L1. Introduction
Thursday, 2 September 2021
19:47
INTRODUCTION
Course subject matter
Modes of assessment
Note: Please familiarise yourself with the Introductory lecture posted online, and the
Course Guide in advance of this lecture. These introduce the course, and its methods
of instruction and assessment
Essential Reading:
M. Elliott & R. Thomas (2020) Public Law (4th ed) (OUP): ch12
West v Secretary of State for Scotland 1992 SC 385
Further Reading:
W.J. Wolffe, ‘The Scope of Judicial Review in Scots Law’ [1992] Public Law
625-37
C.M.G. Himsworth, ‘Jurisdictional Aspects of Judicial Review in Scots Law’
[2015] Juridical Review (4): 353-62
C.M.G. Himsworth & C.M. O’Neill (2021) Scotland’s Constitution: Law and
Practice (4th Ed.) (Bloomsbury): 518-19 and 523-26, paragraphs 14.7 and
14.9.
PLUS and PLAIR has clear connection
Dual Aspects of Public Law
Public Law constitutes and regulate the institutions of the State, and the relationships
between those institutions and the individuals.
Constitutive task: create State institutions and confer powers
o Conferred powers allow institutions to persue public interest or
common good.
o Most important task of public law
Regulative task: prevent the arbitrary exercise of public power through
political and legal checks and protects rights
o Limits power
o Political accountability: Parliamentarians hold executive to account by
scrutinising governmental bills, spending and policies
o legal accountability: Courts review legality of administrative actions
by examining whether or not these actions comply with the law
o Constitutions provide for such accountability mechanisms by
allocating descreet functions to different branches of government;
separation of powers (puts branches into mutual tension through
system of checks and balances)
o All are classics rights (negative) protect individual from state
intervention on spheres of liberty
, o Protection of individual (social rights; right to health and social
security)
The distinction between PLUS and PLAIR draws from these tasks:
PLUS: ‘constitutive’
governmental institutions in a multilevel constitution: especially the UK and
Scottish institutions (and aspects of ECHR and EU law)
relations between these institutions
theories to explain those relations, and
legal doctrines and principles concerning those relations
What a constitution is, what are its key principles and values, organisation and
powers of branches of government
UK and Scottish institutions, separation of powers and parliamentary
sovereignty etc
PLAIR: ‘regulative’
look at legal methods of constraining acts of governmental institutions and
public bodies; judicial review
Legal and political accountability mechanisms; parliamentary oversight of
executive law-making
Individual rights; Human rights act 1998 and key individual rights (right to
life, right to liberty, freedom of expression etc).
aimed at protecting the status of the individual
The primary themes behind protection of the individual in public law explored
in the two halves of the course
Judicial review of administrative action
Human rights and the protection of liberty
Clear connections between PLAIR AND PLUS, as far as Judicial Review is
concerned:
Judicial Review relies on your background knowledge of the doctrines of
separation of powers and judicial independence
The scope and grounds of Judicial Review have clear implications for the
doctrine of Separation of Powers and, significantly, for Parliamentary
Sovereignty
Judicial Review: mapping out
1.- Judicial Review is a legal accountability mechanism, part of a broader suite of
administrative justice mechanisms
Administrative laws overall objective:
To enable individuals to go to an independent third party when in their view,
they have been treated unfairly by public authorities
Their purpose is to ensure that individuals and groups are treated fairly in
dealings with authorities
Some, such as judicial review are primarily based on the common law, others
are substantially statute-based
,Mechanisms of administrative justice:
Judicial review: challenge the 'legality of an act of parliament ( based on
common law)
Appeals: challenge the merits of an act or decision
Ombudsman/ complaints handlers: individual complains about the poor
quality of public service delivery
See fig. 17.1 The structure of the administrative law system in Elliot &
Thomas 695
2.- Judicial Review is a key component of Administrative Law
Defining Administrative Law
Judicial Review is one component of Administrative Law. However,
Administrative Law is not reduced to a set of legal remedies to challenge
public decisions.
Administrative Law has a constitutive task. Government in complex states can
only be performed through administrative entities which are equipped with
powers to act on behalf of the state and of the community at large.
Good governance requires that law regulates the composition, procedures,
powers, duties, rights and liabilities of the various government entities which
administer public policies.
Administrative law is the branch of public law charged with this function
Development of judicial review in tandem with emergence of administrative
state in 20th Century
3.- Defining Judicial Review:
A Scots perspective:
Features:
Focus on administrative action
Ultra vires and its relationship with the will of parliament
Public bodies must act within the four corners of their powers; courts
focusing on interpreting powers to determine what powers parliament
have conferred on public body and whether the body has acted within
the powers or not.
Judicial review exists to police the will of parliament; not in tension
with parliamentary sovereignty
Protection of individual rights and interests
Judicial review covers both the decision-making procedure and the outcome of
the procedure (decision itself)
Review of primary legislation (acts of parliament)
Review of the way decisions are made and the outcome of the decision
, A view from the Scottish judiciary:
Judicial review: regulates the process of decision taking by any person or body
to whom a jurisdiction of power or authority has been delegated
To ensure power not exceeded or abused or duty is failed to be
performed
Not for court to substitute its own opinion for that of the person who the
power was delegated to.
Central points made above were included in an important statement of the law
by Lord President Hope in West v Secretary of State for Scotland 1992 SC 385
at 412-413:
The Court of Session has power, in the exercise of its supervisory jurisdiction,
to regulate the process by which decisions are taken by any person or body to
whom a jurisdiction, power or authority has been delegated or entrusted by
statute, agreement or any other instrument; judiciary review is a product of
the common law.
The sole purpose for which the supervisory jurisdiction [see Moss’ Empire]
may be exercised is to ensure that the person or body does not exceed or
abuse that jurisdiction, power or authority or fail to do what the jurisdiction,
power or authority requires.
Court of session has a supervisory jurisdiction. Recognised by house
of lords 1917; moss' empire v assessor for glasgow 1917 SC(HL) 1 at
para 6 (per lord kinnear)
Jurisdiction of court of session to set aside decision of any
body who has acted ultra vires is not open to dispute; clear
recognition of supervisory jurisdiction
Thursday, 2 September 2021
19:47
INTRODUCTION
Course subject matter
Modes of assessment
Note: Please familiarise yourself with the Introductory lecture posted online, and the
Course Guide in advance of this lecture. These introduce the course, and its methods
of instruction and assessment
Essential Reading:
M. Elliott & R. Thomas (2020) Public Law (4th ed) (OUP): ch12
West v Secretary of State for Scotland 1992 SC 385
Further Reading:
W.J. Wolffe, ‘The Scope of Judicial Review in Scots Law’ [1992] Public Law
625-37
C.M.G. Himsworth, ‘Jurisdictional Aspects of Judicial Review in Scots Law’
[2015] Juridical Review (4): 353-62
C.M.G. Himsworth & C.M. O’Neill (2021) Scotland’s Constitution: Law and
Practice (4th Ed.) (Bloomsbury): 518-19 and 523-26, paragraphs 14.7 and
14.9.
PLUS and PLAIR has clear connection
Dual Aspects of Public Law
Public Law constitutes and regulate the institutions of the State, and the relationships
between those institutions and the individuals.
Constitutive task: create State institutions and confer powers
o Conferred powers allow institutions to persue public interest or
common good.
o Most important task of public law
Regulative task: prevent the arbitrary exercise of public power through
political and legal checks and protects rights
o Limits power
o Political accountability: Parliamentarians hold executive to account by
scrutinising governmental bills, spending and policies
o legal accountability: Courts review legality of administrative actions
by examining whether or not these actions comply with the law
o Constitutions provide for such accountability mechanisms by
allocating descreet functions to different branches of government;
separation of powers (puts branches into mutual tension through
system of checks and balances)
o All are classics rights (negative) protect individual from state
intervention on spheres of liberty
, o Protection of individual (social rights; right to health and social
security)
The distinction between PLUS and PLAIR draws from these tasks:
PLUS: ‘constitutive’
governmental institutions in a multilevel constitution: especially the UK and
Scottish institutions (and aspects of ECHR and EU law)
relations between these institutions
theories to explain those relations, and
legal doctrines and principles concerning those relations
What a constitution is, what are its key principles and values, organisation and
powers of branches of government
UK and Scottish institutions, separation of powers and parliamentary
sovereignty etc
PLAIR: ‘regulative’
look at legal methods of constraining acts of governmental institutions and
public bodies; judicial review
Legal and political accountability mechanisms; parliamentary oversight of
executive law-making
Individual rights; Human rights act 1998 and key individual rights (right to
life, right to liberty, freedom of expression etc).
aimed at protecting the status of the individual
The primary themes behind protection of the individual in public law explored
in the two halves of the course
Judicial review of administrative action
Human rights and the protection of liberty
Clear connections between PLAIR AND PLUS, as far as Judicial Review is
concerned:
Judicial Review relies on your background knowledge of the doctrines of
separation of powers and judicial independence
The scope and grounds of Judicial Review have clear implications for the
doctrine of Separation of Powers and, significantly, for Parliamentary
Sovereignty
Judicial Review: mapping out
1.- Judicial Review is a legal accountability mechanism, part of a broader suite of
administrative justice mechanisms
Administrative laws overall objective:
To enable individuals to go to an independent third party when in their view,
they have been treated unfairly by public authorities
Their purpose is to ensure that individuals and groups are treated fairly in
dealings with authorities
Some, such as judicial review are primarily based on the common law, others
are substantially statute-based
,Mechanisms of administrative justice:
Judicial review: challenge the 'legality of an act of parliament ( based on
common law)
Appeals: challenge the merits of an act or decision
Ombudsman/ complaints handlers: individual complains about the poor
quality of public service delivery
See fig. 17.1 The structure of the administrative law system in Elliot &
Thomas 695
2.- Judicial Review is a key component of Administrative Law
Defining Administrative Law
Judicial Review is one component of Administrative Law. However,
Administrative Law is not reduced to a set of legal remedies to challenge
public decisions.
Administrative Law has a constitutive task. Government in complex states can
only be performed through administrative entities which are equipped with
powers to act on behalf of the state and of the community at large.
Good governance requires that law regulates the composition, procedures,
powers, duties, rights and liabilities of the various government entities which
administer public policies.
Administrative law is the branch of public law charged with this function
Development of judicial review in tandem with emergence of administrative
state in 20th Century
3.- Defining Judicial Review:
A Scots perspective:
Features:
Focus on administrative action
Ultra vires and its relationship with the will of parliament
Public bodies must act within the four corners of their powers; courts
focusing on interpreting powers to determine what powers parliament
have conferred on public body and whether the body has acted within
the powers or not.
Judicial review exists to police the will of parliament; not in tension
with parliamentary sovereignty
Protection of individual rights and interests
Judicial review covers both the decision-making procedure and the outcome of
the procedure (decision itself)
Review of primary legislation (acts of parliament)
Review of the way decisions are made and the outcome of the decision
, A view from the Scottish judiciary:
Judicial review: regulates the process of decision taking by any person or body
to whom a jurisdiction of power or authority has been delegated
To ensure power not exceeded or abused or duty is failed to be
performed
Not for court to substitute its own opinion for that of the person who the
power was delegated to.
Central points made above were included in an important statement of the law
by Lord President Hope in West v Secretary of State for Scotland 1992 SC 385
at 412-413:
The Court of Session has power, in the exercise of its supervisory jurisdiction,
to regulate the process by which decisions are taken by any person or body to
whom a jurisdiction, power or authority has been delegated or entrusted by
statute, agreement or any other instrument; judiciary review is a product of
the common law.
The sole purpose for which the supervisory jurisdiction [see Moss’ Empire]
may be exercised is to ensure that the person or body does not exceed or
abuse that jurisdiction, power or authority or fail to do what the jurisdiction,
power or authority requires.
Court of session has a supervisory jurisdiction. Recognised by house
of lords 1917; moss' empire v assessor for glasgow 1917 SC(HL) 1 at
para 6 (per lord kinnear)
Jurisdiction of court of session to set aside decision of any
body who has acted ultra vires is not open to dispute; clear
recognition of supervisory jurisdiction
