Beatson, Matthews & Elliot's Administrative Law Text and Materials

by Elliot, Mark; Beatson, Jack; Matthews, Martin

• ISBN13: 9780199269983
• ISBN10: 019926998X
• Edition: 3rd
• Format: Paperback
• Copyright: 2005-08-18
• Publisher: Oxford University Press

Summary

Beatson, Matthews & Elliott's Administrative Law--Text & Materials combines carefully selected extracts from key cases, articles and other sources with detailed commentary. Aimed at undergraduates studying administrative law, it provides comprehensive coverage of the subject, bringing together in one volume the best features of a textbook and a casebook.

Author Biography

Mark Elliot is currently a lecturer in law and assistant director of the Centre for Public Law at the University of Cambridge. He is also a Fellow of St Catherine's College, Cambridge. Sir Jack Beatson FBA, formerly Rouse Ball Professor of English Law at the University of Cambridge, is a Justice of the High Court, Queen's Bench Division. Martin Mattews is a Fellow and Praelector in Jurisprudence at University College, Oxford, and a C.U.F. Lecturer in Law at the University of Oxford.

Table of Contents

Introductory Matters
Administrative Law	1	(1)
How is Good Administrative to be Secured?	1	(5)
Red Light Theory	2	(1)
Green Light Theory	3	(2)
Why is Theory Important?	5	(1)
The Changing Face of Judicial Review	6	(5)
The Scope and Intensity of Review	6	(2)
Why is Judicial Review Expanding?	8	(1)
Is (More) Judicial Review a Good Thing?	9	(2)
The Constitutional Basis of Judicial Review	11	(13)
The Ultra Vires Doctrine	11	(3)
The Common Law Theory	14	(3)
Must Judicial Review be Related to Legislative Intention?	17	(4)
The Modified Ultra Vires Theory	21	(2)
Conclusion	23	(1)
Administrative Power in the Modern Constitution	24	(8)
Devolution	24	(3)
Local Government	27	(2)
Agencies and the Private Sector	29	(3)
Concluding Remarks	32	(2)
Further Resources	33	(1)
Jurisdiction
Introduction	34	(4)
What is `Jurisdiction'?	34	(3)
Distinguishing Jurisdictional and Non-Jurisdictional Matters	37	(1)
Errors of Law	38	(21)
Introduction	38	(1)
Jurisdictional and Non-Jurisdictional Errors of Law	39	(1)
The Anisminic Decision	40	(7)
The General Principle: Errors of Law as Jurisdictional Errors	47	(3)
Exceptions to the General Principle	50	(9)
Applying Statutory Criteria to the Facts	59	(12)
Supervision of the Fact-Finding Process	71	(2)
Subjective Jurisdictional Criteria	73	(2)
Non-Compliance with Statutory Requirements	75	(2)
Concluding Remarks	77	(2)
Further Resources	78	(1)
The Status of Unlawful Administrative Action
Void or Voidable?	79	(6)
The Practical Argument	79	(2)
The Theoretical Argument	81	(4)
The Nature of Voidness	85	(8)
The Presumption of Validity	85	(6)
The Principle of Legal Relativity	91	(2)
Managing the Practical Effects of Voidness	93	(9)
The `Domino Effect' Problem	93	(1)
The Void/Voidable Distinction as a Management Technique	94	(2)
Judicial Discretion	96	(1)
The Theory of the Second Actor	97	(4)
Partial Invalidity	101	(1)
Collateral Challenge	102	(7)
Voidness and Collateral Challenge	102	(1)
The Importance of Collateral Challenge	103	(3)
The Limits of Collateral Challenge	106	(3)
Concluding Remarks	109	(1)
Further Resources	109	(1)
Discretionary Power: An Introduction
What is Discretionary Power?	110	(2)
Discretion and the Administrative State	112	(3)
Further Resources	114	(1)
The Scope of Public Law Principles
Introduction	115	(1)
Statutory Powers	115	(1)
Prerogative Powers	116	(14)
The Nature of Prerogative Power	116	(1)
The Amenability of the Prerogative to Judicial Review	117	(4)
From Form to Substance: Justiciability as the Limiting Factor	121	(9)
De Facto Powers	130	(14)
The Datafin Case	130	(3)
Defining the Scope of Judicial Review	133	(1)
The Limits of Review and its Underlying Rationale	134	(4)
Contractual Arrangements	138	(4)
Public Law and Private Law: Should There Be a Divide?	142	(2)
Section 6 of the Human Rights Act 1998	144	(9)
Concluding Remarks	153	(1)
Further Resources	153	(1)
Retention of Discretion
Introduction	154	(1)
Delegation of Discretionary Power	154	(12)
A Presumption Against Delegation	154	(2)
Conflicting Policies	156	(1)
The Nature of Delegation	157	(2)
Departmental Decision-Making in Central Government	159	(7)
Discretion and Policy	166	(7)
Distinguishing Policies and Rules	166	(1)
The Legality of Policy-Orientated Decision-Making	167	(4)
Discretion and Policy: The Underlying Issues	171	(2)
Discretionary Power and Contractual Arrangements	173	(3)
Concluding Remarks	176	(1)
Further Resources	176	(1)
Legitimate Expectations
Lawfully Created Expectations	177	(24)
Why Protect Legitimate Expectations?	177	(2)
Two Variables: Legitimacy and Protection	179	(2)
Legitimacy: What is the Claimant Entitled to Expect?	181	(11)
Procedural Protection	192	(2)
Substantive Protection	194	(6)
Revocability of Lawful Administrative Decisions	200	(1)
Unlawfully Created Expectations	201	(19)
Introduction	201	(1)
Fairness to the Individual	202	(1)
Constitutionality and the Public Interest	203	(3)
A New Approach	206	(3)
Representations Issued by Unauthorized Officials	209	(4)
Representations Concerning Action which is Ultra Vires the Agency	213	(7)
Concluding Remarks	220	(1)
Further Resources	220	(1)
Abuse of Discretion I
Introduction	221	(2)
Loyalty to the Statutory Scheme: The Propriety of Purpose Doctrine	223	(6)
Overlapping Principles?	223	(1)
Express and Implied Purposes	223	(2)
The Purpose Doctrine and the Intensity of Review	225	(3)
Multiple Purposes	228	(1)
Inputs into the Decision-Making Process: The Relevancy Doctrine	229	(12)
Introduction	229	(1)
General Principles	230	(4)
Relevancy, Judicial Intervention, and Executive Autonomy	234	(7)
Concluding Remarks	241	(2)
Further Resources	242	(1)
Abuse of Discretion II
Introduction	243	(1)
Reasonableness and Rationality	244	(12)
The Wednesbury and GCHQ Cases	244	(5)
Deference and the Variable Standard of Review	249	(7)
Proportionality as a Principle of Review	256	(35)
The Methodology of Wednesbury Review	256	(3)
Wednesbury, Proportionality, and the Intensity of Review	259	(5)
Towards Proportionality	264	(3)
The Daly Case and the Human Rights Act	267	(5)
Deference	272	(7)
Democratic and Institutional Considerations	279	(9)
Substantive Review: the Future	288	(3)
Concluding Remarks	291	(1)
Further Resources	291	(1)
The Rule Against Bias
The Rule: Its Scope and Rationale	292	(3)
Automatic Disqualification	295	(14)
Financial Interests	295	(8)
Beyond Financial Interests: Pinochet	303	(6)
The Apprehension of Bias	309	(10)
Suspicion, Likelihood, Danger: Competing Tests	309	(4)
Beyond Gough: The Fair-Minded and Informed Observer	313	(6)
Bias, Policy, and Politics	319	(4)
Article 6	323	(17)
Introduction: Article 6 in an Administrative Context	323	(4)
When Does Article 6(1) Apply to Administrative Decision-Making?	327	(4)
What Does Article 6(1) Require in the Administrative Sphere?	331	(9)
Concluding Remarks	340	(2)
Further Resources	341	(1)
Procedural Fairness
The Idea of Procedural Fairness	342	(4)
The Province of Procedural Fairness	346	(16)
A Question of Function or of Impact?	346	(9)
Natural Justice and Acting Fairly	355	(3)
Legitimate Expectations of Fair Treatment	358	(1)
Article 6: The Scope of the Right to a Fair and Public Hearing	358	(1)
The Limits of Procedural Fairness	359	(3)
The Nature of Procedural Fairness	362	(29)
Fairness: A Context-Sensitive Phenomenon	362	(6)
The Right to Know the Opposing Case	368	(6)
Hearings: Cross-Examination, Legal Representation, and Evidence	374	(13)
Appeals	387	(4)
Concluding Remarks	391	(1)
Further Resources	391	(1)
Giving Reasons For Decisions
Reasons, Notice, and Rationality	392	(1)
Why Require Reasons?	393	(5)
The Virtues of Reason-Giving	393	(3)
A General Duty to Give Reasons?	396	(2)
The Duty to Give Reasons at Common Law	398	(9)
The Emergence of a Common Law Duty to Give Reasons	398	(2)
Reasons, Appeal, and Review	400	(2)
A `Unitary' Test	402	(5)
Reason-Giving and Legitimate Expectation	407	(1)
Statutory and Other Duties to Give Reasons	407	(4)
Introduction	407	(1)
The Freedom of Information Act 2000	408	(2)
Article 6 ECHR	410	(1)
Implications of the Duty to Give Reasons	411	(2)
Concluding Remarks	413	(1)
Further Resources	413	(1)
Remedies
Introduction	414	(1)
Injunctions	415	(12)
The Role of Injunctions in Public Law	415	(1)
The Availability of Interim Injunctions	416	(3)
Injunctions and the Crown	419	(8)
Declarations	427	(3)
The Role of Declarations in Public Law	427	(1)
Interim Declarations	428	(2)
Relator Proceedings	430	(4)
Prerogative Remedies	434	(4)
Quashing Orders	434	(2)
Prohibiting Orders	436	(1)
Mandatory Orders	437	(1)
Concluding Remarks	438	(1)
Further Resources	438	(1)
The Judicial Review Procedure
Introduction	439	(1)
What is the Judicial Review Procedure?	440	(5)
The Origins of Today's Judicial Review Procedure	440	(2)
The Nature of the Judicial Review Procedure	442	(3)
When Must the Judicial Review Procedure be Used?	445	(25)
Procedural Exclusivity	445	(10)
Waiver	455	(1)
Resolution of Factual Disputes	456	(1)
Defensive Use of Public Law Arguments	456	(1)
Private Law Rights Dependent upon Public Law	457	(4)
Private Law Rights Affected by Public Law	461	(4)
Procedural Exclusivity and the Civil Procedure Rules	465	(1)
A More Substantive Approach	465	(4)
Transfer into Part 54	469	(1)
Concluding Remarks	470	(1)
Further Resources	470	(1)
Restriction of Remedies
Introduction	471	(1)
Permission	472	(4)
The Pre-Action Protocol	472	(1)
Judicial Review: A Two-Stage Process	472	(1)
Reform of the Permission Stage	473	(1)
The Operation of the Permission Stage	474	(2)
Exhaustion of Alternative Remedies	476	(3)
The Principle and its Rationale	476	(2)
Exceptions to the General Principle	478	(1)
Time Limits	479	(9)
Introduction	479	(2)
Interpreting the Rules	481	(2)
A Three-Stage Analysis	483	(5)
Prematurity and Ripeness	488	(9)
Introduction	488	(1)
Preliminary and Interlocutory Decisions	489	(2)
Advice, Guidance, Recommendations, and Views	491	(3)
Hypothetical Issues and Advisory Declarations	494	(3)
Exclusion of Judicial Review	497	(16)
Introduction	497	(1)
Finality Clauses	498	(1)
`No Certiorari' and `as if Enacted' Clauses	499	(1)
`Shall not be Questioned' Clauses	500	(4)
Further Issues	504	(1)
Statutory Review	505	(6)
Statutory Remedies and Anisminic	511	(1)
Review of Decisions by the Asylum and Immigration Tribunal	512	(1)
Standing	513	(30)
Introduction	513	(3)
The Law Prior to the National Federation Case	516	(1)
The National Federation Case	517	(14)
Representative Standing	531	(6)
The Foundations of the Law of Standing	537	(3)
Standing in Human Rights Cases	540	(3)
Concluding Remarks	543	(2)
Further Resources	543	(2)
Liability of Public Authorities and Crown Proceedings
General Matters	545	(2)
Introduction	545	(1)
Relationship with Judicial Review	545	(1)
The Meaning of `the Crown' in this Context	546	(1)
Tort	547	(35)
Liability in Tort Generally	547	(1)
The Crown's Position in Tort	547	(1)
Breach of Statutory Duty	548	(1)
The Search for Legislative Intention	548	(3)
The Level of Liability	551	(1)
Relationship with Ultra Vires	552	(1)
Breach of European Community Law Obligations by the State	552	(2)
The Human Rights Act 1998: Introduction	554	(1)
The Statutory Provisions	555	(1)
Is Fault Required?	556	(1)
`Just Satisfaction'	556	(2)
Procedural Matters	558	(1)
Misfeasance in Public Office	558	(5)
Causation and Damage	563	(1)
The Tort of Negligence: Introduction	563	(1)
Development of the Law: The Rise and Fall of Ultra Vires	564	(6)
Particular Examples from the Administrative Law Sphere	570	(1)
The Question of Liability for Omissions	571	(5)
When can there be Liability?	576	(2)
Nuisance, Rylands v. Fletcher, and Statutory Authority	578	(3)
Other Compensation Possibilities	581	(1)
Public Authorities and Other Aspects of the Tort of Nuisance and Rylands v. Fletcher	581	(1)
Contract	582	(22)
Introduction	582	(1)
(Basic) Contractual Capacity	583	(2)
Freedom to Contract	585	(2)
Is Parliamentary Appropriation of Funds Necessary?	587	(4)
The Non-Fettering Rule	591	(4)
Agency and Public Authorities' Contracts	595	(2)
The Law of Crown Service	597	(2)
Is there a Contract of Employment?	599	(4)
Can a Claim in Judicial Review be Brought?	603	(1)
Restitution	604	(6)
Introduction	604	(1)
The `Woolwich Principle'	605	(1)
The Scope of the `Woolwich Principle'	606	(2)
Relationship with Statute	608	(1)
Defences	608	(1)
Claims by a Public Body	609	(1)
Procedural Matters	609	(1)
A Public Law or a Private Law Right?	610	(1)
Remedies, Procedure, and Public Interest Immunity	610	(23)
Remedies and Procedure in General	610	(2)
Exemplary (or Punitive) Damages	612	(2)
Public Interest Immunity	614	(4)
Crown Privilege Becomes Public Interest Immunity	618	(1)
Evolution of the Doctrine	619	(9)
The Questions of who should Raise the Claim and of Waiver	628	(4)
Article 6 ECHR, the HRA, and Public Interest Immunity	632	(1)
Further Resources	632	(1)
Delegated Legislation
Introduction	633	(7)
General Matters	633	(1)
Enabling Provisions	634	(1)
The Nature of Delegated Powers	635	(1)
The Extent of Delegated Powers	636	(2)
Legislative and Administrative Measures	638	(2)
The Making of Delegated Legislation	640	(9)
Publication	640	(2)
Consultation	642	(6)
The Role of Parliament	648	(1)
Parliamentary Scrutiny	649	(5)
The Conferral of Administrative Rule-Making Powers	649	(1)
The Exercise of Administrative Rule-Making Powers	650	(1)
Technical Scrutiny	650	(1)
Policy Scrutiny	651	(2)
EU Legislation	653	(1)
Regulatory Reform Orders	654	(1)
Judicial Scrutiny	654	(7)
Introduction	654	(1)
Compatibility with Primary Legislation	655	(1)
General Principles of Judicial Review	656	(2)
Wider Constitutional Principles and Human Rights	658	(3)
Concluding Remarks	661	(1)
Further Resources	661	(1)
Inquiries
Introduction	662	(2)
Background to the Modern Law	664	(1)
Statutory Inquiries Today	665	(14)
General	665	(2)
The Right to Know the Opposing Case	667	(3)
Participation and Procedure	670	(4)
Procedure Following the Inquiry	674	(5)
Ad Hoc Inquiries	679	(9)
Introduction	679	(3)
The Role of Judges in Public Inquiries	682	(2)
Questions of Procedure	684	(4)
Concluding Remarks	688	(1)
Further Resources	688	(1)
Statutory Tribunals
Introduction	689	(5)
The Growth of Tribunals	689	(1)
Are Tribunals a Desirable Feature of the Administrative System?	689	(2)
The Franks Report	691	(3)
The Independence of Tribunals	694	(2)
Tribunals and Government	694	(1)
Judicial Leadership of Tribunals	695	(1)
Appointment to Tribunals	696	(1)
Procedure in Tribunals	696	(11)
Introduction	696	(1)
Formality, Representation, and the Style of Tribunal Proceedings	697	(4)
Knowledge of Rights and Grounds of Appeal	701	(1)
Knowledge of the Case to be Met	702	(1)
Reasons for Tribunals' Decisions	702	(5)
Appeals and the System of Tribunals	707	(4)
Towards a Tribunals System	707	(1)
Appeal From and Review of First-Tier Tribunals' Decisions	708	(3)
The Supervision and Accountability of Tribunals	711	(2)
Concluding Remarks	713	(2)
Further Resources	714	(1)
Ombudsmen
Introduction	715	(6)
Ombudsmen in the UK	715	(1)
The Need for and Role of Ombudsmen	716	(3)
Ombudsmen in a Changing Administrative Landscape	719	(2)
Bodies Subject to Investigation	721	(1)
Matters Subject to Investigation	722	(7)
`Maladministration'	723	(3)
Other Modes of Redress	726	(1)
Excluded Matters	726	(2)
Discretion to Investigate	728	(1)
The Conduct of Investigations	729	(8)
Own-Initiative Investigations	732	(1)
The MP Filter	733	(2)
Co-operation with the Ombudsman	735	(1)
Securing Redress	736	(1)
Problems and Reform	737	(3)
The Ombudsmen's Concerns	737	(1)
Institutional Reform	737	(2)
Throughput	739	(1)
Concluding Remarks	740	(3)
Further Resources	741	(2)
Appendix	743	(10)
Index	753