the law allows  Judge Over Your Shoulder, pg 10 – “as well as having the power to act, the department must use its power for a lawful purpose. Its action will be ultra vires and an abuse of power if… it uses the power to achieve a purpose which the power was not created to achieve” Necessary to establish judicial review as follows – needs to be concern that procedural issues have unhelpful quality in making the application process (not substance of the case) unduly technical – behaviour of the applicant is key, if it is unmeritorious or unreasonable Suggested reforms? – define public and private law and clarify terminology including human rights? Court generally reluctant to review central government policy, or merits of it, or opinions of political decision makers who are in their own jurisdiction, due to: o Ministerial responsibility to Parliament o Power should be allocated to specialist expertise – court should not be reviewing these levels of expertise o Limit on number of cases court can hear, therefore reluctance to expand jurisdiction of courts if this can be avoided o Acceptance that internal dispute mechanisms should be used

Increasing Ministerial Powers – “Henry VIII” powers – circumstances where delegated powers to ministers may allow them to alter terms of primary legislation or Acts of Parliament – known by name of the former Kings as it ha potential for Minister (executive gov) to alter law which should only be undertaken by Parliament – may occur innocently but allows considerable scope for governmental power John Griffith – “judges in the United Kingdom cannot be politically neutral…. their interpretation of what is in the public interest and therefore politically desirable is determined by the kind of people they are and the positions they hold in society” Ouster/Exclusion/Exemption Clauses – allow Parliamentary sovereignty to restrict or exclude judicial review in the name of justice, clauses which are inserted into Acts of Parliament to exclude courts, e.g. – DECISION IS FINAL, NO RIGHT OF APPEAL, DECISION IS FINAL AND MAY NOT BE INQUIRED INTO BY ANY COURT OF LAW, ORDER SHALL HAVE EFFECT AS IF ACT OF PARLIAMENT, MINISTER CERTIFIES ACT IS HR COMPATIBLE o Based on Anisminic 1969 and Privacy International 2018, ouster clauses to exclude JR will be carefully examined by court, and decided on a case by case basis o Smith v East Elloe 1956 – 6-week statutory appeal period for appeal of compulsory purchase order considered by courts – majority upheld protection as providing satisfactory period for review – outside 6 wk period, no review o Anisminic Ltd v Foreign Compensation Commission 1969 – Anisminic wished to challenge commission’s decision that they weren’t entitled to land confiscated during Egyptian crisis – Foreign Compensation Act 1950 stated that commission decisions couldn’t be “called into question in any court of law” – HL held that clause didn’t prevent courts from inquiring into legality of the decision – commission already rejected claim for compensation for property sold to foreign buyer, based on erroneous ground that instrument required any successor in title should be a British national by a certain date – HL considered case and declared that decision was wrong as commission had no jurisdiction to take nationality of successor in title into consideration – case rendered technical distinction between errors of law which go to jurisdiction and those that don’t obsolete o R (Privacy Int’nl) v Investigatory Powers Tribunal 2017 – C sought judicial review of decision made by Investigatory Powers Tribunal, to do so C faced obstacle of s67(8) of RIPA 2000, allowing sec of state to determine that such a decision shouldn’t be subject to appeal or questioning in court – s67(9) also provided that Sec of State had to provide for appeals to court in some IPT functions, but this part was never brought into force – problem remedied now by Investigatory Powers Act 2016  Administrative Court hearing 2017 – Court held that JR was impossible, bit with reservations entered into by Justice Leggatt – however, reasoning of Sir Leveson is that JR power exists within the IPT following 2016/17 – going to court isn’t necessary, and doesn’t have consequences like with Anisminic where no such right existed  CA hearing 2017 – LJ Sales approach that statutory construction is applied – differential drafting of RIPA and Foreign Compensation Act 1950 is significant, but by much? – (a) Surely Anisminic should apply in favour fo the claimant, (b) there’s disagreement of interpretation and how constitutional statutes should be considered – question of the aim of the statute and its context are surely relevant  UKSC decision 2019 – Held s67(8) doesn’t oust supervisory jurisdiction of Administrative Court for errors of law, Anisminic is followed – judicial review may only be excluded by clear words – IPT cannot develop its own case law  Identity Cards Act 2006 – scheme abandoned on grounds of costs – would’ve provided wide powers to enable minister to introduce ID cards into the UK – sensitive issue was when to bring such powers into force – ID cards Act 2006 (Commencement No. 2) Order provides sec of state with necessary order powers and under s37 of the 2006 Act there was requirement to report to Parliament about costs and admin of any such proposed schemes Grounds for Judicial Review: o Illegality (Ultra Vires) – acting outside legal powers, acting for improper purposes, or abuse of power - came from common law ideas/influences – based on jurisdiction of inferior courts and public bodies, doctrine created powerful supervisory role  Laker Airways Case 1977 – Airline granted licence for low cost (under £100) fair to USA by Civil Aviation Authority – 1971 Civil Aviation Act allowed Ministers to give guidance to CAA, guidance here conflicted with CAA’s policy to encourage independent airlines – Sec of State withdrew Laker’s designation as approved airline – guidance given to CAA potentially in conflict with CAA’s overall duty  CA held – guidance given to airline illegal/ultra vires, and removal of designation category also illegal – Crown would not abuse powers and go against intention of act – opportunity for independent airlines to have at least one major route was key element of legislation, to encourage competition  Originally CAA granted licence, but new labour government elected and used powers under Civil Aviation Act 1971 – Lord Denning granted declaration that new policy of gov “cut across” policy of 1971 Act, aim was to give CAA delegated authority and this was correctly exercised  Laker shortly went out of business as other airlines reduced their fares – gained large compensation from claims in US court, set up another airline which also failed  Padfield v Minister of Agriculture, Fisheries, and Food 1968 – minister refused to send complaint regarding milk prices by Milk Marketing Board to a Committee of Investigation – argued that their complain about milk prices should be referred to committee of investigation, Agriculture Marketing Act 1958 provided for this – test is “if the minister in any case so directs” – policy and objective of act to refer matters of complaint to such committee – was argued that Minister acted in way inconsistent with policy of Act o

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Milk producers close to London argued that difference in pricing by Milk Marketing Board was too low, since costs of transportation from other regions needed to be taken into account – prices hadn’t been changed since WWII – minister reasoned since milk producers on board had representation this was adequate, and that machinery of board was “democratic”, claim wouldn’t be heard by committee – minister didn’t want to intervene given political sensitivity of case – missed the point of legislation that minister should have power to correct any bad decisions made by Milk Marketing Board  HL – relevant and substantial complaint, duty as well a power to refer it for investigation – minister misunderstood legislation – HL granted mandamus, made clear minister had to “act reasonably”  After case was decided, Minister allowed complaint to be investigated by Committee, who found in favour of C’s, but minister refused to act CCSU v Minister for Civil Service 1985 (GCHQ Case) – trade unions banned by PM because of fear of industrial action – decision defended by PM due to need to protect national interest upheld by courts as legal – case concerned Cheltenham based IT security centre used to gather intelligence  Intervention of the court not based on disagreement over merits of decision, but whether decision maker has applied law correctly or not – Professor Wade “public authority may not act outside its powers”  Courts may interpret Act of Parliament in terms of powers granted to public body, and may then set out principles establishing basis for JR R (On the Application of Miller) v PM and Others 2019 – question of lawfulness of advice of PM to the Queen to prorogue Parliament – Prorogation is a prerogative power (exclusive to particular individual/class), and are there limits to its exercising? – SC concludes Parliament is sovereign, it makes laws, use of such prerogative to prevent such law-making powers would undermine role of Parliament  In terms of JR, no justification was offered for prorogation, and use of prorogation in circumstances was “unprecedented”  SC held PM’s advice unlawful and void, order in Council also unlawful and should be quashed Luton Case v Sec of State for Education 2011 – launch of School Building Programme, launched under Labour Government to improve school infrastructure nationwide – 98 built, further 735 planned at cost of £50bil – new gov in 2010 decided to scrap and stop programme:  C’s alleged they accept political choices, but argue that projects in advanced state of preparation should be saved – claim based on breach of statutory duty (rationality) – substantive legitimate expectation and a breach of not considering effects on applicants  Held that process taken by Department illegal as it failed to give consideration to claimants in fair way – ignoring issues of disability and race ...