Introduction to Administrative Law

344 Pages·2003·0.99 MB·English

INTRODUCTION
TO
ADMINISTRATIVE
LAW
C
P
Cavendish
Publishing
Limited
London • Sydney

INTRODUCTION
TO
ADMINISTRATIVE
LAW
Neil Hawke, LLB (Hons), PhD
Professor of Environmental Law
Head of the Department of Law
De Montfort University
Neil Parpworth, LLB, MA
Lecturer in Law
De Montfort University
C
P
Cavendish
Publishing
Limited
London • Sydney
First published in 1998 by Cavendish Publishing Limited, The Glass House,
Wharton Street, London WC1X 9PX, United Kingdom.
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© Hawke, N, Parpworth, N 1996
Reprinted 1998
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Hawke, Neil
Introduction to Administrative Law
I Title II Parpworth, Neil
344.2026
ISBN1 85941 191 6
Printed and bound in Great Britain
Preface
‘Government, even in its best state, is but a necessary evil; in its worst state,
an intolerable one.’
(Thomas Paine, 1737–1809)
Administrative law provides many of the safeguards which prevent govern-
ment becoming an intolerable evil. It is the purpose of this book to provide an
introduction to administrative law and its control of government power indicat-
ing, wherever possible, the nature of those powers, the purpose of governmen-
tal functions as well as the scope and effectiveness of legal control. The book is
divided into four parts covering the administrative agencies of government, the
nature, characteristics and sources of its powers, the judicial review of adminis-
trative action and the remedies for unlawful and irregular administrative action.
To help the reader through the subject, a glossary of terms used in the book is
provided, together with a selected bibliography of further reading and a range
of self-assessment questions. The book is designed for use by those pursuing
degree level courses in Law or Public and Social Administration. Equally, the
book will be of use to those undertaking sub-degree or professional courses in
similar areas.
The last decade has seen some very significant changes in administrative
law, driven mainly by government policy. This is vividly illustrated by changes
in the status and functions of local government and the stringency of central
government control of local administration. Elsewhere privatisation has pro-
duced many more pages in the statute book. The government’s reliance on pre-
rogative powers has also been reappraised by the courts, particularly through
the landmark decision in the GCHQ case. It is clear that the courts are prepared
to be far more proactive in adjudicating prerogative acts, even if only to delay
the government’s actions on the ground of unfairness. More generally, the
courts’ willingness to develop an increasingly comprehensive view of the
requirements in law of ‘fairness’ has coloured a good deal of judicial review. In
the same way there has been a continuing expansion of those bodies amenable
to judicial review: the self-regulatory bodies in the financial markets, for exam-
ple. Finally, reference is made in the book to the rapidly expanding influence of
the law of the European Union which affects the framework of municipal
administrative law as much as it affects any other area of relevant ‘national’
law.
v
INTRODUCTIONTOADMINISTRATIVELAW
We are indebted to Liz Steward of the Department of Law for her unfailing
energy and helpfulness in word-processing the text. Without her efforts we
would have found it very difficult to meet any of our deadlines!
Professor Neil Hawke
Neil Parpworth
Department of Law
1 September 1995
vi
Contents
Preface v
Table of Cases xix
Table of Statutes xxxv
Glossary of Terms xlv
Table of Abbreviations xlix
Part 1 Administrative Law and the Administrative Agencies
1 The Scope and Purpose of Administrative Law 1
1.1 Definition of Administrative Law 1
1.2 The Rule of Law 2
1.3 The Constitutional Background to Administrative Law 5
1.3.1 The sovereignty and supremacy of Parliament 5
1.3.2 The separation of powers 9
1.3.3 Conventions 11
1.3.4 Prerogative powers 11
1.4 Administrative Law in Perspective 14
2 The Crown and Central Government 17
2.1 The Conduct of Government 17
2.2 Legal Immunities of the Crown 19
2.3 Crown Servants and Agents 20
2.4 Central Government Functions 22
3 Statutory Inquiries 25
3.1 Categories 25
3.1.1 Accident inquiries 25
3.1.2 Company inquiries 25
3.1.3 Tribunals of inquiry 26
3.2 Inquiries and the Public Control of Land 27
3.2.1 The individual and policy-based decisions 27
3.3 The Franks Report on Tribunals and Inquiries 28
vii
CONTENTS
3.3.1 Implementation of the Franks Report: the Council on
Tribunals 28
3.3.2 Rules of procedure for statutory inquiries 29
3.4 Inquiries Procedure and Organisation 30
3.4.1 Planning appeals and statutory inquiries 30
3.4.2 Planning appeal decisions by inspectors 31
3.5 Inquiries Procedure Rules 32
3.5.1 Inquiry preliminaries 32
3.5.2 Procedure at the inquiry 33
3.5.3 Procedure following the inquiry 34
3.5.4 Notification of a decision and reasons 35
3.5.5 Procedural differences for decisions by inspectors 35
3.6 Legal Enforcement of the Inquiries Procedure Rules 35
3.7 Scope of the Statutory Inquiry System 36
3.7.1 Exclusion of statutory inquiries 36
3.7.2 Restriction of statutory inquiries 37
3.7.3 Statutory inquiries and proposals for
controversial development 38
3.7.4 The Windscale Inquiry 38
3.7.5 The statutory inquiry in future 39
4 Local Authorities 40
4.1 Status and Functions 40
4.1.1 County councils 40
4.1.2 District councils 40
4.1.3 Local government in Wales 41
4.1.4 London government 41
4.1.5 Parish councils 41
4.2 The Local Authority as a Statutory Corporation 42
4.2.1 The acquisition of property 42
4.2.2 Contracts 43
4.2.3 Extended powers 45
4.2.4 Local authorities’ contracts and the doctrine of ultra vires 46
4.2.5 Ultra vires in practice 46
4.2.6 Challenging local authorities’ ultra vires acts 47
4.3 Legal Control of Local Authorities 47
4.4 Local Government Finance and its Control 48
4.4.1 Central government control 48
viii
CONTENTS
4.4.2 Audit 48
4.5 Central Government Control of Local Authorities 50
4.5.1 Statutory control 51
4.5.2 The administrative appeal process 52
4.5.3 The approval process 53
4.5.4 Default powers 53
4.6 The Council Member 54
4.6.1 Right of access to meetings and inspection of documents 55
4.6.2 Disclosure of pecuniary interests 55
4.7 The Council Officer 57
4.8 Bribery and Corruption 57
4.8.1 Coverage of the Acts 58
4.9 Council Meetings 58
4.10 Council Decisions 60
4.11 Legal Liability of Local Authorities 60
4.11.1 Tortious liability 61
4.11.2 Statutory authority 61
4.11.3 Negligence 62
4.11.4 Breach of statutory duty 63
4.11.5 Criminal liability 64
5 Administrative Tribunals 65
5.1 Status 65
5.1.1 Tribunals and inquiries distinguished 65
5.1.2 Tribunals as ‘court substitutes’ 66
5.1.3 Policy-oriented tribunals 66
5.2 Characteristics 67
5.3 Varieties of Tribunal and their Functions 68
5.3.1 Tribunals and appeals from departmental decisions 68
5.3.2 Tribunals and ‘first instance’ claims 69
5.3.3 Tribunals and disputes between individuals 70
5.3.4 Additional functions of tribunals 70
5.4 Allocation of Functions to Tribunals 71
5.4.1 The policy element in administrative decisions 71
5.4.2 The Civil Aviation Authority and the Transport Tribunal 72
5.4.3 Objective decisions: tribunals or courts? 72
5.4.4 Immigration appeals 72
5.4.5 Tribunals and local authority decisions 73
ix