This chapter considers the rights and freedoms provided by the European Convention on Human Rights and Fundamental Freedoms (ECHR), and the Human Rights Act 1998.
Chapter
7. Personal rights and freedoms
Sir William Wade, Christopher Forsyth, and Julian Ghosh
Chapter
1. Administration and the principles of the constitution
Administrative law includes a complex variety of processes and doctrines that confer and control public power. This chapter outlines the underlying principles of administrative law. Topics discussed include the core principle of administrative law: opposition to arbitrary use of power. That principle is introduced through the story of habeas corpus from the middle ages to the twenty-first century. The constitutional principles of administrative law also include parliamentary sovereignty, the separation of powers, the rule of law, comity among constitutional authorities, accountability, and a newly emerging principle of open government. The chapter shows how the common law and legislation can achieve adherence to these principles of administrative law.
Book
William Wade, Christopher Forsyth, and Julian Ghosh
Wade & Forsyth’s Administrative Law provides a perceptive account, and an unparalleled level of coverage, of the principles of judicial review and a sketch of the administrative arrangements of the UK. First published in 1961, Administrative Law a classic text. In the twelfth edition, the text brings its account of administrative law up to date in light of recent case law and legislation. The volume covers the following areas of administrative law: authorities and their functions; the influence of Europe; powers and jurisdiction; discretionary power; natural justice; remedies and liability; and administrative legislation and adjudication.
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1. Introduction
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This introductory chapter begins with a discussion of the definition of administrative law. It then turns to the characteristics of the law, covering the legal systems of Britain and Continental Europe, EU law, European human rights, the development of administrative law in England and the failure of administrative law to keep pace with the expanding powers of the state in the twentieth century.
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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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18. Procedure of Judicial Review
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the application for judicial review. The development of the application is complicated and intertwined with the historical deficiencies and peculiarities of the remedies themselves. Thus, the chapter begins with an account of the defects in the prerogative remedies that spurred the creation of the application. It then discusses the creation of the application for judicial review and subsequent developments; and the divorce of public and private law.
Chapter
20. Liability of Public Authorities
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the liability of public authorities. Topics covered include categories of liability; liability for breach of human rights; liability for the tort of negligence; strict liability; breach of statutory duty; misfeasance in public office; statement of general principles of liability; immunities and time limits for actions in tort; liability in contract; liability to make restitution; and liability to pay compensation where there has been no tort or breach of contract.
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24. Statutory and Other Inquiries
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter begins with a discussion of statutory inquiry, which is the standard technique for giving a fair hearing to objectors before the final decision is made on some question of government policy affecting citizens’ rights or interests. It then turns to complaints and reforms; law and practice today in statutory inquiries; and other inquiry procedures.
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3. The Central Government
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter describes the various public authorities and their legal status. These include the Crown and ministers; the civil service and the law of Crown service; some governmental functions of more importance to administrative law; and the filing and investigation of complaints against the government.
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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.
Chapter
14. The Right to a Fair Hearing
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the right to a fair hearing, which has been used by the courts as a base on which to build a kind of code of fair administrative procedure, comparable to ‘due process of law’ under the Constitution of the United States. Topics covered include administrative cases, the retreat from natural justice, the right to be heard, the protection of legitimate expectations and exceptions to the right to a fair hearing.
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5. Public Corporations, Privatisation and Regulation
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter begins with a discussion of public corporations, covering the uses of corporate personality, legal status and liability and relevance in administrative law. It then describes the mechanisms of privatisation and nationalisation, the changing nature of regulation and some regulatory mechanisms, including the regulation of commerce, financial services and public utilities.
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6. The European Union
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the legal framework of the EU, and the interaction between European law and British constitutional and administrative law. In particular, it considers the post-Brexit UK regime, retained EU law and the EU–UK Trade and Cooperation Agreement.
Chapter
8. Jurisdiction Over Fact and Law
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the objective boundaries of discretionary powers and the way in which the courts police them. Inherent in all discretionary power is the power to decide freely, whether rightly or wrongly, without liability to correction, within the area of discretion allowed by the law. Until fairly recently this liberty to make mistakes within jurisdiction extended to significant mistakes both of law and of fact. The extent to which both these classes of error have been brought within the scope of judicial review is explained.
Book
Neil Parpworth
The purpose of this book is to introduce the reader to the fundamental principles and concepts of constitutional and administrative law. It is highly popular with undergraduates for its clear writing style and the ease with which it guides the reader through key principles of public law. This twelfth edition incorporates the significant developments in this ever-changing area of the law. The book also includes a range of useful features to help students get to grips with the subject matter. These include further reading suggestions to support deeper research, a large number of self-test questions to help reinforce knowledge, and chapter summaries and numbered paragraphs to aid navigation and revision. This new edition has been fully updated to cover all the latest reforms in constitutional and administrative law, including those relating to devolution and Brexit.
Chapter
2. The rule of law and the rule of judges
At common law, the judges will hold administrative conduct to be unlawful on any of three grounds: error of law (and certain sorts of error of fact), lack of due process, and the improper exercise of discretionary power. This chapter discusses how (and to what extent) the three grounds of judicial review are supported by constitutional principle. Each ground must be controlled by the principle of comity. The principle of comity requires judges to defer to administrative authorities on some issues, to some extent; the chapter explains the limits of deference and the difference—and the connections—between the rule of law and the rule of judges.
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3. Human rights law
The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.
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3. The Status of Unlawful Administrative Action
Mark Elliott and Jason Varuhas
This chapter examines the status of unlawful administrative action, and more specifically whether unlawful administrative action is void or voidable. It first considers the practical and theoretical arguments that address the ‘void or voidable’ question by focusing on the case of Boddington v. British Transport Police [1999] 2 AC 143, along with four post-Boddington decisions. It then discusses the nature of voidness, with particular emphasis on the presumption of validity and the principle of legal relativity. It also explores the divergent theoretical perspectives upon administrative law that underpin the different approaches that writers adopt to the status of unlawful administrative acts. Finally, it looks at voidness in relation to collateral challenge and suggests that the disagreements regarding the status of unlawful administrative action, at least to some extent, pertain not to what constitutes a desirable outcome but to the form of judicial reasoning that prefigures the reaching of the outcome.
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7. Abuse of Discretion I
Mark Elliott and Jason Varuhas
This chapter examines principles of administrative law which seek to prevent abuse of discretion. It first considers the notion that there is no such thing as an unfettered discretion before discussing two key principles that encourage a mode of administration which is faithful to the legislative scheme set out by Parliament: those which require decision-makers to act only on the basis of factors which are legally relevant, and those which dictate that statutory powers may be used only for the purposes for which they were created. It also explores the propriety of purpose doctrine and the relevancy doctrine, citing a number of relevant cases such as Padfield v. Minister of Agrictulture, Fisheries and Food [1968] AC 997.
Chapter
8. Abuse of Discretion II
Mark Elliott and Jason Varuhas
This chapter examines grounds of judicial review that are substantive in two senses: it reduces the range of substantive options open to a decision-maker, or it involves judicial examination of the quality of the reasons for the decision itself, rather than the quality of the process adopted by the decision-maker. The chapter first considers the doctrine of reasonableness or rationality in administrative law before discussing the doctrine of proportionality and the notion of judicial deference in relation to variable intensity review. It also explores the role of the proportionality test in English law and the question of whether English courts are heading towards jettisoning the reasonableness doctrine in favour of utilizing proportionality in all relevant cases.
