Hoja de repaso: UK Administrative Law and Judicial Review

📋 Course Outline

1. UK administrative law and Dicey’s myth
2. Judicial review as the core of UK law
3. Why UK administrative law matters
4. Constitutional foundations of administrative law
5. Parliamentary sovereignty and the King in Parliament
6. Fairness presumption when administrative power exists
7. Procedural fairness: representations and disclosure
8. Substantive fairness grounds: illegality, irrationality, proportionality
9. Illegality grounds: ultra vires and error of law
10. Error of facts as a basis for quashing
11. Irrationality standard from Wednesbury
12. Human Rights Act 1998 and proportionality review

📖 1. UK administrative law and Dicey’s myth

🔑 Key Concepts & Definitions

• Dicey’s myth : Dicey’s myth is the claim that the UK lacks a developed system of administrative law.
• Administrative law in the UK : Administrative law in the UK refers to public-law control of government action, even though the phrase is not used as a technical label by English judges.
• A. V. Dicey : A. V. Dicey is a Victorian jurist who authored Introduction to the Study of the Law of the Constitution and shaped key constitutional ideas.
• Parliamentary sovereignty : Parliamentary sovereignty is the constitutional principle that Parliament can make or unmake any law and that no one may override Parliament’s legislation.

📝 Essential Points

• Dicey said English legal usage has no proper equivalent for “droit administratif,” and “administrative law” is not a familiar term for judges and counsel.
• Dicey’s myth is linked to the idea that the UK historically did not need a developed administrative law system.
• Lord Reid in Ridge v Baldwin [1964] AC 40 acknowledged the absence of a developed administrative law system, at least historically.
• Dicey is presented as the father of UK constitutional law and the author of Introduction to the Study of the Law of the Constitution (1st ed. 1885).
• Dicey’s Parliamentary sovereignty means Parliament has the right to make or unmake any law, and no person or body is recognised as able to override or set aside it.
• Dicey’s two principles are identified as Parliamentary sovereignty and the Rule of law.

💡 Memory Hook

Dicey’s myth = “no administrative law label” + “Parliament can do anything (no override).

📖 2. Judicial review as the core of UK law

🔑 Key Concepts & Definitions

• Judicial review : Judicial review is the process by which courts examine the legality of decisions or actions by public bodies.
• Parliamentary sovereignty : Parliamentary sovereignty is the doctrine that Parliament can make or unmake any law and no one may override Parliament’s legislation.
• Rule of law (Dicey) : Dicey’s rule of law is the idea that punishment requires a proven breach of law in ordinary courts, not discretionary power.
• Administrative law (Dicey’s view) : Dicey’s view treated administrative law as foreign and arbitrary, so he denied its existence in England.
• Prerogative writs : Prerogative writs are traditional court orders that can be used to challenge unlawful public action.

📝 Essential Points

• Dicey’s sovereignty means Parliament has the right to make or unmake any law, and no person or body can legally override it.
• Dicey’s rule of law requires a distinct breach of law established in the ordinary legal manner before ordinary courts.
• Dicey contrasted rule of law with systems where officials use wide, arbitrary, or discretionary powers to constrain people.
• Dicey rejected administrative law in England by linking it to a French creation attributed to Napoleon and by criticizing its alleged arbitrariness.
• Dicey’s influence led many lawyers to defend the belief that England had no administrative law.
• WWI-era growth of the administrative state, plus increased use of royal prerogatives and delegated legislation, undermined Dicey’s legacy.

💡 Memory Hook

Dicey = Courts first: ordinary courts prove the breach; no one overrides Parliament.

📖 3. Why UK administrative law matters

🔑 Key Concepts & Definitions

• Administrative tribunals : Administrative tribunals are adjudicatory bodies Parliament provides to decide disputes outside and independently of the department concerned.
• Franks Committee : The Franks Committee is the body whose view treats tribunals as Parliament’s adjudication machinery rather than part of administration.
• Crown Proceedings Act 1947 : The Crown Proceedings Act 1947 replaced older petition procedures and made the Crown more directly answerable in ordinary legal actions.
• Ridge v. Baldwin : Ridge v. Baldwin is a landmark case stressing natural justice requirements in administrative and disciplinary decisions affecting public employees.
• Natural justice : Natural justice is the set of fairness requirements that can require notice of grounds and an opportunity to respond before an adverse decision.

📝 Essential Points

• The Franks Committee framed tribunals as Parliament’s adjudication machinery, with decisions deliberately independent of the relevant department.
• Modern judicial review developed partly because the Crown’s immunity ended, allowing legal proceedings against the Crown and public bodies.
• The Crown Proceedings Act 1947 replaced petitions of right with ordinary actions against the Crown.
• The Crown Proceedings Act 1947 allowed claims for damages for breach of contract, recovery of property, and torts by servants or agents in employment.
• The Act also enabled liability for breach of employer/occupier duties and for breach of statutory duties binding on the Crown.
• Ridge v. Baldwin involved dismissal of the Chief Constable without notice of grounds or an opportunity to defend, and it highlighted natural justice in public employment.

💡 Memory Hook

Independence + fairness: Parliament’s tribunals decide independently, and Ridge shows natural justice needs notice and a chance to respond.

📖 4. Constitutional foundations of administrative law

🔑 Key Concepts & Definitions

• Constitutional foundations : Constitutional foundations are the constitutional principles that shape how UK public bodies exercise power and how courts control that power.
• Judicial review : Judicial review is the court process that checks the lawfulness of administrative action rather than re-deciding the merits of the decision.
• Litigation-centered administrative law : Litigation-centered administrative law treats administrative law mainly as the body of rules used in judicial review cases.
• Concrete constitutional law : Concrete constitutional law describes administrative law as constitutional principles applied to real government decisions and disputes.
• Sovereignty of Parliament : Sovereignty of Parliament is the constitutional idea that Parliament is the ultimate legal authority in the UK legal system.

📝 Essential Points

• UK public law has no sharp boundary between constitutional issues and administrative law issues.
• Administrative law can be framed as concrete constitutional law or constitutional law in application.
• A proper understanding of UK administrative law requires a clear picture of the UK system of government.
• The constitutional discussion for UK administrative law focuses on Parliament’s sovereignty and the Executive as a constitutional blindspot.
• Dicey’s legacy links the UK view of administrative law to judicial review rather than to a distinct “administration” concept.

💡 Memory Hook

JR is the bridge: constitutional principles become concrete when courts review government decisions.

📖 5. Parliamentary sovereignty and the King in Parliament

🔑 Key Concepts & Definitions

• Parliamentary sovereignty : Parliamentary sovereignty is the idea that the UK legislature holds the highest legal authority within the constitutional order.
• King in Parliament : King in Parliament is the combined legislative body where the King, the House of Lords, and the House of Commons act together.
• Dicey definition of Parliament : Dicey’s definition treats Parliament as the King plus both Houses acting together, rather than as the Houses alone.
• Curia Regis : Curia Regis is the Norman royal council that preserved the earlier practice of consulting nobles and barons.
• Magna Carta 1215 : Magna Carta 1215 is the charter that required the monarch to obtain agreement for certain decisions such as new taxes.

📝 Essential Points

• Dicey describes Parliament as the King, the House of Lords, and the House of Commons acting together as the “King in Parliament.”
• The “King in Parliament” composition is linked to historical development, not just modern institutional design.
• Pre-Norman England used summoning nobles and barons to counsel the King, forming early roots of Parliament.
• Norman government maintained the King’s council through the Curia Regis structure.
• Magna Carta 1215 required the monarch to secure agreement of an assembly of 24 barons for certain decisions like raising new taxes.
• In 1265, Simon de Montfort’s Parliament included representatives of shires, cities, and boroughs alongside feudal barons to counsel the King (Henry III).

💡 Memory Hook

King + Lords + Commons = “King in Parliament” (Dicey). Magna Carta 1215 = barons’ agreement for new taxes.

📖 6. Fairness presumption when administrative power exists

🔑 Key Concepts & Definitions

• Parliamentary sovereignty : Parliamentary sovereignty is the constitutional idea that Parliament may make or repeal any law and no legal authority can override its legislation.
• Sovereignty of Parliament : Sovereignty of Parliament is the legal concept that shifts ultimate authority to Parliament rather than to the monarch’s divine right.
• Manner and form doctrine : The manner and form doctrine limits how legislation can be validly made by requiring compliance with specified procedural conditions.
• European Communities Act 1972 : The European Communities Act 1972 is legislation that created a legal effect for EU law within the UK legal order.

📝 Essential Points

• Dicey’s rule includes both Parliament’s power to make or unmake any law and the absence of any legal right to override Parliament’s legislation.
• Because Parliament can change any law, one Parliament cannot bind a future Parliament by locking in its own legislation.
• The Glorious Revolution and the Bill of Rights are presented as the turning point that entrenched parliamentary supremacy over kingship.
• The Factortame litigation is used to illustrate a practical limitation on the classic “pure and absolute” Diceyan account.
• In Jackson, the Law Lords treat parliamentary supremacy as a general constitutional principle but explain that Dicey’s classic description no longer fits the modern UK.
• The “manner and form” doctrine (MacCormick v Lord Advocate 1953) is identified as an alteration to the traditional sovereignty model.

💡 Memory Hook

Dicey = “make/unmake any law” with “no override”; later cases add “procedural limits” and “modern fit” (manner & form, Factortame, Jackson).

📖 7. Procedural fairness: representations and disclosure

🔑 Key Concepts & Definitions

• Crown : Crown : In modern UK usage, it refers to a complex legal reality of executive authority rather than only the monarch as a person.
• Magna Carta 1215 : Magna Carta 1215 : A 1215 settlement that first limited the monarch’s claim to absolute sovereignty.
• Ministerial responsibility : Ministerial responsibility : A principle making government ministers accountable within the UK constitutional system.
• Cabinet government : Cabinet government : A model of collegial government where regalian ministries act without a clear hierarchy and the Prime Minister represents the group.
• Delegated legislation : Delegated legislation : Laws made by the executive under powers delegated by Parliament, rather than by Parliament directly.

📝 Essential Points

• In the Norman period, the king was treated as the sole source of law, described as sovereignty “by grace of God.”
• The 18th-century shift moved executive rule from the monarch to the government, changing the executive’s centre of power.
• Under the constitutional settlement, Crown powers must come from an Act of Parliament or be recognised by common law.
• Courts accepted that the Crown has certain necessary powers, rights, immunities, and privileges for maintaining government, not shared with private citizens.
• Executive power in the modern balance comes from two complementary sources: statutory power and common law power (prerogative).
• Under statutory delegation, the executive can act only within powers Parliament agrees and grants to government and its administration, and such acts are delegated or secondary legislation.

💡 Memory Hook

Crown→law sources: Act of Parliament (statute) or common law (prerogative); Parliament delegates, executive legislates only by that grant.

📖 8. Substantive fairness grounds: illegality, irrationality, proportionality

🔑 Key Concepts & Definitions

• Illegality : Illegality is a ground of judicial review where a decision-maker acts outside the legal limits set by law.
• Irrationality : Irrationality is a ground of judicial review where a decision is so unreasonable that it cannot stand as a rational outcome.
• Proportionality : Proportionality is a ground of judicial review where the impact of a decision is excessive compared with the legitimate aim.
• Substantive fairness : Substantive fairness is the idea that courts can review the substance of a decision for legality, rationality, and proportionality.

📝 Essential Points

• Substantive fairness grounds are used to challenge the substance of an administrative decision rather than only its procedure.
• Illegality focuses on whether the decision-maker complied with the law governing the power being exercised.
• Irrationality targets decisions that are not just wrong but so unreasonable that they fail a rationality standard.
• Proportionality requires balancing the decision’s severity against the objective pursued to see if the measure is excessive.
• Courts’ review of prerogative exercise is shaped by whether the matter is legally reviewable or immune from judicial review.
• Even where prerogative matters are immune, the overall exercise of prerogative powers is controlled by law and can be sanctioned by courts.

💡 Memory Hook

I-I-P: Illegality = wrong law, Irrationality = no rational basis, Proportionality = too harsh for the aim.

📖 9. Illegality grounds: ultra vires and error of law

🔑 Key Concepts & Definitions

• Ultra vires doctrine : Ultra vires doctrine treats administrative action as lawful only if it stays within the powers Parliament delegated to the executive and delegated legislation.
• Parliamentary sovereignty reading : Parliamentary sovereignty reading requires courts and other institutions to act only according to Parliament’s will expressed through delegation.
• Common law constitutional doctrine : Common law constitutional doctrine grounds judicial review in common law, limiting how far courts defer to Parliament’s sovereignty.
• Judicial review vs appeal : Judicial review focuses on legality of the administrative decision-making process, while appeal re-examines procedure and merits of a lower court decision.
• Sufficient interest requirement : Sufficient interest requirement means the court grants permission for judicial review only if the applicant has a sufficient interest in the matter.

📝 Essential Points

• Under the ultra vires doctrine, administrative law is framed as enforcing respect for Parliament’s will in executive action and delegated legislation.
• Judicial review under ultra vires requires the judge to identify Parliament’s intent in the delegation act and then check whether the government respected that will.
• The judge must interpret the delegation act, but interpretation is limited to determining Parliament’s will rather than expanding it.
• Under the common law constitutional doctrine, courts’ power to review administrative action is derived from common law rather than a strict deference to parliamentary sovereignty.
• Judicial review is not a substitute for administrative or political control of merits, expediency, or efficiency of decisions.
• Judicial review is distinguished from appeal: appeal controls procedure and substance of a lower court, while review controls the process of an administrative decision without controlling merits.

💡 Memory Hook

Ultra vires = “stay inside Parliament’s delegated will”; CLC = “review legality process, not merits.”

📖 10. Error of facts as a basis for quashing

🔑 Key Concepts & Definitions

• Error of fact : An error of fact is a mistake about factual matters that can undermine the legality of a decision and support quashing.
• Quashing order : A quashing order is a remedy that nullifies an unlawful decision made by a public authority when JR grounds exist.
• Ultra vires decision : An ultra vires decision is one made beyond lawful power, which can be treated as unlawful for JR purposes.
• Natural justice : Natural justice is a set of fairness requirements that public authorities must follow when making decisions.

📝 Essential Points

• Quashing is available when a decision is ultra vires or otherwise unlawful.
• Quashing nullifies the decision as a remedy tied to the existence of JR grounds.
• Procedural failures can invalidate a decision, even when the underlying facts are not disputed.
• Natural justice includes rules against bias and the right to a fair hearing.
• Natural justice was recognised in Ridge v. Baldwin [1964] AC 40.

💡 Memory Hook

Quash = nullify unlawful power: if the decision is ultra vires or breaks fair procedure (bias/fair hearing), it can be set aside.

📖 11. Irrationality standard from Wednesbury

🔑 Key Concepts & Definitions

• Irrationality ground : A substantive judicial review ground challenging a public decision as so unreasonable that no reasonable decision-maker could have reached it.
• Associated Provincial Picture Houses v Wednesbury : A case that developed the classic test for irrationality in public law, often called the Wednesbury unreasonableness standard.
• Wednesbury unreasonableness : The irrationality standard requiring an extreme level of unreasonableness before a court will interfere with a public decision.
• Substantive grounds : A category of judicial review challenges focused on the substance of the decision, including illegality, irrationality, and proportionality.

📝 Essential Points

• Irrationality is one of three substantive grounds alongside illegality and proportionality.
• The irrationality ground was developed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
• Wednesbury unreasonableness targets decisions that are not merely wrong but reach an extreme level of unreasonableness.
• Illegality concerns acting beyond legal powers, while irrationality concerns the decision’s level of unreasonableness.
• Proportionality is treated as a later substantive ground, appearing after R v Home Secretary, ex p Daly [2001] UKHL 26.

💡 Memory Hook

Wednesbury = “extreme unreasonableness” threshold for irrationality.

📖 12. Human Rights Act 1998 and proportionality review

🔑 Key Concepts & Definitions

• Human Rights Act 1998 : The Human Rights Act 1998 makes Convention rights legally binding on public authorities in specified ways.
• Convention right : A Convention right is a right defined by the European Convention for Human Rights and carried into UK law through the HRA 1998.
• Section 6 HRA 1998 : Section 6 makes it unlawful for a public authority to act incompatibly with a Convention right.
• Public authority : A public authority is a body whose functions are public in nature, including courts and certain persons, but excluding Parliament and parliamentary proceedings.
• Proportionality review : Proportionality review is a structured legality test used to decide whether limiting a fundamental right is justified and no more than necessary.

📝 Essential Points

• Section 6(1) HRA 1998 prohibits public authorities from acting in a way incompatible with a Convention right.
• Section 6(3) includes courts and tribunals and persons with public functions, but excludes either House of Parliament and those acting in connection with parliamentary proceedings.
• A judicial review claim can be brought based on section 6 where a public authority’s act is incompatible with a Convention right.
• English courts apply proportionality after R v Home Secretary, ex p Daly [2001] UKHL 26.
• The proportionality test asks: (1) whether the legislative objective is sufficiently important; (2) whether the measures are rationally connected; and (3) whether the impairment is no more than necessary.
• The proportionality test is described as a carefully structured analysis in de Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing.

💡 Memory Hook

HRA s6 = “incompatible is unlawful”; proportionality = Objective importance → Rational link → No more than necessary.

📅 Key Dates

Date	Event
1885	1st edition of Dicey’s Introduction to the Study of the Law of the Constitution
1215	Magna Carta 1215 required the monarch to obtain agreement of an assembly of 24 barons for certain decisions like new taxes
1964	Ridge v. Baldwin (Lord Reid) on the absence of a developed system of administrative law and the importance of natural justice

📊 Synthesis Tables

Competing understandings of administrative law

Account	Core idea	Focus
Classic account	Administrative law is the rules produced under the procedure of judicial review of administrative action.	Judicial-review litigation rules
Minority account	Administrative law is the rules of Administration’s action.	Administration’s action (broader, more interdisciplinary)

⚠️ Common Pitfalls & Confusions

1. Confusing Dicey’s “no developed administrative law” claim with the later judicial acknowledgement that UK administrative law exists through judicial review.
2. Mixing up Dicey’s Rule of law (punishment only after a distinct breach proved in ordinary courts) with procedural fairness requirements like notice and opportunity to respond.
3. Treating judicial review as an appeal: JR controls legality/process, not the merits, expediency, or efficiency of the administrative decision.
4. Assuming parliamentary sovereignty means one Parliament can bind a future Parliament; the course stresses that no Parliament of the day can bind a future Parliament.
5. Believing natural justice is only about bias; the course also requires a fair hearing, including knowing the case/gist and having an opportunity to reply.
6. Using Wednesbury irrationality as if it were proportionality; Wednesbury requires an extreme level (“no reasonable authority”), while proportionality is a structured necessity test for limiting fundamental rights.
7. Thinking proportionality under the HRA is automatic without the HRA framework; the course links proportionality review to HRA s6 claims and the Daly/de Freitas structure.

✅ Exam Checklist

1. Explain Dicey’s “administrative law” point (no proper equivalent; term unknown to judges/counsel) and identify Dicey’s two principles: parliamentary sovereignty and the rule of law.
2. State Dicey’s sovereignty definition (right to make/unmake any law; no legal right to override/set aside) and Dicey’s rule of law requirement of a distinct breach proved in ordinary courts.
3. Describe why Dicey refused to acknowledge administrative law in England (French creation attributed to Napoleon; alleged arbitrariness/frenchness) and how WWI-era growth of the administrative state undermined his legacy.
4. Explain the modern birth of judicial review: end of Crown immunity, rediscovery of prerogative writs, and the role of Ridge v. Baldwin (notice of grounds and opportunity to defend; natural justice).
5. Summarise the Crown Proceedings Act 1947: replacement of petitions of right by ordinary actions and the types of liability it enabled (damages for breach of contract, recovery of property, torts by servants/agents, and (