Abstract
This chapter discusses the main trends in English administrative law. It begins by seeking to define administrative law in a UK context before moving on to discuss the role of ‘red light’ and ‘green light’ theory as competing approaches to understanding the contribution of administrative law from the latter part of the nineteenth century. An assessment of the common law development is approached by explaining the significance of prominent case law with particular attention to the famous Wednesbury case, the decision in Ridge v Baldwin and the GCHQ case. However viewed from a different perspective the rising importance of administrative law is attributed to procedural reforms which relaxed the rules of standing and swept away other procedural impediments to making claims. An assessment of the contribution of the Human Rights Act 1998 follows as this not only incorporated the ECHR but also further increased the profile of the courts. The heightened judicial profile calls for a discussion in outline of the conceptual debate between legal and political constitutionalism concerning the extent of the judicial role. The final section of the chapter adopts a ‘bottom up’ approach by briefly assessing the contribution of alternatives to the judge centred approach, with reference to alternative dispute resolution and the new system of tribunals. It is argued that recent rule changes to reduce legal aid costs and impose court fees are having a radical impact on the number of cases, with drastic implications for claimants.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
- 2.
See the European Union Referendum Act 2015.
- 3.
Poole (2017), pp. 696–710 and 702.
- 4.
See European Union (Notification of Withdrawal) Act 2017.
- 5.
Poole (2017), p. 710.
- 6.
In this chapter many important areas of administrative law are not discussed. For example, privatization and regulation.
- 7.
- 8.
- 9.
Harlow and Rawlings (1984), p. 1.
- 10.
Dicey (1959), p. 193.
- 11.
Harlow and Rawlings (1984), p. 13.
- 12.
Hewart (1929).
- 13.
Harlow and Rawlings (1984), p. 41.
- 14.
Harlow and Rawlings (1984), p. 36.
- 15.
Jennings (1959).
- 16.
See e.g. National Insurance Acts 1911 and 1965, Housing Acts 1925, 1930, 1985, National Health Service Act 1946, Town and Country Planning Act 1947 to name but a few.
- 17.
See Report of the Committee on Ministers’ Powers, Cmnd (1932); See Loughlin (1992), chapter 6 and p. 235.
- 18.
See Report of Committee on Administrative Tribunals and Enquiries, 1957 (Cmnd 218) mentioned below.
- 19.
Harlow and Rawlings (2009), p. 46.
- 20.
Harlow and Rawlings (1997), chapter 5.
- 21.
Davies (2013), p. 350.
- 22.
Harlow and Rawlings (1997), pp. 138ff and 149.
- 23.
Sedley (1997), pp. 17 and 18.
- 24.
(1863) 14 CB (NS) 180, 194.
- 25.
Sedley (2015), p. 27.
- 26.
[1915] AC 120.
- 27.
Wade and Forsyth (2014), p. 412.
- 28.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).
- 29.
Taggart (2003), p. 320.
- 30.
Sedley (2015), p. 25, n. 8.
- 31.
See for “super” Wednesbury R v Secretary of State for the Environment, ex p Nottinghamshire CC [1986] AC 240 and for sub Wednesbury/anxious scrutiny test see e.g. R v Secretary of State for the Home Office, ex p Bugdaycay [1987] 1 AC 514.
- 32.
Laws (1998), pp. 191ff.
- 33.
[1964] AC 40.
- 34.
Other landmark cases included: Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 (established that a wide statutory discretion must promote the policy and objects of the act) and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (recognised limits to statutory ouster clauses).
- 35.
Wade and Forsyth (2014), p. 412.
- 36.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
- 37.
Drabble (2017), p. 97.
- 38.
Remedies in Administrative Law, Cmnd 6407 (London, 1976).
- 39.
See O’Reilly v Mackman [1983] 2 AC 237 at 279.
- 40.
Wade and Forsyth (2014), p. 478.
- 41.
Remedies in Administrative Law, Cmnd 6407 (London, 1976), para 59.
- 42.
[1983] 2 AC 237, 238.
- 43.
In turn this raises further issues in defining a public body. See R v Panel on Take-overs and Mergers, ex p Datafin [1987] QB 815.
- 44.
Order 53,T.
- 45.
R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Business [1982] AC 617, 644.
- 46.
The victim requirement under the Human Rights Act was recently considered by the Supreme Court which held that ‘where the Northern Ireland Human Rights Commission is intervening in human rights proceedings, the person instituting the proceedings must be a an actual or potential victim of an unlawful act …’ for standing requirements to be satisfied. Lord Mance para 56. See In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review, Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland) [2018] UKSC27.
- 47.
Harlow and Rawlings (2009), pp. 672ff.
- 48.
This first appeared in 1987, for the latest version see ‘Judge Over Your Shoulder: A Guide to good decision making’ (Government Legal Department, 2016); https://www.gov.uk/government/publications/judge-over-your-shoulder.
- 49.
Ibid, ‘Appendix 3: Checklist for making decisions’.
- 50.
Boyle (1994), p. 88.
- 51.
The reform was later enacted as Section 31 of the Senior Courts Act 1981.
- 52.
Leyland and Anthony (2016), p. 198.
- 53.
See Sunkin and Bondy (2016), p. 337.
- 54.
Blick (2015), p. 47.
- 55.
See e.g. The Police and Criminal Evidence Act 1984.
- 56.
HRA 1998, section 6.
- 57.
Craig (2015), p. 42.
- 58.
HRA 1998, section 3.
- 59.
HRA 1998, section 4.
- 60.
Cohn (2013).
- 61.
See e.g. R v Secretary of State for the Home Department, ex p Brind [1992] AC 696.
- 62.
See e.g. R v Home Secretary, ex p Daly [2001] 2 AC 532.
- 63.
See Hickman (2008), p. 694.
- 64.
A v Home Secretary [2005] 2 AC 68.
- 65.
Bingham (2010), p. 149.
- 66.
See Clayton (2017).
- 67.
Woodhouse (2001), pp. 12ff.
- 68.
CRA 2005, Section 3.
- 69.
CRA 2005, Part 3.
- 70.
CRA 2005, Part 4.
- 71.
For a detailed up-to-date overview see Craig (2015), pp. 166ff.
- 72.
Dicey (1959), p. 188.
- 73.
Bingham (2010), p. 8.
- 74.
Griffith (1979), p. 15.
- 75.
- 76.
- 77.
Dicey (1959), p. 195.
- 78.
Allan (2013), p. 78.
- 79.
Craig (2015), pp. 22ff.
- 80.
Griffith (1979), p. 19.
- 81.
Bellamy (2007), p. 141.
- 82.
Waldron (2006), pp. 1346 and 1366.
- 83.
Tushnet (2013), pp. 60ff.
- 84.
Waldron (2006), pp. 1379ff.
- 85.
See e.g. Poole (2003), pp. 435–454.
- 86.
[2006] 89 BMLR 211. See Leyland and Anthony (2016), p. 298.
- 87.
Syrett (2006), pp. 664–673 at 667.
- 88.
Craig (2015), p. 180.
- 89.
Jackson v Attorney General [2005] UKHL 56, para 102. See also the judgment of Lord Hope.
- 90.
Goldsworthy (2010), p. 51.
- 91.
Loughlin (2013), pp. 99ff.
- 92.
Waldron (2006), p. 1360.
- 93.
Leyland (2016), p. 305.
- 94.
- 95.
(Alternative Dispute Resolution). Such as Mediation, Adjudication, Arbitration, Conciliation. https://publiclawproject.org.uk/what-is-public-law/guides-public-law-2/; Roberts and Palmer (2005).
- 96.
Willet (1996).
- 97.
See e.g. Part VII of the Housing Act 1996, section 202.
- 98.
Cowl v Plymouth City Council [2001] EWCA 1935.
- 99.
The JR procedure requires claimants to state that they have exhausted existing remedies before proceeding. /publiclawproject.org.uk/resources/mediation-in-judicial-review-a-practitioners-handbook/.
- 100.
Transforming Public Services: Complaints, Redress and Tribunals, Cm 6243, (HMSO, 2004), section 2.
- 101.
Adler (2006), pp. 958–985.
- 102.
Le Sueur (2007), p. 320.
- 103.
Alternative Dispute Resolution processes include: adjudication, arbitration, conciliation.
- 104.
See The Citizen and Administration: The redress of grievances (Wyatt Report) 1961 the UK parliamentary ombudsman tended towards the Danish model.
- 105.
Leyland and Anthony (2016), p. 133.
- 106.
Parliamentary Commissioner Act, schedule 2 and 3.
- 107.
Parliamentary Commissioner Act 1967, section 5.
- 108.
See the Health Service Commissioners Act 1993.
- 109.
A notable exception were the occupational pension cases in 2005 involving more than 750,000 potential claimants which led to protracted litigation before any concession was made by the government on granting compensation. See Leyland and Anthony (2016), p. 153.
- 110.
Abrahams (2011), p. 10.
- 111.
- 112.
Tribunals and Gender Recognition Statistics Quarterly, January to March 2018, Ministry of Justice 14 June, 2018.
- 113.
Cane (2009), pp. 42ff.
- 114.
Cane (2011), p. 319.
- 115.
The constitution and workings of tribunals was considered by the Frank’s report. See Report of Committee on Administrative Tribunals and Enquiries, 1957 (Cmnd 218).
- 116.
Cane (2009), p. 72.
- 117.
See ‘Tribunals for Users: One System, One Service’ (London, TSO, 2001), The Leggatt Report.
- 118.
Transforming Public Services: Complaints, Redress and Tribunals, Cm 6243, (HMSO, 2004).
- 119.
The importance of tribunals as judicial bodies being formally independent of the body responsible for the decision under review was recognized in the Franks Report of 1957. See Richardson and Genn (2007), p. 119.
- 120.
For example, the right of access to an impartial hearing in reasonable time; the public pronouncement of reasoned judgment; the right of parties to be personally present; the compliance with principle of equality of arms.
- 121.
Lord Falconer, Lord Chancellor, HL Hansard, 29 Nov 2006, col 761.
- 122.
Prior to its present existence as the Ministry of Justice this department was called the Department of Constitutional Affairs (2003–2007) and before that the Lord Chancellor’s Department.
- 123.
Tribunals, Courts and Enforcement Act 2007, Schedule 1.
- 124.
Until the reforms post Leggatt the adjudicators at tribunals were not referred to as judges.
- 125.
Constitutional Reform Act 2005, Part IV and Schedule 12.
- 126.
For example, tax, mental health, immigration and asylum.
- 127.
First Tier tribunals include: Asylum Support, Care Standard, Criminal Injuries Compensation, General Regulatory Chamber, Immigration and Asylum Chamber, Mental Health, Primary Health Lists, Property Chamber, Social Security and Child Support, Special Educational Needs and Disability, Tax Chamber, War Pensions and Armed Forces Compensation. Upper Tribunal: Administrative Appeals Chamber, Immigration and Asylum Chamber, Lands Chamber, Tax and Chancery Chamber. Some important tribunals, such as the Employment and Employment Appeal Tribunal, fall under the NTS but are not included as part of the main two tier system.
- 128.
Tribunals, Courts and Enforcement Act 2007, Ss 15–18.
- 129.
[2011] UKSC 28.
- 130.
See Leyland and Anthony (2016), p. 174.
- 131.
Thomas (2015), pp. 652–678.
- 132.
Radcliffe (2007), pp. 197–203 and 199.
- 133.
Thomas (2015), p. 652.
- 134.
Cane (2016), p. 331.
- 135.
Elliott (2013a), p. 240.
- 136.
Elliott (2013a), pp. 241ff.
- 137.
Radcliffe (2007), p. 203.
- 138.
Department of Constitutional Affairs, Transforming Public Service: Complaints, redress and tribunals, Cm 6243 (July 2004).
- 139.
Richardson and Genn (2007), pp. 116–141 and 130.
- 140.
See Harlow and Rawlings (2016).
- 141.
See Ministry of Justice, Commission on a Bill of Rights: A UK Bill of Rights? The Choice Before Us (London 2012); Elliott (2013b), pp. 137–151.
- 142.
Harlow and Rawlings (2016), p. 313.
- 143.
See Mills (2015), pp. 582–595.
- 144.
Harlow and Rawlings (2016), pp. 312ff.
- 145.
Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014.
- 146.
T Hickman ‘Public Law’s Disgrace’ UK Const L Blog (9th Feb 2017).
- 147.
Craig (2015), pp. 162ff.
- 148.
Criminal Justice and Courts Act 2015, section 88(1).
- 149.
T Hickman ‘Public Law’s Disgrace: Part 2’ UK Const L Blog (26 Oct 2017).
- 150.
Civil Justice Statistics Quarterly, England and Wales (incorporating Privacy Injunction Statistics July to December 2014), Ministry of Justice, October to December 2014.
- 151.
The published figures for 2017 indicate the Home Office had 1500 applications, down 18% from the previous year. While there were 1400 claims against the Ministry of Justice of which 878 were against tribunals, a 17% increase, 713 applications were against local authorities down 6% from the previous year. Civil Justice Statistics Quarterly, England and Wales, January to March 2018 (Ministry of Justice, 7 June 2018), 10.
References
Abrahams A (2011) The Parliamentary Ombudsman and administrative justice: shaping the next 50 years. Justice. Tom Sargant memorial lecture, p 10
Adler M (2006) Tribunal reform: proportionate dispute resolution and the pursuit of administrative justice. Mod Law Rev 69(6):958–985
Allan T (2001) Constitutional justice: a liberal theory of the rule of law. Oxford University Press
Allan T (2013) Accountability to law. In: Bamforth N, Leyland P (eds) Accountability in the contemporary constitution. Oxford University Press, p 78
Bellamy R (2007) Political constitutionalism: a republican defence of the constitutionality of democracy. Cambridge University Press, Cambridge
Bingham T (2010) The rule of law. Allen Lane, London
Birkinshaw P (1994) Grievances remedies and the state, 2nd edn. London, Sweet & Maxwell
Blick A (2015) Beyond Magna Carta: a constitution for the United Kingdom. Bloomsbury, p 47
Boyle A (1994) Sovereignty, accountability, and the reform of administrative law. In: Richardson G, Genn H (eds) Administrative law and government action: the courts and alternative mechanisms of review. Oxford University Press, p 88
Cane P (2009) Administrative tribunals and adjudication. Hart, Oxford
Cane P (2011) Administrative law, 5th edn. Oxford University Press, Oxford, p 319
Cane P (2016) Controlling administrative power. Cambridge University Press, Cambridge, p 331
Clayton R (2017) A v Secretary of State for the Home Department [2005]: The Belmarsh Case. In: Juss S, Sunkin M (eds) Landmark cases in public law. Hart, Oxford
Cohn M (2013) Sovereignty, constitutional dialogues, and political networks: a comparative conceptual study. In: Rawlings R, Leyland P, Young AL (eds) Sovereignty and the law. Oxford University Press, Oxford
Craig P (2015) UK, EU and global administrative law: foundations and challenges. Cambridge University Press, Cambridge
Craig P (2016) Administrative law, 8th edn. Sweet & Maxwell, London
Davies A (2013) Beyond new public management: problems of accountability in the modern administrative state. In: Bamforth N, Leyland P (eds) Accountability in the contemporary constitution. Oxford University Press, p 350
Dicey A (1959) An introduction to the study of the law of the constitution, 10th edn. Macmillan, London
Drabble R (2017) Council of Civil Service Unions v Minister for the Civil Service [1984]: reviewing the prerogative. In: Juss S, Sunkin M (eds) Landmark cases in public law. Hart/Bloomsbury, p 97
Dworkin R (1986) Laws empire. Fontana, London
Elliott M (2013a) Ombudsmen, tribunals, inquiries: refashioning accountability beyond the courts. In: Bamforth N, Leyland P (eds) Accountability in the contemporary constitution. Oxford University Press
Elliott M (2013b) A damp squib in the long grass: the Report of the Commission on a Bill of Rights. Eur Hum Rights Law Rev (2):137–151
Goldsworthy G (2010) Parliamentary sovereignty: contemporary debates. Oxford University Press, p 51
Griffith J (1979) The political constitution. Mod Law Rev 42(1):1–21
Harlow C, Rawlings R (1984) Law and administration. Weidenfeld and Nicolson, London
Harlow C, Rawlings R (1997) Law and administration, 2nd edn. Butterworths, London
Harlow C, Rawlings R (2009) Law and administration, 3rd edn. Cambridge University Press
Harlow C, Rawlings R (2016) “Striking Back” and “Clamping Down”: an alternative perspective on judicial review. In: Bell J, Elliott M, Varuhas JNE, Murray P (eds) Public law adjudication in common law systems: process and substance. Hart
Hewart L (1929) The new despotism. Ernest Benn, London
Hickman T (2008) The substance and structure of proportionality. Public Law 694
Jennings I (1959) The law and the constitution, 5th edn. University of London Press, London
Laws J (1998) Wednesbury. In: Forsyth C, Hare I (eds) The Golden Metwand and the Crooked Cord. Clarendon Press, Oxford, pp 191ff
Le Sueur A (2007) Courts, tribunals, ombudsman, ADR: administrative justice, constitutionalism and informality. In: Jowell J, Oliver D (eds) The changing constitution, 6th edn. Oxford University Press, p 320
Leyland P (2016) The constitution of the United Kingdom: a contextual analysis. Hart, Oxford, p 305
Leyland P, Anthony G (2016) Textbook on administrative law, 8th edn. Oxford University Press
Loughlin M (1992) Public law and political theory. Oxford University Press
Loughlin M (2013) The British Constitution: a very short introduction. Oxford University Press, p 99ff
McEldowney J (2016) Public law, 4th edn. Sweet & Maxwell, London
Mills A (2015) Reforms to judicial review in the Criminal Justice and Courts Act 2015: promoting efficiency or weakening the rule of law? Public Law 582–595
Poole T (2003) Back to the future? Unearthing the theory of common law constitutionalism. Oxf J Leg Stud 23
Poole T (2017) Devotion to legalism: on the Brexit case. Mod Law Rev
Radcliffe C (2007) The tribunals revolution. Judicial Rev 197–203
Raz J (1979) The authority of law: essays on law and morality. Clarendon Press, Oxford
Richardson G, Genn H (2007) Tribunals in transition: resolution or adjudication? Public Law 116–141
Roberts S, Palmer M (2005) Dispute processes: ADR and the primary forms of decision-making. Cambridge
Sedley S (1997) The common law and the constitution. In: Nolan M, Sedley S (eds) The making and remaking of the British Constitution. Blackstone Press, London, pp 17 and 18
Sedley S (2015) Lions under the throne. Cambridge University Press, Cambridge, p 27
Sunkin M, Bondy V (2016) Use and effects of judicial review. In: Bell J, Elliott M, Varuhas JNE, Murray P (eds) Public law adjudication in common law systems: process and substance. Hart, p 337
Syrett K (2006) Opening eyes to the reality of scarce health care resources. Public Law 667
Taggart M (2003) Reinventing administrative law. In: Bamforth N, Leyland P (eds) Public law in a multi-layered constitution. Hart, Oxford, p 320
Thomas R (2015) Mapping immigration judicial review litigation: an empirical legal analysis. Public Law 652–678
Tomkins A (2005) Our Republican Constitution. Hart, Oxford
Tushnet M (2013) Judicial accountability in comparative perspective. In: Bamforth N, Leyland P (eds) Accountability in the contemporary constitution. Oxford University Press, Oxford, p 60ff
Wade W, Forsyth C (2014) Administrative law, 11th edn. Oxford University Press, Oxford
Waldron J (2006) The core case against judicial review. Yale Law J 115
Willet C (1996) Public sector reform and the citizen’s charter. Blackstone Press, London
Woodhouse D (2001) The Office of Lord Chancellor. Hart, Oxford, pp 12ff
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2021 Springer Nature Switzerland AG and G. Giappichelli Editore
About this chapter
Cite this chapter
Leyland, P. (2021). The Roller Coaster Ride of English Administrative Law. In: Sorace, D., Ferrara, L., Piazza, I. (eds) The Changing Administrative Law of an EU Member State. Springer, Cham. https://doi.org/10.1007/978-3-030-50780-0_20
Download citation
DOI: https://doi.org/10.1007/978-3-030-50780-0_20
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-50779-4
Online ISBN: 978-3-030-50780-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)