ADMINISTRATIVE JUSTICE: CENTRAL ISSUES IN UK AND EUROPEAN ADMINISTRATIVE LAW C P Cavendish Publishing Limited London • Sydney ADMINISTRATIVE JUSTICE: CENTRAL ISSUES IN UK AND EUROPEAN ADMINISTRATIVE LAW Diane Longley and Rhoda James Faculty of Law, The University of Sheffield C P Cavendish Publishing Limited London • Sydney First published in 1999 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0) 171 278 8000 Facsimile: +44 (0) 171 278 8080 E-mail: info@cavendishpublishing.com Visit our Home Page on http://www.cavendishpublishing.com © Longley and James 1999 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 Copyrights Licensing Agency, 90 Tottenham Court Road, London, W1P 9HE, UK, without the prior permission in writing of the publisher Longley, Diane, 1945– Administrative law: socio-legal perspective Administrative Law – England I Title II James, Rhoda 344.2’02 ISBN 85941 342 Printed and bound in Great Britain PREFACE In writing this book we have kept in mind our aim of providing a concise account of the main issues which presently characterise our system of administrative justice The book is intended as a text for undergraduates taking a modular course in administrative law and indeed its origins lie in our own experience of teaching and adapting such a course here at Sheffield Inevitably we owe a considerable debt to past and present colleagues whose work has formed the basis of much of our thinking in this text In particular, we should like to thank Douglas Lewis, Tony Prosser, Ian Harden and Cosmo Graham, not only for letting us draw on their writings, but also for their advice and encouragement over a number of years Our teaching of public law has also drawn heavily on the work of Paul Craig and his influence is also gratefully acknowledged We hope that the book will prove useful in identifying and elucidating the key issues in administrative law We not seek to provide a detailed or definitive account of administrative justice and there are some aspects which inevitably fall outside the scope of this text Our intention has been to provide both an introduction to the subject and also a framework for students who are trying to grapple with what is now a massive subject in a short modular course We hope, too, that students will see it as a guide for their own further reading, and thinking, about administrative justice Diane Longley and Rhoda James Sheffield December 1998 v CONTENTS Preface Table of Cases Table of Statutes Table of European Legislation Table of Other Legislation v xiii xxi xxiii xxiv PART I – ADMINISTRATIVE JUSTICE: THE NON-JUDICIAL REMEDIES THE JUSTICE ISSUE: THE RELATIONSHIP BETWEEN THE CONSTITUTION, LAW AND JUSTICE INTRODUCTION THE ROLE OF LAW AND LAWYERS OPENNESS THE MANAGEMENT OF GOVERNMENT BUSINESS THE NATURE OF CHOICE THE HISTORICAL BACKGROUND AND THE ROLE OF THE COURTS BACK TO THE FUTURE 16 THE EUROPEAN DIMENSION 12 18 THE CITIZEN’S CHARTER AND SERVICE FIRST INITIATIVES: A REAL FIRECRACKER OR A DAMP SQUIB? 29 CHARTER THEMES 30 COMPLAINTS AND REDRESS 31 WHERE NOW? 34 INTERNAL COMPLAINTS PROCEDURES Remaining concerns Complaints under the Children Act 1989 36 39 43 vii Administrative Justice OMBUDSMEN 47 THE PUBLIC SECTOR The Parliamentary Commissioner for Administration (PCA) – the Parliamentary Ombudsman (PO) The Channel Tunnel Rail Link saga The case for improved guidance and redress No direct access to the PO The Health Service Commissioner or Health Service Ombudsman New Zealand The Commission for Local Administration (CLA) The European Ombudsman 47 59 61 65 69 THE PRIVATE SECTOR The Ombudsman changes his spots – evolutionary mayhem? The Legal Services Ombudsman Supervision of professional bodies The Pensions Ombudsman The Building Societies Ombudsman (BSO) Ombudsmen in the financial services sector The proposed new structure for financial services ombudsmen Fairness in decision making Funding Capable of making binding decisions The implications of Art for ombudsman procedures 72 72 73 74 75 76 76 80 80 81 81 82 THE OMBUDSMAN’S ENVIRONMENT: A COLOURFUL COMPLAINT HANDLING COMMUNITY The Police Complaints Authority The Independent Housing Ombudsman The Broadcasting Standards Commission The Estate Agents Ombudsman The Funeral Ombudsman The Adjudicator The Independent Case Examiner for the Child Support Agency The Independent Complaints Reviewer to the HM Land Registry The Prisons Ombudsman Relationship with the Prisons Ombudsman View of the Select Committee Still the favoured child The ombudsman as one species? 83 83 84 84 84 84 85 85 85 85 85 85 86 86 viii 48 51 55 58 Contents ACCOUNTABILITY Legal accountability A regulatory body for ombudsmen? The BIOA Conclusion 87 87 89 89 92 TRIBUNALS AND PUBLIC HEARINGS: TRIALS OR TRIBULATIONS? 95 TRIBUNALS The Report of the Committee on Administrative Tribunals and Inquiries (the Franks Committee) The system 95 96 97 PUBLIC HEARINGS Franks Procedure 98 100 100 INTERNAL MECHANISMS FOR RESOLVING COMPLAINTS 102 PART II – ADMINISTRATIVE JUSTICE AND THE COURTS JUDICIAL REVIEW IN ENGLISH AND EUROPEAN COMMUNITY LAW: AN OVERVIEW 105 JUDICIAL REMEDIES IN ENGLISH LAW 105 THE JUDICIAL REVIEW PROCEDURE 106 TIME LIMITS AND DELAY 108 STANDING The appropriateness of judicial review: when can judicial review be used? 109 110 THE EFFECT OF ALTERNATIVE REMEDIES 110 STATUTORY EXCLUSION OF JUDICIAL REVIEW 111 AMENABILITY 111 ix Administrative Justice openness, Parliamentary Commissioner for Administration, People’s Panel, performance, redress, screening, Service First programme, standards, task force, themes, time limits, Wilson Committee, Codes of practice access to information, Citizen’s Charter, European Ombudsman, Health Service Ombudsman, Parliamentary Commissioner for Administration, Commissioner for Local Administration, compensation, compliance, direct access, enforcement, filtering, Financial Management and Policy Review, maladministration, public awareness of, remedies, statistics, time limits, Widdicombe Report, 55, 57 35, 247 32–33 31–34 40–41 36 30, 31, 35, 245 32 30–31 44–45 37–38, 42 49, 247–48 31 71 62–63, 65 49 65–69, 91 67 67–68 66 66–68 66 67–69 66–68 67 66–68 78 66 68 Committee on Administrative Tribunals (Franks Committee), Common law, 30–31 96–98 13–14, 21, 105 Compensation Commissioner for Local Administration, 67 discretion, 179, 246 Financial Services Ombudsman, 78 Legal Services Ombudsman, 74 Parliamentary Commissioner for Administration, 52–54, 56–58 Complaints See, also, Ombudsmen Children Act 1989, Citizen’s Charter, design of procedures, general practitioners, health care, internal mechanisms, tribunals, Compulsory competitive tendering, Conclusive evidence clauses, Constitution human rights, justice and, legislation, reasons, role of, United States, Consultation Agricultural Training Board v Aylesbury Mushrooms, certiorari, Citizen’s Charter, content of duty, decision making, discretion, education, enforcement, European Union, fairness, Financial Services Ombudsman, health care, information, legitimate expectations, participation rights, 258 43–45 31–45, 245 245 40 36–41 36–45, 102 76 135–3 162–63 10 3–28 13 209 10 17 233 234 31, 34–35 231–33 230–37 169, 180–81 234–35 234–35 236–37 220–37 242 236 234 224 230 Index procedures, public authorities, public policy, R v SS for Social Services ex p AMA, reasons, significance of duty, third parties, fairness to, ultra vires, 233–34 236 234–37 231 230, 235 Contracts breach of, discretion, European Ombudsman, judicial review, public services, 70 172–73 70 135, 138 Contributions Agency, 230–31 234 230, 234 on Human Rights, 248–49 European Union, 119 fairness, 80–81, 218–22 Financial Management Initiative, Financial Services Ombudsman, 78, 80–82 health care, 21–27, 165 human rights, 21 Human Rights Act 1998, 20 immigration, 141–42 information, 169 inquiries, 100 judicial review, 105, 112, 132–33, 136, 138, 141–42, 150–51, 159 legitimate expectations, 224–30 legitimacy, 5, 243 natural justice, 215–19, 249 new public management, ombudsmen, 72, 80–82 openness, 6–7 ouster clauses, 160 participation, 243 Pensions Ombudsman, 81 priorities, 21 procedure, 203, 206–07 public law, 165 public policy, 165–66, 243–44 reasons, 208–15 tribunals, 96, 98 United States, 247 Wednesbury unreasonableness, 19 84 Courts See, also, Judiciary discretion, 169–201 historical background, 12–16 judicial review, 169–201 justice and, 12–16 King’s Court, 12 ouster clauses, 111, 160–63 public law/private law, 14–15 reform, 16 remedies, 14 role of, 12–16 Customs and Excise Commissioners, 84 Damages discretion, 114–16 European Union, 117–20, 123 Francovich principle, 117–19 judicial review, 114–19, 130–31 legitimate expectations, 126 public authorities, 114–19 Davis, KC, 167–68, 170 Decision making See, also, Discretion accountability, 5, 243 armed forces, homosexuals in, 20 bias, 215 binding, 81–82 choice, consultation, 230–37 European Convention Declarations, Default powers/clauses, Delay, 113, 129 143–44 108, 241 Delegation discretion, 168, 173, 178 public authorities, 13–14 unlawful subdelegation, 173 Dicey, AV, Dictation, acting under, 259 4,165 174–201 Administrative Justice Disciplinary procedures, 73–74, 141 Act 1998, illegality, improper purposes, information, Inland Revenue, irrationality, 195–96, 201 184–86 181–88 169 179–80 181–84, 188, 190–91, 193–95, 200 judicial review, 107–10, 114–17, 130, 140, 165–201, 246, 248 judiciary, 165–201 justice, 166–69, 172 Laker Airways, 174–76 legislation, 166 legitimacy, 165, 167, 172 legitimate expectation, 180–81, 223, 229 life imprisonment, 212–13 mandatory, 230 margin of, 191 appreciation, 196 misleading advice, 177–80 nature of, 166–69 negligent misstatement, 179 ombudsmen, 179 openness, 168, 199 Parliament, 166, 168 Parliamentary Commissioner for Administration, 49 Pergau Dam case, 187 predictability, 168, 169 privacy, 194–95 procedure, 203, 208 proportionality, 183, 189, 196–201 public authorities, 13–14, 26–27, 114–16, 168, 170–73, 177–82, 197 public law, 190–91 public policy, 168, 170–73, 175–76, 181, 186, 199 rationality, 167 reasons, 168–69 relevancy, 181–86, 188 right to life, 23 rules and, 166–67 Discretion, accountability, 167, 169, 172, 199 acting under dictation, 174–201 Administrative Procedure Act (United States), 168 administrative rule making, 168–71 Air Canada case, 176–77 Apartheid case, 188–89 arbitrary, 168, 169 armed forces, homosexuals in, 191–96 Bill of Rights 1688, 198 checking, 169 civil servants, 173 clearances, 179–80 compensation, 179 confining, 168 consultation, 169, 180–81, 230 contracts, 172–73 courts’ control of, 169–201 damages, 114–16 Davis, KC, 167–68, 170 definition, 167, 197 delegation, 168, 173, 178 directory, 230 duties, and, 166 equal treatment, 191–92, 195–96 estoppel, 177–81 European Convention on Human Rights, 184–85, 191–97, 249 European Ombudsman, 70 European Union, 183, 196–97 experts, 208 fair fares case, 185–86 fairness, 180 fettering, 169–72, 180–81 fiduciary duties, 185, 186 GCHQ, 182–83 grievance procedures, 169 guidance, 174–76, 181, 200 homosexuals, armed forces and, 191–96 human rights, 23, 191–96, 198, 201 Human Rights 260 Index source of, standards, structuring, tribunals, ultra vires, 166 167 168–69 169 176–77, 182, 185–87, 189 United States, 168, 237 unlawful subdelegation, 173 unreasonableness, 181–96 Wednesbury unreasonableness, 181–83, 185, 189–91, 200–01 Discrimination See, also, Equality armed forces, homosexuals in, European Union, ouster clauses, sexual orientation, 20, 191–96 20, 162 162 20 Dumping, 150 Education, 234–35 Environmental protection, due process, 249 European Union, 18, 124–25 Financial Services Ombudsman, 82–83 hearings, 82, 248–49 Human Rights Act 1998, 82–83 incorporation, 12, 18–21, 28, 195–96, 248 irrationality, 20 judicial review, 18, 194–95 justice, 248–49 ombudsmen, 82–83 privacy, 194 proportionality, 196–201 public policy, 19 reasons, 212–13 right to life, 23 tribunals, 249 Wednesbury unreasonableness, 19–21 146–47, 206–07 Equality See, also, Discrimination armed forces, homosexuals in, discretion, 20, 191–96 191–92, 195–96 Equal Opportunities Commission, 147 Equal Treatment Directive, 20, 195–96 European Union, 20, 126, 195–96 judicial review, 20, 126, 195–96 Estate Agents Ombudsman, Estoppel, European Convention on Human Rights, See, also, Human Rights Act 1998 decision making, discretion, 84 177–81 17 248–49 184–85, 191–97, 249 European Ombudsman, access, breach of contract, codes of practice, discretion, function, institutions, maladministration, openness, 69–72 71–72 70 71 70 69–71 69–71 69–70 72 European Union See, also, European Ombudsman actions for inactivity, 154–55 acts, challenging, 120–23, 148–56 annulment, 120–24, 150, 154 certainty, 125 competence, lack of, 122 consultation, 122, 236–37 damages, 117–20, 123 decision making, 119 decisions, 150–51, 155–56 direct and individual concern, 150–56 direct concern, 151–53 direct effect, 118 261 Administrative Justice discretion, discrimination, dumping, equality, Equal Treatment Directive, European Convention on Human Rights, European Court of Justice, Francovich principle, grounds for review, human rights, illegality, individual concern, individual rights, infringement of EC law, 183, 196–97 20, 162 150 126 Evidence conclusive evidence clauses, judicial review, 20, 195–96 reasons, substantial evidence rule, ultra vires, United States, 18, 124–25 18, 110, 117–27, 148–55 117–19 121–22 124–25 121, 148, 156 152–55 118–19, 150–55 119, 121–23, 150, 154 judicial review, 110, 117–27, 148–50, 195–201 grounds for, 121–23 jurisprudence of ECJ, 123–27 justice, 18–28 legitimate expectations, 125–26 locus standi, 148–56 Member State liability for non-implementation of directives, 117–20 misuse of power, 122, 123 non-privileged applicants, 150–55 non-retroactivity, 125 ouster clauses, 12 preliminary rulings, 120–21, 148, 153 privileged applicants, 149, 156 procedural requirement, infringement of, 122–23 proportionality, 126–27, 196–201 public authorities, 121 reasons, requirement to give, 122–23, 211 regulations, 151, 155–56 sex discrimination, 162 time limits, 120–21, 156 Treaty of Rome, infringing, 123 ultra vires, 122 162–63 107–08, 162–63 215 17 215 17 Fairness, 203–42 Administrative Procedure Act (United States), 237–42 bias, 217 consultation, 230–37 decision making, 80–81, 218–22 discretion, 180, 219, 221 Financial Services Ombudsman, 80–82 government organisations, 221 hearings, 221 HK (an infant), Re, 217–22 immigration, 217–18 inquiries, 101 judicial review, 140 legitimate expectations, 222–30 life sentences, 219 natural justice, 215–19, 221 ombudsmen, 80–81, 93 Parliamentary Commissioner for Administration, 58 procedural concerns, nature and importance, 203–08, 217, 221 reasons, duty to give, 208–15, 218–20 standards, 219 third parties, 231 United States, 237–42 unreasonableness, 217 Fair fares case, Feudalism, Fiduciary duties, Finality clauses, 262 185–86 12 185, 186 161 Index Financial Management Initiative, Financial Services Authority, 77, 80, 82, 241–42 Financial Services Ombudsman, 76–82, 241–42 appeals, 82 classification, 77 compensation, 78 consultation, 242 decision making, 78, 80–82 enforcement, 82 European Convention on Human Rights, 82–83 fairness, 80–81 Financial Services Authority, 77, 80, 82 funding, 81 hearings, 82–83 independence, 79 judicial review, 82, 87 jurisdiction, 80 Ombudsman Board, 80 Ombudsman Council, 79 reform, 76–81, 91 statistics, 78 workload, 78 France, Franks Committee, Government business management, Group actions, Health care See, also, Health Service Commissioner allocation of resources, Citizen’s Charter, complaints, consultation, decision making, extra-contractual referrals, general practitioners, Human Rights Act 1998, judicial review, public policy, purchasing, rationing, right to life, Wales, Wednesbury unreasonableness, Freedom of information Citizen’s Charter, codes of practice, judicial review, openness, People’s Panel, types of information, 117–19 9–10 35 49, 247–48 108 6–7 35 6–7 Fundamental rights See Human rights Funeral Ombudsmen, GCHQ case, 84 182–83, 224–25 28, 43, 165 36–45 36–42 236 21–27, 165 43 40 28 21–27 165 42–43 27 23, 27 42 26 38, 41, 43, 50, 59–61, 91 advocacy service, 64–65 annual reports, 61 clinical judgment, 60 codes of practice, 62–63, 65 direct access, 59 Director of Proceedings, 65 family health service providers, 60 function, 59–61 information disclosure, 60 jurisdiction, 59–60 New Zealand, 61–65 patient’s rights, 61–62 policy, 60–61 purchasing, 60, 64 reasonableness, 63 standards, 63–64 15, 96–98, 100–01 Freedom of expression, 17 Health Service Commissioner, 13 Francovich principle, 7–9 Hearings audi alteram partem, criminal trials, 263 215–16 204 Administrative Justice due process, 249 European Convention on Human Rights, 82, 248–49 Financial Services Ombudsman, 82–83 Franks Committee, 100 inquiries, 98–99 natural justice, 215–16 ombudsmen, 82–83 procedure, 100–02, 204, 206 public, 98–102 HK (an infant), Re, 217–22 Homelessness, Homosexuals in armed forces, 137–39, 143 20, 191–96 Hospitals See Health care Housing, Human rights See, also, European Convention on Human Rights, Human Rights Act 1998 abrogation, armed forces, homosexuals in, choice, common law, Constitution, decision making, discretion, European Union, freedom of expression, judicial review, legitimate expectations, proportionality, reasons, right to life, sovereignty, United States, unreasonableness, Wednesbury unreasonableness, Human Rights Act 1998, allocation of resources, decision making, discretion, 84 health care, judicial review, ombudsmen, Illegality, Immigration, 28 248 82–83 121, 137, 145, 148, 156, 184–86 141–42, 217–18, 223 Improper purposes, 181–88 Independent Case Examiner for the Child Support Agency, 85 Independent Complaints Reviewer to the HM Land Registry, 85 Information See, also, Freedom of information decision making, discretion, Health Service Commissioner, Injunctions, 27 20 21 10 21 23, 191–96, 198, 201 124–26 9–10 124–25 230 198 211, 214 23, 27 124 17 191 169 169 60 113–14, 129 Inland Revenue Adjudicator, discretion, 84 179–80 Inquiries, 98–102, 204 Insurance Ombudsman, 72–73, 78, 133–34 Interest groups, 146–48 Irrationality, discretion, 181–84, 193–94 181–84, 188, 190–91, 193–95, 200 European Convention on Human Rights, 20 Judicial review, accountability, acting under delegation, advisory opinions, Air Canada case, amenability, appeals, applications, 19, 21 17, 28 28 20 195–96, 201 appropriateness, 264 105–201 21–22 174–201 16 176 111 157–58 106–09, 111–12, 129–34 110 Index armed forces, homosexuals in, 20 certainty, 125 certiorari, 117, 12, 113, 234 common law, 105, 106 compensation, 246 competence, 122 compulsory competitive tendering, 135–36 conclusive evidence clauses, 162–63 constraints on, 129–63 contracts, 135, 138 courts’ control of discretionary power, 169–201 damages, 114–16, 130–31 decisions, 105–06, 132, 136, 138, health care decisions, 21–27 Health Service Commissioner, 59–60 homelessness, 137–39, 143 human rights, 124–25 Human Rights Act 1998, 248 illegality, 137, 184–86 immigration, 141–42 improper purposes, 181–87 inadequacies of, 15, 245–46 individual concern, 152–53 individualisation of, 246 injunctions, 113–14, 129–34 Insurance Ombudsman, 133–34 irrationality, 181–86, 193–94 judiciary, 106–07, 111 jurisdiction, 132–33, 143, 156–60 leave, 106–07 legality, 13 legislation, 16 legitimate expectations, 125–26, 135, 180–81, 224 locus standi, 109–10, 144–49, 156 mandamus, 113, 143 misleading advice, 177–80 misuse of power, 123 monitoring, 246 natural justice, 112, 129–30, 135 non-privileged applicants, 150–56 ombudsman, 49, 87 Order 53, 12, 129–31, 136–40 O’Reilly v Mackman, 129–34, 136–40 ouster clauses, 111, 158–60 Parliamentary Commissioner for Administration, 49–50 parliamentary sovereignty, 110–11 practice directions, 106 prisoner’s rights, 129–31 procedural irregularity, 135 proportionality, 126–27, 196–201 prerogative orders, 112–13, 130 privileged applicants, 149 141–42, 150–51, 159 declarations, 113, 129–34 default powers/clauses, 143–44 delay, 108–09 direct concern, 151–52 disciplinary procedures, 141 discretion, 107–10, 114–16, 130, 140, 165–201, 246, 248 effect, 245–46 equal treatment, 20, 195–96 equality, 126 errors of law, 157–60 estoppel, 177–81 European Convention on Human Rights, 18, 194–95 European Court of Justice, 110, 123–27 European Union, 110, 117–27, 148–56, 196–201 evidence, 107–08 fairness, 140 finality clauses, 161 Financial Services Ombudsman, 82, 87 France, 13 freedom of information, 108 grounds, 121–23, 165, 182–83 265 Administrative Justice procedure, prohibition, proportionality, public authorities, 106–08 112 126–27 114–19, 130, 137, 156 public law, 111, 129, 134–39 public policy, 130 public/private issue, 111, 129–40 reasons, 108 reform, 130, 246, 248 refusal of, 107 relevancy, 181–86 remedies, 105–06, 108, 110–14, 136–37, 140–44 statutory exclusion, 111 substantive, 19, 25, 248 Takeover Panel, 132 time limits, 108–09, 111, 130, 161–62 tortious liability, 114–19 tribunals, 95–98 ultra vires, 45, 112–13, 121, 131, 157–60 United States, 238–40 unlawful subdelegation, 173 unreasonableness, 141–42, 181–84, 187–96 Wednesbury unreasonableness, 19, 121, 248 Judiciary Dicey, AV, discretion, judicial review, ombudsmen, Pensions Ombudsman, public law, role of, Wednesbury unreasonableness, Jurisdiction Financial Services Ombudsman, judicial review, ombudsmen, Parliamentary 165 165–201 106–07, 111 88 88 15, 165 13, 165 27–28 80 132–33, 143, 156–60 88, 91 Commissioner for Administration, Pensions Ombudsman, Prisons Ombudsman, ultra vires, Justice choice, Constitution and, courts’ role, creative, discretion, European Convention on Human Rights, European Union, future, governance, Government business management, historical background, law and, lawyers and, procedure, proportional, social, Laker Airways case, Land Registry Independent Complaints Reviewer, Law justice and, role, Lawyers disciplinary procedure, justice and, Legal Services Ombudsman, public policy, role, Legal Services Ombudsman, 49, 54 75 85 158–60 9–12 3–28 12–16 166 166–69, 172 248–49 18–28 16–18 243 7–9 12–16 3–28 4–6 205 166–67 205 174–76 85 3–28 4–6 73–74 4–6 73–74 165 4–6 72–74, 88 Legislation Constitution, discretion, judicial review, opinions, 13 166 16 16 Legitimacy, Citizen’s Charter, 3–6 29 266 Index decision making, discretion, procedure, tribunals, United States, 5, 243 165, 167, 172 203–05 15 241 Legitimate expectations administrative rule making, 226 adoption, 225–26 circulars, 226 consultation, 224 damages, 126 decision making, 224–30 discretion, 180–81, 223, 229 European Union, 125–26 fairness, 222–30 GCHQ, 224–25 guidance, 225 human rights, 230 immigration, 223 judicial review, 125–26, 135, 180–81, 224–25 licensing, 222–23 locus standi, 225 prisoner’s rights, 228–29 procedure, 223, 225 public policy, 225–27 reasonableness, 126, 224–25 reasons, 214 substantive, 225–30 telephone tapping, 226 unreasonableness, 226 Wednesbury unreasonableness, 229 Licensing, Life prisoners, 222–23 212–13, 219 Local government Commissioner for Local Administration, judicial review, Locus standi environmental protection, Equal Opportunities Commission, European Union, group actions, illegality, individuals, 65–69 139 146–47 judicial review, legitimate expectations, non-privileged applicants, nuclear waste, Pergau Dam, pressure groups, privileged applicants, public authorities, public interest, public law, Rose Theatre, threshold test, Maladministration, 150–56 147 147–48 146–48 149 146 148 144 146 145 45, 48–57, 66–70, 75, 85 Mandamus, 113, 143 Margin of appreciation, 196 Ministerial responsibility, 209 Misfeasance in public office, 116–17 Misleading advice, 177–80 Misuse of power, 123 National Health Service See Health care Natural justice, autonomy, common law, decision making, fairness, hearings, inquiries, judicial review, procedure, prohibition, reasons, 215–17 242 14 215–17, 249 215–17 215–16 100–01 112, 129–30, 135 206, 215–17 112 209 Negligence negligent misstatement, public authorities, New public management, 147 148–56 17 145 150–56 109–10, 144–56 225 New Zealand Health Service Ombudsman, Legislative Consultative 267 179 114–16 7–9 61–65 Administrative Justice Council, ombudsman, Prisons Ombudsman, Next Steps Agencies, Northern Ireland Commissioner, Nuclear energy, 247 48–49, 61–65 85–86 Human Rights Act 1998, 82–83 independence, 92 Independent Case Examiner for the Child Support Agency, 85 Independent Complaints Reviewer to HM Land Registry, 85 Independent Housing Ombudsman, 84 Insurance Ombudsman, 72–73, 78 judicial review, 49–50, 87 judiciary, 88 jurisdiction, 73, 88, 91–92 Land Registry, 85 Legal Services Ombudsman, 72, 73–74, 88 Lord Chancellor’s Department, 91 maladministration, 45, 48–50 New Zealand, 48–49, 61–65 Northern Ireland, 50, 59 Ombudsman Council, 88 Parliamentary Commissioner for Administration, 48–59, 88, 92 Pensions Ombudsman, 72, 75–76, 81, 88, 91 Personal Investment Authority Ombudsman, 78 Police Complaints Authority, 83 Prisons Ombudsman, 85–86 private sector, 72–83, 244–45 professional bodies supervision, 74 public law, 87 public sector, 47–72, 87, 92–93 redress, improvements in, 55–59 reform, 86 regulatory body for, 89–92 remedies, 86, 93 retail sector, 86 Select Committee, 50 standards, 87, 92, 93 50, 59 147, 205 Ombudsmen, 47–93 accountability, 15–16, 87–92 Adjudicator, 84 appeals, 88 Banking Ombudsman, 78, 81 BIOA, 89–92 Broadcasting Standards Commission 84 Building Services Ombudsman, 72–73, 76, 79–81 Canada, 47 Channel Tunnel Rail Link saga, 51–55 Child Support Agency, 85 Commission for Local Administration, 65–69, 78, 91 complaints handling, 83–87 Council on Ombudsman, 91 decision making, 72, 93 binding, 81–82 fairness in, 80–81 direct access, 58–59 discretion, 179 Estate Agents Ombudsman, 84 European Convention on Human Rights, 82–83 European Ombudsman, 69–72 fairness, 80–81, 93 Financial Services Ombudsman, 76–82, 87, 91 funding, 81 Funeral Ombudsman, 84 guidance, improvements in, 55–59 Health Service Commissioner, 38, 41, 43, 50, 59–61, 91 268 Index supervision, Woolf reforms, 88, 91 86–87 Openness Citizen’s Charter, decision making, discretion, European Ombudsman, freedom of information, justice, reasons, 30–31 6–7 168, 199 72 6–7 6–7 213 Opinions, 16 Order 53, 12, 129–31, 136–38, 140 O’Reilly v Mackman, Ouster clauses, 129–34, 136–40 111, 160–63 judiciary, jurisdiction, maladministration, Occupational Pensions Advisory Service, supervision over, time limits, tribunals, Pergau Dam, Planning inquiries, 166, 168 110–11 13, 16, 110–11 Parliamentary Commissioner for Administration, 48–59, 92 Channel Tunnel Rail link, 51–55 Citizen’s Charter, 55, 57–58 compensation, 52–54, 56–58 direct access, 58–59 discretion, 49 enforcement, 50 fairness, 58 filter, 58–59 function, 48 guidance, 55–59 judicial review, 49–50 jurisdiction, 49, 54 maladministration, 48, 51–57 public awareness, 59 remedies, 50, 55–59 Select Committee, 50–59, 88 special reports, 51–52 standards, 48 statistics, 58–59 Police Complaints Authority, Pensions Ombudsman, appeals, Council on Tribunals, decision making, enforcement, 72, 75–76, 91 86 88 81 75 83 120–21, 148, 153 Prerogative orders, Prisons home leave, judicial review, legitimate expectations, life prisoners, ombudsman, proportionality, public policy, reasons, Select Committee, Privacy, 78 99–100 Pressure groups, Parliament discretion, judicial review, sovereignty, 75 75 75 75 147–48, 187 Personal Investment Authority Ombudsman, Preliminary rulings, 88 75 75 112–14, 130 146–48 228–29 129–31 228–29 212–13, 219 85–86 229 229 212–13 85–86 194–95 Procedure consultation, 230–31 criminal trials, 204 decision making, 203, 206–08 discretion, 203, 208 effectiveness, 203–05 Environmental Protection Agency, 206–07 fairness, 203–08, 217 hearings, 206 inquiries, 204 irregularity, 135 justice, 205 legitimacy, 203–05 legitimate expectations, 223, 225, 227 natural justice, 206, 215–17 nature and importance, 203–08 nuclear energy, 205 269 Administrative Justice punishment, reform, requirement, infringement of, United States, Professional bodies disciplinary procedure, Legal Services Ombudsman, ombudsman, recommendations, supervision, Prohibition, Proportionality application, discretion, 206 248 dichotomy, proportionality, public policy, tortious liability of, ultra vires, 122–23 207, 239 115 126–27 247 114–19 114–15, 117 Public hearings, 73 73 74 74 74 112 197 183, 189, 196–201 European Convention on Human Rights, European Union, 196–201 126–27, 196–201 human rights, 198 judicial review, 126–27, 196–201 justice, 166–67 prisoners’ home leave, 229 public authorities, 126 reasonableness, 126 Public authorities allocation of resources, 115 challenging, 14 consultation, 234 damages, 114–19 delegation, 13–14 discretion, 13–14, 26–27, 114–16, 168, 170–73, 177–82, 197 duty of care, 115–16 European Union, 117–19, 121 Francovich principle, 117–19 inspections, 114–15 judicial review, 114–19, 130, 137, 156 locus standi, 146 misfeasance in public office, 116–17 negligence, 114–16 policy/operational 98–102 Public inquiries, 98–102 Public law decision making, 165 deficiencies, 244 discretion, 190–91 judicial review, 111, 129, 134–39 judiciary, 15, 165 locus standi, 144 ombudsmen, 87 procedural difficulties, 17 public policy, 165 public/private dichotomy, 14–15, 129–40 reasons, 209–10 role, 165 Public policy Child Support Agency, 165 consultation, 230, 234 decision making, 165–66, 243–44 discretion, 168, 170–73, 175–76, 181, 186, 199 European Convention on Human Rights, 19 health care, 165 judicial review, 130 lawyers, 165 legitimate expectations, 225–27, 229 prisoners’ home leave, 229 public authorities, 247 public law, 165 Punishment, 206 Quality assurance, 247 Rationality, 167 R v SS for Social Services ex p AMA, 270 233–34 Index Reasons accountability, 209 Constitution, 209 consultation, 236 decision making, 208–15 discretion, 168–69 duty to give, 208–15 European Convention on Human Rights, 212–13 European Union, 122–23, 211 evidence, 215 fairness, 208–15, 219–20 human rights, 211, 214 judicial review, 108 legitimate expectations, 214 ministerial responsibility, 209 natural justice, 209 openness, 213 prisoners’ rights, 212–13 public law, 209–10 tribunals, 209–11 United States, 209, 215 Wednesbury unreasonableness, 27, 210 Regulatory bodies BIOA, ombudsmen, United States, Relevancy, Right to life, Rose Theatre, 36, 245 Sex discrimination, 162 Sexual orientation, 20 Sovereignty European Union, judicial review, Parliament, Standards Citizen’s Charter, discretion, Health Service Commissioner, ombudsmen, Parliamentary Commissioner for Administration, quality assurance, United States, 124 110–11 13, 16, 110–11 30, 31, 35, 245 167 63–64 87, 92, 93 48 247 238 Standing See Locus standi, 239 Subdelegation, 173 Takeover Panel, 132 Telephone tapping, 89–92 89–92 237–42 181–86, 188 Remedies Commissioner for Local Administration, 66–68 courts, 14 judicial review, 105–06, 108, 110, 112–14, 136–37, 140–44 maladministration, 50 ombudsmen, 86, 93 Parliamentary Commissioner for Administration, 50 supervision, 17 United States, 17 Retroactivity, Service First Initiatives, 125 23, 27 146 226–27 Tenders, 135–36 Time limits Children Act 1989, 44–45 Citizen’s Charter, 44–45 Commissioner for Local Administration, 66 delay, 108 European Union, 120–21, 156 extension, 108 judicial review, 108, 111, 130, 161–62 Legal Services Ombudsman, 73–74 ouster clauses, 161–62 Pensions Ombudsman, 75 Tortious liability, 114–19 Transparency See Openness Tribunals, accountability, appeals, complaints, constitution, 271 95–98 15 98 97 96–98 Administrative Justice Council on Tribunals, criticism of, decision making, discretion, European Convention on Human Rights, Franks Committee Report, independence, judicial review, legitimacy, Pensions Ombudsman, presidential system, procedure, reasons, reforms, system of, Ultra vires consultation, declarations, discretion, European Union, evidence, judicial review, jurisdiction, public authorities, 97, 102 102 96, 98 169 hard look doctrine, human rights, judicial review, legitimacy, procedure, reasons, record keeping, regulation, remedies, standards, substantial evidence rule, Wednesbury unreasonableness, welfare reform, 249 15, 96–98 96, 98 95–98 15 75 98 96, 97 209–11 98, 102 97–98 230, 235 113 176–77, 182, 185–87, 189 122 215 45, 112–13, 121, 131, 157–60 158–60 114–15, 117 United States Administrative Conference, 247 Administrative Procedure Act, 168, 237–42, 247 administrative rule making, 237–42 agencies, 237–41 Constitution, 17 decision making, 247 delay, 241 discretion, 168, 237 fairness, 237–42 Unlawful subdelegation, 215 17 238–49 241 207, 239 209, 215 239–40 238 17 238–39 17 240–41 17 173 Unreasonableness See, also, Wednesbury unreasonableness discretion, 181–96 fairness, 217 human rights, 191 judicial review, 181–84, 141, 187–96 legitimate expectations, 226 substantive, 187–96 Wednesbury unreasonableness, decision making, discretion, 23, 26–28 19 181–83, 185, 189–91, 200–01 European Convention on Human Rights, health care, human rights, judicial review, judiciary, legitimate expectations, reasons, United States, 19–21 26 19, 21 19, 121, 248 27–28 229 27, 210 240–41 Welfare reform, 17 Widdicombe Committee, 68 Wilson Committee, Woolf reforms, 272 37–38, 42 87 .. .ADMINISTRATIVE JUSTICE: CENTRAL ISSUES IN UK AND EUROPEAN ADMINISTRATIVE LAW C P Cavendish Publishing Limited London • Sydney ADMINISTRATIVE JUSTICE: CENTRAL ISSUES IN UK AND EUROPEAN ADMINISTRATIVE. .. useful in identifying and elucidating the key issues in administrative law We not seek to provide a detailed or definitive account of administrative justice and there are some aspects which inevitably... areas are gathered into the European fold The pervasive influence of European law and institutions is manifest and continental jurisprudence is 11 Administrative Justice: Part I having a profound