Complete Oxford Law Exam Notes
Used by 1st Class student in the Summer 2021 exam period
Key:
XXXX = academic opinions
XXXX = particularly important information
XXXX = practice exam essay plan
1. Complexity in Admin Law
Historical Complexity: nb Planning evolution, standing evolution, Wednesbury v Prop (Fisher- no
neat model for all judicial review to fall into).
Who are the beneficiaries: Taggart argues shift from public interest to individualistic model of rights
(e.g. from Wed to Prop like in Denbigh Highschool). Poole argues admin law reconfigured to talk
about rights and not prevention of abuse of power/good admin (e.g. Wed v Prop, Legit exp
underpinnings (procedural rights), right to fair hearings and consultation). On the other hand,
Varuhas claims admin law is about the public interest and human rights law is about induvial rights
(strict taxonomy) although NB Craig says most cases still brought by person affected so not shifted
into public interest and clearly individual rights play a significant part in judgments (e.g. reasons,
due process) and taxonomy not possible.
Many layers of law: Common Law (Ridge), detailed statute (Dover DC), tension of CL and Statute
(Bank Mellat no 2), EU law (Champion), HRA 1998.
Generality v Contextualism: housing v diff from planning, Elias argues for greater need for
contextualism as admin law discretionary and cannot explain general standards (e.g. who should
interpret statutory terms (Cart, Anisminic), duty to give reasons, intensity of substance review). But
Justice Stratas (Canada) argues cannot fully embrace contextualism as cannot abandon search for
doctrine- it is the pursuit that is meaningful- cannot embrace contextualism entirely as need for
certainty for litigants given costs etc.
Practical Dimension: red light theory (admin law contains excess of state power) vs green light
(admin law aims to improve public admin) difference in which theory we adopt in e.g. duty to
give reasons, legitimate exp, review of substance.
Constitutional basis of judicial review: is it based on the modified ultra vires theory (everything
stems from Par Sov and general legislative intent) or common law theory (CL principles are basis of
judicial review and there are legislative gaps and silences which the CL fill with its own principles-
supplementary so does not contradict Par Sov).
,Forsyth (Ultra vires theory): judicial review stems from parliamentary legislative intent; CL theory
inconsistent with Parliamentary sovereignty as a Parliamentary Act would have to be reviewed on
the basis of principles originating outside of Parliament. Lord Woolf claimed if Parliament
undermined the High Court, he would consider the advantages of limiting supremacy of Parliament
maybe rule of law sovereign. Also, maybe Privacy International is an example of court using CL
principles to limit Parliament so very dangerous to constitution (NB reform of judicial review
proposals).
Craig (CL theory): legislature will rarely have specific intent as to particular things since law is
naturally vague and open textured (NB Hart). Modified ultra vires says general legislative intent
justifies it but this is a myth of actual intent. General legislative intent tells us nothing about
content of review; CL theory does not undermine Par Sov because principles of CL are
supplementary, not absolute. CL best captures judicial review- Craig has nothing against idea of
legislative intent but it does not serve as a good explanation of the norms which constitute judicial
review and modified ultra vires has little substance.
Adams (criticism of both theories): neither theory stands up to scrutiny and explains all the judicial
review cases because judicial review is not monolithic. Review of statutory schemes and
interpretation of law has legislative intent as the main consideration (e.g., Cart and Jones) so
better explained by the ultra vires theory; on the other hand, due process and natural justice seem
much closer to CL.
Allan (symbiotic relationship): two schools are focussed on different concerns- debate is futile as
the weaker the ultra vires model is, the closer it is to the CL model. Neither convincing as it is a
semantic battle which exaggerates each other’s evils. Nothing in the CL theory contradicts the ultra
vires theory. Truth that in some circumstances, presumptions of legislative intent are irrebuttable.
, 2. Tribunals
Civil Procedure Rules, Pt 53, s 54.7A: this rule applies where an application is made, following
refusal by the UT of permission to appeal against a decision of the FTT for judicial review of a
decision of the UT refusing permission to appeal or which relates to the decision of the FTT which
was the subject of the application for permission to appeal. Court will give permission to proceed
only if it considers that there is an arguable case, which has reasonable prospect of success, that
both the decision of the UT refusing permission to appeal and the decision of the FTT against
which permission to appeal was sought are wrong in law and either the claim raises an important
point of principle or practice or there is some other compelling reason to hear it.
Thomas & Tomlinson:
- Administrative Review: Administrative review involves reconsideration of an admin decision
by a different official within the same body; disputes channelled through admin review is far
greater than tribunals and especially judicial reviewthis is how people access and
experience justice in the public law context. This is a natural response to the judicialisation
of tribunals which increases cost and time- overall, judicialisation weakened ability of
people to secure redress against admin decisions due to reduced access to justice and
quality of DM.
- Immigration Tribunals: Review by immigration tribunals empirical study- number and
proportion of claims certified as totally without merit have increased; very few claims
proceed to substantive hearing. Workload reduced by admin review system- need for
manageability and efficiency is now a pressure point on the judiciary.
Cart [SC]: judicial review of denial of permission to appeal by UT should be limited by the Second
Appeals Criteria (SAC)- namely that (a) the appeal raises some important point of principle or
practice, or (b) there is some other compelling reason for the court to hear the appeal.
- Bell commentary: following Cart, need (1) arguable error of law and (2) SAC.
o Novelty in outcome: Forsyth argued there was major step away from pre-Cart law,
however the SAC is originally a Parliamentary creation in the Access to Justice Act
1999 and TCEA itself.
o Novelty in reasoning: Elliott and Thomas argue SC approached this using a new
principle of ‘proportionate dispute resolution’, balancing cost of challenges and their
importance. Murray claims this is ‘raw pragmatism’. However, in fact, the SC drew
on TCEA itself and its underlying purpose- manageability of High Court caseload is
not a new general approach but because the TCEA was meant to reduce the case
load.
o Novelty in theory: argued that Court’s starting point is Anisminic which eradicated
jurisdictional and non-jurisdictional error and established that in any case where
admin DM falls into error when construing statute, or legal error more broadly, this
is reviewable. Forsyth thus says that in Cart SC went away from this as now need
arguable error + SAC. However, Anisminic is not the starting point, but with the
statutory detail (e.g. Puhlhofer, Croydon, Page).
Jones v FTT [SC]: Carnwath- It is therefore primarily for the tribunals, not appellate courts, to
develop a consistent approach to phrases like ‘crime of violence’, bearing in mind they are
peculiarly well-fitted to determine them… A pragmatic approach should be taken to the dividing
line between law and fact, so that the expertise of the tribunals at the FTT and UT level can be used
to the best effect. AN appeal court should not venture too readily into this area by classifying issues
as issues of law which are best left for determination by the specialist appellate tribunals.
Used by 1st Class student in the Summer 2021 exam period
Key:
XXXX = academic opinions
XXXX = particularly important information
XXXX = practice exam essay plan
1. Complexity in Admin Law
Historical Complexity: nb Planning evolution, standing evolution, Wednesbury v Prop (Fisher- no
neat model for all judicial review to fall into).
Who are the beneficiaries: Taggart argues shift from public interest to individualistic model of rights
(e.g. from Wed to Prop like in Denbigh Highschool). Poole argues admin law reconfigured to talk
about rights and not prevention of abuse of power/good admin (e.g. Wed v Prop, Legit exp
underpinnings (procedural rights), right to fair hearings and consultation). On the other hand,
Varuhas claims admin law is about the public interest and human rights law is about induvial rights
(strict taxonomy) although NB Craig says most cases still brought by person affected so not shifted
into public interest and clearly individual rights play a significant part in judgments (e.g. reasons,
due process) and taxonomy not possible.
Many layers of law: Common Law (Ridge), detailed statute (Dover DC), tension of CL and Statute
(Bank Mellat no 2), EU law (Champion), HRA 1998.
Generality v Contextualism: housing v diff from planning, Elias argues for greater need for
contextualism as admin law discretionary and cannot explain general standards (e.g. who should
interpret statutory terms (Cart, Anisminic), duty to give reasons, intensity of substance review). But
Justice Stratas (Canada) argues cannot fully embrace contextualism as cannot abandon search for
doctrine- it is the pursuit that is meaningful- cannot embrace contextualism entirely as need for
certainty for litigants given costs etc.
Practical Dimension: red light theory (admin law contains excess of state power) vs green light
(admin law aims to improve public admin) difference in which theory we adopt in e.g. duty to
give reasons, legitimate exp, review of substance.
Constitutional basis of judicial review: is it based on the modified ultra vires theory (everything
stems from Par Sov and general legislative intent) or common law theory (CL principles are basis of
judicial review and there are legislative gaps and silences which the CL fill with its own principles-
supplementary so does not contradict Par Sov).
,Forsyth (Ultra vires theory): judicial review stems from parliamentary legislative intent; CL theory
inconsistent with Parliamentary sovereignty as a Parliamentary Act would have to be reviewed on
the basis of principles originating outside of Parliament. Lord Woolf claimed if Parliament
undermined the High Court, he would consider the advantages of limiting supremacy of Parliament
maybe rule of law sovereign. Also, maybe Privacy International is an example of court using CL
principles to limit Parliament so very dangerous to constitution (NB reform of judicial review
proposals).
Craig (CL theory): legislature will rarely have specific intent as to particular things since law is
naturally vague and open textured (NB Hart). Modified ultra vires says general legislative intent
justifies it but this is a myth of actual intent. General legislative intent tells us nothing about
content of review; CL theory does not undermine Par Sov because principles of CL are
supplementary, not absolute. CL best captures judicial review- Craig has nothing against idea of
legislative intent but it does not serve as a good explanation of the norms which constitute judicial
review and modified ultra vires has little substance.
Adams (criticism of both theories): neither theory stands up to scrutiny and explains all the judicial
review cases because judicial review is not monolithic. Review of statutory schemes and
interpretation of law has legislative intent as the main consideration (e.g., Cart and Jones) so
better explained by the ultra vires theory; on the other hand, due process and natural justice seem
much closer to CL.
Allan (symbiotic relationship): two schools are focussed on different concerns- debate is futile as
the weaker the ultra vires model is, the closer it is to the CL model. Neither convincing as it is a
semantic battle which exaggerates each other’s evils. Nothing in the CL theory contradicts the ultra
vires theory. Truth that in some circumstances, presumptions of legislative intent are irrebuttable.
, 2. Tribunals
Civil Procedure Rules, Pt 53, s 54.7A: this rule applies where an application is made, following
refusal by the UT of permission to appeal against a decision of the FTT for judicial review of a
decision of the UT refusing permission to appeal or which relates to the decision of the FTT which
was the subject of the application for permission to appeal. Court will give permission to proceed
only if it considers that there is an arguable case, which has reasonable prospect of success, that
both the decision of the UT refusing permission to appeal and the decision of the FTT against
which permission to appeal was sought are wrong in law and either the claim raises an important
point of principle or practice or there is some other compelling reason to hear it.
Thomas & Tomlinson:
- Administrative Review: Administrative review involves reconsideration of an admin decision
by a different official within the same body; disputes channelled through admin review is far
greater than tribunals and especially judicial reviewthis is how people access and
experience justice in the public law context. This is a natural response to the judicialisation
of tribunals which increases cost and time- overall, judicialisation weakened ability of
people to secure redress against admin decisions due to reduced access to justice and
quality of DM.
- Immigration Tribunals: Review by immigration tribunals empirical study- number and
proportion of claims certified as totally without merit have increased; very few claims
proceed to substantive hearing. Workload reduced by admin review system- need for
manageability and efficiency is now a pressure point on the judiciary.
Cart [SC]: judicial review of denial of permission to appeal by UT should be limited by the Second
Appeals Criteria (SAC)- namely that (a) the appeal raises some important point of principle or
practice, or (b) there is some other compelling reason for the court to hear the appeal.
- Bell commentary: following Cart, need (1) arguable error of law and (2) SAC.
o Novelty in outcome: Forsyth argued there was major step away from pre-Cart law,
however the SAC is originally a Parliamentary creation in the Access to Justice Act
1999 and TCEA itself.
o Novelty in reasoning: Elliott and Thomas argue SC approached this using a new
principle of ‘proportionate dispute resolution’, balancing cost of challenges and their
importance. Murray claims this is ‘raw pragmatism’. However, in fact, the SC drew
on TCEA itself and its underlying purpose- manageability of High Court caseload is
not a new general approach but because the TCEA was meant to reduce the case
load.
o Novelty in theory: argued that Court’s starting point is Anisminic which eradicated
jurisdictional and non-jurisdictional error and established that in any case where
admin DM falls into error when construing statute, or legal error more broadly, this
is reviewable. Forsyth thus says that in Cart SC went away from this as now need
arguable error + SAC. However, Anisminic is not the starting point, but with the
statutory detail (e.g. Puhlhofer, Croydon, Page).
Jones v FTT [SC]: Carnwath- It is therefore primarily for the tribunals, not appellate courts, to
develop a consistent approach to phrases like ‘crime of violence’, bearing in mind they are
peculiarly well-fitted to determine them… A pragmatic approach should be taken to the dividing
line between law and fact, so that the expertise of the tribunals at the FTT and UT level can be used
to the best effect. AN appeal court should not venture too readily into this area by classifying issues
as issues of law which are best left for determination by the specialist appellate tribunals.
