week 10 admin seminar

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Constitutional and Administrative Law 2010/2011 Term 2 Lecturers: Helen Toner (HT) and Octavio Ferraz (OF). This term, lectures are mainly delivered by HT, unless otherwise specified. Dates of Term Spring Term Monday 10th Jan Friday 18th March Syllabus and Outline Term 2 This term focuses on Legal and then introduces some non-legal mechanisms of accountability. In particular Judicial Review, including the substantive grounds of review, is examined. The use of leave requirements and the operation of the principles contained in the case law have greatly freed judicial review from procedural rules although a distinct procedure remains. The question of the future development of judicial review is canvassed with a full discussion of the implications of cases such as Rose Theatre and Pergau Dam. The Human Rights Act is considered in the context of Judicial Review, and we also examine the issues surrounding legal accountability and Judicial Review through two additional thematic topics, resource allocation and the interface of the protection of liberty and national security in cases involving detention without trial and the use of secret evidence. We also begin to examine the question of alternatives to the courts, the use of tribunals and inquiries and the use of the ombudsman (this is continued in more detail in term 3). Learning Outcomes See syllabus and reading list for the module as a whole. Particular attention is given in term 2 to: Solving problems and reading major cases; The creation of an analytical approach to understanding administrative law; An understanding of key concepts and the ability to communicate them in a clear and logical way; An understanding of a case method approach to problem solving.

General Reading The main textbook over the whole year is Loveland Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (Oxford, 2009). This has four chapters on Judicial Review (Chapters 14-17) and several on human rights (esp chs 20-22) which will provide a good introduction. Make sure you read these chapters over the term, the links to the appropriate chapters for each lecture/seminar are given in the outline. An excellent rather more socio-legal contextual approach is found in a new up to date edition of Harlow and Rawlings Law & Administration (2009). This will be well worth looking at from time to time and I will refer to relevant chapters as appropriate. There are several copies available in the library on 3-day and short loan and in the learning grid. More material on legal accountability and Judicial Review in particular are found in other general Con&Admin textbooks as follows: Turpin & Tomkins Ch 10, Ewing & Bradley (2010 edition) Chs 27 32, esp Chs 30 & 31 Other reading1

For reference, and perhaps particularly for research purposes at the end of term/vacation time for the problem essay, you may find useful some materials from specialist Administrative Law texts, primarily; Cane (2004 so certainly now a bit dated), or Elliot Beatson & Matthews (text cases & materials new edition due 2010), may be the more accessible and student-friendly. Also there are classic although somewhat heavier volumes by Craig (2008), or by Wade & Forsyth (2009): All conveniently bearing the same title, Administrative Law. It is easy to find your way around these books to identify the relevant chapter for any particular topic you are looking for, but some guidance will be given at the end of lecture handouts and on this term outline. These generally take a more traditional hard-law legal approach than something like Harlow & Rawlings, but nonetheless are good for filling in details of cases and legal principles and they do introduce other perspectives too. I will generally give chapter references for Craig here for information if you do want to do this further reading or research for your essay, but it is certainly not at all compulsory reading every week!! Other reading (articles, cases, chapters, official reports, consultation papers etc) relevant to the lecture topics may also be suggested at the end of the lecture handouts and links to online materials will be provided on the website, so if you are looking for supplementary readings or cases, do have a look there. Try to dip into some of these during the term or during the vacation, you will benefit from this. They will be particularly helpful for example when you are considering the essay assignment over Easter break. ---------------As before, lectures are twice a week and 7 seminars over the term, together with a formative (ie not part of the official marks for this module) class test assessment in week 2 and leading up to a formal essay assessment over the Easter vacation. Subject to any unavoidable minor tweaking of the schedule during the term, the programme looks like this ...

Week 1 Lectures Monday 10th Jan Introduction to Term 2. Introduction to Control of Public Power, the place of Legal Accountability and the role of Courts. Including ouster clauses excluding Judicial Review, red light and green light theories of administrative law, history of admin in C20th and some examples. Helpful reading: Administrative Law J. Jowell in The British Constitution in the Twentieth Century V. Bogdanor (ed), (OUP 2003) is a good historical introduction covering themes and history through the twentieth century. Harlow & Rawlings Law & Administration (2009 edition) Chs 1&3. Thursday 13th Jan Nature of JR claim role of judicial power, public and private law distinction, outline of distinctive JR procedures, and remedies. Loveland Ch 16 (mainly the introduction, we return to OReilley v Mackman and the scope of bodies covered by Judicial Review etc later). Craig Ch 24 on Judicial Remedies, also Ch 26(4-6). Procedural issues dealing with court structures & processes are also covered in Harlow & Rawlings Ch 15 and the role of judicial review litigation in Ch 16.2

No seminars in week 1 ---------------Week 2 Lectures Monday 17th Jan More on the Principles and grounds of Judicial Review what are they, where do they come from? Different theories of role of Courts in developing these principles: ultra vires/common law theories. Loveland Ch 14. Thursday 20th Jan Illegality, Jurisdiction, error of law and fact. Including introduction to error of law/Anisminic and further consideration of ouster clauses and judicial power. Loveland, Craig Chs14, 17(5) No Seminars in week 2 ---------------Week 3 Lectures Monday 24th Jan Control of discretionary powers (including relevant and irrelevant considerations, fettering and delegating discretion and the use of policy to guide discretion). Loveland Ch 14(I), Craig Ch 15, 16 Thursday 27th Jan Feedback from class test formative assessment Seminars in week 3 Task: Prepare to discuss in seminars ONE of the following and illustrate your answer from examples and decided cases. Please write your answer on 1 A4 sheet of paper outlining the main issues and the cases you would select to address the following questions: 1. Discuss the role of the courts when reviewing government decisions and consider if judicial review is compatible with parliamentary democracy. 2. Judicial review exposes the courts to the concern that the judges become political actors. Consider how the independence of the judiciary may be made compatible with judicial accountability. 3. Outline the main procedures involved in making an application for judicial review to the administrative law court. 4. Explain the facts and the decision of the House of Lords in Padfield. Some key cases to be aware of are:


GCHQ [1985] A.C. 374. Padfield [1968] A.C. 997. Wednesbury [1948] 1 K.B. 223 Bromley [1983] 1 A.C. 76 Daly [2001]3 All ER 433 ---------------Week 4 Lectures Monday 31st Jan Irrationality: Wednesbury Unreasonableness. What is it, when is it used, does it still have a role? Key cases and rationale. Loveland ch 14(II) Craig Ch 19 (1,2) Thursday 3rd Feb Proportionality what is it, when and why is it used, how is it different? Introduction to the concept of Judicial deference Loveland chs 14(III) and 22(IV), Craig Ch 19 (3-7) Other helpful reading: perhaps Poole The Reformation of Administrative Law (2009) Cambridge Law Journal 142 (available on Westlaw) will be helpful in your consideration of how proportionality and rights are changing and arguably ushering in a new era in administrative law, and may be helpful read as a follow-up to Jowells chapter in Bogdanor (ed) from week 1. Seminars in week 4 Task: Write an answer setting out the main legal issues and possible remedies available in the following hypothetical example: Judicial Review: Tribunals and courts The Sale of Council Houses Act 1997 (fictional) provides (inter alia): Section 1 All council houses remaining in the ownership of local authorities, other than special housing, shall be offered for sale to the tenants thereof within six months of the commencement date of this Act. Section 2 Special housing means housing constructed for the purposes of inhabitants with special needs, and shall include housing designed for old people or permanently invalided people. Section 3 Any tenant who is experiencing difficulty in enforcing his rights under this Act can apply to a Sale of Council Homes Tribunal. Section 4 The decision of the Tribunal is final and cannot be challenged in any court. Section 5 The commencement date is 1st October 1997 Mrs. James applied to the Tribunal claiming that the house of which she was the tenant had not been offered to her for purchase. Judworth Council claimed that the house was a special house, constructed as a 'sheltered home'. It was all on one level and had no internal steps or stairs. Hence they argued that the house fell within Section 2 of the Act. The Tribunal, however, decided in Mrs. James' favour. Judworth Council are alarmed. They have only 20 of these hous