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Principles of Administrative Law 1 CP 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 CP Cavendish Publishing Limited London • Sydney First published in Great Britain 1997 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 0171-278 8000 Facsimile: 0171-278 8080 e-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com © Stott, D and Felix, A 1997 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 W1P 9HE, 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 JUDICIAL REVIEW 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 DISCRETIONARY NATURE OF THE REMEDIES 27 1.13 LAW AND POLITICS 28 SUMMARY OF CHAPTER 1 31 2 THE HISTORY AND DEVELOPMENT OF ADMINISTRATIVE LAW 33 2.1 HISTORY 33 2.2 JUDICIAL RESTRAINT 36 vii Principles of Administrative Law 2.3 JUDICIAL INTERVENTIONISM 39 SUMMARY OF CHAPTER 2 41 3 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION I – PREREQUISITES TO REVIEW 43 3.1 INTRODUCTION 43 3.2 PREREQUISITES TO JUDICIAL REVIEW 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 BY CONTRACT 65 3.8 FETTERING DISCRETION BY ESTOPPEL 66 3.9 FETTERING DISCRETION BY LEGITIMATE EXPECTATION 68 3.10 PRESUMPTIONS OF STATUTORY INTERPRETATION 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 SUMMARY OF CHAPTER 3 79 viii Contents 4 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION II – SUBSTANTIVE ULTRA VIRES 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 ULTRA VIRES 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 SUMMARY OF CHAPTER 4 117 ix Principles of Administrative Law 5 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION III – PROCEDURAL ULTRA VIRES 121 5.1 INTRODUCTION 121 5.2 STATUTORY PROCEDURES 121 5.2.1 Nature and effect 121 5.2.2 Substantial compliance 124 5.3 NATURAL JUSTICE/FAIRNESS 125 5.3.1 Content 125 5.3.2 History and development 125 5.3.3 Legitimate expectation 127 5.3.4 The development of fairness 130 5.3.5 Flexibility of content 131 5.4 THE RIGHT TO A FAIR HEARING 132 5.4.1 Introduction 132 5.4.2 Disclosure of evidence 132 5.4.3 Limits on disclosure 133 5.4.4 Preliminary hearings/recommendations 133 5.4.5 Nature of the hearing 134 5.4.6 Time 135 5.4.7 Witnesses 136 5.4.8 Cross-examination 136 5.4.9 Legal representation 136 5.4.10 Reasons 138 5.4.11 Why are reasons for decisions needed? 139 5.4.12 What kind of reasons? 141 5.4.13 Can an unfair hearing be cured by a fair appeal? 142 5.5 THE RULE AGAINST BIAS – NEMO IUDEX IN CAUSA SUA 142 5.5.1 What is bias? 142 5.5.2 Pecuniary interest 143 5.5.3 Professional interest 143 5.5.4 Personal interest 144 5.5.5 Involvement in the decision-making process 144 5.5.6 Closed mind 145 x Contents 5.5.7 R v Gough (1993) 146 5.5.8 Discretionary nature of remedies 147 5.5.9 Fault 148 5.5.10 Waiver of natural justice 149 SUMMARY OF CHAPTER 5 151 6 REMEDIES IN ADMINISTRATIVE LAW 155 6.1 INTRODUCTION 155 6.2 HISTORY 156 6.3 THE PRIVATE LAW REMEDIES 156 6.3.1 Injunction 156 6.3.2 Declaration 157 6.3.3 Damages 158 6.4 THE PUBLIC LAW REMEDIES 158 6.4.1 Nature and form 158 6.4.2 Certiorari/prohibition 158 6.4.3 Mandamus 159 6.4.4 Habeas corpus 159 6.5 THE INTRODUCTION OF THE APPLICATION FOR JUDICIAL REVIEW 159 6.6 RULES OF THE SUPREME COURT (RSC) ORDER 53 160 6.7 SECTION 31 OF THE SUPREME COURT ACT 1981 161 6.8 PROCEDURE 163 6.8.1 Leave stage 163 6.8.2 Merits stage 164 6.9 TIME LIMITS 165 6.10 LIMITS ON THE APPLICATION FOR JUDICIAL REVIEW – THE PUBLIC/PRIVATE LAW DICHOTOMY 167 6.11 AGAINST WHOM IS THE APPLICATION FOR JUDICIAL REVIEW AVAILABLE? 176 xi Principles of Administrative Law 6.12 STANDING – LOCUS STANDI 179 6.12.1 Rationale and application 179 6.12.2 Pressure groups 184 6.12.3 Waiver of standing 187 6.12.4 Relator actions 187 6.13 DISCRETIONARY NATURE OF THE REMEDIES 188 SUMMARY OF CHAPTER 6 191 7 STATUTORY REMEDIES AND EXCLUSION OF JUDICIAL REVIEW 195 7.1 STATUTORY REMEDIES 195 7.2 EXHAUSTION OF ALTERNATIVE REMEDIES 196 7.3 EXCLUSION OF ALTERNATIVE REMEDIES 198 7.4 EXCLUSION OF JUDICIAL REVIEW 199 7.4.1 Introduction 199 7.4.2 Indirect ouster 201 7.4.3 Direct ouster 201 7.4.4 Time limit clauses 206 7.4.5 Statutory limitations on exclusion of judicial review 207 7.5 CONCLUSION 208 SUMMARY OF CHAPTER 7 209 8 PUBLIC INTEREST IMMUNITY 211 8.1 INTRODUCTION 211 8.2 HISTORY 212 8.2.1 Duncan v Cammell Laird & Co (1942) 212 8.2.2 Judicial criticism 214 8.2.3 Conway v Rimmer (1968) 215 xii Contents 8.3 THE MODERN APPLICATION OF PUBLIC INTEREST IMMUNITY 216 8.3.1 For what types of document can immunity be claimed on the class ground? 216 8.3.2 Who can make a claim for immunity? 223 8.3.3 Who determines the public interest? 223 8.3.4 Can a claim of immunity be made in the context of criminal proceedings? 224 8.3.5 Does a minister have
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