Lecture 10 Public Law
Why have administrative law?
- Gov departments and other public bodies make millions of decisions affecting public life. The
law provides a check on those decisions and a remedy for people concerned. No guarantee gov
takes lawful and correct decisions, so needs external, independent and legal control of gov.
How?
Judicial Review: Courts review the lawfulness of administrative decisions. Review of legality, not merits.
Focus on legality, procedural fairness and reasonableness. Courts lay down standards of good
administrative behavior. JR can sometimes be highly controversial, especially when concerning decisions
of the elected government. Courts have the final say on the interpretation of legislation, not the gov –
will set precedent for future cases until Parliament changes the law
Tribunals: Allow or dismiss appeals against administrative decisions. Lower-courts, independent and
judicial, but more informal than higher courts. Hold hearings where appellants will give evidence and be
questioned. Must apply the relevant law. Essential part of administrative law system, especially in areas
of mass administration (social security, immigration, tax ect)
Most challenges turn on their own individual facts and circumstances, some have wide-ranging
consequences beyond the individual litigants involved.
Judicial Review is affected by key constitutional principles, eg. parliamentary sovereignty, courts apply
legislation and interpret it – can strike government decisions down as ultra vires (beyond their powers)
Also, procedural fairness: common law principle, courts apply it with grave concern, even if an AOP does
not say that gov should act fairly, common law will require it regardless.
Lord Neuberger, former President of the Supreme Court: “There is no more fundamental aspect of the
rule of law than that of judicial review of executive decisions or actions”. Parliament is not there to rule
on matters of law – need another body to hold Gov to account, legal experts and independent from
political influence.
Key features of judicial review
(a) JR is concerned with reviewing the legality of government decisions - not with appeals against the
merits of such decisions - the courts do not tell government which decision it should make, but only that
whether or not a decision was lawful
(b) JR is concerned with providing a legal framework within which public administration operates
(c) JR is not usually concerned with disputed issues of fact
(d) JR is undertaken by senior – mostly High Court – judges
(e) The law of JR is, on the whole, made and developed by the judges rather than the executive or
Parliament
(f) JR has its own procedures and remedies
Council of Civil Service Unions V Minister of Civil Service: GCHQ, gov communications headquarters.
Civil servants work inside it, PM at the time Thatcher, she decided that CS working here could not belong
to a trade union. Council wanted to challenge this decision, one of grounds being that they had not been
Why have administrative law?
- Gov departments and other public bodies make millions of decisions affecting public life. The
law provides a check on those decisions and a remedy for people concerned. No guarantee gov
takes lawful and correct decisions, so needs external, independent and legal control of gov.
How?
Judicial Review: Courts review the lawfulness of administrative decisions. Review of legality, not merits.
Focus on legality, procedural fairness and reasonableness. Courts lay down standards of good
administrative behavior. JR can sometimes be highly controversial, especially when concerning decisions
of the elected government. Courts have the final say on the interpretation of legislation, not the gov –
will set precedent for future cases until Parliament changes the law
Tribunals: Allow or dismiss appeals against administrative decisions. Lower-courts, independent and
judicial, but more informal than higher courts. Hold hearings where appellants will give evidence and be
questioned. Must apply the relevant law. Essential part of administrative law system, especially in areas
of mass administration (social security, immigration, tax ect)
Most challenges turn on their own individual facts and circumstances, some have wide-ranging
consequences beyond the individual litigants involved.
Judicial Review is affected by key constitutional principles, eg. parliamentary sovereignty, courts apply
legislation and interpret it – can strike government decisions down as ultra vires (beyond their powers)
Also, procedural fairness: common law principle, courts apply it with grave concern, even if an AOP does
not say that gov should act fairly, common law will require it regardless.
Lord Neuberger, former President of the Supreme Court: “There is no more fundamental aspect of the
rule of law than that of judicial review of executive decisions or actions”. Parliament is not there to rule
on matters of law – need another body to hold Gov to account, legal experts and independent from
political influence.
Key features of judicial review
(a) JR is concerned with reviewing the legality of government decisions - not with appeals against the
merits of such decisions - the courts do not tell government which decision it should make, but only that
whether or not a decision was lawful
(b) JR is concerned with providing a legal framework within which public administration operates
(c) JR is not usually concerned with disputed issues of fact
(d) JR is undertaken by senior – mostly High Court – judges
(e) The law of JR is, on the whole, made and developed by the judges rather than the executive or
Parliament
(f) JR has its own procedures and remedies
Council of Civil Service Unions V Minister of Civil Service: GCHQ, gov communications headquarters.
Civil servants work inside it, PM at the time Thatcher, she decided that CS working here could not belong
to a trade union. Council wanted to challenge this decision, one of grounds being that they had not been
