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

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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

Green 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
  • 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)

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:


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

Ouster Clauses

ITS THE PROCESS OF HOW YOU ARRIVE AT THE DECISION

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.

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