Principles of Administrative Law

421 Pages·2003·1.9 MB·English

C
P
Cavendish
Publishing
Limited
London • Sydney
EDITORIAL ADVISORY BOARD
PRINCIPLES OF LAW SERIES
Professor Paul Dobson
Visiting Professor at Anglia Polytechnic University
Professor Nigel Gravells
Professor of English Law, Nottingham University
Professor Phillip Kenny
Professor and Head of the Law School, Northumbria University
Professor Richard Kidner
Professor and Head of the Law Department, University of Wales,
Aberystwyth
In order to ensure that the material presented by each title maintains the
necessary balance between thoroughness in content and accessibility in
arrangement, each title in the series has been read and approved by an
independent specialist under the aegis of the Editorial Board. The Editorial
Board oversees the development of the series as a whole, ensuring a
conformity in all these vital aspects.
David Stott, LLB, LLM
Deputy Head, Anglia Law School
Anglia Polytechnic University
Alexandra Felix, LLB, LLM
Lecturer in Law, Anglia Law School
Anglia Polytechnic University
C
P
Cavendish
Publishing
Limited
London • Sydney
First published in Great Britain 1997 by Cavendish Publishing Limited, The
Glass House, Wharton Street, London WC1X 9PX.
Telephone: [phone] Facsimile: 0171-278 8080
e-mail: [email protected]
Visit our Home Page on http://www.cavendishpublishing.com
© Stott, D and Felix, A1997
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording, scanning or otherwise, except under the
terms of the Copyright Designs and Patents Act 1988 or under the terms of a
licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,
London W1P9HE, UK, without the permission in writing of the publisher.
Stott, David
Principles of administrative law
1. Administrative law – England 2. Administrative law – Wales
I. Title II. Felix, Alexandra
342.4’2
1 85941 370 6
Printed and bound in Great Britain
PREFACE
Administrative law is an exciting topic, in particular for those with an interest
in how the law seeks to control the exercise of the enormous powers of the
modern state. In the development of the law generally, modern administrative
law is a recent, very largely post-Second World War, phenomenon. In legal edu-
cation, it has grown over the past 20 years from being a component within
established constitutional law courses to being a subject in its own right. Its
relationship with constitutional law, however, must not be forgotten. The prin-
ciples and theories received in your study of constitutional law will inform
your study of administrative law. Administrative law is also exciting because
of its continuous development. Just as modern administrative law was very
largely a response to the development of the welfare state, so recent govern-
ment initiatives such as the privatisation of the great public corporations and
the proposed adoption of the European Convention on Human Rights will
demand further judicial responses.
The aim of this text is to provide a comprehensive and accessible review of
the law as it has developed from both the national and the European perspec-
tive.
We would like to thank Jo Reddy and Cathy West for the patience they have
shown in the writing of this text and the Editorial Board for their valuable com-
ments on the draft manuscript. We also thank Russell Richardson for his
research.
David Stott and Alexandra Felix
Anglia Law School
August 1997
v

CONTENTS
Preface v
Table of cases xix
Table of statutes xxxv
Table of abbreviations xxxix
1 THE NATURE AND PURPOSE OF
ADMINISTRATIVE LAW 1
1.1 INTRODUCTION 1
1.2 DEFINITION OF ADMINISTRATIVE LAW 3
1.3 JUDICIALREVIEW OF ADMINISTRATIVE ACTION 4
1.4 POWERS AND DUTIES 5
1.5 THE PUBLIC/PRIVATE DICHOTOMY 7
1.6 THE SOURCE OF POWER 9
1.7 THE ROLE OF THE COURTS 13
1.8 THE BALANCE OF POWER 15
1.9 REVIEW/APPEAL 21
1.10 THE RULE OF LAW 22
1.11 THE PRINCIPLE OF ACCOUNTABILITY 24
1.11.1 Discretionary versus arbitrary power 25
1.12 THE DISCRETIONARYNATURE OF THE REMEDIES 27
1.13 LAW AND POLITICS 28
SUMMARYOF CHAPTER 1 31
2 THE HISTORY AND DEVELOPMENT OF
ADMINISTRATIVE LAW 33
2.1 HISTORY 33
2.2 JUDICIALRESTRAINT 36
vii
Principles of Administrative Law
2.3 JUDICIALINTERVENTIONISM 39
SUMMARYOF CHAPTER 2 41
3 JUDICIALREVIEW OF ADMINISTRATIVE
ACTION I – PREREQUISITES TO REVIEW 43
3.1 INTRODUCTION 43
3.2 PREREQUISITES TO JUDICIALREVIEW 45
3.3 NON-JUSTICIABILITY 46
3.3.1 Foreign affairs, defence and national security 46
3.3.2 The treaty-making power 47
3.3.3 The defence of the realm 48
3.3.4 Law enforcement 52
3.3.5 Prisons – operational decisions 57
3.3.6 Political judgments considered by Parliament 57
3.4 SURRENDER OF DISCRETION 60
3.4.1 Unlawful delegation – delegatus non potest delegare 60
3.4.2 Acting under dictation 62
3.5 POLICY 63
3.5.1 Self-created rules of policy 63
3.6 KEEPING AN OPEN MIND 64
3.7 FETTERING DISCRETION BYCONTRACT 65
3.8 FETTERING DISCRETION BYESTOPPEL 66
3.9 FETTERING DISCRETION BYLEGITIMATE EXPECTATION 68
3.10 PRESUMPTIONS OF STATUTORYINTERPRETATION 73
3.10.1 Taxation cannot be levied without
the authority of Parliament 73
3.10.2 In favour of the rule of law 74
3.10.3 Against ousting the jurisdiction of the courts 76
3.10.4 In favour of international law 77
SUMMARYOF CHAPTER 3 79
viii
Contents
4 JUDICIALREVIEW OF ADMINISTRATIVE
ACTION II – SUBSTANTIVE ULTRAVIRES
AND ABUSE OF POWER 81
4.1 DEFINITION 81
4.2 CLASSIFICATION 81
4.2.1 Substantive ultra vires 81
4.2.2 Procedural ultra vires 81
4.2.3 Abuse of power 82
4.3 SUBSTANTIVE ULTRAVIRES 83
4.3.1 Illustrations 83
4.3.2 Incidental objectives 84
4.4 ABUSE OF POWER 86
4.4.1 Introduction 86
4.4.2 Unreasonableness 86
4.4.3 Narrow unreasonableness 88
4.4.4 Claims of narrow unreasonableness 90
4.4.5 Narrow unreasonableness and justiciability 95
4.4.6 Broad unreasonableness 95
4.4.7 Non compliance with the objectives of the Act 96
4.4.8 Improper purpose/irrelevant considerations 98
4.4.9 Mixed motives 102
4.4.10 Punishment motive alleged 103
4.4.11 Electoral promises 105
4.4.12 The manifesto argument and the
principle of reasonableness 106
4.4.13 Fiduciary duty/misplaced philanthropy 106
4.4.14 Bad faith 107
4.4.15 Human rights 109
4.4.16 Failure to fulfil statutory duties 110
4.4.17 Opposition to the policy of Parliament 111
4.5 PROPORTIONALITY 111
4.6 CONCLUSION 115
SUMMARYOF CHAPTER 4 117
ix