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Judicial Review in Administrative Law: a Comparative Study of Rights

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Judicial Review in Administrative Law: a Comparative Study of Rights Judicial Review in Administrative Law: A Comparative Study of Rights Consciousness with Special Reference to Sri Lanka. A thesis presented to the University of London, for examination, for the award of the degree Doctor of Philosophy, by: John Anthony Shivaji Felix, (A student of the Faculty of Laws of the University of London). March 2000. ProQuest Number: U644150 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest. ProQuest U644150 Published by ProQuest LLC(2016). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. Microform Edition © ProQuest LLC. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 Abstract. This thesis examines the interface between administrative law, human rights and jurisprudence. It is the author’s contention that judicial review is a very important tool for the vindication of fundamental human rights and that the development of a rights culture is a prerequisite for the promotion of the rule of law and for firmly establishing a liberal democracy. Such a form of review has the advantage of objectivity, candour and legitimacy. The extent to which rights consciousness can be used as a justification for judicial review, in administrative law, is examined in this thesis. For this purpose, developments in a number of jurisdictions, sharing a common heritage, including England, Canada, Australia, New Zealand and India are examined, with special reference being made to Sri Lanka. Various aspects of judicial review, in administrative law, are examined and it is sought to identify certain underpinning human rights norms so as to justify such review. After a brief introduction (chapter 1), followed by an examination of the justification for rights based review (chapter 2), the thesis examines the manner in which the right of access to the courts has been protected by the adoption of flexible rules of standing (chapter 3) and the manner in which the courts have resisted ouster clauses (chapter 8). The thesis examines the manner in which rights consciousness has been advanced by the development of principles of good administration such as natural justice (chapter 4), legitimate expectations (chapter 5), reasonableness (chapter 6) and legality (chapter 7). The final chapter (chapter 9) examines the implications of rights based review. The law is stated at 31 December 1999 although certain subsequent developments have been taken into account. Acknowledgements. It is a pleasure to acknowledge the help, guidance, advice and encouragement received from many quarters during the preparation of this work. Consequently, this thesis has resulted in many debts of gratitude. To Mr Rodney Austin, Senior Lecturer, University College London, my academic adviser, I owe an enormous debt of gratitude. He went out of his way to help me in my research project and showed a great deal of interest in my work. For all the time spent reviewing my work, for his kindness, accessibility at all times and consideration, I am extremely grateful. To Dr Peter Slinn, Senior Lecturer, School of Oriental and African Studies, University of London, I express my sincere appreciation for the keen interest demonstrated in the progress of my work. I acknowledge, with thanks, all the support and assistance rendered by the Librarian and staff of the Institute of Advanced Legal Studies, the School of Oriental and African Studies, the Senate House Library, the University College London Library, the University of Colombo Library and the Colombo Law Library. Mrs Ivy Murugupillai, my aunt, and Mr and Mrs D J H Hettiaratchy, my cousins, deserve a special word of thanks for making my frequent stays to London a most pleasant experience. For their many acts of kindness I am most grateful. I would fail in my duty if I do not thank Dr Vasiharan and and his wife Dr Maryse Sundaresan who, despite their busy schedule of work, were kind enough to support and encourage me in my endeavour. I thank Dr Jayampathy Wickremaratne, Consultant, Ministry of Justice and Constitutional Affairs, for the many helpful discussions on various aspects of Sri Lanka’s Constitution, for his advice and encouragement. To Miss A. David, a big thank you for her help and assistance in proof reading this thesis. I must also thank my numerous friends and colleagues who, in different ways, supported and encouraged me during the course of my research. Last but not least, I must express my deep appreciation for the support and encouragement of my parents to whom, as a mark of my gratitude, this work is dedicated. Table of Contents. Page. Title 1 Abstract 2 Acknowledgements 3 Table of Contents 5 Chapter 1. General Introduction. 12 I. Rationale for the Study. 12 II. Aims and Objectives of Thesis. 12 III. Terminology Adopted. 15 (a) Administrative Law. 15 (b) Rights Consciousness. 16 (c) The Rule of Law. 17 IV. Outline of Thesis. 20 Chapter 2. The Justification for Rights Based Review. 23 I. Introduction. 23 II. The Nature and Justification of the Ultra Vires Rule. 24 III. Rights Based Review. 32 (a) The Theoretical Foundations of Rights Based Review. 32 (i) Dawn Oliver. 33 (ii) D. J. Galligan. 35 (iii) Paul Craig. 36 (iv) Sir John Laws. 40 (v) Jeffrey Jowell. 42 (b) Is Rights Based Review Justified? 43 (i) The Change in the Notion of Democracy. 44 Page (ii) The Historical Justification for Rights Based Review. 46 (iii) Does the British Parliament Satisfy the Majoritarian Notion of Democracy Even Today? 51 (iv) The Possibility of Adopting Objective Criteria when Determining the Lawfulness of Official Action. 52 IV. Does the Ultra Vires Rule have any Application Outside the United Kingdom? 53 V. Conclusion. 56 Chapter 3. Locus Standi and Public Interest Litigation. 57 I. Introduction. 57 II. Locus Standi as a Fundamental Human Right. 62 III. The Different Species of Standing. 67 (a) Personal Standing. 68 (b) Representative Standing. 70 IV. The Rules of Standing and the Approach of the Sri Lankan Judiciary. 74 V. Locus Standi in the United Kingdom. 86 VI. Locus Standi in Australia and Canada. 95 (a) Australia. 95 (b) Canada. 100 VII. Locus Standi mlndm. 105 VIII. Conclusion. 111 Page Chapter 4. Natural Justice: Its Impact Upon the Expansion of Rights Consciousness. 113 I. Introduction. 113 II. The Rule Against Bias. 120 (a) The Need for Impartiality in the Process of Decision-making. 120 (b) Personal Bias. 122 (c) Systemic Bias. 135 (d) Cognitive Bias. 142 (e) Loss of Independence. 143 (f) The Significance of Impartial Treatment. 144 III. The Right to a Fair Hearing. 145 (a) The Rights and Values Protected. 145 (b) The Right to Notice. 147 (c) The Right to Make Representations. 151 (d) The Right to Cross-examine. 153 (e) The Right to Legal Representation. 158 (f) Restrictions Imposed Upon the Entitlement to a Hearing. 160 IV. The Duty to Give Reasons. 168 (a) The Justification for the Giving of Reasons for a Decision. 168 (b) Arguments in Favour of Giving Reasons for a Decision. 174 (c) Arguments Against Giving Reasons for a Decision. 176 (d) The Duty to Give Reasons and Natural Justice. 177 Page (e) The Duty to Give Reasons in the Absence of a Statutory Requirement. 179 (f) The Duty to Give Reasons in the Light of a Statutory Duty to do so. 186 V. Conclusion. 191 Chapter 5. Legitimate Expectations: An Evolving Area of Rights Consciousness. 193 I. Introduction. 193 II. The Rationale for the Protection of Legitimate Expectations. 201 III. Situations Which Give Rise to Legitimate Expectations. 207 IV. A Legitimate Expectation that a Certain State of Affairs Will Continue. 210 V. Where No Free Standing Right Exists, but a Legitimate Expectation is Created Because of a Promise, Previous Practice, Policy or Conduct. 219 VI. Substantive Legitimate Expectations. 228 VII. The Protection of Fundamental Human Rights and Legitimate Expectations. 249 VIII. Conclusion. 257 Chapter 6. Controlling the Abuse of Power: Unreasonableness. 261 I. Introduction. 261 II. Unreasonableness. 267 (a) The Nature of Judicial Review for Unreasonableness. 267 Page (b) The General Principle. 271 (c) The Human Rights Dimension of Substantive Unreasonableness. 284 (d) Unreasonable Decisions in the Context of Constitutionally or Statutorily Protected Fundamental Human Rights. 304 III. The Nexus Between Proportionality and Unreasonableness. 317 (a) The Origin and Nature of the Concept of Proportional ity. 317 (b) The Situations in Which Review for Proportionality Can Arise. 319 (c) Proportionality and English Common Law. 321 (d) Proportionality in Other Commonwealth Jurisdictions. 328 (e) Should Proportionality be Subsumed within the Concept of Irrationality? 332 IV. Is it Desirable for Judges to Determine the Merits of a Decision? 333 V. Conclusion. 336 Chapter 7. Controlling the Abuse of Power: Illegality. 339 I. Introduction. 339 II. Should Judges be Reviewing Decisions for Illegality Amounting to an Abuse of Power? 340 III. Illegality in the Strict Sense. 346 Page IV. Decisions Ignoring Relevant Considerations, Taking into Account Irrelevant Considerations or the Failure to Attach Sufficient Weight to Relevant Considerations. 355 (a) The General Principle. 355 (b) The Human Rights Dimension: Taking into Account Irrelevant Considerations, Failing to Take into Account Relevant Considerations or Attaching Insufficient Weight to Relevant Considerations. 367 V. Improper Purpose and Bad Faith. 382 (a) The General Principle. 382 (b) The Human Rights Dimension of Improper Purpose and Acting in Bad Faith. 387 VI. Acting Under Dictation. 389 VII. Acting o n ‘No Evidence’.
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