ADMINISTRATIVE LAW QUESTIONS &
DETAILED ANSWERS WELL PASSED
Theories of Admin Law (Harlow & Rawlings)
GREEN LIGHT - CORRECT ANSWER Courts' influence should be minimized; greater
trust in the political process. Admin law is a framework which facilitates good
government by providing template for administration to regulate itself.
Theories of Admin Law (Harlow & Rawlings)
RED LIGHT - CORRECT ANSWER a control upon government: a corrective to be
invoked when power is abused.
Agency/Autonomy - CORRECT ANSWER the ability of the administration to get on with
business of government, as elected to do. (GOV)
Judicial supervision - CORRECT ANSWER the involvement of the (unelected) courts in
supervising the administration. (COURT)
R v Cambridge Health Authority, ex p B (No 1) [1995] 1 WLR 898 - CORRECT
ANSWER '...The courts are not ... arbiters as to the merits of cases of this kind. Were
we to express opinions as to the likelihood of the effectiveness of medical treatment, or
as to the merits of medical judgment, then we should be straying far from the sphere
which under our constitution is accorded to us. We have one function only, which is to
rule upon the lawfulness of decisions. That is a function to which we should strictly
confine ourselves.' (Sir Thomas Bingham MR at 906)
R v Secretary of state for the Home Department ex parte Fire Brigades Union [1995] 2
AC 513 - CORRECT ANSWER "It is not for judges to administer the country, Absent a
written constitution, much sensitivity is required of the parliamentarian and judge if the
delicate balance of unwritten rules evolved in recent years is not to be disturbed and all
the recent advances undone." Lord Mustill (dissenting)
Ultra vires - CORRECT ANSWER if administration to act in a way that Parliament did
not give them permission to... they are acting beyond their powers: ultra vires. (within
the powers= intra vires)
A decision that is ultra vires (beyond the powers) is an illegal one: the decision maker
had no authority for that power.
Baxter 1984, an act of "application" to the law itself.
Council of Civil Service Unions and Others v Minister for the Civil Service [1985] AC
374, 409 ("GCHQ") - CORRECT ANSWER 'For a decision to be susceptible to judicial
review the decision-maker must be empowered by public law ... to make decisions that,
, if validly made, will lead to administrative action or abstention from action by an
authority endowed by law with executive powers ... The ultimate source of the decision-
making power is nearly always nowadays a statute or subordinate legislation made
under the statute ...'
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008]
UKHL 61, 469. - CORRECT ANSWER 'Parliamentary legislation is immune from
judicial review not because it is primary, but because the common law as applied by the
courts recognises the supremacy of Parliament: see R
(Jackson) v Attorney General [2006] 1 AC 262 , paras 102, 177.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC
374' - CORRECT ANSWER The scope of judicial review of the royal prerogative
includes review of its exercise on grounds of unreasonableness, abuse of power,
procedural impropriety and breach of legitimate expectations
(decisions under prerogative= reviewable)
Secondary legislation - CORRECT ANSWER Secondary/subordinate/delegated
legislation is legislation made under the authority of an Act of Parliament (known as a
'parent act')
Can be judicially reviewed on basis on incompatibility with its parent legislation.
Devolved legislation - CORRECT ANSWER (Scottish Parliament legislation) AXA
General Insurance Ltd v The Lord Advocate [2011] UKSC 46.
"As the Lord President's remarks make clear, the Scottish Parliament is not a sovereign
parliament in the sense that Westminster can be described as sovereign: its powers
were conferred by an Act of Parliament, and those powers, being defined, are limited. It
is the function of the courts to interpret and apply those limits, and the Scottish
Parliament is therefore subject to the jurisdiction of the courts."
The courts have jurisdiction, and it can be judicially reviewed.
R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] 1 QB 815 - CORRECT
ANSWER Self-regulating body judicially reviewable?
"The fact that it is self-regulating, which means, presumably, that it is not subject to
regulation by others, and in particular the Department of Trade and Industry, makes it
not less but more appropriate that it should be subject to judicial review by the courts."
Yes.
Standing (locus standi) - CORRECT ANSWER Senior Courts Act 1981, p.31
Application for judicial review.
(3) a sufficient interest in the matter which the application relates. Must be an individual
or group who have been affected by the decision of a public body. Fairly generous: not
'mere busybodies' (Walton [92]) Cannot be of artificial interest.
Sufficient interest: Said to be deliberately elastic so that courts may fluctuate what they
determine as sufficient interest.
DETAILED ANSWERS WELL PASSED
Theories of Admin Law (Harlow & Rawlings)
GREEN LIGHT - CORRECT ANSWER Courts' influence should be minimized; greater
trust in the political process. Admin law is a framework which facilitates good
government by providing template for administration to regulate itself.
Theories of Admin Law (Harlow & Rawlings)
RED LIGHT - CORRECT ANSWER a control upon government: a corrective to be
invoked when power is abused.
Agency/Autonomy - CORRECT ANSWER the ability of the administration to get on with
business of government, as elected to do. (GOV)
Judicial supervision - CORRECT ANSWER the involvement of the (unelected) courts in
supervising the administration. (COURT)
R v Cambridge Health Authority, ex p B (No 1) [1995] 1 WLR 898 - CORRECT
ANSWER '...The courts are not ... arbiters as to the merits of cases of this kind. Were
we to express opinions as to the likelihood of the effectiveness of medical treatment, or
as to the merits of medical judgment, then we should be straying far from the sphere
which under our constitution is accorded to us. We have one function only, which is to
rule upon the lawfulness of decisions. That is a function to which we should strictly
confine ourselves.' (Sir Thomas Bingham MR at 906)
R v Secretary of state for the Home Department ex parte Fire Brigades Union [1995] 2
AC 513 - CORRECT ANSWER "It is not for judges to administer the country, Absent a
written constitution, much sensitivity is required of the parliamentarian and judge if the
delicate balance of unwritten rules evolved in recent years is not to be disturbed and all
the recent advances undone." Lord Mustill (dissenting)
Ultra vires - CORRECT ANSWER if administration to act in a way that Parliament did
not give them permission to... they are acting beyond their powers: ultra vires. (within
the powers= intra vires)
A decision that is ultra vires (beyond the powers) is an illegal one: the decision maker
had no authority for that power.
Baxter 1984, an act of "application" to the law itself.
Council of Civil Service Unions and Others v Minister for the Civil Service [1985] AC
374, 409 ("GCHQ") - CORRECT ANSWER 'For a decision to be susceptible to judicial
review the decision-maker must be empowered by public law ... to make decisions that,
, if validly made, will lead to administrative action or abstention from action by an
authority endowed by law with executive powers ... The ultimate source of the decision-
making power is nearly always nowadays a statute or subordinate legislation made
under the statute ...'
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008]
UKHL 61, 469. - CORRECT ANSWER 'Parliamentary legislation is immune from
judicial review not because it is primary, but because the common law as applied by the
courts recognises the supremacy of Parliament: see R
(Jackson) v Attorney General [2006] 1 AC 262 , paras 102, 177.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC
374' - CORRECT ANSWER The scope of judicial review of the royal prerogative
includes review of its exercise on grounds of unreasonableness, abuse of power,
procedural impropriety and breach of legitimate expectations
(decisions under prerogative= reviewable)
Secondary legislation - CORRECT ANSWER Secondary/subordinate/delegated
legislation is legislation made under the authority of an Act of Parliament (known as a
'parent act')
Can be judicially reviewed on basis on incompatibility with its parent legislation.
Devolved legislation - CORRECT ANSWER (Scottish Parliament legislation) AXA
General Insurance Ltd v The Lord Advocate [2011] UKSC 46.
"As the Lord President's remarks make clear, the Scottish Parliament is not a sovereign
parliament in the sense that Westminster can be described as sovereign: its powers
were conferred by an Act of Parliament, and those powers, being defined, are limited. It
is the function of the courts to interpret and apply those limits, and the Scottish
Parliament is therefore subject to the jurisdiction of the courts."
The courts have jurisdiction, and it can be judicially reviewed.
R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] 1 QB 815 - CORRECT
ANSWER Self-regulating body judicially reviewable?
"The fact that it is self-regulating, which means, presumably, that it is not subject to
regulation by others, and in particular the Department of Trade and Industry, makes it
not less but more appropriate that it should be subject to judicial review by the courts."
Yes.
Standing (locus standi) - CORRECT ANSWER Senior Courts Act 1981, p.31
Application for judicial review.
(3) a sufficient interest in the matter which the application relates. Must be an individual
or group who have been affected by the decision of a public body. Fairly generous: not
'mere busybodies' (Walton [92]) Cannot be of artificial interest.
Sufficient interest: Said to be deliberately elastic so that courts may fluctuate what they
determine as sufficient interest.
