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1 Lecture Introduction to Administrative Law

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2/10/21
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Introduction to Administrative Law
Dr Muin Boase
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Housekeeping
m.boase@derby.ac.uk
Office hours: Fridays 4-5pm (Teams) Drop me an email and we
can arrange a time to meet.
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Structure of the Course
1. Introduction to Judicial Review
2. Procedure for lodging a claim and standing
3. Illegality
4. Irrationality
5. Procedural Impropriety
6. Human Rights Act
7. Proportionality
8. Judicial Review: Health and Social Care
9. Judicial Review: Criminal Justice System
10.Judicial Review: International Law and Human Rights
11.‘Judicial Activism’ and the Independent Review of
Administrative Law
12.Revision Lecture and Assessment Preparation
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Reading
• George Ellison’s Course Handbook – combines several
textbook (Part 2)
• Mark Elliot’s books are excellent – Public Law or Administrative
Law: Text and Materials
Assessment
• Formative Assessment: Skeleton Argument
• Summative Assessment: Moot Presentation (100%) of your final
mark. This will take the format of a recorded video presentation.
Permission to apply for judicial review.
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Structure of the Lecture
1. What is judicial review
2. Rationale behind judicial review
3. Relationship between judicial review and the Constitution
4. Different Grounds for Judicial Review
5. Ouster Clauses
6. Question of Reforming Judicial Review
7.
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1. What is Judicial Review
Judicial Review ‘may be defined as the jurisdiction of the superior
courts ... to review the acts, decisions, and omissions of public
authorities in order to establish whether they have exceeded or
abused their powers’ (Allen and Thompson)
And ‘an important accountability tool’ which ‘sets the legal
framework within which decisions … affecting the rights,
interests, or legitimate expectations of individuals are taken’
(Elliott and Thomas)
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What is Judicial Review?
• A ‘claim for judicial review’ means a claim to review the
lawfulness of –
–(i) an enactment; or
–(ii) a decision, action or failure to act in relation to the exercise
of a public function.
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• Civil Procedure Rules, 54.1(2)
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What decisions may be judicially reviewed?
• Decisions, acts and failures to act by public bodies exercising
public functions can be challenged.
Government Departments
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Government Departments
• Home Office (refuse someone asylum – deportation claims)
• Government Ministers Public Bodies
• Decision by a Hospital Refusal to fund potentially life-saving
medical services (ex p. B)
• Decision by the Schools Exclusions
• Decision by Universities (disciplinary proceedings against
students for plagiarism etc…) Zahid v Manchester University
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• Parole Board to release a prisoner
• Certain lower Judicial Bodies
–Decisions by the High Court/Administrative Court above are
NOT subject to judicial review!!! – CAN’T JUDICIALLY
REVIEW A HIGH COURT DECISION
• Certain Non-Governmental Bodies when exercising Public
Functions Datafin
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Examples of Judicial Review cases/issues
• Challenge to a decision of the Secretary of State to extend
custodial sentences of infamous murdered (Venables)
• Refusal to fund potentially life-saving medical services (ex p. B)
• Decision by the made by the Foreign Secretary that Mrs
Sacoolas had diplomatic immunity R (Charles & Dunn) v
Secretary of State for Foreign and Commonwealth Affairs
[2020] EWHC 3185 (Admin)
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Note: Review Not Appeal
• JR – is NOT an ‘appeal’ but rather a means of ‘supervision’ to
ensure governance under the law.
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• The Court’s role under JR is not to consider the ‘MERITS’ but
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• The Court’s role under JR is not to consider the ‘MERITS’ but
rather the ‘LEGALITY’ of the decision.
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• JR – focus - procedural irregularities in the way in which a
decision is reached or questions of whether a power was
actually within the remit of a public body.
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• ‘Judicial review is concerned, not with the decision, but with the
decision-making process. Unless that restriction on the power of
the Court is observed, the court will in my view, under the guise
of preventing the abuse of power, be itself guilty of usurping
power’ .. Lord Bingham at 1173 R v Chief Constable of North
Wales Police, ex parte Evans [1982] 1 WLR 115
• ‘Judicial review is an important mechanism for the maintenance
of the rule of law. It serves to correct unlawful conduct on the
part of public authorities. However, judicial review is not an
appeal against governmental decisions on their merits. The
wisdom of governmental policy is not a matter for the courts
and, in a democratic society, must be a matter for the elected
government alone. We stress these fundamentals in this case
because there have been times when *4173 sight appears to
have been lost of them. As we have mentioned earlier, a huge
amount of factual material has been placed before the court.
Many of the grounds of challenge have either been abandoned
or, as has been explained above, have turned out on proper
analysis not to raise points of law at all. Judicial review is not,
and should not be regarded as, politics by another means.’ R
(Ho
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Which Court Administers Judicial Review
• Starts in the Administrative Court, part of the Queen’s Bench
Division of the High Court.
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• Starts in the Administrative Court, part of the Queen’s Bench
Division of the High Court.
• Administrative Court Office also has offices in regions. So, for
example, in the Midlands, you can file an application with the
ACO in the Birmingham Civil and Family Justice Centre.
• Judicial Review is discretionary – the Court may reject the
application.
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Discussion Question 1
Can you think any examples of a case of a current example of
judicial review:
1. What were the facts?
2. What was the case about?
3. What stage is the case at?
4. Why do you think the case is important?
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2. Rationale behind Judicial Review
• Ultra Vires: JR enforces the will of Parliament (Dicey)
• Common Law Model
• The ‘modified’ ultra vires model – even if courts develop rules,
Parliament allows them to, thus upholding a ‘general intent’
(Elliott)
• The normative constitutional model – Parliament ‘ought’ to be
bound by the precepts of a modern constitutional democracy,
articulated by the courts in defending the rule of law (Woolf et
al.)
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Which explanation do consider the most convincing and why?
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3. Relationship between judicial review and the Three Pillars
of our Constitution
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JR & Rule of Law
• The core task of administrative law is to impose the rule of law
on public authorities and ensure they do not exceed their
powers.
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powers.
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JR & Executive
• JR forms acts as a check on the executive.
• ‘Judicial Review requires the Courts to step into the territory
which belongs to the executive’ - R v Secretary for the Home
Department, ex parte Fire Brigades Union [1995] 2 All ER 244,
267 (Lord Mustill)
• Courts have however begun to appreciate that there is a need
for political scrutiny of government activity in order to protect
individuals from badly made decisions.
• Is there an overreach?
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JR & Parliamentary Sovereignty
• ‘The Principle of parliamentary sovereignty means …that
Parliament … has, under the English constitution, the right to
make or unmake any law whatever; and, further, that no person
or body is recognised by the law of England as having a right to
override or set aside the legislation of Parliament’ (Dicey)
• Courts cannot challenge the contents of Acts of Parliament or
alleged irregularities in the manner of their enactment – British
Railways Board v Pickin [1974] AC 765
• Upholds Parliamentary sovereignty by ensuring that public
bodies act within the powers allocated to them by Parliament.
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General Limits on the Availability of Judicial Review
1.It must be a Public body decision.
2.The Applicant must have "a sufficient interest in the matter to
which the application relates." - locus standii
3.The subject matter of the decision brought forward for review
must be of public interest and be of a justiciable nature.
4.No judicial review of a decision should be sought if it is possible
to appeal the decision to some higher authority.
5.If the applicant has some other means of redress his
application is likely to be rejected.
6.The application for judicial review normally must be made
within 3 months of the date of the action which is complained
of.
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Mechanical Parts of Judicial Review
1. Who can bring a claim?
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Mechanical Parts of Judicial Review
1. Who can bring a claim?
2. About what?
3. Against who?
4. Grounds
5. Remedies
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4. What are the main grounds for judicial review?
The three main grounds for review, famously articulated in the
GCHQ case (Council of Civil Service Unions v Minister for the
Civil Service [1983]), are:
1. Illegality – acting ultra vires, error of law/fact, relevancy,
unlawful delegation
2. Irrationality – Wednesbury unreasonableness
3. Procedural Impropriety – the duty to act fairly and the rule
against bias
Since the GCHQ case and the Human Rights Act 1998 we can
also add:
4. Proportionality
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1. Illegality
• Illegality: ‘the decision maker must understand correctly the law
that regulates his decision-making power and must give effect
to it’ (GCHQ)
• ultra vires: if body is given power to do x and y, but in fact does
z it is acting ultra vires
• Error of law/Error of fact (Anisminic)
• Relevant/Irrelevant considerations (Venables)
• Improper purpose (Wheeler)
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2. Irrationality
• “Wednesbury unreasonableness”
• Is it ‘a decision ... so unreasonable that no reasonable authority
could have come to it’ Lord Greene MR in Associated
Provincial Picture Houses v Wednesbury [1948]
• Difficult to prove, brings the courts to (if not beyond) the
borders of merits
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3. Procedural Impropriety
• previously referred to as ‘natural justice’, has two main
elements (1) The duty to act fairly: audi alteram partem (hear the other
side)
• Ridge v Baldwin [1964]
• Elements: notice; oral hearing; challenge witnesses/evidence;
legal representation; reasons
• What is required in any given case depends very much on the
context
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3. Procedural Impropriety
(2) Rule Against Bias
‘justice must not only be done, but seen to be done’ (ex p.
McCarthy)
• The rule against bias: nemo iudux in causa sua - let no man be
a judge in his own cause
• Actual bias, rarely arises
• Automatic disqualification: Dimes [1852], Pinochet (No.2)
[2000]
• Apparent bias: ‘The question is whether the fair-minded and
informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal was
biased’ Porter v Magill [2002]
• Applying this test is not straightforward, see: Helow v Secretary
of State for the Home Department [2008] (Palestinian asylum
case)
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Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch)
MR JUSTICE PETER SMITH: Right, Mr Turner, here is
6 a question for you. What happened to luggage?
7 MR TURNER: My Lord, the position remains that set out in
8 the letter from Slaughter and May of 15 July, that we
9 are not dealing with that as parties in these
10 proceedings.
11 MR JUSTICE PETER SMITH: I am asking you: what has
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10 proceedings.
11 MR JUSTICE PETER SMITH: I am asking you: what has
happened
12 to the luggage?
13 MR TURNER: My Lord, so far as the parties to these
14 proceedings, including Slaughter and May as the
15 representative of British Airways for these proceedings,
16 are concerned, we have said, and we maintain, that we
17 are not getting involved because we trust that that will
18 be dealt with expeditiously, in the ordinary course of
19 events.
20 MR JUSTICE PETER SMITH: In that case, do you want me to
21 order your chief executive to appear before me today?
22 MR TURNER: I do not wish your Lordship to do that; and
23 I would say, if your Lordship will permit me to develop
24 my submissions, that that would be an inappropriate
25 mixture of a personal dispute ––
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4. Proportionality
• 1) What were the aims of the decision maker?
• 2) Whether the means to achieve that objective are
proportionate?
• Human Rights Act 1998
• R(Daly)
–(i) is the legislative objective is sufficiently important to justify
limiting a fundamental right;
–(ii) the measures designed to meet the legislative objective
are rationally connected to it; and
–(iii) the means used to impair the right or freedom are no more
than is necessary to accomplish the objective."
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Ouster Clauses
• 'Ouster clauses' aim to ensure the finality of a decision made by
a minister or public authority.
• E.g. ‘The Determination by the Commission of any application
made to them under this Act shall not be called in question in
any court of law’
• They are seen as a negation of the courts' constitutional role of
securing the rule of law.
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securing the rule of law.
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Ouster Clauses (Exclusion of Review)
• The courts have viewed very unfavourably ouster clauses which
seek to bar review under any circumstances.
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• Anisminic v Foreign Compensation Commission [1969] 2 AC
147, HL:
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Anisminic v Foreign Compensation Commission [1969] 2 AC
147, HL:
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• ‘The Determination by the Commission of any application made
to them under this Act shall not be called in question in any
court of law’ (Ouster Clause)
• Held (HL), whilst quashing the Commission’s determination of
an application made to them under the act,
• “...no decision-making body has the jurisdiction to make errors
of law on which the outcome of a case depends”
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Efforts to Reform Judicial Review
• "It is essential to democracy that the elected representatives of
the people make the laws that govern this country - and not the
judges” (Theresa May)
• The Criminal Justice and Courts Act 2015 substantially curbs
access to judicial review, and limits instances in which judicial
review can be invoked
• Need to reform judicial review so it “is not abused to conduct
politics by another means or to create needless delays”.
Conservative Manifesto
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Discussion Question 2
“Judicial review is not, and should not be regarded as, politics by
another means.” Do you agree with this statement?
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Key Questions to Consider when confronted with judicial
review problem
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