Constitutional & Administrative Law
Week 1 – what is admin law?
A formal definition of administrative law is that it is a branch of public law concerned with the
composition, procedures, powers, duties, rights and liabilities of the various organs of government
that are engaged in administering public policies
It applies to public bodies, but also may apply to private bodies when carrying out public functions
(e.g.R on application of weaver v London Quadrant housing trust – held that the action carried out
was of a public nature and therefore the trust was a hybrid public authority – the act of eviction was
therefore amenable to JR). List of public bodies under the Freedom of information act 2000
O’Reilly v Mackman (1983): you cannot assert a public law right against a public body with a private
law action. The JR process exists to ensure that public bodies are protected. It was held that, if a
public body failed to do its duty, and in consequence, a member of the public suffered particular
damage therefrom, he could sue for damages by an ordinary action in the courts of common law
One important function of admin law is to enable the tasks of government to be performed,
including by recognising admin agencies and their powers to act on behalf of the state and
community at large.
Admin law must provide sufficient rules to mediate the exercise of discretionary powers and permit
due process, the rule of law and constitutional forms of accountability. If too much discretionary
power is conceded, then this may give rise to authoritarian government
Paul Craig:
• “for some it is the law relating to the control of the government power, the main object of
which is to protect individual rights”
• “others place greater emphasis upon rules that are designed to ensure that the
administration effectively performs tasks assigned to it”
• “yet others see the principal objective of administrative law as ensuring government
accountability, and fostering participation by interested parties in the decision-making
process”
Prof John Griffith:
• “My thesis is that judges in the United Kingdom cannot be politically neutral, that their
interpretation of what is in the public interest and therefore politically desirable is
determined by the kind of people they are and the positions they hold in society; that this
position is part of the established authority and so is necessarily conservative and illiberal”
A second function is to govern relations between public bodies e.g. between the secretary of state
and a local authority
The legislative supremacy of parliament is relevant to administrative law, since no court can hold
that the powers of agency created by an act of parliament are invalid or inoperative, although the
HRA allows a statute to be declared incompatible
,The study of admin law in Britain was formerly impeded by a misleading comparison which Dicey
drew between the law in France, under which separate admin courts determined disputes
concerning the exercise of admin power and the common law of England
Dicey believed that the common law gave the citizen better protection against the executive than
the French system. Unfortunately he overlooked the weaknesses of the archaic law that then
protected the crown and government departments from being sued.
In the landmark case of Ridge v Baldwin (1964), Lord Reid said we do not have a developed system
of admin law - perhaps because until fairly recently we did not need it.
The British system unlike the european system, relies heavily on the superior civil courts to apply
admin law. in both systems the essential principles of judicial control are judge-made and do not
derive from codes or statutes
The British system has been to apply the same general principles of liability in contract or tort to
public bodies as well as private citizens.
The position is very different regarding judicial review of official decisions, since this jurisdiction has
no direct counterpart in private law
A recurring feature in admin law is the interplay between powers, duties and discretion. If someone
satisfies the legal rules that govern who may vote in parliamentary elections, then he or she has a
right to be entered on the electoral register and a right to vote in the area where he or she is
registered.
There are several purposes of admin law for which it may be needed to classify the powers of
government as being legislative, administrative or judicial in character
Public law is described by lord Woolf as the system which enforces the proper performance by
public bodies of the duties which they owe to the public. Private law in contrast is the system which
protects bodies of the duties which they owe to the public
Harlow and Rawlings: red and green light theories of admin law
• Diceyan legacy: the rule of law becomes a central feature of judicial principles but in Dicey’s
first denial and then acceptance of the existence of administrative law. this gives rise to two
contradictory theories
• There is no single coherent theory or analysis. Consider Dicey who looked for a balanced
constitution with internal checks and balances including both parliament and the courts
• Judicial legislation should be avoided as democracy should be given freedom to make
choices, but admin law is an instrument for the control of power and the protection of
individual liberty
,
Week 1 – what is admin law?
A formal definition of administrative law is that it is a branch of public law concerned with the
composition, procedures, powers, duties, rights and liabilities of the various organs of government
that are engaged in administering public policies
It applies to public bodies, but also may apply to private bodies when carrying out public functions
(e.g.R on application of weaver v London Quadrant housing trust – held that the action carried out
was of a public nature and therefore the trust was a hybrid public authority – the act of eviction was
therefore amenable to JR). List of public bodies under the Freedom of information act 2000
O’Reilly v Mackman (1983): you cannot assert a public law right against a public body with a private
law action. The JR process exists to ensure that public bodies are protected. It was held that, if a
public body failed to do its duty, and in consequence, a member of the public suffered particular
damage therefrom, he could sue for damages by an ordinary action in the courts of common law
One important function of admin law is to enable the tasks of government to be performed,
including by recognising admin agencies and their powers to act on behalf of the state and
community at large.
Admin law must provide sufficient rules to mediate the exercise of discretionary powers and permit
due process, the rule of law and constitutional forms of accountability. If too much discretionary
power is conceded, then this may give rise to authoritarian government
Paul Craig:
• “for some it is the law relating to the control of the government power, the main object of
which is to protect individual rights”
• “others place greater emphasis upon rules that are designed to ensure that the
administration effectively performs tasks assigned to it”
• “yet others see the principal objective of administrative law as ensuring government
accountability, and fostering participation by interested parties in the decision-making
process”
Prof John Griffith:
• “My thesis is that judges in the United Kingdom cannot be politically neutral, that their
interpretation of what is in the public interest and therefore politically desirable is
determined by the kind of people they are and the positions they hold in society; that this
position is part of the established authority and so is necessarily conservative and illiberal”
A second function is to govern relations between public bodies e.g. between the secretary of state
and a local authority
The legislative supremacy of parliament is relevant to administrative law, since no court can hold
that the powers of agency created by an act of parliament are invalid or inoperative, although the
HRA allows a statute to be declared incompatible
,The study of admin law in Britain was formerly impeded by a misleading comparison which Dicey
drew between the law in France, under which separate admin courts determined disputes
concerning the exercise of admin power and the common law of England
Dicey believed that the common law gave the citizen better protection against the executive than
the French system. Unfortunately he overlooked the weaknesses of the archaic law that then
protected the crown and government departments from being sued.
In the landmark case of Ridge v Baldwin (1964), Lord Reid said we do not have a developed system
of admin law - perhaps because until fairly recently we did not need it.
The British system unlike the european system, relies heavily on the superior civil courts to apply
admin law. in both systems the essential principles of judicial control are judge-made and do not
derive from codes or statutes
The British system has been to apply the same general principles of liability in contract or tort to
public bodies as well as private citizens.
The position is very different regarding judicial review of official decisions, since this jurisdiction has
no direct counterpart in private law
A recurring feature in admin law is the interplay between powers, duties and discretion. If someone
satisfies the legal rules that govern who may vote in parliamentary elections, then he or she has a
right to be entered on the electoral register and a right to vote in the area where he or she is
registered.
There are several purposes of admin law for which it may be needed to classify the powers of
government as being legislative, administrative or judicial in character
Public law is described by lord Woolf as the system which enforces the proper performance by
public bodies of the duties which they owe to the public. Private law in contrast is the system which
protects bodies of the duties which they owe to the public
Harlow and Rawlings: red and green light theories of admin law
• Diceyan legacy: the rule of law becomes a central feature of judicial principles but in Dicey’s
first denial and then acceptance of the existence of administrative law. this gives rise to two
contradictory theories
• There is no single coherent theory or analysis. Consider Dicey who looked for a balanced
constitution with internal checks and balances including both parliament and the courts
• Judicial legislation should be avoided as democracy should be given freedom to make
choices, but admin law is an instrument for the control of power and the protection of
individual liberty
,
