This chapter deals with statutory tribunals, the growth of which mirrors the dramatic expansion of the state itself. It first explains what tribunals are and whether they are a good thing before discussing two important turning points in the development of tribunals: the Franks Report, published in 1957, and the Leggatt Review, published in 2001. It then considers the independence of tribunals, focusing on their judicial leadership as well as tribunal appointments. It also examines some of the key issues and themes which arise from tribunal procedure, paying attention to formality, representation, and the style of tribunal proceedings. The chapter concludes with an analysis of the structure of the tribunals system and its relationship with the courts, with particular emphasis on the First-tier Tribunal (FTT) and the Upper Tribunal (UT), appeals against tribunal decisions, and judicial review by and of the UT.
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Chapter
18. Statutory Tribunals
Mark Elliott and Jason Varuhas
Chapter
11. Executive Power and Accountability
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the nature and extent of the power that the executive uses to run the country and begins by defining executive power, and by explaining where it is derived and who may exercise it. It then discusses the mechanisms by which an executive can be called to account for its exercise of power; the extent to which Parliament may hold the government accountable; and the extent that courts may hold the government accountable.
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19. Remedies
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the remedies granted by the court. If a claimant successfully establishes that the public authority has acted in contravention of one of the grounds of review, then the court may grant a remedy. The purpose of a remedy is to tell the public authority what it has to do to comply with the judgment and to ensure, as far as possible, that it obeys the courts’ decision. There are two main types of remedies available in judicial review cases: ordinary remedies (injunction, declaration, and damages) and prerogative remedies (quashing order, prohibiting order, and mandatory order). The chapter also discusses situations that may cause the court to refuse a remedy and the courts’ powers to grant a remedy under the Human Rights Act 1998 (HRA 1998), including a declaration of incompatibility in accordance with section 4 HRA 1998.
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13. The Rule Against Bias
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter begins with a discussion of judicial and administrative impartiality, including cases when a judge is disqualified because they may be or fairly suspected to be biased, a history of the test bias, and application of the ‘fair-minded and well-informed observer’ test. It then describes the causes and effects of prejudice.
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17. Boundaries of Judicial Review
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the scope of judicial review. Judicial review is a procedure for obtaining the remedies specified in the Senior Courts Act 1981, namely the quashing order, the prohibiting order and the mandatory order, and declaration and injunction. The scope of judicial review, therefore, is the same as the scope of these remedies. Their boundaries, as set out already, are fairly clear, but in the non-statutory area they are uncertain.
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10. Constitutional conventions
After the legal sources of the UK constitution considered in previous chapters, this chapter turns its attention to an important non-legal source of the UK constitution: its constitutional conventions. It will be shown that constitutional conventions relate to practical and significant political matters which allow the UK constitution to function. They also represent a means by which the executive branch can be made accountable for its actions. The discussion explores the nature of constitutional conventions, gives examples of constitutional conventions, such as ministerial responsibility, enforcing conventions, the Cabinet Manual, and investigates the courts and conventions. Codification of conventions and the importance of conventions in relation to devolution is also discussed.
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12. The royal prerogative
This chapter begins by discussing the origins and meaning of the term ‘royal prerogative’. It identifies some examples of prerogative powers and considers how certain personal or reserve powers of the monarch might be exercised in practice. The chapter also explores the relationship between prerogative power and statutes and focuses on how the courts have dealt with the prerogative. The chapter also discusses the adaptation of prerogative powers, the relationship between the prerogative and the courts, and the courts’ recent willingness to review the exercise of certain prerogative powers. The chapter concludes by looking at several ways in which the prerogative could be reformed.
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11. The Availability of Judicial Review
This chapter deals with the availability of judicial review and its significance in the constitution. First, it considers the claim for judicial review and the exclusivity principle. It determines who can apply for judicial review and against whom and in respect of what activities judicial review may be sought. Next, it examines the discretionary nature of the remedies available in judicial review proceedings, including how the courts exercise this discretion. The chapter concludes with an examination of the courts’ response to legislative attempts to exclude or oust judicial review.
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9. Human Rights
This chapter deals with the area of human rights. It first considers the former position on human rights in the UK, then the European Convention on Human Rights and its incorporation into domestic law by the Human Rights Act 1998. The chapter explores the extent to which human rights law applies to private bodies performing public functions, how it affects the interpretation of legislation, when courts may find legislation compatible with Convention rights and when they may issue a declaration of incompatibility, and examines the adoption and the application of the proportionality test.
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17. Irrationality and Proportionality
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which discusses the circumstances for judicial review of a public authority’s decision on the grounds that it is irrational, first explains the history of irrationality and ‘Wednesbury unreasonableness’, to provide some background to the topic and to chart its development. It then considers cases in which the courts have discussed different versions of the irrationality test, discusses the difference between irrationality and proportionality, and examines the development of proportionality and its use in judicial review cases. The chapter distinguishes between proportionality and merits review and discusses the use of judicial deference by the courts. Proportionality, and not irrationality, is the test used to determine whether a public authority has acted unlawfully when its decision is challenged by judicial review under section 6 of the Human Rights Act 1998. The irrationality test is used in non-Human Rights Act judicial review cases, but the courts have also used the proportionality test in cases involving common law rights. The chapter concludes by considering the discussion in the case law and the scholarship as to whether the irrationality test should be replaced by the test of proportionality across both types of case: traditional judicial review cases and those involving a human rights issue.
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5. The Separation of Powers
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The separation of powers is a theory or a doctrine that describes how a state organizes the distribution of power and function between its different branches. It is often used as an umbrella term to denote the extent to which the three ‘powers’ in, or branches of, the state are fused or divided—that is, the legislative, the executive, and the judicial powers. This chapter begins by sketching the history of the separation of powers in the UK. It then discusses the purpose of the separation of powers; the similarities and differences between different theories of the separation of powers; the impact of recent constitutional reform on the operation of the separation of powers in the UK; how courts have interpreted the separation of powers; and the relevance of the separation of powers today, including in the context of the balance of power between the executive and Parliament as regards the UK’s decision to exit the European Union.
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11. Judicial review: access to review and remedies
This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.
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10. Retention of Discretion
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter examines the rules which govern discretionary power. It focuses on the rules which ensure that discretionary power should be wielded only by those to whom it is given and that they should retain it unhampered by improper constraints or restrictions. Topics discussed include delegation; surrender, abdication, dictation; over-rigid policies; restriction by contract or grant; and estoppel.
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12. Natural Justice and Legal Justice
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter first discusses how the courts have devised a code of fair administrative procedure based on doctrines which are an essential part of any system of administrative justice. It then explains the concept of administrative justice and natural justice; natural justice in the common law; the European Convention and natural justice in administrative proceedings; and the curative effect of access to a court of ‘full jurisdiction’.
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9. Problems of Invalidity
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter begins with a discussion of collateral proceedings, identifying the situations in which the court will and will not allow the issue of invalidity to be raised. It then explains the rules on partial invalidity, standard and burden of proof, and invalid and void administrative acts.
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14. Procedural Grounds of Judicial Review
This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses primarily on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.
Chapter
4. The Royal Prerogative
This chapter considers the evolving constitutional status of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and the rejection of that traditional perspective in the House of Lords’ judgment in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). The chapter continues by analysing the ways in which the new organising principle of ‘justiciability’ which emerged in the GCHQ judgment in the 1980s has since been applied in several leading cases, and suggests that in recent years the courts have adopted an increasingly rigorous approach to the supervision of governmental actions claimed to be taken under prerogative powers.
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13. The nature of judicial review
Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) Pt 54 is outlined, and the prospect of further reform is noted.
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9. Errors of law and control of fact finding
Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law and other forms of control of discretionary power.
Chapter
13. Statutory Tribunals
This chapter examines the rationale for giving the task of resolving disputes to statutory tribunals rather than courts. It also describes the structure and organization for most tribunals and how they conduct dispute resolution adjudication. The hearing technique of redress is considered alongside administrative review, particularly the use of mandatory reconsideration in social security to illustrate the advantages and disadvantages of different methods of dispute resolution. Their place in a staged approach, proportionate dispute resolution, is outlined and the possible benefit of conceiving administrative justice as a system with a focus on users is raised as well as some of the issues raised for users by the adoption of digitalization. An outline is given of the oversight activities conducted by the non-statutory Administrative Justice Council.
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