Principles of administrative law

Cavendish

Publishing

Limited

CP

London • Sydney

EDITORIAL ADVISORY BOARD

PRINCIPLES OF LAW SERIES

Professor Paul Dobson

Visiting Professor at Anglia Polytechnic University

Professor Nigel Gravells

Professor of English Law, Nottingham University

Professor Phillip Kenny

Professor and Head of the Law School, Northumbria University

Professor Richard Kidner

Professor and Head of the Law Department, University of Wales,

Aberystwyth

In order to ensure that the material presented by each title maintains the

necessary balance between thoroughness in content and accessibility in

arrangement, each title in the series has been read and approved by an

independent specialist under the aegis of the Editorial Board. The Editorial

Board oversees the development of the series as a whole, ensuring a

conformity in all these vital aspects.

David Stott, LLB, LLM

Deputy Head, Anglia Law School

Anglia Polytechnic University

Alexandra Felix, LLB, LLM

Lecturer in Law, Anglia Law School

Anglia Polytechnic University

Cavendish

Publishing

Limited

CP

London • Sydney

First published in Great Britain 1997 by Cavendish Publishing Limited, The

Glass House, Wharton Street, London WC1X 9PX.

Telephone: 0171-278 8000 Facsimile: 0171-278 8080

e-mail: info@cavendishpublishing.com

Visit our Home Page on http://www.cavendishpublishing.com

© Stott, D and Felix, A 1997

All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted, in any form or by any means, electronic,

mechanical, photocopying, recording, scanning or otherwise, except under the

terms of the Copyright Designs and Patents Act 1988 or under the terms of a

licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,

London W1P 9HE, UK, without the permission in writing of the publisher.

Stott, David

Principles of administrative law

1. Administrative law – England 2. Administrative law – Wales

I. Title II. Felix, Alexandra

342.4’2

1 85941 370 6

Printed and bound in Great Britain

PREFACE

v

Administrative law is an exciting topic, in particular for those with an interest

in how the law seeks to control the exercise of the enormous powers of the

modern state. In the development of the law generally, modern administrative

law is a recent, very largely post-Second World War, phenomenon. In legal edu￾cation, it has grown over the past 20 years from being a component within

established constitutional law courses to being a subject in its own right. Its

relationship with constitutional law, however, must not be forgotten. The prin￾ciples and theories received in your study of constitutional law will inform

your study of administrative law. Administrative law is also exciting because

of its continuous development. Just as modern administrative law was very

largely a response to the development of the welfare state, so recent govern￾ment initiatives such as the privatisation of the great public corporations and

the proposed adoption of the European Convention on Human Rights will

demand further judicial responses.

The aim of this text is to provide a comprehensive and accessible review of

the law as it has developed from both the national and the European perspec￾tive.

We would like to thank Jo Reddy and Cathy West for the patience they have

shown in the writing of this text and the Editorial Board for their valuable com￾ments on the draft manuscript. We also thank Russell Richardson for his

research.

David Stott and Alexandra Felix

Anglia Law School

August 1997

CONTENTS

vii

Preface v

Table of cases xix

Table of statutes xxxv

Table of abbreviations xxxix

1 THE NATURE AND PURPOSE OF

ADMINISTRATIVE LAW 1

1.1 INTRODUCTION 1

1.2 DEFINITION OF ADMINISTRATIVE LAW 3

1.3 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 4

1.4 POWERS AND DUTIES 5

1.5 THE PUBLIC/PRIVATE DICHOTOMY 7

1.6 THE SOURCE OF POWER 9

1.7 THE ROLE OF THE COURTS 13

1.8 THE BALANCE OF POWER 15

1.9 REVIEW/APPEAL 21

1.10 THE RULE OF LAW 22

1.11 THE PRINCIPLE OF ACCOUNTABILITY 24

1.11.1 Discretionary versus arbitrary power 25

1.12 THE DISCRETIONARY NATURE OF THE REMEDIES 27

1.13 LAW AND POLITICS 28

SUMMARY OF CHAPTER 1 31

2 THE HISTORY AND DEVELOPMENT OF

ADMINISTRATIVE LAW 33

2.1 HISTORY 33

2.2 JUDICIAL RESTRAINT 36

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2.3 JUDICIAL INTERVENTIONISM 39

SUMMARY OF CHAPTER 2 41

3 JUDICIAL REVIEW OF ADMINISTRATIVE

ACTION I – PREREQUISITES TO REVIEW 43

3.1 INTRODUCTION 43

3.2 PREREQUISITES TO JUDICIAL REVIEW 45

3.3 NON-JUSTICIABILITY 46

3.3.1 Foreign affairs, defence and national security 46

3.3.2 The treaty-making power 47

3.3.3 The defence of the realm 48

3.3.4 Law enforcement 52

3.3.5 Prisons – operational decisions 57

3.3.6 Political judgments considered by Parliament 57

3.4 SURRENDER OF DISCRETION 60

3.4.1 Unlawful delegation – delegatus non potest delegare 60

3.4.2 Acting under dictation 62

3.5 POLICY 63

3.5.1 Self-created rules of policy 63

3.6 KEEPING AN OPEN MIND 64

3.7 FETTERING DISCRETION BY CONTRACT 65

3.8 FETTERING DISCRETION BY ESTOPPEL 66

3.9 FETTERING DISCRETION BY LEGITIMATE EXPECTATION 68

3.10 PRESUMPTIONS OF STATUTORY INTERPRETATION 73

3.10.1 Taxation cannot be levied without

the authority of Parliament 73

3.10.2 In favour of the rule of law 74

3.10.3 Against ousting the jurisdiction of the courts 76

3.10.4 In favour of international law 77

SUMMARY OF CHAPTER 3 79

Contents

ix

4 JUDICIAL REVIEW OF ADMINISTRATIVE

ACTION II – SUBSTANTIVE ULTRA VIRES

AND ABUSE OF POWER 81

4.1 DEFINITION 81

4.2 CLASSIFICATION 81

4.2.1 Substantive ultra vires 81

4.2.2 Procedural ultra vires 81

4.2.3 Abuse of power 82

4.3 SUBSTANTIVE ULTRA VIRES 83

4.3.1 Illustrations 83

4.3.2 Incidental objectives 84

4.4 ABUSE OF POWER 86

4.4.1 Introduction 86

4.4.2 Unreasonableness 86

4.4.3 Narrow unreasonableness 88

4.4.4 Claims of narrow unreasonableness 90

4.4.5 Narrow unreasonableness and justiciability 95

4.4.6 Broad unreasonableness 95

4.4.7 Non compliance with the objectives of the Act 96

4.4.8 Improper purpose/irrelevant considerations 98

4.4.9 Mixed motives 102

4.4.10 Punishment motive alleged 103

4.4.11 Electoral promises 105

4.4.12 The manifesto argument and the

principle of reasonableness 106

4.4.13 Fiduciary duty/misplaced philanthropy 106

4.4.14 Bad faith 107

4.4.15 Human rights 109

4.4.16 Failure to fulfil statutory duties 110

4.4.17 Opposition to the policy of Parliament 111

4.5 PROPORTIONALITY 111

4.6 CONCLUSION 115

SUMMARY OF CHAPTER 4 117

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5 JUDICIAL REVIEW OF ADMINISTRATIVE

ACTION III – PROCEDURAL ULTRA VIRES 121

5.1 INTRODUCTION 121

5.2 STATUTORY PROCEDURES 121

5.2.1 Nature and effect 121

5.2.2 Substantial compliance 124

5.3 NATURAL JUSTICE/FAIRNESS 125

5.3.1 Content 125

5.3.2 History and development 125

5.3.3 Legitimate expectation 127

5.3.4 The development of fairness 130

5.3.5 Flexibility of content 131

5.4 THE RIGHT TO A FAIR HEARING 132

5.4.1 Introduction 132

5.4.2 Disclosure of evidence 132

5.4.3 Limits on disclosure 133

5.4.4 Preliminary hearings/recommendations 133

5.4.5 Nature of the hearing 134

5.4.6 Time 135

5.4.7 Witnesses 136

5.4.8 Cross-examination 136

5.4.9 Legal representation 136

5.4.10 Reasons 138

5.4.11 Why are reasons for decisions needed? 139

5.4.12 What kind of reasons? 141

5.4.13 Can an unfair hearing be cured by a fair appeal? 142

5.5 THE RULE AGAINST BIAS – NEMO IUDEX IN CAUSA SUA 142

5.5.1 What is bias? 142

5.5.2 Pecuniary interest 143

5.5.3 Professional interest 143

5.5.4 Personal interest 144

5.5.5 Involvement in the decision-making process 144

5.5.6 Closed mind 145

Contents

xi

5.5.7 R v Gough (1993) 146

5.5.8 Discretionary nature of remedies 147

5.5.9 Fault 148

5.5.10 Waiver of natural justice 149

SUMMARY OF CHAPTER 5 151

6 REMEDIES IN ADMINISTRATIVE LAW 155

6.1 INTRODUCTION 155

6.2 HISTORY 156

6.3 THE PRIVATE LAW REMEDIES 156

6.3.1 Injunction 156

6.3.2 Declaration 157

6.3.3 Damages 158

6.4 THE PUBLIC LAW REMEDIES 158

6.4.1 Nature and form 158

6.4.2 Certiorari/prohibition 158

6.4.3 Mandamus 159

6.4.4 Habeas corpus 159

6.5 THE INTRODUCTION OF THE APPLICATION FOR

JUDICIAL REVIEW 159

6.6 RULES OF THE SUPREME COURT (RSC) ORDER 53 160

6.7 SECTION 31 OF THE SUPREME COURT ACT 1981 161

6.8 PROCEDURE 163

6.8.1 Leave stage 163

6.8.2 Merits stage 164

6.9 TIME LIMITS 165

6.10 LIMITS ON THE APPLICATION FOR JUDICIAL REVIEW

– THE PUBLIC/PRIVATE LAW DICHOTOMY 167

6.11 AGAINST WHOM IS THE APPLICATION FOR JUDICIAL REVIEW

AVAILABLE? 176

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6.12 STANDING – LOCUS STANDI 179

6.12.1 Rationale and application 179

6.12.2 Pressure groups 184

6.12.3 Waiver of standing 187

6.12.4 Relator actions 187

6.13 DISCRETIONARY NATURE OF THE REMEDIES 188

SUMMARY OF CHAPTER 6 191

7 STATUTORY REMEDIES AND EXCLUSION OF

JUDICIAL REVIEW 195

7.1 STATUTORY REMEDIES 195

7.2 EXHAUSTION OF ALTERNATIVE REMEDIES 196

7.3 EXCLUSION OF ALTERNATIVE REMEDIES 198

7.4 EXCLUSION OF JUDICIAL REVIEW 199

7.4.1 Introduction 199

7.4.2 Indirect ouster 201

7.4.3 Direct ouster 201

7.4.4 Time limit clauses 206

7.4.5 Statutory limitations on exclusion of judicial review 207

7.5 CONCLUSION 208

SUMMARY OF CHAPTER 7 209

8 PUBLIC INTEREST IMMUNITY 211

8.1 INTRODUCTION 211

8.2 HISTORY 212

8.2.1 Duncan v Cammell Laird & Co (1942) 212

8.2.2 Judicial criticism 214

8.2.3 Conway v Rimmer (1968) 215

Contents

xiii

8.3 THE MODERN APPLICATION OF PUBLIC

INTEREST IMMUNITY 216

8.3.1 For what types of document can immunity be claimed

on the class ground? 216

8.3.2 Who can make a claim for immunity? 223

8.3.3 Who determines the public interest? 223

8.3.4 Can a claim of immunity be made in the context of

criminal proceedings? 224

8.3.5 Does a minister have a power or is he or she under

a duty to claim immunity? 228

8.3.6 Can immunity be waived? 230

8.4 POST MATRIX CHURCHILL 231

8.4.1 Ex parte Wiley (1994) 231

8.4.2 Criminal trials 234

8.4.3 Sir Richard Scott’s recommendations on public interest

immunity in criminal cases 234

8.5 CONCLUSION 235

SUMMARY OF CHAPTER 8 237

9 EXTRA-JUDICIAL AVENUES OF REDRESS 241

9.1 INTRODUCTION 241

9.2 THE PARLIAMENTARY COMMISSIONER

FOR ADMINISTRATION 241

9.2.1 Background 241

9.2.2 Terms of reference 243

9.2.3 Procedure 245

9.2.4 Accountability of the Parliamentary Commissioner 248

9.3 REFORM OF THE PARLIAMENTARY COMMISSIONER 253

9.4 THE NATIONAL HEALTH SERVICE COMMISSIONER 255

9.5 THE COMMISSIONS FOR LOCAL ADMINISTRATION 255

9.6 THE CITIZEN’S CHARTER 255

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9.7 TRIBUNALS 256

9.7.1 Nature and development 256

9.7.2 The Tribunals and Inquiries Acts 257

9.7.3 Procedure 258

9.8 INQUIRIES 260

9.9 CONCLUSION 263

SUMMARY OF CHAPTER 9 265

10 EUROPEAN ADMINISTRATIVE LAW I –

THE EUROPEAN COMMUNITY 269

PART 1 UNDERLYING PRINCIPLES OF EC LAW 269

10.1 INTRODUCTION 269

10.2 THE SOURCES OF RIGHTS 270

10.2.1 Primary legislation 270

10.2.2 Secondary legislation 270

10.2.3 General principles of law 271

10.3 HOW INDIVIDUAL RIGHTS CAN BE ACQUIRED

AND ENFORCED IN EC LAW 277

10.3.1 The creation of rights for individuals 277

10.3.2 The direct effect of Treaty articles 278

10.3.3 The direct effect of regulations 279

10.3.4 The direct effect of decisions 280

10.3.5 The direct effect of directives 280

10.4 SUPREMACY OF EC LAW 285

10.5 THE ENFORCEMENT OF COMMUNITY LAW 287

PART II JUDICIAL REVIEW OF COMMUNITY ACTS 290

10.6 ARTICLE 173 290

10.6.1 The act must be of the challengeable kind 291

10.6.2 When does an act produce legal effects? 292