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• Title:Administrative law / Paul Craig.
  
•    
• Author/Creator:Craig, Paul, 1951- author.
  
• Published/Created:London : Thomson Reuters, trading as Sweet & Maxwell, 2016.
  

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  • Location:LAW LIBRARY (level 3)Where is this?
    
  • Call Number: KD4879 .C73 2016
    
  • Number of Items:1
    
  • Status:Available
    

   
• Library of Congress Subjects:Administrative law--Great Britain.
  
• Edition:Eighth edition.
  
• Description:cxxxii, 974 pages ; 24 cm
  
• Notes:Includes bibliographical references and index.
  
• ISBN:0414055683 paperback
  9780414055681 paperback
  
• Contents:Machine generated contents note: 1. Nature And Purpose Of Administrative Law
  1. Central Issues
  2. Dicey, Unitary Democracy and the Ultra Vires Principle
  A. Basis of the Model
  i. Unitary democracy
  ii. Unitary democracy, the ultra vires principle and administrative law
  B. Implications of the Ultra Vires Model
  i. Ultra vires: form of judicial intervention
  ii. Ultra vires: shape and scope of judicial intervention
  iii. range of protected interests: natural justice and standing
  iv. Type of procedural protection
  v. Tort, contract and public bodies
  C. Deficiencies of the Ultra vires Model
  i. Mistake avoidance and distrust of the administrative state
  ii. Form and scope of intervention: indeterminacy of the ultra vires principle
  iii. Ambit of public law: straining of the ultra vires principle
  iv. Defects in the private rights theme
  D. Debate about the Ultra vires Principle
  3. Rights, Legality and Abuse of Power
  A. Nature of the Model
  B. Rights-Based Approach
  i. Protection of fundamental rights
  ii. rights-based view of law and adjudication
  C. Principles of Good Administration
  D. Justifications for this Approach
  i. Courts, legislature and constitutional democracy
  ii. rule of law
  iii. Human Rights Act 1988
  E. Critique
  F. Response
  i. nature of CLC
  ii. CLC and judicial review: participation
  iii. CLC and judicial review: polycentricity and the focus of judicial review
  iv. CLC and judicial review: the nature of argument in judicial review
  v. CLC and judicial review: limited relevance of fundamental values
  vi. Legitimacy and judicial review
  4. Particular Implications of the Model I: Traditional Pluralism
  A. Intellectual Foundations
  i. Pluralist critique of the unitary thesis
  ii. Limited effectiveness of parliamentary controls
  iii. Corporatist challenge
  B. Implications for Administrative Law
  i. Accountability and the scope of administrative law
  ii. Gateways to administrative law: natural justice, standing and intervention
  iii. Process rights: fostering participation
  iv. Scope of judicial review
  v. Remedies and the ambit of administrative law
  5. Particular Implications of the Model II: Market-Oriented Pluralism
  A. Intellectual Foundations
  B. Implications for Administrative Law
  i. Rights, citizenship and society
  ii. Process rights and participation
  iii. Ambit of public law
  6. Conclusion
  2. Administrative System: A Historical Perspective
  1. Central Issues
  2. 19th Century
  A. Industrialisation and the Growth of Central Regulation
  B. Machinery of Administration
  i. Board system
  ii. Powers of Boards
  C. Rationale for Administrative Growth
  D. Local Government
  E. Evolution of Statutory Inquiries
  3. 20th Century
  A. Birth of the Welfare State and the Development of the Tribunal System
  B. Donoughmore, Franks, the 1980 Report and the 1988 Justice Report
  3. Parliament And The Executive
  1. Central Issues
  2. Foundations of Executive Power
  A. Expansion of the Franchise and Increase in Governmental Responsibility
  B. Centralisation of Legislative Initiative
  C. Development of the Party System
  3. Role of the Legislature
  A. Commons and Scrutiny
  i. Select committees: origins and development
  ii. Select committees: early assessments
  iii. Select committees: reform initiatives
  iv. Select committees: recent developments
  B. Commons and Legislation
  i. Rippon Commission
  ii. Select Committee on Modernisation
  iii. Continuity and change
  4. Reform of the House of Lords
  5. Conclusion
  4. Agencies And Non-Departmental Public Bodies
  1. Central Issues
  2. Evolution of Executive Agencies and Non-Departmental Public Bodies
  A. Fulton, Hiving Off and Agencies
  B. Rayner, Ibbs and Executive Agencies
  C. Non-Departmental Public Bodies
  D. Government Reform
  E. Terminology
  F. Conclusion
  3. Legal Status and Organisational Framework
  A. Non-Ministerial Departments
  B. Executive Agencies
  C. NDPBs
  4. Executive Agencies: Staffing, Accountability and Efficiency
  A. Staffing
  B. Control and Accountability
  i. Control
  ii. Accountability
  iii. Effectiveness
  5. NDPBs: Appointments, Accountability and Efficiency
  A. Appointments
  B. Control and Accountability
  i. Control
  ii. Accountability
  C. Efficiency and Effectiveness
  6. Agencies: Institutional Design and Legal Principle
  A. Civil Aviation Authority
  B. Nationalisation and the Public Corporation
  C. Privatisation and Regulatory Control
  7. Constitutional and Legal Framework for Agencies
  5. Contract And Service Provision
  1. Central Issues
  2. Towards "Better Procurement": The Framing of Government Procurement Policy
  A. Institutional Responsibility
  B. Guidelines on Procurement
  C. Range of Procurement Options
  D. Contract and Government Contracts
  3. Towards "Better Government": Contract and Service Provision by Central Government
  A. Contracting-Out: Initial Conservative Policy
  B. Contracting-Out: Labour Strategy
  C. Contracting-Out: Coalition and Conservative Government Strategy
  D. Contracting-Out: Problems and Concerns
  E. Contracting-Out: Contract Formation and Legal Principle
  i. Contracting-out: contract creation
  ii. Contracting-out: legal foundations
  iii. Contracting-out: application of public law principles
  iv. Contracting-out: legal responsibility
  4. Public Private Partnerships, the Private Finance Initiative and PF2: Contract and Service Provision by Central Government
  5. Towards "Best Value": Contract and Service Provision by Local Government
  A. Provision of Local Services: The Market and the Conservative Government's Approach
  i. Competitive procedures
  ii. Exclusion of non-commercial considerations
  iii. Contracting-out and compulsory competitive tendering
  B. Provision of Local Services: "Best Value" and the Labour Government's Approach
  C. Provision of Local Services: Beyond "Best Value", the Coalition and Conservative Governments
  6. Private Finance Initiative: Contract and Service Provision by Local Government
  7. Public Procurement and the EU: Contract and Service Provision by Government
  A. Object of the EU Rules
  B. Application of the Treaty
  C. Directives on Public Procurement
  i. EU Directives
  ii. Application in the UK
  8. Contract, Service Provision and Governance
  A. Contract as an Instrument of Policy
  B. Source and Nature of Executive Power
  C. Burning of the Public/Private Divide and the Responsibility for Policy Formation
  9. Making the Contract: General Principles
  A. Capacity to Contract
  i. Crown
  ii. Ministers of the Crown
  iii. Statutory bodies
  B. Authority of an Agent
  i. Extent of the agent's authority: general
  ii. Breach of warranty of authority
  C. Parliamentary Appropriation
  D. Proceedings against the Crown
  E. Crown Service
  i. Existence of a contract
  ii. Dismissal of Crown servants
  iii. Arrears of pay
  iv. Statutory protection
  F. Effect of an Unlawful Contract
  6. Local Government
  1. Central Issues
  2. Local Authorities: Structure, Organisation, Powers and Finance
  A. Structure
  B. Internal Organisation
  C. Functions and Powers
  i. Industrialisation and urbanisation
  ii. Trading and redistribution
  iii. Market forces and local authority services: Conservative policy 1970s
  1990s
  iv. Market forces and local authority services: Labour policy 1990s
  2000s
  v. Market forces and local authority services: Coalition and Conservative government policy post-2010
  D. Finances
  i. Resources
  ii. Grants and curbs on spending: history
  iii. Grants and curbs on spending: current position
  3. Local Governance: Agencies and Service Delivery
  4. Central-Local Relations and Democracy
  7. Devolution
  1. Central Issues
  2. Scotland
  A. Background
  B. Composition of the Scottish Parliament
  C. Formal Operation of the Scottish Parliament
  D. Powers of the Scottish Parliament: Legislative Powers
  i. Devolution strategies
  ii. Legislative powers: sections 28 and 29(1)
  iii. Limits to legislative power: section 29(2)
  iv. Limits to legislative power: section 29(2)(b) and Schedule 5
  v. Limits to legislative power: legal challenges and judicial approach
  E. Powers of the Scottish Parliament: Executive Powers
  F. Powers of the Scottish Parliament: Subordinate Legislation
  i. Subordinate legislation and earlier enactments: the scope of the power
  ii. Subordinate legislation made under the Scotland Act: the scope of the power
  iii. Subordinate legislation made under the Scotland Act: exercise of the power
  iv. Subordinate legislation made pursuant to the. Scotland Act: the procedure
  G. Political Challenge to the Competence of the Scottish Parliament
  H. Judicial Challenge to the Competence of the Scottish Parliament
  i. Resolution of devolution issues: direct reference to the Supreme Court
  ii. Resolution of devolution issues: institution of proceedings by a law officer
  iii. Resolution of devolution issues: reference to other courts
  iv. Resolution of devolution issues: decision made by the court immediately seized of the matter
  Contents note continued: v. Devolution issues which "arise": relevance of the general law on collateral challenge
  vi. Result of finding that the Scottish Parliament acted outside its competence
  I. Scottish Devolution: Some Reflections
  i. Political considerations
  ii. Legal considerations
  iii. Intergovernmental considerations
  3. Wales
  A. Background
  B. Assembly
  i. Composition
  ii. Operation
  C. Executive
  i. Composition
  ii. Functions
  D. Powers
  i. Assembly measures
  ii. Assembly Acts
  iii. Subordinate legislation
  E. Judicial Challenge
  i. Direct reference to the Supreme Court
  ii. Institution of proceedings by a law officer
  iii. Reference through other courts
  iv. Decisions made by the court immediately seized of the matter
  v. relevance of the general law on collateral challenge
  vi. effect of a finding that the Assembly or Welsh government lacked power
  F. Welsh Devolution: Some Reflections
  8. Information, Standards And Complaints
  1. Central Issues
  2. Freedom of Information: Rationale and Background
  A. Rationale for Freedom of Information
  B. Freedom of Information Legislation in the UK
  3. Freedom of Information Act 2000
  A. Freedom of Information Act 2000: The Basic Right
  B. Freedom of Information Act 2000: Public Authorities
  C. Freedom of Information Act 2000: Publication Schemes
  D. Freedom of Information Act 2000: Exempt Information
  E. Freedom of Information Act 2000: Administration
  4. Standards of Conduct in Public Life
  A. Cash, Sleaze and Concerns: The Development of the Administrative Machinery
  B. Committee on Standards in Public Life
  C. Parliamentary Commissioner for Standards and the Select Committee on Standards
  D. Independent Parliamentary Standards Authority
  5. Parliamentary Commissioner for Administration
  A. General
  B. Who can be Investigated
  C. What can be Investigated
  i. Administrative, legislative and judicial functions
  ii. Administrative functions and maladministration
  iii. Administrative functions, maladministration and principles of good administration
  iv. Administrative functions, maladministration and the merits
  v. Maladministration and political response
  D. Matters Excluded from the PCA's Jurisdiction
  i. Section 5(2): PC A and courts
  ii. Section 5(3) and Schedule 3: excluded matters
  iii. Matters within the remit of devolved jurisdictions
  E. Complainant and Procedure
  i. Who can complain
  ii. MP filter
  ii. Investigation
  F. Remedies
  i. Remedial awards and compliance
  ii. Remedial principles
  G. Workload
  H. Select Committee on the PCA
  I. Judicial Review and the PCA
  J. Role of the PCA
  i. PCA and remedying of individual grievances
  ii. PCA, enhanced remedial power, and Small Claims Administrative Court
  iii. PCA, remedying of individual grievances and improved administration
  K. Health
  6. Local Commissioners
  A. Scope of Authority
  B. Commissioners, Internal Complaints Procedures and General Advice to Local Authorities
  7. Ombudsman: Looking to the Future
  9. Tribunals And Inquiries
  1. Central Issues
  2. Tribunals: Rationale and Nature
  A. Reasons for their Creation
  B. Nature of Tribunals
  3. Tribunal Reform: Franks and Leggatt
  A. Franks Report
  i. Committee's remit
  ii. Recommendations
  iii. Implementation
  B. Leggatt Report
  i. Tribunals Service
  ii. tribunals system
  iii. Operation of the tribunals system
  4. Tribunals - Tribunals, Courts and Enforcement Act 2007
  A. Senior President of Tribunals
  B. First-Tier Tribunal and Upper Tribunal
  C. Transfer of Functions to First-tier Tribunal and Upper Tribunal
  D. First-Tier Tribunal and Upper Tribunal: Self-Review, Appeal and Judicial Review
  i. Self-review
  ii. Appeal of First-tier Tribunal decisions to the Upper Tribunal
  iii. Appeal of Upper Tribunal decisions to the Court of Appeal and Supreme Court
  iv. Appeal and the meaning of "law"
  v. Judicial review by the Upper Tribunal
  vi. Judicial review of First-tier Tribunal
  vii. Judicial review of Upper Tribunal
  E. Tribunal Procedure Rules
  i. position prior to the TCE Act
  ii. position under the TCE Act
  F. Mediation and Alternative Dispute Resolution
  G. Courts and Tribunals Service, Administrative Support and Staffing
  H. Oversight
  i. Council on Tribunals
  ii. Administrative Justice and Tribunals Council
  iii. Administrative Justice Forum
  5. Statutory Inquiries
  A. Background
  B. Franks Committee
  i. recommendations
  ii. Implementation
  C. Inquiries: Practice and Procedure
  i. Procedure before the Inquiry
  ii. Procedure at the inquiry
  iii. Procedure after the inquiry: inspectors' reports
  iv. Procedure after the inquiry: extrinsic evidence
  v. Procedure after the inquiry: reasons
  vi. Inquiry rules of procedure: an example
  vii. Limitations: discretionary inquiries
  viii. Related types of decision-making: decisions by appointed persons and written representations
  ix. Related types of decision-making: Planning Inquiry Commissions
  D. Inquiries Act 2005
  i. position pre-2005
  ii. Inquiries Act 2005
  E. Supervision
  F. Planning Inquiries, the Government and the Public
  10. European Union
  1. Central Issues
  2. Institutions
  A. Council
  B. Commission
  C. European Parliament
  D. European Council
  E. Court of Justice of the European Union
  3. Legal Order: Supremacy and Direct Effect
  A. Supremacy
  B. Direct Effect
  i. limits of public enforcement
  ii. Direct effect and empowerment of the individual
  iii. Van Gend en Loos
  iv. Expansion of direct effect: Treaty articles
  v. Expansion of direct effect: regulations
  vi. Expansion of direct effect: Directives
  vii. Directives: horizontal and vertical direct effect
  viii. Directives: the scope of vertical direct effect 10
  027
  ix. Directives: indirect effect
  x. Directives: "incidental" horizontal direct effect
  C. Direct Effect: Rights and Remedies
  4. Impact of EU Law
  11. Case Study: Competition And Regulation
  1. Central Issues
  2. Competition: Whether to Regulate
  3. Competition: Who Should Regulate
  4. Competition: How to Regulate
  A. Effectiveness and the Choice of the Legislative Criterion
  B. Procedure and Procedural Rights
  C. Defining the Public Interest: Rule-making and Discretion
  D. Defining the Public Interest: Politics, Policy and Justiciability
  E. Enforcement
  F. Accountability and Control
  G. Importance of Competition Policy
  5. Utilities and Market Power: Whether to regulate
  A. Public Interest Rationale for Regulation
  B. Private Interest Rationale for Regulation
  C. Natural Monopoly: Regulation or Structural Adjustment
  D. Whether to Regulate: The Government's Approach to Regulation
  E. Utilities Regulation: Political, Economic and Social Considerations
  F. Utilities Regulation: The Broader Context
  6. Utilities and Market Power: Who Should Regulate
  A. Common Law and the Courts
  B. Departmental Regulation
  C. Regulation by Tribunal or Board
  D. Public Ownership
  E. Privatisation and Agencies
  7. Utilities and Market Power: How to Regulate
  A. Selling State Assets: Constitutional Implications
  B. Regulatory Regime: Legal Powers and Legal Constraints, the Initial Regime for Gas
  C. Regulatory Regime: Legal Powers and Legal Constraints, the Modified Regime for Gas
  D. Regulatory Regime: Institutional Design
  E. Regulatory Regime: The Limits of Public Law
  F. Regulatory Regime: The Citizen's Charter and Subsequent Legislation
  8. Conclusion
  12. Natural Justice: Hearings
  1. Central Issues
  2. Rationale for Procedural Rights
  3. Limitation of the Principle
  A. Administrative v Judicial
  B. Rights and Remedies
  C. Rights v Privileges
  D. Statutory Hearings and Inquiries
  4. Principle Revived
  A. Ridge v Baldwin
  B. Natural Justice and Fairness
  C. Natural Justice, Fairness and Types of Process Right
  5. Applicability of Procedural Protection
  A. Categorisation: Administrative v Judicial v Legislative
  B. Rights, Interests and Legitimate Expectations
  i. Rights
  ii. interests
  iii. Legitimate expectation
  iv. Article 6(1) ECHR: "Civil Rights and Obligations"
  6. Content of Procedural Protection: Balancing
  A. Balancing: Factors
  B. Balancing: Limits
  C. Balancing: Causation
  D. Balancing: Execution
  7. Content of Procedural Protection: Specific Procedural Norms
  A. Notice
  B. Consultation
  C. Hearing
  i. type of hearing
  ii. Rules of evidence
  D. Representation
  E. Reasons
  i. importance of reasons
  ii. Reasons and statute: general
  iii. Reasons and statute: HRA and the ECHR
  iv. Reasons and the common law: indirect techniques for securing reasons
  v. Reasons and the common law: direct link with procedural fairness
  vi. Reasons, statute and common law: "late evidence of reasons"
  vii. Reasons and EU law
  F. Appeals and Rehearing
  G. Deciding Without Hearing
  H. ECHR and the Content of Procedural Rights
  8. Fairness: Non-Adjudicative Procedures
  A. Relationship between Decision-making and Procedure
  B. Example 1: Statutory Inquiries
  Contents note continued: C. Example 2: Social Welfare
  9. Conclusion
  13. Natural Justice: Hearings, Public Interest Immunity And Closed Material Procedure
  1. Central Issues
  2. Public Interest Immunity
  A. "Crown Privilege"
  B. From Crown Privilege to Public Interest Immunity
  C. Public Interest Immunity: The Type of Body that Can Claim Immunity
  D. Public Interest Immunity and Confidentiality
  E. Public Interest Immunity: Duty or Discretion
  F. Public Interest Immunity: Duty, Discretion and the ECHR
  G. Public Interest Immunity: Disclosure and Public Interest Immunity
  H. Public Interest Immunity: The Balancing Process
  i. Public Interest Immunity: The Change in Governmental Approach
  i. new approach
  ii. Evaluation
  3. Closed Material Procedures
  A. Closed Material Procedures: Nature
  B. Closed Material Procedures: Compatibility with Natural Justice
  C. Closed Material Procedures: Limits of AF
  D. Closed Material Procedures: The Need for Statutory Foundation
  4. Justice and Security Act 2013
  A. Key Features
  B. Evaluation
  i. legislative premise
  ii. CMP and PII
  iii. CMPs and special advocates
  5. Conclusion
  14. Natural Justice: Bias And Independence
  1. Central Issues
  2. Bias: Personal Interest
  A. Pecuniary Interest
  B. Other Personal Interests
  3. Bias: Institutional
  A. Prosecutor and Judge
  B. Institutional Opinion
  4. Bias: The Test for Bias
  A. Past Confusion
  B. From Gough to Porter
  i. Porter test
  ii. bodies subject to the Porter test
  5. Bias: Exceptions
  A. Necessity
  B. Statute
  C. Waiver
  6. HRA and the ECHR
  A. Article 6(1): The ECHR Legal Requirements
  B. Article 6(1) in Domestic Courts: Fairness and Waiver
  C. Article 6(1) in Domestic Courts: Planning and the Distinction between Policy and Fact-Finding
  i. role and position of the minister
  ii. sufficiency of the controls via judicial review
  iii. Policy and fact finding after Alconbury
  D. Article 6(1) in Domestic Courts: Housing and the Re-evaluation of the Policy/Fact-Finding Distinction
  E. Article 6(1) in Domestic Courts: Developments since Begum
  7. Common Law Requirement of "An Independent and Impartial Tribunal"
  15. Rule-Making
  1. Central Issues
  2. Delegated Legislation: History, Rationale and Form
  A. History
  B. Rationale and Constitutional Concerns
  C. Form
  3. Delegated Legislation: Passage and Publication
  A. Statutory Instruments Act 1946
  B. Publication and Making
  C. Publication and Making: Exceptions
  4. Delegated Legislation: Control by Parliament
  A. Scrutiny by the House
  B. Scrutiny in Committee: Delegated Legislation Committees
  C. Scrutiny in Committee: The Joint Committee on Statutory Instruments
  D. Scrutiny in Committee: The House of Lords Secondary Legislation Scrutiny Committee
  E. Scrutiny of Regulatory Reform: A Special Regime
  F. Scrutiny of European Legislation
  5. Delegated Legislation: Consultation
  A. General Principles
  B. Consultation Rights: Benefits
  C. Consultation Rights: Contentious Issues
  D. Consultation and the Code of Practice
  E. Conclusion
  6. Delegated Legislation: Judicial Review
  A. Procedural Ultra Vires and Formal Invalidity
  B. Substantive Ultra Vires
  i. Infringement of the primary Act
  ii. Breach of constitutional principle
  iii. Purpose, relevancy and reasonableness
  C. Delegation
  D. Remedies
  7. Delegated Legislation: Possible Reforms
  A. Hansard Society 1993
  i. Publication and access to the law
  ii. subject-matter scrutinised by Parliament
  iii. Debates on statutory instruments
  iv. Committee scrutiny
  v. Consultation
  B. Hansard Society 2014
  C. Select Committee on Procedure
  C. House of Lords' Merits of Statutory Instruments Committee
  8. Rules Made by the Administration
  A. Type and Rationale
  B. Legal Status
  C. Rules made by the Administration: Problems
  D. Rules made by the Administration: Possible Solutions
  i. Direct control by Parliament
  ii. Legislative specification of standards
  iii. Consultation
  iv. Judicial control
  v. Conclusion
  9. Impact of EU Law
  16. Error Of Law
  1. Central Issues
  2. Theories of Jurisdiction
  A. Introduction
  B. Collateral Fact Doctrine
  i. core thesis: preliminary questions and merits
  ii. Difficulties: ambit of the preliminary question
  C. Limited Review
  i. core thesis: relative rather than absolute facts
  ii. Difficulties: distinction between scope and truth
  D. Extensive Review: The Academic Argument
  i. core thesis: preliminary questions and substance
  ii. Difficulties: the rationale for the underlying assumption
  E. Extensive Review: The Judicial Argument
  i. core thesis: review for error of Taw
  ii. Difficulties: assumptions and consequences
  F. Conclusion
  3. Case Law History
  A. Limited Intervention
  B. Collateral or Preliminary Fact Cases
  C. Attempts at Reconciliation
  4. Current Case Law
  A. Impact of Anisminic
  B. From Anisminic to Racal
  C. Uncertainty of Racal
  D. Impact of Page
  E. Impact of South Yorkshire Transport
  F. Impact of Cart
  G. Impact of Jones
  i. law/fact distinction
  ii. Jones
  H. Summary
  I. Error of Law within Jurisdiction
  J. Statutory Review
  5. Test for Review: Policy Considerations
  A. Clearing the Deck: The Demise of the Collateral Fact Doctrine and Limited Review
  B. Judicial Control and Agency Autonomy: Remembering the Past when Constructing the Future
  C. Modern Law: Review for Errors of Law
  D. Middle Way: Rightness and Reasonable Basis
  i. USA
  ii. Canada
  E. Middle Way: Challenges
  i. Constitutional principle
  ii. Certainty
  iii. Criteria
  17. Error Of Fact
  1. Central Issues
  2. Mistake of Fact: meaning
  3. Scope of Review: The prior Law
  A. Rationale for Uncertainty
  B. Narrow View
  C. Broad View
  4. Scope of Review: E v Secretary of State for the Home Department
  A. Facts
  B. Judicial Review, Appeal and Fact
  C. Test for Review of Error of Fact
  D. Test for Admission of Evidence to Prove a Mistake of Fact
  5. Scope of Review: Croydon Case
  6. Test for Mistake ok Fact: Foundations
  A. Looking Back: Difficulties with the Pre-Existing Narrow View
  B. Looking Forward: The Conceptual Foundation for Judicial Intervention
  7. Test for Mistake of Fact: Current Law
  A. Jurisdictional Error
  B. E Case: Mistake as to Existing Fact including Mistake as to Availability of Evidence
  c. E Case: The Fact or Evidence must be Uncontentious and Objectively Verifiable
  i. Contentious and complex
  ii. Contentious and reliable
  D. E Case: Responsibility for the Mistake
  E. E Case: The Mistake should have Played a Material Part in the Tribunal's Reasoning
  F. Admissibility of Fresh Evidence
  8. Test for Mistake of Fact: Role of the Reviewing Court
  A. Standard of Proof Required in Relation to Facts
  B. Reviewing Court's Options: De Novo Review of Fact
  C. Reviewing Court's Options: Sufficiency of Evidence or Rationality
  D. Reviewing Court's Role: Factual Error only Apparent in the Light of Fresh Evidence
  9. Conclusion
  18. Failure To Exercise Discretion
  1. Central Issues
  2. Delegation
  A. General Principles
  B. Agency and Delegation
  i. creation of agency and delegation
  ii. Delegation and retention of authority by the delegator
  C. Government Departments
  i. General principles
  ii. application of Carltona to other public bodies
  iii. Government departments and executive agencies
  iv. Government departments and contracting-out
  D. Statutory Power
  3. Fettering of Discretion: Rules, Policies and Discretion
  A. Existing Rule or Policy: The Present Law
  i. General principles
  ii. weight to be given to the policy/rule
  iii. Control over the substance of the policy
  iv. Rules and process rights: claimant seeks non-application of the policy
  v. Rules and process rights: claimant seeks application of the policy
  B. No Existing Rule or "Insufficient" Rules
  i. debate over rules v discretion
  ii. Organisations, the decision-making process, rules and discretion
  iii. Conclusion
  4. Fettering of discretion: contracts and the exercise of Discretion
  A. Problem
  B. Incompatibility Test
  i. origins of the incompatibility test
  ii. Development of the test
  iii. determination of incompatibility: reasonable foresight
  iv. determination of incompatibility: contract and property rights
  v. determination of incompatibility: "valid exercises of statutory power"
  C. Compensation
  i. Damages for breach of contract
  ii. Frustration
  iii. specialised remedy
  iv. specialised remedy: standard form contracts
  5. Position of the Crown
  19. Abuse Of Discretion
  1. Central Issues
  2. Reasonableness: The Two Meanings
  3. Judicial Review: Types of Power Controlled
  A. Statutory Power
  B. Prerogative Power
  C. Common Law Discretionary Power
  D. Non-statutory Bodies
  4. Judicial Review: Intensity
  5. Illegality: Common Law Constraints
  A. Improper Purposes
  B. Relevancy
  C. Bad Faith
  6. Human Rights: The Common Law Background
  A. Common Law Jurisprudence
  Contents note continued: i. Heightened rationality review and alignment of common law and ECHR
  ii. principle of legality and the interpretation of legislation
  B. Secondary Literature
  20. Human Rights Act
  1. Central Issues
  2. Human Rights Act 1998
  A. Status of the ECHR prior to the HRA
  B. "Bringing Rights Home"
  C. ECHR Case Law
  3. Legislation: The Interpretative Obligation and the Declaration of Incompatibility
  A. Statutory Provisions
  B. Legislative History
  C. Judicial Interpretation of Section 3: Early Case Law
  D. Judicial Interpretation of Section 3: Ghaidan v Godin-Mendoza
  E. Judicial Interpretation of Section 3: The Post-Ghaidan Case Law
  F. Reflections on the Courts' Jurisprudence
  4. Acts of Public Authorities: A New Head of Illegality
  A. Section 6(1) HRA
  B. Section 6(2) HRA
  i. example: Wilkinson
  ii. relationship between section 6(2)(a) and (b): Hooper
  iii. relationship between section 6(2)(a) and (b): conclusions
  C. Acts of Public Authorities: The Scope of Section 6
  i. Two types of public authority
  ii. test for core public authorities
  iii. test for hybrid public authorities
  iv. application of the test for hybrid public authorities
  v. application of the test for hybrid public authorities: contracting out
  vi. application of the test for hybrid public authorities and contracting out: an assessment
  D. Acts of Public Authorities: The Horizontal Effect of the Human Rights Act
  i. Vertical and horizontal impact: general theory
  ii. Vertical and horizontal impact: the HRA
  E. Proceedings and Standing under Section 6
  F. Remedies for Breach of Section 6
  5. Standard of Review: Judicial Perspective
  A. Standard of Review under the ECHR: Proportionality and Margin of Appreciation
  B. Standard of Review under the HRA: Proportionality
  i. Proportionality: Daly
  ii. Proportionality: judicial ultimate determination, not substitution of judgment
  iii. Proportionality: the weight accorded to the view of the initial decision-maker
  C. Standard of Review under the HRA: Deference/Discretionary Area of Judgment/Respect/Weight
  i. ECHR margin of appreciation has not been adopted
  ii. domestic concept of deference/discretionary area of judgment/respect
  iii. Terminology
  6. Standard of Review: Academic Perspective
  A. Defence/Respect/Weight: Special Doctrine or Part of Ordinary Judicial Review
  B. Defence/Respect/Weight: The Relevant Factors
  C. Deference/Respect/Weight: Democratic Dialogue
  D. Defence/Respect/Weight: The Critique Revisited
  7. Rights: The EU Dimension
  A. Legislative Competence and Human Rights
  B. Rights and Direct Effect
  C. Fundamental Rights
  D. EU Charter of Rights
  E. ECHR, HRA and European Union
  21. Rationality And Proportionality
  1. Central Issues
  2. Two Central Foundations
  A. Limits of Substantive Intervention
  B. Interrelation between Procedure and Substance
  3. Wednesbury Unreasonableness: Past, Present, and Future
  A. Wednesbury Unreasonableness: "The Touchstone of Legitimate Judicial Intervention"
  B. Wednesbury Unreasonableness: The Present Law
  i. application of Wednesbury in cases not concerned with rights
  ii. application of Wednesbury in cases concerned with rights
  iii. non-application of Wednesbury in legitimate expectation cases: rationality and abuse of power
  C. Wednesbury Unreasonableness: The Future of the Test
  4. Proportionality in UK Law: Status, Meaning and Application
  A. Legal Status of Proportionality
  i. Proportionality in domestic law: Brind
  ii. Proportionality in domestic law: direct or indirect recognition
  iii. Proportionality in domestic law: the Human Rights Act 1998
  iv. Proportionality: cases with an EU law component
  B. Proportionality: Place and Meaning
  C. Proportionality: Application
  i. Proportionality and rights
  ii. Proportionality and penalties
  iii. Proportionality and administrative discretion
  D. Proportionality, the Role of the Court and the Standard of Review
  5. Proportionality: The EU Dimension
  A. Proportionality and Rights
  B. Proportionality and Penalties
  C. Proportionality and Discretion
  6. Reasonableness, Proportionality and Review
  A. Retention of Traditional Wednesbury: alongside Proportionality
  i. Practiced objection
  ii. Normative objection
  B. Retention of Modified Wednesbury alongside Proportionality
  C. Proportionality as the General Criterion of Review: Arguments in Favour
  i. Simplicity
  ii. Structured inquiry
  iii. Reasoned inquiry
  iv. Intensity of review
  D. Proportionality as the General Criterion of Review: Arguments Against
  i. Intrusive
  ii. Inappropriate
  iii. Legal certainty
  iv. Cost
  22. Legitimate Expectations
  1. Central Issues
  2. Nature of the Problem
  A. Actual and Apparent Retroactivity
  B. Legal Certainty, Legitimate Expectations and Legality
  3. Intra Vires Representations: Types of Case
  4. Intra Vires Representations and Substantive Legitimate Expectations: The Contending Arguments
  A. Arguments in Favour
  i. Fairness in Public Administration
  ii. Reliance and trust in government
  iii. Equality
  iv. Rule of law
  B. Arguments Against
  5. Intra Vires Representations and Legitimate Expectations: Coughlan
  A. Prior to Coughlan
  B. Coughlan
  6. Intra Vires Representations: The Determination of whether the Expectation is Reasonable and Legitimate
  7. Intra Vires Representations: The Standard of Review Applied when the Administration Seeks to Defeat a Legitimate Expectation
  A. Coughlan
  i. court's reasoning
  ii. Assessment
  B. Nadarajah
  i. court's reasoning
  ii. Assessment
  C. Bibi
  i. court's reasoning
  ii. Assessment
  8. Intra Vires Representations and Legitimate Expectations: Types of Case
  A. Changes of Policy
  B. Departure from an Existing Policy
  C. Individualised Representations
  D. Decisions, Final Determinations and Estoppel by Record
  i. Final determinations
  ii. Estoppel by record
  9. Ultra Vires Representations and Legitimate Expectations: The Current Law
  A. Jurisdictional Principle: The Relationship of Ultra Vires, Agency and Delegation
  B. Jurisdictional Principle: Application
  C. Jurisdictional Principle: The Conceptual Language, Estoppel or Legitimate Expectations
  D. Jurisdictional Principle: Qualifications
  i. Procedural irregularity
  ii. Delegation and finality of decision
  iii. European Convention on Human Rights
  10. Ultra Vires Representations: Reassessing the Jurisdictional Principle
  A. Policy behind the Jurisdictional Principle: The First Rationale
  B. Policy behind the Jurisdictional Principle: The Second and Third Rationales
  11. Ultra Vires Representations: Three Possible Strategies
  A. Limited Qualifications to the Jurisdictional Principle
  i. Government-proprietary distinction
  ii. Internal dealing
  B. Balancing the Public and Individual Interest
  i. Balancing legality and legal certainty: nature of the argument
  ii. Balancing legality and legal certainty: case law and statute
  iii. Balancing legality and legcd certainty: objections
  C. Compensation
  23. Equality
  1. Central Issues
  2. Common Law
  A. Principle of Treating Like Groups Alike
  i. basic precept
  ii. case law
  3. Statutory Intervention and Statutory Interpretation
  A. General
  B. Public Sector Equality Duties
  4. HRA
  A. Article 14 and Protocol 12 ECHR
  B. Determination of Discrimination
  i. Michalak
  ii. Carson
  C. Strict Scrutiny and Rationality Review
  i. Strict scrutiny and rationality review: the distinction
  ii. Strict scrutiny and rationality review: application
  D. Gender and Positive Discrimination
  5. EU law
  A. Discrimination and Nationality
  B. Discrimination and Gender
  D. Discrimination and Common Policies
  E. Discrimination and the Charter of Rights
  24. Invalidity
  1. Central Issues
  2. Types of Challenge
  A. Direct and Collateral Attack: Classification
  B. Relationship between Direct and Collateral Attack: The General Principle
  C. Relationship between Direct and Collateral Attack: Qualifications to the General Principle
  i. particular statute
  ii. Court orders
  iii. general law on remedies
  iv. Positive and negative decisions
  v. De facto judges and officers
  3. Void and Voidable: Correct and Incorrect Uses
  A. Void: A Relative not Absolute Concept
  B. Decision as to whether an Error Renders the Administrative Act Void
  C. Consequences of Holding that an Act is Void
  D. Voidable: Different Uses
  i. Indicative of the need to challenge
  ii. alternative to locus standi
  iii. gravity of the error
  iv. Errors of law within jurisdiction
  4. Void and Voidable: Theory, Reality and Judicial Discretion
  A. Administrative Convenience, Justice and Rigidity
  B. Resolving the Problem
  i. First principles
  ii. Remedial discretion
  iii. relevance of compensation
  iv. relevance of parliamentary redress
  5. Void and Voidable: Natural Justice
  A. Hearings
  C. Waiver
  6. Problems of Proof
  A. Burden of Proof
  B. Validity Pending Determination
  C. Partial Invalidity
  25. Remedies: Standing
  1. Central Issues
  2. Law before 1978
  A. Certiorari
  Contents note continued: B. Prohibition
  C. Mandamus
  D. Injunction and Declaration
  3. Attorney General, Public Authorities and Statutory Appeals
  A. Attorney General
  B. Public Authorities
  C. Statutory Appeals
  4. Standing in Judicial Review Actions
  A. Introduction
  B. IRC Case
  i. Distinguishing Gouriet
  ii. Sufficiency of interest: a uniform test
  iii. determination of sufficiency of interest: fusion of standing and merits
  iv. Summary
  C. Interpretation of the Test
  i. Individual challenges: a liberal approach, but no real fusion
  ii. Individual challenges: a more restrictive approach, and use of the fusion technique
  iii. Group challenges: associational, surrogate and public interest
  iv. Public interest challenges by a group or an individual
  v. Group challenges and unincorporated associations
  vi. Standing, fusion and the judicial role
  D. Locus Standi under the Human Rights Act 1998
  E. Locus Standi Outside s.31
  5. Intervention in Judicial Review Actions
  6. Function of Standing
  A. Vindication of Private Rights
  B. Fusion of Standing and Merits
  C. Citizen Action
  i. arguments for such an action
  ii. Practical objections
  iii. Conceptual objections: the need for a person
  iv. Conceptual objections: inconsistent with the traditional judicial role
  v. limits to the citizen action: the relativity of ultra vires
  D. Injury in Fact
  7. Standing and Intervention: Looking to the Future
  A. Standing
  B. Standing: Individuals and Groups
  C. Intervention
  26. Judicial Remedies
  1. Central Issues
  2. Certiorari/Quashing Order and Prohibition/Prohibiting Order
  A. Introduction
  B. Scope of Certiorari/Quashing Orders and Prohibition/Prohibiting Orders
  i. Persons and type of authority
  ii. determination of rights
  iii. Duty to act judicially
  iv. Certiorari and subordinate legislation
  C. Grounds for the Award of Certiorari and Prohibition
  D. Limitations on the Grant of the Remedies
  E. Effect of an Award of Certiorari/Quashing Order
  3. Mandamus/Mandatory Order
  A. Introduction
  B. Ambit of Mandamus/Mandatory Order
  i. Type of duty
  ii. 'Type of defect
  iii. Demand and refusal
  C. Limits on the Availability of Mandamus/Mandatory Order
  4. Declaration
  A. Introduction
  B. Scope of Declaration
  i. broad reach of the declaration
  ii. Types of defect
  C. Limits on the Availability of Declaration
  i. Exclusion of original jurisdiction
  ii. Exclusion of supervisory jurisdiction
  iii. Hypothetical questions: ripeness and mootness
  iv. Justiciability
  D. Impact of the Declaration
  E. Practice and Procedure
  5. Injunction
  A. Introduction
  C. Scope of Injunctive Relief
  i. Injunctions: general
  ii. Injunctions and Parliament
  iii. Injunctions and public offices
  D. Limits to Injunctive Relief
  E. Practice and Procedure
  6. Other Remedies
  A. Habeas Corpus
  B. Default Powers
  27. Remedies And Reform
  1. Central Issues
  2. Claim for Judicial Review
  A. Ordinary Courts: The Legal Foundations of the Existing Procedure
  B. Upper Tribunal: Legal Foundations for New Judicial Review Power
  C. Application/Claim for Judicial Review
  D. O'Reilly v Mackman
  3. Exceptions: "Getting Out" of the Judicial Review Procedure
  A. Reasons for Seeking to Proceed outside Section 31
  B. Collateral Attack and Private Rights: The Initial Approach
  C. Collateral Attack and Private Rights: Broadening the Exception
  D. Collateral Attack: Beyond Private Rights
  E. Impact of the Human Rights Act 1998
  F. Impact of the CPR
  G. Summary
  H. Assessment
  4. Public Law Cases: "Getting Into" the Judicial Review Procedure
  A. Reasons for Wishing to Use the Section 31 Procedure
  B. Public Law: Possible Tests
  i. Source of the power
  ii. Scope of the prerogative remedies
  iii. "Nature" of the power
  C. Boundaries of Public Law
  i. Public bodies and executive agencies
  ii. Public authorities and contracting-out
  iii. Public authorities and contracting power: the need for a "public law element"
  iv. Regulatory bodies: the "privatisation of the business of government"
  v. Regulatory bodies: contract, power and control
  vi. Employment relationships: the straining of the public/private divide
  vii. Activities within Parliament's proper sphere
  viii. Activities which arc "inherently private"
  ix. impact of the Human Rights Act 1998
  X. Future prospects
  5. Evaluation of THE Present Law
  A. Unavoidable Issue: Which Bodies are Amenable to Review
  B. Central Issue: Do Public Bodies Require Special Protection
  C. Protecting Public Bodies: Permission
  i. Permission: rationale
  ii. Permission: the impact of the CPR and the CJCA 1985
  iii. Permission: empirical evidence
  iv. Permission: conclusion
  D. Protecting Public Bodies: Time Limits
  i. Time limits: current rules
  ii. Time limits: justification
  E. Exclusivity Principle
  F. Disclosure and Inspection
  G. Conclusion
  5. Procedure
  A. Permission
  B. Substantive Hearing
  C. Discretion to Refuse Relief
  6. Effect of Alternative Remedies
  A. Choice of Remedies under CPR 54
  B. Alternative Statutory Remedies
  C. Conclusion
  7. Conclusion
  28. Remedies: Exclusion Of Review
  1. Central Issues
  2. Complete Exclusion
  A. Finality Clauses
  B. "No Certiorari" Clauses
  C. "Shall not be Questioned" Clauses
  D. "As if Enacted" and "Conclusive Evidence"
  E. Statutory Intervention
  3. Time Limits
  4. Effect of the Human Rights Act 1998
  5. Conclusion
  A. Complete Ouster Clauses
  B. Time Limits
  29. Crown Liability
  1. Central Issues
  2. Statutes and the Crown
  A. Statutes Binding the Crown
  B. Statutes Benefiting the Crown
  3. Procedure, Remedies and the Crown
  A. General
  B. Injunctions and Interim Relief
  i. Extending injunctive relief
  ii. Interim declarations
  C. Contempt
  4. Tort Liability and the Crown
  A. Law Prior to 1947
  B. Crown Proceedings Act 1947
  30. Tort And Restitution
  1. Central Issues
  2. Negligence, Statutory Duties and Statutory Powers
  A. "Liberal Approach"
  B. "Cautious" or "Restrictive Approach"
  i. Incrementalism and restriction of the duty of care
  ii. Discretion and restriction of the duty of care
  iii. Omissions and restriction of the duty of care
  C. "Middle Way"
  i. Greater unwillingness to exclude the duty of care in its entirety
  ii. Greater willingness to consider issues at the level of breach rather than duty
  iii. Instances where the courts deny the existence of the duty of care
  iv. Misfeasance and nonfeasance
  v. impact of the ECHR
  3. Breach of Statutory Duty
  A. Criteria for Liability
  B. Application of the Criteria
  C. Comment
  4. TUB Human Rights Act
  A. Criteria for Liability
  B. Application of the Criteria
  i. Damages and the standard of liability
  ii. Damages and discretion
  iii. Damages and quantum
  C. Comment
  5. Misfeasance in Public Office
  A. Criteria for Liability
  i. Two limbs of the tort
  ii. relationship between the two limbs
  B. Application of the Criteria
  C. Comment
  6. Nuisance
  A. Criteria for Liability
  B. Application of the Criteria
  C. Comment
  7. Rylands v Fletcher
  A. Criteria for Liability
  B. Application of the Criteria
  C. Comment
  8. Restitution
  A. Duress
  B. Mistake
  C. Recovery for Ultra Vires Demands
  D. Discretionary Payments
  E. Restitution from the Individual
  9. EU Law: Damages Liability and Recovery of Money
  A. Criteria for Liability
  B. Application of the Criteria
  C. Implications for Domestic Law
  D. Recovery of Money
  10. Judicial Immunity
  11. Reform
  A. Options for Reform
  B. Compensation via a Risk Theory
  C. Compensation for Invalidity
  D. Compensation for Serious Breach
  E. Compensation on an Ex Gratia Basis
  F. Conclusion.