#3500 - Jr Theory - Administrative Law

What is the purpose of admin law?

1. Designed to control of govt. power, with the main object to protect individual rights

2. Designed to ensure admin effectively performs its tasks

3. Designed to ensure govt. accountability and foster participation by interested parties in decision making process

• Cane- identifies the purpose in terms of grounds for JR

1. Fair hearing & rules against biasfair procedures should be followed in performance of public function + public functionaries should observe legal limits on their powers

2. The referee –Lord Donaldson in Hammersmith and Fulham LBC – if a player has acted in breach of rules, referee will take some remedial actions. However, it’s for him to express any view on the skill of the player or how he would have acted in his position. Good reason: Parliament delegated power to decision making body, not the court, and the body often has better expertise

3. Legitimate expectations and compliance with HR should respect the rights of individuals (also you could say that control of government power under 2 also protects HRs )

• Craig: all 3 not wrong per se but incomplete – must go deeper, probe into the way society is ordered & identify political theory which it espouses. Concepts such as accountability, participation, rights don’t have one meaning to be determined by some factual inquiry & it will differ depending on the type of democratic regime. Admin law is a combination of political world (philosophy underlying govt. policy shapes nature of admin law) combined with reactions of judiciary (courts determine constraints to be placed on exercise of admin power)

Theoretical underpinnings

• Very important when considering normative aspects of admin law in action. To provide justification for substantive action a judge must couch his reasoning in terms of legal principle and precedent which will be based upon political conception of constitutional ordering of UK

• Theory plays a role in understanding past judicial actions & trying to find some form of coherence in a shifting & controversial area of law. Raz would argue that finding such coherence is a necessary fundamental good which goes towards proving the truth and value of a given legal system.

• Over the years a no of dichotomies have arisen from literature surrounding judicial actions in public context. Each has certain value in providing descriptive & normative structure to the law, but none is seen as panacea which answers fundamental questions of “what public law is/what it should seek to achieve”.

• Current tool applied is tRed light/Green Light dichotomy.

Red/Green Light Theory

1. Red-light

• Law is autonomous to and superior over politics;

• Admin state needs to be kept in check by the law

• The preferred way of doing this is through rule-based adjudication in courts

• The goal should be to enhance individual liberty where it’s conceived a right to be left alone + absence of external constraints an idea of liberty best realized by having small govt. You don’t have to be politically conservative to be a red-light theorist, but usually helps if you are.

• Seems to be built upon Diceyan conception of the role of courts to ensure that state doesn’t exert too much control over general public and to guard against tyranny.

• Ultra vires principle, (in traditional sense) appears to be essentially red light theoretical foundation for JR –built upon Diceyan conception of the Rule of Law (law should apply equally to all citizens &guard against arbitrary exercise of power). Conception of Parliamentary sovereignty here is a unitary one. All power essentially flows through the Parl. and all bodies simply fulfil its intent for which purpose they have been delegated power.

1. Green Light

• Law is nothing more than sophisticated (or elitist) discourse of politics, neither autonomous from politics nor superior to administration

• Public admin isn’t a necessary evil to be tolerated, but a positive attribute to be welcomed

• The objective of admin law and regulation isn’t merely to stop bad admin practices, but is to encourage and facilitate good ones —to control admin by channelling & guiding. The best people for this won’t necessarily be professional lawyers &best institutions in which to achieve these aims won’t necessarily be the courts, and best vehicle through which to realize these objectives won’t necessarily be rule-based adjudication

• The goal should be to enhance individual & collective liberty where it’s conceived of as something which is, if not constituted by state, then is at least facilitated by it, and certainly isn’t threatened by it. SO the goal might be to house the homeless, feed the hungry, care for the sick, educate the young, and the role of admin law is to help it do this, to distinguish between good & bad admin practices, and encourage & facilitate the former as well minimize the latter

• You don’t have to be politically progressive to be a greenlight theorist, but it usually helps if you are.

• Seek to place their faith in political process which has greater competence to address what are essentially political issues. The adjudicative and confrontational nature of judicial intervention in UK may be seen as an impediment to sound admin. Courts are unelected bodies and unaccountable to the population, contravening normatively positive concept of democracy and are poorly placed to arbitrate upon things such as “public good”.

2. Amber Light - a compromise b/w red and green and possibly highlights weaknesses of dichotomy suggested by Harlow and Rawlings.

• Agree w/red light theorists that law is both discrete from and superior to politics

• State can successfully be limited by law, although law ought properly to allow for admin to enjoy a (controlled) degree of discretionary authority

• The best way of controlling the state is through judicial articulation & enforcement of broad principles of legality

• The goal is to safeguard a particular vision of HR. This understanding of administrative law is as narrowly focused on judicial remedies as are red-light theories, but it elevates the constitutional role of the judiciary considerably beyond that advocated by red-light theorists.

• Red light or Green Light

• Arguments of green light camp are couched in terms of democracy & principles of good admin so would appear to be persuasive on descriptive sense (considering modern political and legal environment which embrace ideals such as fundamental HR) and more collectivist atmosphere demonstrated during last labour govt.

• Common law constitutionalism embodied by green light theory is a more persuasive foundation for JR than modified UV

• However if choose to adopt a “green-light” approach to political process, it would need to be modified few would be content to trust concepts as flimsy as “ministerial accountability” as a check to uncontained executive power.

• Red light camp may only act retrospectively to correct problems as they arise. It is argued by the green camp that prospective and co-operative actions to prevent problems before they arise is preferable to “fire fighting” actions by the courts.

• How useful is the red light/green light divide?

• Useful b/c provides2 archetypal positions allowing us to approach the study of admin law in a structured and analytical manner.

• May be thought that both descriptive & normative force of these positions have been eroded by modern developments in judicial & political process.

• Could argue that few, if any modern theorists can be accurately described as entirely “red-light” or “green-light”. Indeed most will display attributes of both camps recognised by Harlow and Rawlings, who admitted the existence of Amber light position.

• Importance of some form of cohesive theory of public law is beyond mere academic exercise. It’s essential in determining was the substantive goal of public law should be and its role within greater constit context.

• Problems following “Red light” and “green light” in a modern legal context. E.g. William Wade would be considered a traditional “red-lighter” but he argued against judicial interference in a private law context and any further progression of public law principles in private sphere beyond Datafin. Thus he could be argued to be supporting the “green light” for private parties.

• Many green light theorists would welcome the increased judicial scrutiny of executive decisions under HRA which can be seen to advance a more collectivist and rights based agenda. It could be argued that HRA is a manifestion of the so-called constitutional principles which green lighters advanced as an alternative to the tradition red-light ultra vires model.

• The traffic lights system no longer highlights particular political attitudes so has lost its descriptive usefulness.

• Development of English administrative law has emphasized red light approach; i.e. the control mechanism to prevent unlawful use of power by the power holder

• Green light approach presumably leaves more discretion to admin bodies; E.g. unlikely to give standing, high level of judicial review

How can, and should, JR be justified?

1. Orthodox ultra vires(specific legislative intent) model

   • JR is justified b/c it’s founded on Parliamentary supremacy – courts apply the intent of legislature

   • Principles of good admin which DMs are required to respect are special rules which Parl. has specifically intended

   • JR is therefore no more than judicial enforcement of express & implied limits which Parliament grants to such powers (i.e. they cannot have intended these agencies have the freedom...