LW2PL2 Autumn term tutorials 2017-18 PDF

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Public Law II 2017-18 Tutorials - Autumn Term: Administrative Law Introduction There will be THREE tutorials in the autumn term, beginning in weeks 4/5. It will not be possible to cover all of the lecture topics in these tutorials. If there are particular issues that you would like to discuss/clarify during the course of the term, please raise them with your lecturer or tutor.

TEXTBOOKS AND OTHER RECOMMENDED READING The recommended textbook for the PL2 module (which we encourage you to purchase) is: I Loveland, Constitutional Law, Administrative Law and Human Rights, a Critical Introduction (7th edn, OUP, 2014). Note: it will be fine to use the previous (6th) edition) For the first term, we also encourage you to use – or even purchase – specialist administrative law textbooks. The best are:    

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**P Craig, Administrative Law (7th edn, Sweet & Maxwell, 2012) T Endicott, Administrative Law, (2nd edn, OUP, 2012) W Wade and C Forsyth, Administrative Law, 11th ed. (Oxford University Press, 2014) De Smith’s Judicial Review (7th edn, Sweet & Maxwell, 2014) Note: this book is mainly aimed at practitioners, but it has some very short bullet-point explanations of administrative law doctrines. C Harlow and R Rawlings, Law and Administration (3rd edn, CUP, 2009) AW Bradley, KD Ewing & CJS Knight, Constitutional & Administrative Law (16th edn, Pearson, 2014)

We will refer you to various academic monographs and journal articles in the course of the tutorials and lectures. You can access many public law monographs on the Oxford Scholarship website. Try to dip into some of the following journals for recent contributions: Public law The Cambridge law journal The Oxford Journal of Legal Studies The Modern Law Review Judicial Review 1

We also recommend that you subscribe to the Constitutional Law Group blog http://ukconstitutionallaw.org/blog/. You will find a wealth of materials on all public law matters. The UK Human Rights Blog is particular good for administrative law cases. TUTORIAL EXERCISES

TUTORIAL ONE: Introductory; locus standi 1. Divide into two groups and spend 10 minutes preparing a short presentation on the following two scenarios (one scenario per group): SCENARIO ONE: You are a delegation of lawyers and judges. Your task is to convince the other group, a delegation of government ministers and civil servants, of the importance of judicial review. (For the contemporary context, see the response by the government to its consultation on judicial review reform here, and see the McGarry article listed below). SCENARIO TWO: You are members of the Judicial Training College. Your task is to explain to the other group, a set of newly appointed High Court judges, the key features of their new job. Using illustrative case law, help the new appointees with: -

the different ‘grounds’ of judicial review the difference between judicial review and an appeal the remedies available to them any special constitutional principles of which they should be aware

2. Professor Carol Harlow takes a very different view to Baroness Hale, John McGarry and Giles Fraser on how willing courts should be to grant locus standi or allow interventions (The articles are all available on Blackboard). Before the tutorial, one group should prepare a 10 minute presentation on Harlow’s arguments; the other group should prepare a 10 minute presentation on the Hale, McGarry and Fraser articles. Which arguments do you prefer and why? 3. The following link is from the early stages of the HS2 (high-speed rail)

judicial review challenge (which has now failed in the Supreme Court): http://www.bbc.co.uk/news/uk-england-16725504 Staying in your groups, one group should prepare the Government's arguments against allowing STOP HS2 locus standi; the other group prepare HS2's arguments. Think about which precedents and academic arguments will help on each side. 4. What is the test of locus standi under the HRA 1998? Why do you think this test differs from the common law test? Should it differ? See the Miles article below. 2

Reading/learning materials Blackboard/module documents)         

(you

will find journal articles below on

Lectures and lecture handout Loveland chapters 14 and 17 Harlow, ‘Public Law and Popular Justice’ [2002] 62 MLR 1 Baroness Hale, ‘Who guards the guardians’ C.J.I.C.L. 2014, 3(1), 100110 McGarry, ‘The Importance of an Expansive Test of Standing’ [2014] 19(1) JR 60–64 GilesFraser http://www.theguardian.com/commentisfree/belief/2013/sep/27/judicia l-review-plans-undermine-law P Cane, ‘Standing up for the Public’ [1995] P.L. 276 J Miles, ‘Standing under the Human Rights Act 1998: Theories of Rights Enforcement and the Nature of Public Law Adjudication’ [2000] C.L.J. 133 https://consult.justice.gov.uk/digital-communications/judicialreview/results/judicial-review---proposals-for-further-reformgovernment-response.pdf

Illustrative exam question “It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.” R v Inland Revenue Commissioners, ex p. National Federation of Self-Employed and Small Businesses [1982] AC 617 per Lord Diplock. Explain and critically assess this dictum.

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TUTORIAL TWO: The public/private divide 1. Dawn Oliver and Rodney Austin take a very different view of the decision in YL (see the two articles from UCL Human Rights Review 2008, available on Blackboard/Module Documents: Before the tutorial, one group should prepare a 10 minute presentation on Oliver’s arguments; the other group should prepare a 10 minute presentation on the Austin’s arguments. Which arguments do you prefer and why? 2. Before the tutorial, read the Jockey Club decision [1993] 1 WLR 909. In the tutorial, divide into two groups, one group representing the applicant, Aga Khan, the other group representing the Jockey Club. Make submissions on whether the Jockey Club is amenable to judicial review. Think about which precedents and academic articles will help your case. You might find assistance from the recent case of O’Connell & anor v the Turf Club [2015] IESC 57 (noted here) and the older case of Datafin (reference below). 3. Does the Human Rights Act have horizontal effect – either direct or indirect? Reading/learning materials          

Lectures and lecture handout Loveland pp 679-693 (and for the broader public/private divide debates, see ch 16) R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 1 WLR 909 R v Panel on Take-over and Mergers, ex p Datafin Plc [1987] 1 All ER 564 O’Connell & anor v the Turf Club [2015] IESC 57 noted at: http://ukhumanrightsblog.com/2015/07/31/sport-publicprivate-lawand-a-judge-waxing-lyrical-diarmuid-laffan/ YL v. Birmingham City Council and Others [2007] UKHL 27 Dawn Oliver, ‘Functions of a public nature under the Human Rights Act’ P.L. 2004, Sum, 329-351 The two (short) articles by Dawn Oliver and Rodney Austin in the UCL Human Rights Review 2008 Jane Wright, ‘A damp squib? The impact of section 6 HRA on the common law horizontal effect and beyond’ P.L. 2014, Apr, 289-305 G. Phillipson and A. Williams, "Horizontal Effect and Constitutional Constraint" (2011) 74(6) M.L.R. 824, 879.

Additional reading 

D Pannick, ‘Who is Subject to Judicial Review and in Respect of What’ [1992] P.L. 1 4

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H. W. R. Wade, "Horizons of Horizontality" (2000) 116 (Apr) L.Q.R. 2000, 217.

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Lord Justice Buxton, "The Human Rights Act and Private Law" (2000) 116(Apr) L.Q.R. 48.

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M. Hunt, "The ‘Horizontal Effect’ of the Human Rights Act" [1998] P.L. 423.

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G. Phillipson, "The Human Rights Act, ‘Horizontal Effect and the Common Law: a Bang or a Whimper?" (1999) 62 M.L.R. 824, 824.

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H Woolf, ‘Public law- private law: why the divide? [1986] P.L. 220 Loveland, ‘Horizontality of article 8 in the context of possession proceedings’ E.H.R.L.R. 2015, 2, 138-148

Illustrative exam question "In all the reports it is possible to find enumerations of factors giving rise to the [supervisory] jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction." (R v Panel on Take-over and Mergers, ex p Datafin Plc (1987) per Sir John Donaldson MR) Discuss.

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TUTORIAL THREE: Legitimate Expectations and Deference 1. Read the Coughlan case. Before the tutorial, one group should prepare a 5-10 minute presentation in favour of the Court of Appeal decision; the other group should prepare a 5-10 minute presentation against it. Consider the following points: a. whether the circumstances in which an individual claim a procedural or substantive legitimate expectation were present in this case b. the reasons why courts should protect people’s expectations and whether these reasons apply to this case or not c. the soundness of Lord Woolf’s tripartite distinction d. the constitutional position of courts vis-à-vis the government and whether the vindication of Mrs Coughlan’s expectations is consistent with it. e. whether the approach in Coughlan is consistent with the approach in Begbie 2. Read the articles by Allan and Kavanagh. Before the tutorial, one group should prepare a 10 minute presentation defending Allan’s position; the other group should prepare a 10 minute presentation defending Kavanagh’s positions. Consider the following points: o What factors may lead a court to defer? o How does a court show deference to the government? o Should deference be more limited in human rights cases? Reading/learning materials · · · · · · · ·

*Lecture handout and materials *Loveland chapter 15 (pp 484-499) and chapter 22. *R. v North and East Devon Health Authority ex parte Coughlan [2001] Q.B. 213 R v SoS for Education and Employment Ex p. Begbie [2000] 1 W.L.R. 1115 R v Secretary of State for the Home Department, ex p. Hargreaves [1997] 1 All ER Sales and Steyn, ‘Legitimate Expectations in English Public Law: An analysis’ [2004] PL 564 *TRS Allan, ‘Human Rights and Judicial Review: A Critique of Due Deference” 2006 CLJ 671 *A Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 LQR 222-250

Illustrative exam questions Is there a role for deference in cases where the courts apply the proportionality test?

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