Administrative law +mischief key notes

What is administrative law?

• *Administrative law is a set of instructions to public officials about how they should exercise their powers to implement public policy within a constitutional democracy

• ‘Administrative law provides a framework for public administration… A set of rules and principles about how government should perform its tasks whatever they may be’ 

(Cane, 2011, p.10)

• ‘a branch of public law concerned with the composition, procedures, powers, duties, rights and liabilities of the various organs of government that are engaged in administering public policies’

(Bradley, Ewing and Knight, p.583)

• Administrative law regulates administrative ‘decision-making’ and administrative ‘rule-making’ by the executive (‘the government’) and its agents

Examples of administrative decision-making:

• Decisions on planning applications or issuing passports etc.

• Decisions on the distribution of scarce public resources; e.g. funding for  special educational needs; healthcare services etc.

Examples of administrative rule-making:

• Gov. ministers enacting secondary legislation to ‘flesh out’ policy frameworks established by Acts of Parliament 

• Note: Decision and rule-making powers are typically conferred on the executive by Parliament (i.e. legislation) but may also be based on prerogative powers 

Examples of administrative rule-making:

• ‘The [Lord Chancellor] may make rules dealing with—

  • (a) matters of evidence and procedure in relation to inquiries…  as regards inquiries for which a United Kingdom Minister is responsible…

• ‘The power to make rules under this section is exercisable—

  • (a) in the case of rules made by the Lord Chancellor… by statutory instrument…

s. 41 Inquiries Act 2005

• = The Inquiry Rules 2006 (see next lecture…)

Administrative law is primarily concerned with three things:

• identifying legal powers to implement public policies

• circumscribing limits to the exercise of decision and rule-making powers within a functioning democracy and;

• ensuring effective enforcement of necessary limits through a range of legal and non-legal mechanisms.  

What mischief is administrative law designed to address ? What values does it seek to promote within a constitutional state?

Administrative law performs key functions within a modern democratic state such as the UK –

• Administrative law constrains: it imposes limits on executive power. These limits protect citizens from arbitrary decisions. This is a minimum requirement of the rule of law.

• Administrative law facilitates: it promotes ‘responsible’ or ‘good government’ – that is, government that advances the public interest fairly, in good faith and, increasingly, in an open and transparent manner.

Most basic principle of administrative law is that government (and public authorities) must have legal authority to act

• Acting without legal authority: 

Entick v Carrington (1795)

• Entick published materials criticising the Government. In response, Lord Halifax, a Government minister, issued a warrant to search his premises and arrest him. Entick challenged this upon his release. The Court ruled the search and detention unlawful: the Minister had no power to issue the warrant.

• ‘Golden Rule’ of administrative law: public decision makers must point to a legal basis to support their power to act (e.g. statute or prerogative power)

The control of discretionary powers is at the core of administrative law. 

• Government ministers, local authorities etc. enjoy wide ranging (and often very broad!) discretionary powers to implement public policy. 

S.1, Local Government Act 2000:

• Every local authority [is] to have power to do anything which [it] consider[s] is likely to achieve any one or more of the following objects—

(a)the promotion or improvement of the economic well-being of [its] area,

(b)the promotion or improvement of the social well-being of [its] area, and

(c)the promotion or improvement of the environmental well-being of [its] area

Discretionary powers are a ‘double-edged’ sword!

• On the one hand, discretionary powers are without doubt entirely necessary within a modern regulatory state. They promote efficient, flexible and expert decision making.

• On the other hand, however, discretionary powers are open to potential abuse. Public authorities may use them e.g. for improper purposes, for personal gain or to impose arbitrary restrictions on citizens

• Dicey was particularly suspicious of discretionary powers, which he contrasted with government under the rule of law:

• ‘wherever there is discretion there is room for arbitrariness’ 

(Law of the Constitution, p.188)

Administrative law has developed a range of legal norms to protect citizens against arbitrary decision making by government and public authorities

• These include the requirements that discretionary powers :

• Are used for their intended/proper purpose(s);

• Are not delegated to others

• Are exercised rationally  (and, increasingly, also proportionality)

• Uphold minimum standards of procedural fairness

• ‘Ministers and public officials at all level must exercise the powers conferred on them in good faith, fairly, for the purposes of which the powers were conferred, without exceeding the limits of such powers and not unreasonably.’ 

T. Bingham, The Rule of Law, 2010

BUT (!) administrative law does not just safeguard the minimum requirements of the rule of law. It also has broader ‘facilitative’ functions

• Administrative law promotes legitimacy and accountability:

• It functions to legitimate the interactions between citizens and the state

• It contributes to ‘good governance’ by promoting accountability and transparency in public decision making – key values within a vibrant constitutional democracy

• People expect government, and the politicians running it, to act lawfully. But those in power should also behave in ways that are not necessarily, or not completely, mandated by law. They should, for instance, act honestly, openly, straightforwardly, competently, with integrity, and selflessly. Lawful governance is necessary, but not a sufficient condition for good governance.’