Intro to Admin Law Flashcards
give 3 examples of admin law in headlines
-Covid-19 Inquiry
-Grenfell Tower Inquiry
-Post Office Horizon IT Scandal
who is the authority for the definition of admin law
Cane, 2011
how does Cane, 2011 define admin law
-“a framework for public administration… a set of rules and principles about how gov should perform its tasks whatever they may be”
what are the 2 things that admin law regulates
-administrative decision making eg issuing passports
-administrative rule making eg gov ministers enacting secondary legislation to ‘flesh out’ policy frameworks established by AoParliament
give an example of administrative rule making
-s.41 Inquiries Act 2005
-gives Lord Chancellor powers to make rules about inquiries
what are the 3 main things admin law is concerned with
-identifying legal powers to implement public policies
-circumscribing limits to the exercise of decision/rule making powers
-ensuring effective enforcement through legal and non-legal mechanisms
give 2 examples if key functions of admin kaw within a modern democratic state
-constrains (imposes limits on executive power which protects citizens from arbitrary decisions)
-facilitates (promotes responsible and good government to advance public interest fairly)
explain admin laws function of constraining
admin law imposes limits on executive power which protects citizens from arbitrary decisions)
explain admin laws function of facilitating
admin law promotes responsible and good government to advance public interest fairly, in good faith and increasingly in an open and transparent way
what is the golden rule of admin law
-gov and public authorities must have a legal authority to act (Entick v Carrington (1795)
what is the case where a gov/public authority acted without legal authority
-Entick v Carrington (1795)
what happened in Entick v Carrington (1795)
-E published materials criticising gov so Lord Halifax, a gov minister, issued warrant to search/arrest him
-court found this detention unlawful
what is at the core of admin law
-control of discretionary powers that implement public policy
give an example of a discretionary power
-s.1 Local Government Act 2000
-allows local authorities to do anything that promotes economic, social or environmental well-being in its area
what is s.1 Local Gov Act 2000
-allows local authorities to do anything that promotes economic, social or environmental well-being in its area
give 2 advantages of discretionary powers
-DPs are entirely necessary in modern regulatory state
-promote efficient, flexible and expert decision making
give 2 disadvantages of discretionary powers
-DPs open to potential abuse eg improper purposes or for personal gain
-Dicey argues “wherever there is discretion there is room for arbitrariness” in Law of the Constitution
who is critical of discretionary powers
-Dicey in Law of the Constitution
-“wherever there is discretion there is room for arbitrariness”
what are the 4 legal norms that are required of discretiinary powers to protect against arbitrariness
DPs must be:
-used for their intended/proper purposes
-not delegated to others
-exercised rationally and proportionately
-uphold minimum standards of procedural fairness
what is the source for the 4 requirements of discretionary powers
T. Bingham in rule of Law 2010
what does T. Bingham say in Rule of Law 2010
-ministers must use DPs “conferred on them in good faith, fairly, for the purposes in which the powers were conferred, without exceeding the limits of such powers and not unreasonably”
what are the 3 sources of admin law
-legislation
-common law
-soft law (guidance, directives etc)
how did admin law emerge
-out of the common law
give 2 examples of legislation as a source of admin law
-Human Rights Act 1998 s.6(1)
-Equality Act (2010) s.149
explain the Human Rights Act 1998 s.6(1) as a legislative source for admin law
-unlawful for public authorities to act in a way that is incompatable with a convention right
give an example of how the Human Rights Act 1998 s.6(1) was used as a source of admin law
-“RWANDA” ruling
-used successfully to challenge the gov decision in the Supreme Court concerning powers given to the Secretary of State over immigration
what is s.149 Equality Act 2010 (as a source of admin law)
-public authorities must have regard to certain values eg eliminating discrimination
-must advance equality of opportunity and foster good relations between those with protected characteristics and those without
is soft law binding
no
give 2 examples of ‘soft law’
-The Judge Over Your Shoulder (Gov legal Department)
-Principles of Good Administration (PHSO)
what is the Judge Over Your Shoulder
-attempt by Gov Legal Department to summarise the basic framework/ key principles of admin law to guide decision makers
what is Principles of Good Administration
-document outlining set of principles which the Parliamentary and Public Health Service Ombudsman uses to assess complaints against public administrators for ‘maladministration’
how is it decided who is bound by admin law?
-sometimes legislation defies who is
-eg HRA 1998 s.6(3) public authorities include courts, tribunals, or any person whose functions are of public nature with certain exclusions
what is HRA 1998 s.6(3)
public authorities include courts, tribunals, or any person whose functions are of public nature with certain exclusions
what is the traditional approach for deciding who is bound by admin law
-narrower than HRA 1998 s.6(3)
focuses on institutional character of the decision-maker eg administration by public authority (devolved administrators)
what has been shifted to in the past 40 years instead of the traditional approach for deciding who is bound by administrative law
-FUNCTIONAL approach ( as in HRA s.6(3)
- focuses on nature of activities performed rather than the institutional character of the actors performing them
-eg private bodies can be under scope if performing public service
what is the functional approach for deciding who is bound by administrative law
- focuses on nature of activities performed rather than the institutional character of the actors performing them
-eg private bodies can be under scope if performing public service
-eg HRA 1998 s.6(3)
what are the 2 approaches to deciding who is bound by public law
-traditional (based on instiutional characters)
-functional (based on activities performed)
what is the case authority for the shift from the traditional to the functionalist approach
-Datafin (1987)
-challenge to a decision taken by private body that performed a regulatory function for mergers
-court allowed admin law to apply to a private body as it performed functions of a public nature
explain Datafin 1987
-challenge to a decision taken by private body that performed a regulatory function for mergers
-court allowed admin law to apply to a private body as it performed functions of a public nature
give 2 examples of cases where the courts did not allow private bodies to be suv=bject to admin law
-Wachamann (1993)
-Disciplinary Committee of the Jockey Club (1993)
what happened in Wachamann (1993)
-unsuccessful attempt to engage admin law to review disciplinary decision of Chief Rabbi
what happened in Discipliary Committee of the Jockey Club (1993)
-unssuccessful attempt to engage admin law to review disciplinary decision of the Jockey Club
what was the key difference in deciding Datafin (1987) compared to Jockey Club (1993) and Wachamann(1993)
- if the private regulatory body in Datafin didnt exist then the gov likely would have made a public body to fill the gap
- no gov body would take over the functions of the other two cases (Farquharson LJ in Jockey Club)
give 6 legal and non legal ways admin law is enforced
-self enforcement
-political scrutiny
-public inquiries
-ombudsmen
-tribunals
-High Court through process of judicial review
explain self-enforcement as a form of enforcement of admin law
-decision maker themseves responsible
-called ‘Beaurocratic Justice’ by Mashaw (1985)
-eg the Judge Over Your Shoulder and internal complaint procedures to challenge mistakes/delays/lack of info but NOT law/policy)
give two examples of self enforcement as a form of enforcement
-the Judge Over Your Shoulder
-internal complaint procedures to challenge mistakes/delays/lack of info but NOT law/policy)
give 2 examples of political scrutiny as a form of enforcement of admin law
-ministerial accountability (collective and individual)
-elections
explain public inquiries as a form of enforcement of admin law
-can be statutory or non statutory
-authority= Inquiries Act 2005
-established by gov to investigate matters of ‘public concern’
-effective or just used to distract/ forget as they are lengthy/expensive
explain Ombudsmen as a form of enforcement for admin law
-investigate indivudal complaints based on allegations of injustice as a result of ‘maladministration’ by central gov and certain non gov public bodies
-authority: Parliamentary Commissioner Act (1967)
what is the authority for Inquiries
-Inquiries Act 2005w
what is the authority for ombudsmen
-Parliamentary Commissioner Act 1967
give an example of an ombudsman
Parliament and Health Service Ombudsman (PHSO)
explain tribunals as a form of enforcement for admin law
-statutory dispute resolution bodies
-authority = Tribunals Courts and Enforcement Act 2007
-assimilating into ordinary courts in key respects eg
give an example of a tribunal
-immigration appeals tribunals
explain the courts: judicial review as a form of enforcement of admin law
-‘supervisory’ jurisdiction exercised by High Court
-centered on common law ‘grounds of review’
-Lord Diplock’s 3 heads of grounds of review: illegality, irrationality and procedural impropriety
-specific procedural requirements to activate
-specific set of remedies
what are Lord Diplock’s 3 heads for the grounds of review for judicial revieq
-illegality
-irrationality
-procedural impropriety
who is the authority for the 3 heads of grounds of review
-Lord Diplock
give 3 examples of the specific set of remedies for judicial review
-quashing
-prohibiting
-mandating orders
