UOLLB Administrative Law

Hamdahazza2003@gmail.
com 04 Dec 2021
Administrative Law
Participation
UOLLB First Class Law Notes Accountability
Consistency
Rationality
Bachelor of Laws Impartiality
Constitutional Law
It defines the relationships and powers of
Administrative Law state institutions.
These institutions include the executive, the
legislature and the judiciary.
Table of Contents It establishes the state and its institutions.
1. Theoretical and Empirical Perspectives ...... 1
Constitutionalism
2. Legal Status and Powers of Authorities ...... 3
It is a set of ideas and principles from
3. Decision-making Processes ........................ 3 which the authority of government derives.
4. Introduction to Judicial Review .................. 5
Constitutional Political Organization
5. Procedures and Remedies ........................... 8
(David Fellman)
6. Ground for JR: Illegality ........................... 10 It contains institutionalized mechanisms of
7. Ground for JR: Procedural Impropriety .... 10 power control for the protection of the
interests and liberties of the citizenry.
8. Ground for JR: Irrationality ...................... 11
9. Exclusion of Judicial Review.................... 12 Libertarianism
10. Ombudsmen ............................................ 12 It is a set of political philosophies that
uphold liberty as the highest political end.
11. Tribunals.................................................. 13
It emphasizes the primacy of individual
12. Inquiries .................................................. 13 liberty, political freedom, and voluntary
13. Contract, Tort, Restitution and Estoppel . 13 association.
14. Impact of ECHR ..................................... 14
Classical Doctrine of Rule of Law
15. Human Rights Act 1998 .......................... 14 Governmental power which affects the
16. Impact of European Community Law..... 14 legal rights, duties or liberties of any
person must be shown to have a strictly
legal foundation.
1. Theoretical and Empirical Perspectives Rule of law is essential to prevent abuse of
discretionary power.
Administrative Law Disputes as to legality of acts of
It governs the activities of state institutions. government are to be decided by the
It deals with the workings of the state independent judiciary.
It governs how these institutions should run The law should be even handed between
the state. government and citizen.
Purposes Natural Law
To limit the administrative powers It is the unwritten body of universal moral
exercising by the executive principles that underlie the ethical and legal
To offer general principles concerning how norms of human conduct.
the executive should act
To help achieve effective governance Schools of Natural Law
To ensure the accountability of the Divine natural law
executive Secular natural law
Historical natural law
Tenets of Administrative Law
Fairness
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Hamdahazza2003@gmail.com 04 Dec 2021
Administrative Law
Divine Natural Law influence the legislator, the courts, and the
Law must be made to conform to the people.
commands inspired by God who governs It rejects social evaluation of existing law.
according to principles of compassion, It proposes that law must be studied in pure
truth, and justice. form independent of social life and
economic and political conditions.
Secular Natural Law
It replaces the divine laws of God with the Functionalism
physical, biological, and behavioral laws of Knowledge of the whole structure of
nature as understood by human reason. society is necessary to understand law.
Law and society develop in a symbiotic
Historical Natural Law relationship, with different parts developing
Law must be made to conform with the in order to sustain the whole.
well-established, but unwritten, customs,
traditions, and experiences that have Minimalism
evolved over the course of history. It seeks to ground policy design in
economic concepts and market practices.
Legal Positivism It minimizes administrative discretion and
Whether a given norm is legally valid, and popular participation in administration.
hence whether it forms part of the law of It tends to be preoccupied with static
that system, depends on its sources, not its efficiency and committed to simple rules.
merits.
Experimentalism
Positive Law It aims to accommodate the continuous
It applies at a certain time at a certain change of current public problems.
place. It combines decentralization of operative
It consists of statutory law, and case law as control with central coordination.
far as it is binding. Central institutions give autonomy to local
It is specifically enacted or adopted by ones to pursue generally declared goals.
proper authority.
Rationalism
Legal Pluralism It emphasizes the role of reason in
It occurs when different laws govern obtaining knowledge.
different groups within a country.
Empiricism
Legal Realism It emphasizes the role of experience,
Law is characterized as an autonomous especially sense perception.
system of rules and principles.
Courts objectively apply these rules to Idealism
reach a fair and apolitical judicial decision. It attributes to the mind a key role in the
Common law adjudication, largely based constitution of the world as it is
on the political, social, and moral experienced.
predilections of judges, is inherently
subjective and inconsistent. Theory of Administrative Law
Each color corresponds to a different set of
Liberal Legalism / Legal Constitutionalism theoretical assumptions about the purpose
It is a belief that politics should be of administrative law.
constrained by legal constitutional
boundaries Red Light Theory
Red-light theorists consider the purpose of
Normativism administrative law to be a means of
It is a more rigid form of positivism. controlling the state’s exercise of power to
It disregards the social factors that protect individual liberty.
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Green Light Theory It represents the legal embodiment of

Green-light theorists consider executive, legislative, or judicial
administrative law to be a means of governance.
permitting the state to develop its policy
agendas. Secretary of State
It is a commonly used title for a senior or
Amber Light Theory mid-level post in governments around the
Law should control the exercise of world.
executive discretion when that discretion
has an impact on individuals’ constitutional UK Secretary of State
rights. He is a member of the Cabinet appointed
by the Queen on the advice of the Prime
2. Legal Status and Powers of Authorities Minister.
Power (Weber 1922) US Secretary of State

It is the ability to exercise one’s will over He is the most senior political appointee
others. responsible for foreign policy.
Authority Self-regulatory Organizations

It refers to accepted power which is power It is a non-governmental organization that
that people agree to follow. has the power to create and enforce
industry regulations and standards.
Traditional Authority
It is accepted because that has traditionally Government
been the case It is the system by which a state is
Its legitimacy exists because it has been governed.
accepted for a long time.
Government in Commonwealth English
Charismatic Authority It refers to the particular executive in
It is accepted because followers are drawn control of a state at a given time.
to the leader’s personal qualities.
Government in American English
Legal Rational Authority It is known as an administration.
Power made legitimate by laws, written It refers to the larger system by which any
rules, and regulations. state is organized.
Local Government Public Body

It is a form of public administration. It is an organization whose work is part of
It exists as the lowest tier of administration the process of government but is not a
within a given state. government department.
It acts within delegated powers by
legislation or directives of the higher level 3. Decision-making Processes
of government.
Legislation
Executive Agency It is law which has been enacted by the
It is a part of a government department. legislature (primary legislation) or other
It is treated as managerially and budgetarily governing bodies (secondary and tertiary
separate. legislation).
It carries out some part of the executive It also refers to the process of law making.
functions.
Purpose of Legislation
The Crown It sets down rules to be followed by
It is the state in all its aspects. government bodies.
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It confers discretion on government bodies. Controlling Discretion (Davis 1969)

Confining – developing rules to establish
Primary Legislation limits on discretion
It is law made by the legislative branch of Structuring – offering specifications for
government by way of Act of Parliament. action or inaction within the limits
Checking – offering a system of review,
Secondary Legislation / Delegated serving as a safeguard against the arbitrary
Legislation and unreasonable use of discretion
It is law made by the executive branch.
It must be authorized by primary legislation Principles of Exercising Discretion
(Act of Parliament). Act in good faith and for a proper purpose.
It conforms to boundaries the primary Comply with legislative procedures.
legislation has laid down. Consider only relevant considerations.
Act reasonably and on reasonable grounds.
Tertiary Legislation / Rulemaking Make decisions based on supporting
It is the process that executive and evidence.
independent agencies use to create Give adequate weight to a matter of great
regulations. importance.
Rules may be made informally without Give proper consideration to the merits of
parliamentary scrutiny. the case.
Provide the person affected by the decision
Sources of Rulemaking Power with procedural fairness.
Legislatures first set broad policy mandates Exercise the discretion independently.
by passing statutes.
Agencies create more detailed regulations Decision Making Guidelines
through rulemaking. Contain a clear purpose of what the policy
is intended to achieve.
Purposes of Rulemaking Be flexible to cover a range of
To add scientific expertise circumstances.
To add implementation detail Set out the relevant considerations.
To add industry expertise Be expressed clearly to allow easy
To add flexibility application and interpretation.
To find compromise Be transparent.
State how they relate to relevant legislation.
Rulemaking Process Be communicated to relevant staff.
The public is informed of proposed rules Be made available to members of the
before they take effect. public.
The public can comment on the proposed
rules and provide additional information. Policy
The public can access the rulemaking It is a principle or protocol to guide
record and analyze the data. decisions and achieve rational outcomes.
The agency analyses and responds to the It is a statement of intent and is
public’s comments. implemented as a procedure or protocol.
The agency creates a permanent record of
its analysis and the process. Lawful policy
The agency’s actions can be reviewed by a It is a policy that does not fetter discretion
judge or others to ensure the correct and is reasonable.
process was followed.
Adjudication
Discretion It is the agency process for issuing an order
It exists when the decision-maker has the which resolves particular rights or duties.
power to make a choice about whether to It can be used by administrative authorities
act and whether to approve. as a way of making decisions.
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Administrative Adjudication decision.

It is the process by which an administrative
agency issues an affirmative, negative, Apparent Bias
injunctive, or declaratory order. The conduct of a decision-maker who is not
It may involve a public official acting a party to a matter and does not have an
impartially, hearing representations, and interest in its outcome gives rise to a
applying rules and discretion to the facts of suspicion that he is not impartial.
an individual’s situation.
Tribunals may be set up to perform Right to Fair Hearing
adjudication functions. Decision-makers have a duty to act
judicially.
Rulemaking vs Adjudication It is needed to build up fair administrative
In rulemaking, the policies are formulated procedures.
by setting rules for the future conduct of
persons governed by that agency. Fair hearing
In adjudication, the agency’s policies are The claimant has the right to adequate
applied to the past actions of a particular notification.
party, and it results in an order for or The claimant has the right to present his
against that party. own case.
Reasons should be given for decisions.
Types of Disputes Resolved through
Adjudication 4. Introduction to Judicial Review
Disputes between private parties, such as
individuals or corporations Judicial Review
Disputes between private parties and public It is a type of court proceeding in which a
officials judge reviews the lawfulness of a decision
Disputes between public officials or public or action made by a public body.
bodies
Ultra Vires
Natural Justice (duty to act fairly) A public body act ultra vires if it acts
The rule against bias (nemo judex in causa beyond its power.
sua)
The right to a fair hearing (audi alteram Narrow Ultra Vires
partem) An administrator did not have the
substantive power to make a decision or it
Rule against Bias was wrought with procedural defects.
A person is barred from deciding any case
in which he may be suspected to be biased. Broad Ultra Vires
There is an abuse of power (e.g.
Forms of Bias Wednesbury unreasonableness).
Actual bias There is a failure to exercise an
Imputed bias administrative discretion.
Apparent bias There is an application of discretionary
powers in irrational and wrong way.
Actual Bias
It is actually established that a decision- Wednesbury Unreasonableness
maker was prejudiced in favour of or It is a standard of unreasonableness used in
against a party. assessing an application for judicial.
A decision is Wednesbury unreasonable if it
Imputed Bias is so unreasonable that no reasonable
It is based on the decision-maker being a person acting reasonably could have made
party to a suit, or having a pecuniary or it.
proprietary interest in the outcome of the
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Review Ministers and public officers must act in

It is mostly concerned with the correctness good faith, fairly, for the purpose for which
of the legal matters of a decision. the powers were conferred, without
It is filed in the same court. exceeding the limits of such powers.
It is a discretionary right of the court. The law must protect human rights.
It is based on procedural irregularity, Genuine civil disputes must be resolved
impropriety, irrationality or illegality. without under cost or delay.
It is a request to look into the legality of the Adjudicative procedures should be fair.
ruling. International law must be complied with.
Appeal Rule of Law (Raz)

It is mostly concerned with the correctness All law should prospective, open and clear.
of the decision itself. Laws should be relatively stable.
It is a statutory right of the individual. The making of laws should be guided by
It is based on dissatisfaction or clear rules.
disappointment for filing. The judiciary should be independent.
It is a request to change or modify the The principles of natural justice should be
decision or verdict. observed.
The courts should be able to review the
Rule of Law implementation of other principles.
It is a principle of governance in which all The courts should be easily accessible.
persons, institutions and entities, public and The discretion of the police and crime
private, including the State itself, are fighting agencies should not pervert the
accountable to laws law.
Laws under Rule of Law Rule of Law (Dicey)

They should be publicly promulgated. No one is to be punished or suffer loss
They should be equally enforced. except for a distinct breach of law
They should be independently adjudicated. established in the ordinary legal manner
They should be consistent with before the ordinary courts of the law.
international human rights norms and Arbitrary or discretionary powers are to be
standards. excluded.
No one is above the law.
Features of Rule of Law Everyone is subject to the ordinary law of
Adherence to the principles of supremacy the realm.
of law Every official is under the same
Equality before the law responsibility for every act done without
Accountability to the law legal justification, as for any other citizen.
Fairness in the application of the law The general principles of the constitution
Separation of powers are the result of judicial decisions
Participation in decision-making determining the rights of private persons.
Legal certainty
Avoidance of arbitrariness Parliamentary Supremacy
Procedural and legal transparency The legislative body has absolute
sovereignty.
Rule of Law (Bingham) It is supreme over all other government
The law must be accessible, clear and institutions.
predictable. It may change or repeal any previous
Questions of legal right and liability should legislation.
normally be dealt with under the law and It is not bound by written law or by
not by discretion. precedent.
The laws of the land should apply equally
to all, unless there are objective differences.
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Parliamentary Sovereignty (Dicey) Total Ouster Clause / Finality Clause

Parliament is the supreme law-making It seeks to completely exclude the
body supervisory jurisdiction of the courts.
It may legislate on any subject matter.
It cannot be restricted by a predecessor Anisminic Ltd. v. Foreign Compensation
It cannot restrict the power of a future Committee
Parliament. Any error of law made by a public body
It can legislate on any subject-matter. will render its decision a nullity
Nobody can override Acts of Parliament. An ouster clause does not oust the courts’
jurisdiction in judicial review unless it
Separation of Powers clearly states so.
It is a model for the governance of a state.
Under this model, the state is divided into Partial Ouster Clause
branches. It specifies a restricted period of time after
Each branch has separate and independent which no remedy will be available.
powers and areas of responsibility. If the issue of whether a public authority
The powers of one branch are not in has acted in bad faith arises, its decision is
conflict with those of the other branches. not immune to judicial review
The typical division of branches is into a notwithstanding the lapse of time.
legislature, an executive, and a judiciary.
Jurisdiction
Purposes of Separation of Powers It is the authority to decide.
To introduce checks and balances
To facilitate the design of a new Jurisdictional Error
constitution It is an error in the process of jurisdiction.
To enhance efficiency of policy It arises where a decision-maker has
implementation exceeded the authority conferred upon him.
To avoid abuse of power.
To protect the rights and liberties of Types of Jurisdictional Error (Mark
citizens Aronson)
A mistaken assertion or denial of the
Possible Branches existence of jurisdiction
Executive A misapprehension of the limits of the
Legislative decision-maker’s powers
Judicial Acting wholly or partly outside the
Auditory decision-maker’s jurisdiction
Electoral Mistakes as to the existence of a
Prosecutory jurisdictional fact
Disregarding relevant considerations
Ouster Clause / Privative Clause Paying regard to irrelevant considerations
It is a clause included in a piece of Errors of law
legislation by a legislative body. Acting in bad faith
It excludes judicial review of decisions of Breaching the hearing or bias rules of
the executive. natural justice.
It stripes the courts of their supervisory
judicial function. Bylaw
It is a rule that the local unit must follow.
Purposes of Ouster Clause It is established by an organization or
To preserve the powers of the executive. community to regulate itself.
To promote the finality of its acts and It can be changed only by membership.
decisions. It outlines the primary responsibilities of
officers.
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Standing Rule decision did not have jurisdiction to make

It outlines the procedures of the association the decision.
that are not included in the bylaws. That the decision was not authorised by the
It must not conflict with the bylaws. enactment in pursuance of which it was
It can be changed by a majority of vote of purported to be made.
the board. The decision was an improper exercise of
It gives specific responsibilities of officers the power conferred by the enactment in
pursuance of which it was purported to be
Void Decision made.
It is a decision that is not valid from the The decision involved an error of law,
outset. whether or not the error appears on the
record of the decision.
Void Decision The decision was induced or affected by
It is a valid decision that can be invalidated. fraud.
There was no evidence or other material to
JR Grounds (Council of Civil Service justify the making of the decision.
Unions v Minister for the Civil Service) The decision was otherwise contrary to law.
Illegality Improper Exercise of Power

The decision-maker must understand Taking an irrelevant consideration into
correctly the law that regulates his account in the exercise of a power
decision-making power and must give Failing to take a relevant consideration into
effect to it. account in the exercise of a power
An exercise of a power for a purpose other
Irrationality (Wednesbury than a purpose for which the power is
Unreasonableness) conferred
It applies to a decision which is so An exercise of a discretionary power in bad
outrageous in its defiance of logic or of faith
accepted moral standards. An exercise of a personal discretionary
No sensible person who had applied his power at the direction or behest of another
mind to the question to be decided could person
have arrived at it. An exercise of a discretionary power in
accordance with a rule or policy without
Procedural Impropriety regard to the merits of the particular case
It is a failure by an administrative tribunal An exercise of a power that is so
to observe procedural rules that are unreasonable that no reasonable person
expressly laid down in the legislative could have so exercised the power
instrument by which its jurisdiction is An exercise of a power in such a way that
conferred. the result of the exercise of the power is
uncertain
Australian Administrative Decisions Any other exercise of a power in a way that
(Judicial Review) Act 1977 constitutes abuse of the power.
Codified JR Grounds 5. Procedures and Remedies

A person who is aggrieved by a decision to
which this Act applies. Procedures
A breach in the rules of natural justice These are the steps that must be taken in
occurred in connection with the making of order to get the case argued in court.
the decision. These include the requirement of standing
Procedures that were required by law to be and procedural exclusivity.
observed in connection with the making of
the decision were not observed. Remedy
The person who purported to make the It is a formal order made by the court at the
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end of the case. civil action.
Interim Remedy Trim v North Dorset District Council of

It is an order made by the court during the Norden
proceedings. Challenges to a purely public law decision
It may be granted pending the final by a public body must take the form of
determination of an application for judicial judicial review.
review. Relaxation of the principle would only be
appropriate where there is an overlap with
High Court private law principles.
It has supervisory jurisdiction over public
authorities and tribunals. Types of Remedies
Quashing Order (Certiorari)
Procedural Requirements (Civil Procedure Prohibiting Order (Prohibition)
Rules) Mandatory Order (Mandamus)
The application for judicial review will Declaration
only be admissible if permission (leave) for Injunction
judicial review is obtained from the High Damages
Court.
Criteria for Judicial Review Quashing Order (Certiorari)
Time limit It is a public law remedy which quashes an
Standing original decision by a public body or
Procedural exclusivity nullifies an action by a public body.
It is both negative and retrospective in
Time Limit nature.
The application must be made promptly
and in any event within three months from Prohibiting Order (Prohibition)
the date when the grievance arose. It is a public law remedy that prevents a
body from making a decision or taking an
Standing (Locus Standi) action.
The applicant must have sufficient interest It is both negative and prospective in
in a matter to which the application relates. nature.
Procedural Exclusivity (O’Reilly v Mandatory Order (Mandamus)

Mackman) It is a public law remedy which compels an
The application must be purely concerned authority to act.
with a public law matter.
Private law matters must be dealt with by Declaration
ordinary civil action. It is a private law remedy that is available
It is an abuse of process to challenge the in JR.
validity of public law decisions other than It is a statement of the legal position of the
by judicial review. parties.
Relaxation of Procedural Exclusivity Injunction

It is a private law remedy that is available
Roy v Kensington in JR.
Where there were mixed public and private It is an order that prevents an
issues, an issue which was concerned administrative body from acting
exclusively with public right must be dealt unlawfully.
with by way of judicial review.
Where asserting a private law right which Refusing Remedy
incidentally involved a public law issue If the applicant fails to use an alternative
should be dealt with by way of ordinary form of redress (such as a statutory appeal
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to a tribunal) for his grievance before Statutory Interpretation for Judicial

applying for judicial review. Review
The trend over recent years is for English
Woolf’s Access to Justice courts to adopt increasingly purposive,
Applicants should resolve their complaints rather than literal approaches to statutory
without resorting to litigation. construction.
There is an increasing number of grievance
procedures and ombudsmen. Illegality Arguments
Applicants should normally use these A public body has done something for
procedures first. which it has no positive legal authority (i.e.
Judicial review ought to be conserved as a pure ultra vires).
remedy of last resort. An Act of Parliament places a duty on a
public body and that duty has not been
6. Ground for Judicial Review: Illegality carried out.
The decision-making body has used its
Sources of Authority statutory powers for a purpose other than
Act of Parliament that intended by the Act of Parliament.
Delegated legislation The decision-maker took into account an
European Community Law irrelevant factor or failed to take into
Prerogative account a relevant factor.
The Act of Parliament confers the power to
Illegality (Lord Diplock) make a particular decision or carry out a
The decision-maker must understand particular function on a party, but the
correctly the law that regulates his decision was taken by another party.
decision-making power and must give The Act of Parliament confers discretion on
effect to it. the decision-maker, but he or she had
adopted a rigid rule or policy fettering that
Court Supervision discretion.
The courts ensure that decision-makers act The decision-maker failed to follow a
in accordance with the Act of Parliament or procedure stipulated by the Act of
the delegated legislation that confers Parliament.
permission on them to take action.
7. Ground for Judicial Review:
Rules of Statutory Interpretation Procedural Impropriety
Literal Rule (Plain Meaning Rule) Procedural Impropriety

Words are interpreted according to their If in the process of it making the
plain, ordinary and literal meaning. procedures prescribed by statute have not
been followed.
Golden Rule (British Rule) If the rules of natural justice have not been
Words are interpreted in a way that avoids adhered to.
absurdity or an affront to public policy.
Statutory Procedures
Mischief Rule An Act of Parliament may subject the
Words are interpreted in light of the making of a certain decision to a procedure.
problem that the statute was trying to A breach of mandatory procedural
address. requirements will lead to a decision being
set aside.
Purposive Rule
Words are interpreted in line with the Natural Justice
purpose of the legislation. It requires that the decision maker
approaches the decision-making process
with fairness.
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Rule against Bias to any fault on the part of the decision-

The decision-maker was biased for or maker.
against the person affected by the decision.
The decision-maker had a financial or other Legitimate Expectation
personal interest in the outcome of the It arises when the person has been led to
decision. understand, from the decision maker that
The decision-maker had strong certain steps will be followed in reaching a
predetermined views on an issue and so did decision.
not approach the decision-making with an
open mind. Considerations of Legitimate Expectation
When an individual or a group has been led
Right to Fair Hearing to think that certain steps will apply.
The decision-maker failed to allow the When an individual or a group relies on a
applicant to make oral and/or written policy or guidelines which govern an area
representations before a final decision was of past executive action.
made.
The decision-maker failed to disclose to the Duty to Give Reasons
applicant sufficient information about the There may be a duty to tell a person about
case against him. the case against him before the decision-
The decision-maker refused to allow the maker makes a final determination.
applicant to be represented by a lawyer or There may be an obligation placed on a
other person at a hearing. decision-maker to explain and justify a
The decision-maker refused to allow the decision which has already been made to
applicant to cross-examine (or question) the person affected by it.
people who supplied the decision-maker A decision-maker may be under an
with information. obligation to explain to the court the
reasons for a decision if that a person
Exceptions to Requirements of Procedural commences an application for judicial
Fairness (Woolf and Jowell) review.
Express statutory exclusion of a fair
hearing. Common Law Obligation to Give Reasons
Where the legislation expressly requires The common law does not yet recognize a
notice and hearing for certain purposes but general obligation to give reasons for all
imposes no procedural requirement for decisions.
other purposes. There are still many situations where a
Where disclosure of information would be public body is entitled to give no reasons
prejudicial to the public interest. for its actions without contravening the law.
Where an obligation to give notice and
opportunity to be heard would obstruct the 8. Ground for Judicial Review:
taking of prompt action. Irrationality
Where for other reasons it would be
inappropriate to give prior notice or Irrationality (Wednesbury
opportunities to be heard. Unreasonableness)
Where a procedurally flawed decision has The decision is so outrageous in its
been followed by an ex post facto hearing defiance of logic or of accepted moral
or by an appeal which complies with the standards.
requirements of fairness. No sensible person who had applied his
Where the decision complained of is only a mind to the question could have arrived at
preliminary to a decision subject to it.
procedural fairness. The courts under this head look at the
Where the defect of natural justice has merits of the decision, rather than at the
made no difference to the result. procedure by which it was arrived at or the
Where the absence of a hearing is not due legal basis on which it was founded.
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Irrational Decision Order 53 Time Limit

The decision is perverse, absurd, illogical, The application must be made promptly
arbitrary – it is so unreasonable that no within three months of the decision or
reasonable authority could ever have come action which is challenged.
to it. The court has discretion to hear an
The decision cannot be objectively justified application even if it is outside the three-
– it is unsupported by any or adequate month period.
evidence, or there are no good reasons for
it. Other Time Limit
The decision is oppressive – a Legislation may also enact strict and short
disproportionate response (proportionality). time limits, typically six weeks, after which
The decision breaches the constitutional no judicial review challenge may be made.
principle of legal certainty.
The decision breaches the constitutional Error of Law (Non-Jurisdictional Error)
principle of equality. It is a mistake in a court proceeding
concerning a matter of law or fact.
Proportionality It occurs when the decision-maker has
It is a requirement that a decision is misunderstood or misapplied a statute.
proportionate to the aim that it seeks to It includes identifying a wrong issue,
achieve. making an erroneous finding, and reaching
a mistaken conclusion.
Proportionality in EU Law
There must be a legitimate aim for a Amenability
measure. The decision complained of must have
The measure must be suitable to achieve been taken by a public body.
the aim.
The measure must be necessary to achieve Justiciability
the aim. The nature and subject matter of some
The measure must be reasonable. decisions taken by public authorities is not
subject to judicial review.
9. Exclusion of Judicial Review
Areas of Justiciability
Exclusion of High Court The making of treaties
It can be argued that the court lacks legal The defence of the realm
power or jurisdiction to intervene. The prerogative of mercy
The grant of honours
Jurisdiction The dissolution of Parliament
It sometimes refers to the legal power of The appointment of ministers
the public body to make a decision
It sometimes describes the legal power of 10. Ombudsmen
the High Court to judicially review the
public body’s decision Ombudsman
It is a public advocate usually appointed by
Ouster Clause the government or by parliament.
It is possible for Parliament to enact It has a significant degree of independence.
legislation which expressly takes away the It is charged with representing the interests
court’s inherent legal power to apply the of the public by investigating and
grounds of judicial review. addressing complaints of maladministration
or violation of rights.
Parliamentary Supremacy
Orthodox constitutional theory holds that it Duties of Ombudsman
is not open to a judge to question the To investigate complaints and attempt to
constitutional validity of such a provision. resolve them, usually through
© 2022 UOLLB 12
Administrative Law
recommendations (binding or not) or Upper Tribunal

mediation. It hears appeals from the First-tier Tribunal
To identify systemic issues leading to poor and other tribunal.
service or breaches of people’s rights.
12. Inquiries
Jurisdiction of Ombudsman
Ombudsman is attached to the Westminster Inquiry
Parliament. It is an official review of events or actions
Its jurisdiction extends to all departments ordered by a government body.
of the central government and other It has a statutory basis and written rules of
government institutions. procedure.
UK Ombudsman Services Ad Hoc Inquiry

Children’s commissioners It looks at particular disasters and scandals.
Financial Ombudsman Service It has no statutory basis.
Financial Services Ombudsman Scheme for
the Isle of Man Features of Inquiry
Housing Ombudsman Service It tends not to have the power to make
Judicial Appointments and Conduct binding decisions.
Ombudsman It makes recommendations that may or may
Legal Services Ombudsman not be accepted by a government body.
Office of the Independent Adjudicator
Ombudsman Services 13. Contract, Tort, Restitution and
Police Ombudsman for Northern Ireland Estoppel
Pensions Ombudsman investigates and
decides complaints and disputes about The Crown Proceedings Act 1947
private, civil service and other public sector It allows civil actions against the Crown to
pensions and pension schemes be brought in the same way as against any
Prisoner Ombudsman, Northern Ireland other party.
Prisons and Probation Ombudsman It reasserts the common law doctrine of
Scottish Legal Services Ombudsman Crown privilege
It paves the way for the development of the
UK Industry and Organizational modern law of Public Interest Immunity.
Ombudsmen
Double Glazing & Conservatory Section 1
Ombudsman It allows claims to be brought in the courts
Estate Agents Ombudsman directly as against any other defendant.
Financial Ombudsman Service
Furniture Ombudsman Section 2
Removals Industry Ombudsman Scheme It renders the Crown liable as though it
were a natural person.
11. Tribunals
Liabilities of the Crown
Tribunal Torts committed by its servants and agents.
It is an institution with the authority to Common law duties of an employer to its
judge, adjudicate on, or determine claims servants and agents.
or disputes. Common law duties as an owner or
occupier of property.
First-tier Tribunal
It hears appeals from regulators and Section 2(2)
decision-makers in a wide range of subject It provides that the Crown is liable for
areas. breach of statutory duty so long as the
statute binds both the Crown and private
© 2022 UOLLB 13
Administrative Law
persons. any judgment, decision, declaration or

advisory opinion of the ECtHR.
Section 3 It requires UK courts to interpret UK
It provides for the protection of patents, legislation in a way which is compatible
registered trademarks, design rights and with Convention rights.
copyrights from breach by Crown servants. It provides for enforcement of Convention
rights against public authorities.
Estoppel
If a public body has led an individual to Conflicts between UK Law and Convention
believe that he will have a particular Rights
procedural right, then he is said to have UK courts seek to extend rights beyond the
procedural legitimate expectations. case law of the ECtHR.
Conflicts arise when the statute is clearly in
14. Impact of ECHR breach of Convention rights.
Interpretation and Validity of English Declarations of Incompatibility

legislation HRA enables the senior courts to make
Primary and subordinate legislation must declarations of incompatibility.
be read and given effect in a way which is It states that legislation is incompatible
compatible with the Convention rights. with Convention rights.
It does not affect the validity and
Duty Imposed on Public Authorities enforcement of the legislation.
It is unlawful for a public authority to act in An expedited procedure is available for
a way that is incompatible with Convention amending the law in response to the
rights. declaration.
A public authority is defined as excluding
both Houses of Parliament but as including 16. Impact of European Community Law
courts and tribunals.
Judicial Review based on Principles of
Declaration of Incompatibility Community Law
It is a declaration issued by UK judges that Procedural fairness
they consider that the terms of a statute to Legitimate expectation
be incompatible with the UK’s obligations Proportionality
under the HRA 1998. Fundamental human rights
It is often seen as a last resort as the
judiciary will attempt to interpret primary Procedural Fairness
legislation as being compatible. It is concerned with the procedures used by
Once it has been issued, the law remains a decision-maker.
the same until Parliament removes the It requires a fair and proper procedure be
incompatibility. used when making a decision.
The courts must still apply the legislation
as it is and the parties to the actual case are Legitimate Expectations
unaffected by the declaration. It is a legitimate hope of a public body to
retain a long-standing practice or keeping a
Statement of Compatibility promise.
It is issued when a Bill contains nothing
that is incompatible with Convention Proportionality
rights. It requires the EU institutions to take no
more than what is necessary to achieve a
15. Human Rights Act 1998 stated objective.
Effects of Human Right Act 1998 Supremacy (Precedence of EU Law)

It requires UK courts to take into account Any national law in conflict with EU law is
© 2022 UOLLB 14
Administrative Law
rendered inapplicable.
The European Communities Act 1972

It prevents subsequent Parliaments from
legislating against EU law.
UK Parliamentary Supremacy
Direct effect and supremacy limit UK
parliamentary supremacy
UK Court
It is expected to set aside statutes that are in
conflict with EU law.
Approaches to Conflicts between EU Law

and UK Law
Initial Approach
Courts should apply a later statute and
override EU law.
It ignores the implications of the
supremacy of EU law or the principle of
direct effect.
Constructive Approach
Parliament is presumed not to have
intended statutes to conflict with EU law.
Inconsistencies between UK statutes and
EU law are to be resolved in favour of EU
law, unless a subsequent Act expressly
states that EU law is to be overridden.
Disapplication Approach
Any national law found to be in conflict
with any directly enforceable EU law is to
be side aside.
© 2022 UOLLB 15

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Hamdahazza2003@gmail.

com 04 Dec 2021

Green Light Theory  It represents the legal embodiment of

Power (Weber 1922) US Secretary of State

Authority Self-regulatory Organizations

Local Government Public Body

 It confers discretion on government bodies. Controlling Discretion (Davis 1969)

Administrative Adjudication decision.

Review  Ministers and public officers must act in

Appeal Rule of Law (Raz)

Laws under Rule of Law Rule of Law (Dicey)

Parliamentary Sovereignty (Dicey) Total Ouster Clause / Finality Clause

Standing Rule decision did not have jurisdiction to make

Illegality Improper Exercise of Power

Codified JR Grounds 5. Procedures and Remedies

end of the case. civil action.

Interim Remedy Trim v North Dorset District Council of

Procedural Exclusivity (O’Reilly v Mandatory Order (Mandamus)

Relaxation of Procedural Exclusivity Injunction

to a tribunal) for his grievance before Statutory Interpretation for Judicial

Literal Rule (Plain Meaning Rule) Procedural Impropriety

Rule against Bias to any fault on the part of the decision-

Irrational Decision Order 53 Time Limit

recommendations (binding or not) or Upper Tribunal

UK Ombudsman Services Ad Hoc Inquiry

persons. any judgment, decision, declaration or

Interpretation and Validity of English Declarations of Incompatibility

Effects of Human Right Act 1998 Supremacy (Precedence of EU Law)

The European Communities Act 1972

Approaches to Conflicts between EU Law

You might also like

Green Light Theory It represents the legal embodiment of

It confers discretion on government bodies. Controlling Discretion (Davis 1969)

Review Ministers and public officers must act in