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

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Other readingFor 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.

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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 JanIntroduction 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 JanNature 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 O’Reilley v Mackman and the scope of bodies covered by Judicial Review etc later).

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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.

No seminars in week 1

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Week 2

Lectures

Monday 17th JanMore 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

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Week 3

Lectures

Monday 24th JanControl 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 JanFeedback 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.

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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. 223Bromley [1983] 1 A.C. 76Daly [2001]3 All ER 433

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Week 4

Lectures

Monday 31st JanIrrationality: 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 FebProportionality – 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 Jowell’s 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 courtsThe 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

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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 houses but they also have a long list of old people needing special housing. They come to you, asking for advice on whether they may challenge the tribunal's decision. They have since discovered that one of the Tribunal members, a Mr. Wilson, is a second cousin of Mrs. James.

Prepare a short memorandum making reference to the relevant case law and advise all the parties to their rights and remedies in English law.

(Note – the scheme of classification of the grounds of judicial review in CCSU might be a good place to start in considering what arguments might be possible in this case)

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Week 5

Lectures

Monday 7th Feb Thematic Case Study 1 – National Security, including the Belmarsh case and use of secret evidence.

Thursday 10th Feb Procedural Fairness 1 – fair hearing including duty to give reasons (a good follow on from the secret evidence cases) (pp 585/6, 597-609)Craig Ch 12Harlow & Rawlings Ch 14

Seminars in week 5

Task:Consider the case of Daly in the House of Lords [2001] 3 All ER 433. Also reading above from the lectures on proportionality and human rights.If you do not already have a copy, find one and download it in order to read and prepare, and bring it for the seminar discussion.

Think about:1. What are the facts of this case?2. Consider the legal reasoning used – is there more than one explanation for the final decision of

the Court?3. What is the ratio of this case?4. What does it tell you about the place of proportionality and Human Rights in Administrative

law, and the relationship between (a) the concepts of Irrationality and Proportionality and (b) the concepts of Illegality and Proportionality?

5. Irrationality no longer has any place in 21st century Judicial Review and should give way to Proportionality as a standard of review - Do you agree?

Week 6 Week commencing Monday 14th February Reading week no Law School classes

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There are however seminars every week after the reading week so please read up and do a bit of preparation in advance

Week 7

Lectures

Monday 21st Feb Procedural Fairness 1 – bias including the Pinochet case.Loveland Ch 15, Craig Ch 13Harlow & Rawlings Ch 14

Thursday 24th FebHuman Rights and JR (OF) including more on judicial deference. Loveland Chs 20, 22, Craig Ch 18

Seminars in week 7

Task:In the light of A v SSHD (the Belmarsh case) and others discussed in the lecture, and if you can using Ewing [2008] PL 668, [2004] PL 829, Kavanagh [2009] PL 287, and any other helpful commentary you can find, consider: Has the Human Rights Act been ‘futile’ in protecting liberties in the face of national security arguments, or has it marked a radical turning-point?

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Week 8

LecturesMonday 28th FebThematic case study 2 – Resource Allocation (OF).

Thursday 3 MarchLegitimate Expectations including the Coughlan case and how the law has developed since then. Ex parte Coughlan [2000] 2 WLR 622, [2000] 3 All ER 850, [2001] QB 213Loveland Ch 15(1) Craig Ch 20Knight’s article ‘Expectations in Transition’ in Public Law 2009 p 15 will also be useful.

Seminars in week 8

‘The rules of natural justice are so vague that they offer precious little by way of practical guidance to public authorities’Outline the main principles behind the two branches of natural justice, using examples to illustrate. Do you think the above criticism is a valid one?Use the text reading referred to in the week 7 lectures, lecture notes and cases referred to help you answer these questions.

Problem Question

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George is a lay member of an Employment Tribunal. He regularly hears cases on a panel with Fiona the Tribunal’s chair. Fiona is a lawyer with specialist knowledge of accidents at work and a member of a firm of consultants that advises construction companies on Health and Safety issues. The third member of the Tribunal is Geoffrey, a member of a trade union and employed in the construction industry. Gareth is a claimant alleging that he was unfairly dismissed by The Construction Company Ltd., (fictitious) on the grounds that he could have prevented an accident after a worker fell off some unsafe scaffolding and that he was negligent in undertaking the risk assessment for the company. The Tribunal ruled against Gareth who unsuccessfully appealed to the Employment Appeal Tribunal. Gareth wishes to apply for judicial review on the grounds that the Tribunal was biased. It emerges that (a) George is married to Gareth’s second cousin, but has never met Gareth and did not know of this relationship; (b) Fiona’s company advised the Construction Company Ltd on Health and Safety matters and (c) Geoffrey is a member of the same golf club as George and Gareth but has not met Gareth. However, Geoffrey’s wife is a close friend of Gareth’s aunt and they meet regularly at a health club owned by Gareth’s trade union and organise social events for all their neighbours. Advise Gareth as to the law on bias as a ground for review.

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Week 9

Lectures:

Monday 7th March Rule of Standing, its application and rationale, does it operate permissively or restrictively, the role of ‘public interest’ litigation and pressure groups and introducing the Rose Theatre and Pergau Dam cases.Loveland Ch 17, Craig Ch 24

Thursday 10th MarchPublic and Private Law – susceptibility to Judicial Review, when can JR be used, including what is a public body under the HRA? Loveland Ch 16, Craig Ch 26 (3,4)

Seminars in week 9

Read the Coughlan case, alongside the text reading on legitimate expectations from week 8 and the article by Knight ‘Expectations in Transition’ Public Law (2009) p 15.

Consider the following questions:1. Explain the difference between substantive and procedural legitimate expectations2. Why was the protection of substantive legitimate expectations considered so problematic?3. Explain how substantive legitimate expectations are protected after Coughlan4. Do you think the outcome in Coughlan – in terms of how the balance is struck between different

interests at stake – was fair?5. Coughlan was a case which promised much but since then the reality of protection of legitimate

expectations has been disappointing. Do you agree?

Problem Question AThe Secretary of State is planning to spend public money on flood protection for Warwickshire and South Oxfordshire after unexpected rainfall caused severe flooding and risked several electricity power stations and hospitals in the area. Jane is the Accounting Officer in the Department of Development (fictitious). The main aim of Jane’s Departmental budget is to provide flood relief for

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overseas countries. Jane is worried that any payments out of the Departmental budget for flood protection in England may be illegal and subject to judicial review. Deborah is a member of the Flood Protection Group and has heard that public money from the development budget might be spent in England to provide flood protection. At a public meeting the Secretary of State promised “more public money”. The Secretary of State made an announcement to Parliament that public money will not be spent. The local newspapers report that is due to concerns about the legality of the budget no money will be provided. Deborah is considering a judicial review and also complaining to Parliament.Advise Deborah on the procedures for judicial review and the likely success of her application.

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Week 10

Lectures

Monday 14th MarchPublic and Private law – when and why must JR be used? The exclusivity rule, O’Reilley v Mackman, and its apparent dilution/demise.Loveland Ch 16, Craig Ch 26(2)

Thursday 17th MarchIntroduction to wider themes of administrative Justice - alternatives to the courts, Tribunals and Inquiries etc Helpful reading: Le Seur’s chapter from ‘The Changing Constitution’ and Harlow and Rawlings Chs 10-13. Recall also their Ch 16 on the litigation process.

Seminars in week 10

Task:Read the Rose Theatre Trust [1990]

Regina -v- Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 2 WLR 186; [1990] 1 ALL ER 754; [1990] 1 QB 504

1990QBDSchiemann J

Administrative Casemap1 CitersThe remains of an ancient theatre had been discovered during the

development of a site. The respondent declined to schedule the building as a monument, saying a balance had to be found between preservation and the need to ensure the prosperity of the city, the site was not itself under threat from the developers, and compensation would be payable for any ensuing delays. Held: The Secretary of State was exercising a discretion given to him under the Act. That discretion had not been shown to have been exercised improperly. Members of the public at large had insufficient locus standi to seek judicial review, and locus could not be obtained buy applying to have the building scheduled under the Act. "There is no doubt that, in the early part of this decade, the High Court was fairly liberal in its interpretation of who had "a sufficient interest" to be able to apply for judicial review." and "The applicant's

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argument on standing runs essentially like this. 1. When scheduled monument consent is sought anybody who wishes to make representations to the Secretary of State can do so and the Secretary of State must consider any such representation once made: see paragraph 3(3) of Schedule 1 to the Act of 1979. 2. Therefore Parliament recognised that everyone has an interest in the preservation of monuments considered by the Secretary of State to be of national importance and everyone has a legitimate expectation to be consulted on such a matter. 3. The Secretary of State considers the Rose Theatre to be a monument of national importance. 4. At the stage when he is considering whether or not to schedule a monument considered by him to be of national importance, the area of discretion left to the Secretary of State is a very small one and therefore it would be artificial to make a distinction so far as standing is concerned between the position at the scheduling stage and the position at the scheduled monument consent state. 5. Therefore, the court should recognise that everyone has a sufficient interest to challenge, by way of judicial review, the lawfulness of the Secretary of State's decision in deciding not to schedule. 6. Although as a matter of form the applicant is a company, as a matter of substance the company is merely the corporate expression of the wills and desires of persons of undoubted expertise and distinction in the fields of archaeology, the theatre, literature and other fields and includes local residents, the local Member of Parliament and so on. These are not mere busybodies. The very fact that the Secretary of State has answered with care the representations made by those whose will the applicant embodies gives them a sufficient interest for the purpose of this application. 8. There is no evidence of any rival organisation which claims to represent the public in relation to the Rose Theatre and thus if this application is struck down for lack of standing then the legality of the Secretary of State's decision is unlikely to be tested in the courts." "I can therefore consider the question of standing by considering whether an individual of acknowledged distinction in the field of archaeology, of which the company has several amongst its members, has sufficient standing to move for judicial review of a decision not to schedule... It seems to be that the decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review" and "I do not consider that an interested member of the public who has written and received a reply in relation to a decision not to schedule a site as an ancient monument has sufficient interest in the decision to enable him to apply for judicial review. Finally, I ought to say that I recognise the force of Mr. Sullivan's submission that since an unlawful decision in relation to scheduling either has been made or may well be made in the future, my decision on standing may well leave an unlawful act by a minister unrebuked and indeed unrevealed since there will be those in the future who will not have the opportunity to ventilate - on this hypothesis - their well-founded complaints before the court. This submission is clearly right. The answer to it is that the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated. Parliament could have given such a wide right of access to the court but it has not done so. The challenger must show that he "has a sufficient

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interest in the matter to which the application relates". The court will look at the matter to which the application relates - in this case the non-scheduling of a monument of national importance - and the statute under which the decision was taken (in this case the Act of 1979) and decide whether the statute gives that individual expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully. We all expect our decision makers to act lawfully. We are not all given by Parliament the right to apply for judicial review."Ancient Monuments and Archeological Areas Act 1979 1

1 All ER 754 and World Development Movement (Pergau Dam) 1 All ER 611, [1995] 1 WLR 386

Regina -v- Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd [1995] 1 WLR 386; [1995] 1 ALL ER 611

1995QBDRose LJ, Dillon LJ, McCowan LJ

Judicial Review, Costs Casemap1 Cites1 Citers

A British consortium looked for assistance in providing a hydro-electric project on the Pergau river. One interested government department advised that it was not economical and an abuse of the overseas aid programme, but the respondent decided to approve support. The applicants, a pressure group involved in giving advice and assistance on issues of aid, requested an assurance that no further assistance would be granted, and sought a judicial review of the respondent to provide that reassurance. The respondent challenged their standing to seek judicial review. Held: The question of standing had to be settled only in the context and merits of the case as a whole. It was not merely a preliminary issue. The importance of vindicating the rule of law, the absence of any other likely interested party, and of the issue in general required the application to proceed. It was for the court to decide whether particular actions fell within the purpose of the Act, but once it did, it was for the respondent to weigh the various factors. In this case the Act required assistance to be given to economically sound projects, but no evidence to support that purpose was available and the respondent's decision was unlawful. 

The court identified five considerations which militated towards the court's decision that the applicants had a sufficient interest to challenge the lawfulness of this expenditure: i) The importance of vindicating the rule of law; ii) The importance of the issue raised; iii) The likely absence of any other responsible challenger; iv) The nature of the breach of duty against which relief was sought; v) The prominent role of the applicants in giving advice, guidance and assistance with regard to aid.

cases, alongside the text reading on standing above (week 9). Bring these to the class.

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1. Consider these cases in particular in the light of the purpose of standing rules – if they do, in your view, have a purpose.

In British administrative law, the applicant needs to have a sufficient interest in the matter to which the

application relates.[8] This sufficient interest requirement has been construed liberally by the courts. As Lord

Diplock put it:[9]

"[i]t would...be a grave lacuna in our system of public law if a pressure group...or even a single public spirited

taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention

of the court to vindicate the rule of law and get the unlawful conduct stopped."

In British administrative law, the applicant needs to have a sufficient interest in the matter to which the

application relates.[8] This sufficient interest requirement has been construed liberally by the courts. As Lord

Diplock put it:[9]

"[i]t would...be a grave lacuna in our system of public law if a pressure group...or even a single public spirited

taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention

of the court to vindicate the rule of law and get the unlawful conduct stopped."

2. Consider the different factors that influenced the decision on whether the applicants had ‘sufficient interest’ in each case.

3. Consider also whether, in reading the two cases, you detect any different approach of the judges to the purpose of courts and public law/judicial review litigation. Do you think the outcomes of the two cases would have been the same if the judges had swapped places? Explain.

4. Do you think standing rules in fact have a useful purpose in administrative law?

You might also want to consider the following hypothetical problem as additional problem-question practice, although time will probably mean it is not necessarily addressed in the seminar:

George is a member of the Green Earth Friends (fictitious). He does not pay income tax because his earnings are below the tax threshold. He has heard that the local authority plans to build a new golf course on some unspoilt land that has great medieval significance and is of some archaeological importance. George has consulted a local archaeology specialist who confirms the history of the area. George wishes to take a judicial review of the decision of the Secretary of State not to list the land as a conservation site or one of historic interest. George’s group Green Earth Friends has distinguished academics as members including the wife of a local High Court Judge. Advise George and consider his standing in the light of the Human Rights Act 1998.

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