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Introduction to Administrative Law & Judicial Review - Coggle Diagram
Introduction to Administrative Law & Judicial Review
Difference and Similarities between Administrative Law & Constitutional Law
Similarities
The Separation of Powers
Importance:
Creates the idea that there are 3 branches of government (legislature, executive and judiciary).
Separation of powers requires that each branch of government has certain tasks allocated to it.
The Rule of Law
Importance:
"The life of the community is governed by clear, open, stable, prospective general standards".
"Government officials adhere to those standards"
"There are independent tribunals (i.e. courts) that regulate the conduct of other institutions".
Accountability
Importance:
To some extent, the core focus of public law is the ensure that those who exercise public power are accountable.
Accountability is a complex concept, thus important to not only think that legal methods of accountability are appropriate
Difference
Constitutional Law
Constitutional law broadly concerns the organisation of the state, the relationship between the individual and the state, and the relationship between the institutions and the state
Administrative law
Can be thought of as a sub-category of constitutional law. It's only a set of principles specifically on the context of administrative decisions affecting legal persons (individuals & corporations)
By applying constitutional principles like the ROL, sovereignty of Parliament and the separation of powers, administrative law aims to
set guidelines
on how authorities vested with administrative powers
can actually exercise these powers,
specifically when the
exercise of these powers
impinges on the interests of individuals
Nature and Purpose of Administrative Law
The term of 'administrative justice':
Can be used either prescriptively or descriptively. - Used prescriptively: refers to principles that may be used to evaluate the justice inherent in administrative decision-making.
Administrative justice has both substantive and procedural elements
Criticisms of the ultra vires model:
Indeterminacy
Lack of reality
Grounds and standards of judicial review are judicial creations
Rights-based approach:
John Laws presented this right-based conception of law and the role of the judge in cases involving fundamental rights
He posited a higher order law that was binding on elected Parliament, with the courts as the guardian of both fundamental individual rights and what may be termed structural constitutional rights
Premised on a particular conception of liberalism and individual autonomy, with a divide drawn between positive and negative rights
ROL is held to encompass an attachment to freedom, certainty and fairness
Separation of Powers:
Responsible governments need effective agencies for making clear, open, prospective, stable, general rules for the community
Responsible governments need an independent and efficient agency to resolve disputes over the rules
Principles of Relativity:
The way where courts control a decision depends on:
The type of power being exercise
The nature of the body
The processes by which it acts
Considerations if power is to be exercised with integrity
The way the decision affects particular people
Theories of Administrative Law
Red light theory
Courts are charged with securing good administration
Administrative law is a control upon government (make sure there is a check and balance)
An external factor upon the freedom of public authorities, a corrective to be invoked when power is abused
Green light theory
Shift from being an external restriction on state power to a framework to facilitate good government
Decision making by the elite judiciary was never a plausible counter to authoritarianism (job of the judiciary to a certain degree is check and balance, but to make sure that public bodies have proper measures)
Audi Altarem Partem
The right to a fair hearing
No matter who you are, you have a right to a fair hearing/trial
If a male arab were to step into JFK, he has a right to a fair trial LMFAO
Nemo Judex in Causa Sua
No man can be a judge in his own case
Introduction to the judicial review process
The process of judicial review, derived from
s31 of the Senior Courts Act 1981 & and the Civil Procedure Rules 1998:
Ouster Clauses
A clause in legislation that seeks to deny or 'oust' the court's supervisory jurisdiction over the exercise of public power. Means that the subject matter of the ouster clause cannot be challenged in the courts
Anisminic Ltd v Foreign Compensation Commission (1969):
Facts: The Egyptian authority had nationalised property belonging to a British company. Company was later sold to the Egyptian government. The UK signed a treaty with Egypt of returning all properties taken by Egypt except Anisminic. The FCC provided compensation to those that were excluded from the treaty. FCC said that to get compensation, successors must be British citizens as Anisminic was sold to the Egyptian authorities no compensation was given. The FCC had a ouster clause that decisions of the FCC cannot be questioned by any court of law as a result that judicial review cannot be done.
Held: HoL found that ouster clause was invalid and held that decision of the FCC to be void. Judicial review was allowed.
ITS THE PROCESS OF HOW YOU ARRIVE AT THE DECISION
Differences between Review & Appeal
Legal control of administrative action
Seen in context of general administration system - political accountability - elections - ministerial responsibility - parliamentary controls - i.e. MPs / select committees
Judicial review serves to uphold the rule of law, Parliamentary sovereignty and the separation of powers
Judges look at legality of decision and NOT merits / considers the process of procedure and NOT the substance
Its not the responsibility of the courts to substitute its judgement for that of the decision maker