Public Law II Administrative Law Lecture Notes PDF

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Summary

Dr Jane Marriot
Extensive lecture notes comprising 9 substantive lectures and 1 revision lecture....

Description

Public Law Notes Lecture One Intro  

Exam; 2 questions, choice of essay or problem Mon 17th Nov, formative assessment questions will be available on surreylearn

Main   

Constitutional law is the law that establishes the country and its institutions. Admin law is the law that these institutions use to run the country. Admin law deals with the workings of the state; controlling powers given to public bodies. Ensuring public bodies abide by the rule of law. Largely concerned with the executive – is it using its powers as parliament intended

The Executive 

Complex web of institutions; PM, cabinet, cabinet committees and their official counterparts

Sources/Foundation  

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Underpinned by the notion on rule of law; public bodies not abusing their power, accountability before the courts for everyone etc Good governance o Good people o Good processes o Good accountability o Good performance o Good standards Human rights – Article 41, EU Charter of Fundamental Rights

Models of Administrative Justice  

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Harlow and Rawlings Law and Administration 1984 Red light theory o Advocates a strong role for the courts to review administrative decision making o Driven by a preference for a minimalist state o Primary function of admin law is to control state power and subject it to judicial control o Problem: can be seen as undemocratic. Unelected judges should not be able to tell the state what to do. The state is an elected entity and thus should have the choice of which public body gets what powers. Green light theory o Envisages a smaller and less intrusive role for the courts, advocates that the state should be allow to ‘function as it wishes’ o Function of public bodies is to make the state run; it must be allowed to run/do jobs without interference o Efficiency – courts not stopping and slowing the state Amber in reality o Judges try to balance the interest of the state with the interests of the citizens

Principles for administrative justice       

Uses of state systems must be central (the citizens), they must be treated with fairness and respect Must be a means by which the decision of public bodies can be challenged; these must be independent, open/accessible and fitted to the decision that is being challenged The procedures must not be ‘mystified’. They must be empowering, informative and understandable. Must allow for a speedy and full resolution of the issue. Well-reasoned, lawful and timely outcomes Coherence and consistency in decision making about challenged decisions Proportionality – ‘don’t need a sledge hammer to crack a walnut’ High standards; continuous improvement

Pillars of administrative justice    

Internal complaint schemes Tribunals (and public enquiries) Public sector ombudsmen Courts – judicial review

Lecture Two – Judicial Review A type of court proceeding in which a judge reviews the lawfulness of a decision made by a public body. Wrongs committed by public bodies can be address in judicial review. It has two stages:  

Claim – claimant proves that their claim is worth hearing Substantive hearing

Examples of judicial review     

Badger culling Outsource of public services to private companies Government’s 2010 emergency budget Nuclear power stations Heathrow third runway

Characteristics of Judicial Review 

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Review not appeal o Origin of decision – can it be taken by that body o Correctness/legality – of the process of the decision making o Substitutions – Supervisory jurisdiction Exclusion/Ouster of judicial review o Sometimes government will try to prevent judicial review  Finality clauses (this body can make this decision and cannot be challenged in court/ the decision is final) ex parte Gilmore  Shall not be questioned clauses: Anisminic  Time limits (normally 3 months): East Elloe, Ostler  Article 6 HRA questions the validity of these clauses

Purpose of judicial review 

Testing o Legality/validity of official decisions o 4 principle objectives  Correct interpretations of Acts of Parliament  Lawful exercise of discretion  Ensure fairness  Preserve rights

Relevance of constitutional law   

Separation of powers Parliamentary sovereignty Rule of law

Constitutional basis for judicial review 

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Traditional view o Ultra vires/ intra vires – beyond power/within power o Central principles of administrative law: power should be used fairly, rights should be preserved not infringed, due consideration of impact of power o “fig leaf” (laws) or “fairy tale” (Woolf)? Emerging view o Common law basis for judicial review:  Parliamentary sovereignty is a creature of the common law o Rule of law

Remedies in Judicial Review 

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Location o Senior Courts Act 1981 s31(1) and (2) [formerly Supreme Court Act 1981] o Civil Procedure Rules 2000 Part 54 Species o Prerogative remedies o Private law remedies

Species of remedy in Judicial review Prerogative remedies   

Quashing order (Certiorari) – invalidates the decision. The decision process must change, but the decision may remain the same. Most common remedy. Prohibiting order (Prohibition) – prevents a public body from acting illegally. A prohibiting order is prospective; it prevents future illegal conduct, eg preventing deportation Mandatory orders (Mandamus) – court makes the public body do something; it orders performance. Failure to comply with the order is a contempt of court. Very rarely granted.

Private law remedies   

Declaration – declares rights Injunction - stops the public body from doing something Damages – very small amounts/ nominal

The administrative Court    

Specialist court of QBD of HCJ Single judges or division court (2 judges) Paper/ in chambers applications Relatively inexpensive

Lecture Three – Judicial Review Preliminaries 

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Procedural o Generally only 3 months to bring a claim o Has the claimant exhausted all other remedies Substantive o Is it a public body? o Is the issue one of public or private law? o Is the issue justiciable – can it be adjudicated by judges? o Does the claimant has locus standing, a sufficient interest? o Are there grounds for review, is there a genuine reason?

Substantive Is the body susceptible to review? ‘Anybody or person having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially’ e parte London Electricity Joint Committee – see slide o Public body = circulatory o Constitutional consequences of definition. An overly broad or too narrow approach raises questions regarding the following:  Parliamentary sovereignty  Rule of law  Separation of powers What is a public body o Derived from the state, determining the rights of individuals by regulatory means. o Sometime called public authority o R v Panel on Takeovers and Mergers ex parte Datafin 1987 – private body exercising public functions. o R v Disciplinary Committee of the Jockey Club – man been penalised for doping a horse. The Jockey Club was created by charter, but its powers and duties weren’t derived from legislation, they were typically maintain through licenses. Court decided that the Jockey Club was a private body, bound to its members by private law. thus the appropriate remedies are private law remedies. o Section 6 Human Rights Act  See slide  ‘public authority’ under the HRA – government wanted the act to evolve to changing situations  A ‘pure public body’ one that is a pubic body no matter wat it is doing; the police, ministers, councils etc o

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A ‘functional public body’ has to comply with the HRA only when it is exercising a public function; eg a private security firm being engaged to run a prison will be a public body for that purpose. When it does security in a shop – it wont be. Where does the boundary lie?  Parochial Church Council of ASton… husband and wife own a farm. On part of the farm is a building belonging to the church. The couple are ‘lay reptors’ and thus have a responsibility under the Chancel repairs Act 1932 to pay for all necessary repairs to a local church. The couple contend that under the HRA, the requirement to make them pay interferes with their right to a private life under a.8. Court held that the liability to help pay for repairs to the church did not prevent them from the enjoyment of private life. The church council was not a core public authority. It could have been a hybrid public authority because it was performing certain functions of a private nature – but even then It could escape the couple bas section 6 HRA makes it lawful for public bodies to do things which are not HRA compliant if primary legislation is forcing them to do so. Even that didn’t matter as the court held the payments to be a private contractual matter. The couple bought the property in knowledge that it was subject to repairs – there peaceful enjoyment included discharging that liability.  Court says it must take care to limit the number of bodies that can be considered pure – this is because anyone considered pure under HRA then has to comply with the HRA at all time – this is a massive burden. YL v Birmingham City Council – judges are not in universal agreement as to determining public bodied. The case concerned an old lady suffering with alziemers. The council has a statutory duty to make arrangements for the provision of her care and accommodation. In fulfilment of this duty the council contracted with a private care provider. Old lady put in one of their residential homes – the fees are paid through a combination of the council, local nhs primary care trust and old girls family. Breakdown in relations between the private care home staff and the old girls family, due to the family’s antisocial behaviour. Private firm give them 28 days to take her out of their home and move her elsewhere – the 28 day notice was challenged as a breach of a8 HRA. Whether this claim can be sustained turned on whether the care provider was deemed a public or private body. It would be a public body if it was performing functions of a public nature. HofL decided by 3:2 that the care home was not a functioning public body. Due to:  The firm wasn’t exercising powers delegated by parliament. The arrangement by of care was a duty delegated to the council. Firm is a private body in business to make money – the contract was on a commercial basis. Furthermore the provision of care was not an inherently governmental function.  Dissent: distinction between arranging and providing is false. Parliament’s intention was that care should be provided. The state had assumed responsibility for this, moreover there was a detailed regulatory framework in place governing the provision of care. Any breach of these frameworks brought severe penalties. Effectively the contracting out does not means it loses its public function. 

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Is the issue a public law issue?  

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The public-private divide. See slide to tell whether a case is public or private. Getting out of JR o Avoiding the 3 month time limit o Avoiding the ‘permission’ stage o Gain the ability to cross exam and gain much more extensive damages Getting in to JR o Gain prerogative remedies o May gain an additional cause of action/ another cause of action O’Reilly v Mackman’s Exclusivity Principle o Man was out of time to launch a JR, so an action was brought in private proceedings. Court held that no private law right had been infringed, only a public law right had been infringed. As a general point it would be contrary to public policy and an abuse of the process of the court to allow a case to proceed in the wrong kind of proceedings. To allow the case to proceed in private law proceedings would be a blatant attempt to avoid the protections that public law affords to public bodies.  Thus where there is a public law issue it may only be raised in JR. the courts will not entertain private law rights being asserted in public la proceedings. Exceptions to the above o Public law issues mixed with private law. if there is something that needs to be resolve din public law that once resolved will raise a private law issue – this can still be heard in public law proceedings – Cocks v Thanet District Council 1983 o Public law issues raised as defence – Wandsworth v Winder 1985  A public law matter impacting on a private law right  Where a citizen has not chosen the form of proceedings o Collateral challenge: Roy v Kensington Family Practitioner’ Committee o The rule of law Boddington v British Transport Police 1992 - an convicted of smoking n a train. This was a bylaw made under s67 1962 Transport Act. He was fined £10 and ordered to pay costs. He appealed but was dismissed. Takes case to HofL saying that he wanted tested the issue of whether public law defences can be raised in private law proceedings.  Sometimes for the purpose of efficiency, the grounds for challenge must be circumvented. Where HRA involved o R(Wilkinson) v Broadmoor Hospital  Issues so fundamental that it doesn’t matter whether it is raised in public or private law proceedings  This approach will differ case to case o Mercury Communications Ltd  There must not always be this rigid demarcation. It must be taken case by case Clark v University of Lincolnshire and Humberside  Awarded a degree that was no higher than a third, she alleged a breach in regulations as to the calculations of her degree. Sued on the contract between her and the university. Courts struck the claim out because she hadn’t proceeded by JR in what was a public law matter. On appeal it was

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decided she should be allow to sue in private proceedigs. The court wont strilke out a private law claims oley on the grounds that wrong proceedings had been taken. Switching process – where you begin in the wrong type of proceedings  Here the court can order a switch to the right proceedings

Does the court have jurisdiction?   

The court has to decide whether it has the authority to hear the case Expansive review – driven by the courts view to stick to the rule of law Limited review – potentially making public bodies less accountable

Is the issue justiciable? 

Can it decide the subject matter of this case o National security o High policy – making of treaties, deployment of troops, entering EU o Prerogative powers

Lecture Four Practical functioning of permission stage  

Can a claimant seek a judicial review or not? Its function is exclusionary and protective. The former – it is designed to prevent entry R v Dean of St Paul’s Cathedral: Male priest not to take action about whether female priests should be ordained. The latter – protects both the public bodies and the courts. It ensures that court resources aren’t used on claims that aren’t merited. The time limit protects the public bodies, it also prevents their resources being used on defending themselves (both money and people). It is a recognition that the state needs to run- it doesn’t work to allow the state to switch on and off due to one citizens complaint. Less about access to justice than anything else. o This is troublesome from the rule of law, the checks and balances are not as present. The public bodies hold majority of the cards if a case comes to court.

The overriding objective

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Civil procedure rules part one state the overriding objectives o Courts to deal with cases with fairness o Ensuring parties are on an even footing – only part relevant to rule of law o The rest suggest troublesome principles

Permissive/Open Access to JR – benefits (redlight)    

Illegality is more easily checked This makes public bodies take more care with their decision making Bad decisions are not allowed to remain Wider avenue of challenge – all sorts of people can challenge public body decisions. Consequently there is representation. Eg green peace can represent environmental concerns o Through representation the protection of collective rights can take place

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Citizens can set the agenda. Things that are set low on the political agenda can be brought up the agenda by JR

Drawbacks    

Administration is happened – the running of the state is interrupted Resources are stretched – public bodies provided by taxes are spent fighting cases in court Run the risk of a politicised judiciary – judges drawn into disputes that they are better to stay out of, this can happen in terms of agenda setting. Used to generate publicity rather than a solution

Locus Standi You have to have standing in order to be granted a judicial review – it is a characteristic that a claimant must possess. If you have standing you have the right to be heard in court. In private law the issue of standing is integral – in public law it is separate. 

Order 55 1957 – statutory form in Supreme Court Act 1981 – renamed Senior Courts Act 1981 see slide

Standing pre-053 1977 

See graph on slide

1977 Rules of the Supreme Court Order 

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You will not get permission for a substantive hearing unless you have a sufficient interest in the matter to which the application relates. This was deliberately elastic/adaptable so as not to prevent access to justice. The IRC case 1982: Casual workers on Fleet Street (newspapers). These casual workers were naughty at dodging tax. They would open bank accounts in the name of mickey mouse/Donald duck etc. Deal struck that past avoidance was ignored on the basis that in the future, tax will be paid. The Inland revenue challenged this deal – on the basis that it should collect back tax as well as future tax. Held that they did not have standing because it was a busy body – poking its nose into the tax of others. Furthermore the inlan revenue had the power to do what it was doing. This lead to 2 questions: o Are all remedies (public and private) available in judicial review? Majority said yes. o See slide  Sufficient interest, 4 conclusions:  1. Standing not solely a preliminary issue – most cases would require more full analysis. Thus you may have to clear the issue twice: at the start and in a full hearing.  2. In the majority of cases the standing issue shouldn’t be addressed without looking at the substance of the case.  3. In determining standing/sufficiency of interest it has to take a closer look at the respondent.  4. Standing connected to what the respondent has done.

Post IRC uncertainty 

See 3 different approaches that followed on (slides)

Representative Standing

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Associational Standing - represents individual interests of members of groups Surrogate standing – represents individual interests of those who cannot represent themselves Public interest – represents the interests of the public at large

Representative standing  

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Ex parte Dixon – Court said we need to look at whether somebody is a meddler/interferer in somebody else’s affairs Ex parte Leigh – Journalist medalling in a case concerning the abuse of children – he was granted standing to challenge the decision of some magistrates to keep an identity secret in relation to the case. Court granted him standing. Ex parte Greenpeace. Ex parte world development movement ltd: Absence of any other challenger, expertise of body, membership of body, reputation/prominence/weight of organisation, how serious or widespread the harm is, the seriousness of the issue, geographical proximity Case arose out of the discovery of the remains of the Elizabethan theatre on the site of a planned car park. The secretary for environment refused to g...