Administrative Law

I INTRODUCTION

Administrative Law, a branch of law concerned with the regulation of governmental power. It is intrinsically related to the constitutional framework and political theory from which it has developed. Principal objectives of administrative law include the accountability of governmental power and the resolution of grievances of those affected by administrative decision-making. While some commentators would stress the issue of control of the administrative action, others are interested in the way the administrative legal system can improve the effectiveness of administrative action. Administrative law is concerned with all relevant institutional arrangements that regulate public decision-making. The role of some of the most important of these institutions is considered below.

II THE COURTS

The development of administrative law has been dominated by the doctrine of ultra vires. All public bodies derive their powers from legislative authority: they can only exercise power within the legal framework that granted it. An attempt to exercise a power outside that framework, or that has not been granted by statute, is ultra vires. It follows that the role of the court is supervisory only: it is not concerned with the correctness or merits of a decision that is made by a public authority. The key to the ultra vires theory is the statutory interpretation by the courts of powers delegated by Parliament. There has been increasing criticism of the ultra vires theory as an explanation of judicial decision-making in this area. Nevertheless, it is the theory that continues to dominate judicial explanations of decisions in this context.

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The courts have the power to review the decisions of public bodies. The grounds for judicial review are classified under three broad headings: illegality, procedural impropriety, and irrationality. Illegality covers cases where a body has made an error of law. Procedural impropriety arises where a body acts in breach of natural justice—for example, because the decision-maker was biased, or because one party did not have an adequate hearing. Irrationality is intended as a safety net, allowing challenge where a body is considered to have acted perversely or in a way that no sensible person would have in making decisions.

The appropriate procedure to challenge a public decision is an application for judicial review. Judicial review has a number of important safeguards for public authorities. An applicant must secure leave from a judge and must adhere to strict time limits, usually within three months from the date a decision was made. The applicant must be considered to have a sufficient interest in bringing the proceedings, although the courts have shown considerable flexibility in the interpretation of this requirement.

III TRIBUNALS

In an increasing number of areas, tribunals have been established in preference to courts. Examples include adjudication on social security benefits, immigration, employment, and discrimination. Procedurally, tribunals have certain advantages over courts. They are usually more accessible, cheaper, and more informal than courts. Despite these advantages, there are some areas of concern; for example, legal aid is not available before a tribunal, and research shows that individuals who appear before a tribunal without representation are less likely to succeed.

IV PUBLIC INQUIRIES

Public inquiries provide an institutional framework for the participation of relevant interests in public decision-making. A public local inquiry is held before an inspector appointed by the minister. The inspector must give reasons for a decision and must report to the relevant minister. There is no financial provision to support public participation at public inquiries, which are often lengthy and costly. The government is not obliged to act on any recommendations that the inspector makes.

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V THE OMBUDSMAN

The Parliamentary Commissioner for Administration (PCA) is the ombudsman in Britain, set up in 1967 to investigate allegations of maladministration by government departments. Complaints must be made by an individual to a Member of Parliament (MP) who acts as a filter to the PCA. The PCA can investigate maladministration, which has been interpreted broadly by the PCA and includes delay, bias, and perversity.

The law on this topic is broadly similar in England and Wales, and Scotland. Ministers in the Scottish Parliament have the power to order public inquiries.


Contributed By:
Jane Hanna

Reviewed By:
Simon Levene