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Finals Theory
Administrative Law (University of Oxford)
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THEORY
Privacy international – seems to support common law theory - I think there was a clear
parliamentary intent to exclude review, but courts, playing their constitutional role, prevented
that from happening
Note: even where you don’t have time to separate the different theorists, always note that they have
differences in introduction – just because they are UV or CL theorists does not mean that they have
the same opinion
Administrative law involves judges reviewing a decision/action of a public body to see whether it
lives up to certain standards. BUT this description can apply to tort too. So need to distinguish what is
unique about judicial review…
What makes judicial review distinctive:
(1) the distinctive remedies available in judicial review
(2) the distinctive procedure used for judicial review claims
(3) the distinctive standards applied in judicial review, known as the ‘grounds of review’
Background
Why do we need administrative law?
The UK lacks a codified constitution, and thus we must question what justifies and legitimises
the courts’ power to review the decisions of PAs
The growth of AL was most clearly seen in the 1960s-70s, alongside a shift in attitude
towards the role of the judiciary in challenging the decisions of the State
o Reid in Ridge: we only recently acquired a system of administrative law because “up
until fairly recently we did not need it”
o Denning in Breen: “it may truly now be said that we have developed a system of
administrative law”
Core of administrative law is the provision of processes independent of the government,
for the prevention of government action that can be identified as arbitrary with no
breach of comity. That is, the core task of administrative law is to impose the ROL on
public authorities.
Some basics:
Administration includes all of the conduct of the executive except conduct in Parliament
AL also controls local authorities and decision makers that are more or less independent from
the government, such as CPS
AL also controls operation of ‘inferior courts’
Administrative in AL refers, roughly, to all public action not taken in the High Court or
Parliament.
Requirements of AL must depend on context etc.
o Lord Steyn said in R (Daly) v Home Secretary [2001] – ‘in law context is everything’
But Lord S must have been speaking ironically – context is not everything. It
is the set of circumstances in which everything plays out. Have general
constitutional principles.
Subsidiarity
o Government power ought to be assigned at the right level – larger, more remote
organizations should not take over tasks that can be carried out more effectively and
justly at a level that is closer to the people whom the organizations ought to serve.
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
Guide to allocating power to the institutions that can exercise it most
responsibly
Comity
o Respect that a public authority ought to show for the way another public authority
exercises its power
o Article 9 of Bill of Rights 1689 is a requirement of comity: the freedom of speech and
debates in Parliament ought not to be impeached or questioned in any court or place
outside of Parliament.
o Comity is a crucially important principle of AL, because of the judges’ remarkable
ability to invent powers for themselves.
A judicially enforceable rule that official action is unlawful if it is contrary to
good government would transform a court into a governing council. That
would violate the principle of comity.
Competing ideas in the debates
Constitutional principles
o subsidiarity, accountability, separation of powers, the ROL
Institutional roles
o Institutional roles of the judiciary, executive and Parliament
Broader role of other accountability mechanisms
Judicial review is just one part of a sophisticated accountability system
o Elliott: the “contemporary prominence” of JR shouldn’t obscure the value of “non-
court-based accountability institutions”
An “effective accountability system” requires a degree of diversity –
accountability to the courts should neither be regarded as a panacea, nor an
adequate substitute per se for other forms of accountability
o Leyland and Anthony: relatively few of the innumerable decisions taken by public
bodies each year that are challenged actually give rise to court proceedings
There are less formal mechanisms in the ‘grievance chain’ e.g. recourse to
an MP or an ombudsman, and then a step-up in the form of tribunals under
the relevant statutes, and finally the JR procedure, which is a “last resort”
Is there a real coherent theory behind administrative law?
Jowell: during the “great expansion” of JR, and other controls of administrative decision-
making, the overall purpose of administrative law was rarely considered
o Is its purpose to heighten official accountability, or ensure good administrative
practice? To promote fairness? Etc.
In GCHQ, Diplock helped categorised three ‘grounds’ of JR: illegality,
procedural impropriety, and irrationality – however, none of these are any
particular conception of a ‘constitutional imperative’, or an ‘overriding
purpose’
As theory is arguably a late addition to administrative law, some writers argue over whether
improvements can and should be made by adapting or changing perspective
The debate is exacerbated by new challenges, e.g. any development which runs
against the grain of the previous public-private divide
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
Justifications for JR - Common Law-Ultra Vires Debate
Normative debate
Greater reflection on JR’s foundations led to debate between UV theorists, who later
become modified UV theorists, and common law theorists in the 1990s
o Most of the debate has now subsided, though that does not mean there is
consensus
The ‘ultra vires debate’ is one as to whether legislative intent is a necessary condition for the
legitimacy of judicial review.
Adams: we can only make sense of the range of judicial review when we abandon the dichotomy
between ultra vires and common law review
Orthodox UV
Where the courts are judicially reviewing the decision of a public body, they are
enforcing the specific legislative intention of Parliament as to certain conferred powers.
Note that this relies on a theory of specific intent.
Main difference between UV and MUV is that MUV includes the idea of general legislative intent
In JR courts are just applying the constraints on administration that P intended. Reconciles JR with P
Sov. JR doctrines like rationality review and natural justice are based on the assumption that P
intends all public power to be exercised according to these principles.
Main justification: more in line with PS
1. UV theorists like Wade and Forsyth start with the concept that where courts strike down
official action, they are enforcing the intent of Parliament, whether express or implied – they
are ensuring that powers conferred by Parliament are exercised within the terms of the
statutes conferring them
o The proper constitutional role of the courts is one which gives priority to
Parliament’s intention, as the British constitution is governed by the principle of
parliamentary sovereignty
2. Some, like Forsyth, accept that there is clearly some element of fiction to this debate:
courts are more proactive than the UV theory might seem to suggest
3. Regardless, understood correctly, this is implicitly accepted by Parliament – judicial decisions,
and judicial power (present in doctrines like rationality review and natural justice), are
based on the assumption that Parliament intends all public powers to be exercised
according to these principles
This limits the courts’ power to intervene – if a PA is acting within its parliamentary
authority the court can’t do anything
This idea, fiction or otherwise, is necessary to preserve Parliament’s constitutionally
superior position – any theory that does not accept the UV principle involves
significant challenge to PS
This is what Craig describes as the ‘statutory monopoly model’
Baxter: it consists nothing more than the application of the law itself
Courts have appeared to take this view in some big cases – e.g. Re Racal Communications and
Cart v UT both justified the decisions on the basis that Parliament normally intends all errors
of law to be reviewable, but this doesn’t apply to lower courts/tribunals
Downloaded by olinder seth ()
Finals Theory
Administrative Law (University of Oxford)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
THEORY
Privacy international – seems to support common law theory - I think there was a clear
parliamentary intent to exclude review, but courts, playing their constitutional role, prevented
that from happening
Note: even where you don’t have time to separate the different theorists, always note that they have
differences in introduction – just because they are UV or CL theorists does not mean that they have
the same opinion
Administrative law involves judges reviewing a decision/action of a public body to see whether it
lives up to certain standards. BUT this description can apply to tort too. So need to distinguish what is
unique about judicial review…
What makes judicial review distinctive:
(1) the distinctive remedies available in judicial review
(2) the distinctive procedure used for judicial review claims
(3) the distinctive standards applied in judicial review, known as the ‘grounds of review’
Background
Why do we need administrative law?
The UK lacks a codified constitution, and thus we must question what justifies and legitimises
the courts’ power to review the decisions of PAs
The growth of AL was most clearly seen in the 1960s-70s, alongside a shift in attitude
towards the role of the judiciary in challenging the decisions of the State
o Reid in Ridge: we only recently acquired a system of administrative law because “up
until fairly recently we did not need it”
o Denning in Breen: “it may truly now be said that we have developed a system of
administrative law”
Core of administrative law is the provision of processes independent of the government,
for the prevention of government action that can be identified as arbitrary with no
breach of comity. That is, the core task of administrative law is to impose the ROL on
public authorities.
Some basics:
Administration includes all of the conduct of the executive except conduct in Parliament
AL also controls local authorities and decision makers that are more or less independent from
the government, such as CPS
AL also controls operation of ‘inferior courts’
Administrative in AL refers, roughly, to all public action not taken in the High Court or
Parliament.
Requirements of AL must depend on context etc.
o Lord Steyn said in R (Daly) v Home Secretary [2001] – ‘in law context is everything’
But Lord S must have been speaking ironically – context is not everything. It
is the set of circumstances in which everything plays out. Have general
constitutional principles.
Subsidiarity
o Government power ought to be assigned at the right level – larger, more remote
organizations should not take over tasks that can be carried out more effectively and
justly at a level that is closer to the people whom the organizations ought to serve.
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
Guide to allocating power to the institutions that can exercise it most
responsibly
Comity
o Respect that a public authority ought to show for the way another public authority
exercises its power
o Article 9 of Bill of Rights 1689 is a requirement of comity: the freedom of speech and
debates in Parliament ought not to be impeached or questioned in any court or place
outside of Parliament.
o Comity is a crucially important principle of AL, because of the judges’ remarkable
ability to invent powers for themselves.
A judicially enforceable rule that official action is unlawful if it is contrary to
good government would transform a court into a governing council. That
would violate the principle of comity.
Competing ideas in the debates
Constitutional principles
o subsidiarity, accountability, separation of powers, the ROL
Institutional roles
o Institutional roles of the judiciary, executive and Parliament
Broader role of other accountability mechanisms
Judicial review is just one part of a sophisticated accountability system
o Elliott: the “contemporary prominence” of JR shouldn’t obscure the value of “non-
court-based accountability institutions”
An “effective accountability system” requires a degree of diversity –
accountability to the courts should neither be regarded as a panacea, nor an
adequate substitute per se for other forms of accountability
o Leyland and Anthony: relatively few of the innumerable decisions taken by public
bodies each year that are challenged actually give rise to court proceedings
There are less formal mechanisms in the ‘grievance chain’ e.g. recourse to
an MP or an ombudsman, and then a step-up in the form of tribunals under
the relevant statutes, and finally the JR procedure, which is a “last resort”
Is there a real coherent theory behind administrative law?
Jowell: during the “great expansion” of JR, and other controls of administrative decision-
making, the overall purpose of administrative law was rarely considered
o Is its purpose to heighten official accountability, or ensure good administrative
practice? To promote fairness? Etc.
In GCHQ, Diplock helped categorised three ‘grounds’ of JR: illegality,
procedural impropriety, and irrationality – however, none of these are any
particular conception of a ‘constitutional imperative’, or an ‘overriding
purpose’
As theory is arguably a late addition to administrative law, some writers argue over whether
improvements can and should be made by adapting or changing perspective
The debate is exacerbated by new challenges, e.g. any development which runs
against the grain of the previous public-private divide
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
Justifications for JR - Common Law-Ultra Vires Debate
Normative debate
Greater reflection on JR’s foundations led to debate between UV theorists, who later
become modified UV theorists, and common law theorists in the 1990s
o Most of the debate has now subsided, though that does not mean there is
consensus
The ‘ultra vires debate’ is one as to whether legislative intent is a necessary condition for the
legitimacy of judicial review.
Adams: we can only make sense of the range of judicial review when we abandon the dichotomy
between ultra vires and common law review
Orthodox UV
Where the courts are judicially reviewing the decision of a public body, they are
enforcing the specific legislative intention of Parliament as to certain conferred powers.
Note that this relies on a theory of specific intent.
Main difference between UV and MUV is that MUV includes the idea of general legislative intent
In JR courts are just applying the constraints on administration that P intended. Reconciles JR with P
Sov. JR doctrines like rationality review and natural justice are based on the assumption that P
intends all public power to be exercised according to these principles.
Main justification: more in line with PS
1. UV theorists like Wade and Forsyth start with the concept that where courts strike down
official action, they are enforcing the intent of Parliament, whether express or implied – they
are ensuring that powers conferred by Parliament are exercised within the terms of the
statutes conferring them
o The proper constitutional role of the courts is one which gives priority to
Parliament’s intention, as the British constitution is governed by the principle of
parliamentary sovereignty
2. Some, like Forsyth, accept that there is clearly some element of fiction to this debate:
courts are more proactive than the UV theory might seem to suggest
3. Regardless, understood correctly, this is implicitly accepted by Parliament – judicial decisions,
and judicial power (present in doctrines like rationality review and natural justice), are
based on the assumption that Parliament intends all public powers to be exercised
according to these principles
This limits the courts’ power to intervene – if a PA is acting within its parliamentary
authority the court can’t do anything
This idea, fiction or otherwise, is necessary to preserve Parliament’s constitutionally
superior position – any theory that does not accept the UV principle involves
significant challenge to PS
This is what Craig describes as the ‘statutory monopoly model’
Baxter: it consists nothing more than the application of the law itself
Courts have appeared to take this view in some big cases – e.g. Re Racal Communications and
Cart v UT both justified the decisions on the basis that Parliament normally intends all errors
of law to be reviewable, but this doesn’t apply to lower courts/tribunals
Downloaded by olinder seth ()
