Pub Date : 2018-05-31DOI: 10.1093/HE/9780198714507.003.0006
Timothy Endicott
This chapter illustrates the principle of relativity by explaining why public authorities may or may not be required to give reasons for their decisions, depending on the type of decision and its context. The reasons why public authorities should sometimes explain their reasons for a decision reflect the process values explained in Chapter 4: requiring reasons may improve decisions, it may be unfair (to a person affected by the decision) for the decision to be unexplained, and reasons may support judicial review, and may improve transparency and accountability in government in other ways. The discussions cover the deprivation principle, the duty of respect, trigger factors for reasons, the Padfield practicality principle, the content of reasons, how to remedy inadequate reasons, process danger, and the difference between process and substance, and why the difference matters.
{"title":"6. Reasons: process and substance","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0006","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0006","url":null,"abstract":"This chapter illustrates the principle of relativity by explaining why public authorities may or may not be required to give reasons for their decisions, depending on the type of decision and its context. The reasons why public authorities should sometimes explain their reasons for a decision reflect the process values explained in Chapter 4: requiring reasons may improve decisions, it may be unfair (to a person affected by the decision) for the decision to be unexplained, and reasons may support judicial review, and may improve transparency and accountability in government in other ways. The discussions cover the deprivation principle, the duty of respect, trigger factors for reasons, the Padfield practicality principle, the content of reasons, how to remedy inadequate reasons, process danger, and the difference between process and substance, and why the difference matters.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88716502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/he/9780198804734.003.0003
Timothy Endicott
The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.
{"title":"3. Human rights law","authors":"Timothy Endicott","doi":"10.1093/he/9780198804734.003.0003","DOIUrl":"https://doi.org/10.1093/he/9780198804734.003.0003","url":null,"abstract":"The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77646128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/he/9780198804734.003.0014
Timothy Endicott
A claim for damages for loss caused by a public authority gives a court the opportunity to do justice for the claimant, and also to impose the rule of law on the administration. The challenge is to do both without interfering in the administrative pursuit of public goods, and without creating public compensation funds that only a legislature can legitimately create. It is an important constitutional principle that liabilities in the law of tort apply to public authorities, just as to private parties. But there is no general liability to compensate for public action that was unlawful; the impugned conduct must meet the standard requirements of the tort liability of private parties, with the exception of the one public tort: misfeasance in a public office. This chapter discusses trespass to property, statutory liabilities, negligence, misfeasance in public office, and damages under the Human Rights Act 1998 and under European Union law.
{"title":"14. Torts","authors":"Timothy Endicott","doi":"10.1093/he/9780198804734.003.0014","DOIUrl":"https://doi.org/10.1093/he/9780198804734.003.0014","url":null,"abstract":"A claim for damages for loss caused by a public authority gives a court the opportunity to do justice for the claimant, and also to impose the rule of law on the administration. The challenge is to do both without interfering in the administrative pursuit of public goods, and without creating public compensation funds that only a legislature can legitimately create. It is an important constitutional principle that liabilities in the law of tort apply to public authorities, just as to private parties. But there is no general liability to compensate for public action that was unlawful; the impugned conduct must meet the standard requirements of the tort liability of private parties, with the exception of the one public tort: misfeasance in a public office. This chapter discusses trespass to property, statutory liabilities, negligence, misfeasance in public office, and damages under the Human Rights Act 1998 and under European Union law.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"108 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87742454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/HE/9780198714507.003.0002
Timothy Endicott
At common law, the judges will hold administrative conduct to be unlawful on any of three grounds: error of law (and certain sorts of error of fact), lack of due process, and the improper exercise of discretionary power. This chapter discusses how (and to what extent) the three grounds of judicial review are supported by constitutional principle. Each ground must be controlled by the principle of comity. The principle of comity requires judges to defer to administrative authorities on some issues, to some extent; the chapter explains the limits of deference and the difference—and the connections—between the rule of law and the rule of judges.
{"title":"2. The rule of law and the rule of judges","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0002","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0002","url":null,"abstract":"At common law, the judges will hold administrative conduct to be unlawful on any of three grounds: error of law (and certain sorts of error of fact), lack of due process, and the improper exercise of discretionary power. This chapter discusses how (and to what extent) the three grounds of judicial review are supported by constitutional principle. Each ground must be controlled by the principle of comity. The principle of comity requires judges to defer to administrative authorities on some issues, to some extent; the chapter explains the limits of deference and the difference—and the connections—between the rule of law and the rule of judges.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"16 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82131888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/HE/9780198714507.003.0001
Timothy Endicott
Administrative law includes a complex variety of processes and doctrines that confer and control public power. This chapter outlines the underlying principles of administrative law. Topics discussed include the core principle of administrative law: opposition to arbitrary use of power. That principle is introduced through the story of habeas corpus from the middle ages to the twenty-first century. The constitutional principles of administrative law also include parliamentary sovereignty, the separation of powers, the rule of law, comity among constitutional authorities, accountability, and a newly emerging principle of open government. The chapter shows how the common law and legislation can achieve adherence to these principles of administrative law.
{"title":"1. Administration and the principles of the constitution","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0001","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0001","url":null,"abstract":"Administrative law includes a complex variety of processes and doctrines that confer and control public power. This chapter outlines the underlying principles of administrative law. Topics discussed include the core principle of administrative law: opposition to arbitrary use of power. That principle is introduced through the story of habeas corpus from the middle ages to the twenty-first century. The constitutional principles of administrative law also include parliamentary sovereignty, the separation of powers, the rule of law, comity among constitutional authorities, accountability, and a newly emerging principle of open government. The chapter shows how the common law and legislation can achieve adherence to these principles of administrative law.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89302416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/HE/9780198714507.003.0009
Timothy Endicott
Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law and other forms of control of discretionary power.
{"title":"9. Errors of law and control of fact finding","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0009","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0009","url":null,"abstract":"Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law and other forms of control of discretionary power.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"118 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76580101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/HE/9780198714507.003.0005
Timothy Endicott
This chapter examines the role of impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful) and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process and as a flaw in the substance of a decision maker’s reasoning.
{"title":"5. Impartiality and independence","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0005","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0005","url":null,"abstract":"This chapter examines the role of impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful) and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process and as a flaw in the substance of a decision maker’s reasoning.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"58 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79108630","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/he/9780198804734.003.0012
Timothy Endicott
Panels, committees, tribunals, referees, adjudicators, commissioners, and other public authorities decide many thousands of disputes each year over (for example) entitlement to benefits, or tax liability, or political asylum, or the detention of a patient in a secure hospital. The massive array of agencies reflects the great variety of benefits and burdens that twenty-first-century government assigns to people. The array had no overall organization until 2007, when Parliament transformed it into a complex system. This chapter explains the benefits of integrating these decision-making agencies in the new system. The law needs to tailor their structure, processes, and decision-making techniques to the variety of purposes they serve. And the law needs to achieve proportionate process, by reconciling competing interests in legalism and informality in tribunal processes.
{"title":"12. Tribunals","authors":"Timothy Endicott","doi":"10.1093/he/9780198804734.003.0012","DOIUrl":"https://doi.org/10.1093/he/9780198804734.003.0012","url":null,"abstract":"Panels, committees, tribunals, referees, adjudicators, commissioners, and other public authorities decide many thousands of disputes each year over (for example) entitlement to benefits, or tax liability, or political asylum, or the detention of a patient in a secure hospital. The massive array of agencies reflects the great variety of benefits and burdens that twenty-first-century government assigns to people. The array had no overall organization until 2007, when Parliament transformed it into a complex system. This chapter explains the benefits of integrating these decision-making agencies in the new system. The law needs to tailor their structure, processes, and decision-making techniques to the variety of purposes they serve. And the law needs to achieve proportionate process, by reconciling competing interests in legalism and informality in tribunal processes.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"39 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84905499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/HE/9780198714507.003.0011
Timothy Endicott
This chapter examines standing—the entitlement to be heard by a court. No judicial process of any kind may proceed without it. In an ordinary claim, the claimant’s standing is based on his assertion of grounds for his claim to a remedy. In a claim for judicial review, the claimant does not need to assert a right to a remedy, but must have a ‘sufficient interest’ in the matter in dispute. The discussion covers campaign litigation, costs in campaign litigation, standing in an ordinary claim for a declaration, standing in Human Rights Act proceedings, standing for public authorities, and standing to intervene.
{"title":"11. Standing: litigation and the public interest","authors":"Timothy Endicott","doi":"10.1093/HE/9780198714507.003.0011","DOIUrl":"https://doi.org/10.1093/HE/9780198714507.003.0011","url":null,"abstract":"This chapter examines standing—the entitlement to be heard by a court. No judicial process of any kind may proceed without it. In an ordinary claim, the claimant’s standing is based on his assertion of grounds for his claim to a remedy. In a claim for judicial review, the claimant does not need to assert a right to a remedy, but must have a ‘sufficient interest’ in the matter in dispute. The discussion covers campaign litigation, costs in campaign litigation, standing in an ordinary claim for a declaration, standing in Human Rights Act proceedings, standing for public authorities, and standing to intervene.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"7 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79838720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-31DOI: 10.1093/he/9780198804734.003.0013
Timothy Endicott
This chapter examines ombudsmen and other forms of investigation of the working of government, and the ways in which they can resolve disputes and improve administration. The ombudsmen’s role has four key features: (1) it is independent; (2) it investigates a complaint; (3) it looks for injustice caused by maladministration; and (4) it makes a report. The chapter explains the ombudsman process, the Parliamentary Ombudsman, local government ombudsmen, the effects of ombudsmen’s reports, judicial review of ombudsmen, the European Ombudsman, the Equality and Human Rights Commission, and the Inquiries Act 2005. The chapter also explains the law on judicial review of ombudsman decisions and judicial review of the way in which public authorities respond to ombudsman reports, and argues that the judicial process has very little to offer in improving the operation of ombudsman schemes.
{"title":"13. Ombudsmen","authors":"Timothy Endicott","doi":"10.1093/he/9780198804734.003.0013","DOIUrl":"https://doi.org/10.1093/he/9780198804734.003.0013","url":null,"abstract":"This chapter examines ombudsmen and other forms of investigation of the working of government, and the ways in which they can resolve disputes and improve administration. The ombudsmen’s role has four key features: (1) it is independent; (2) it investigates a complaint; (3) it looks for injustice caused by maladministration; and (4) it makes a report. The chapter explains the ombudsman process, the Parliamentary Ombudsman, local government ombudsmen, the effects of ombudsmen’s reports, judicial review of ombudsmen, the European Ombudsman, the Equality and Human Rights Commission, and the Inquiries Act 2005. The chapter also explains the law on judicial review of ombudsman decisions and judicial review of the way in which public authorities respond to ombudsman reports, and argues that the judicial process has very little to offer in improving the operation of ombudsman schemes.","PeriodicalId":51730,"journal":{"name":"Administrative Law Review","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84651388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"法学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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