Theories and Functions 2010 - Lecture - ADMIN, Lecture notes of Administrative Law

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Administrative LawAdministrative Law

Administrative Law: TheoriesAdministrative Law: Theories

and Functions and Functions

 Judicial supervision of executive/Judicial supervision of executive/

administrative action dates back administrative action dates back

before start of 17 before start of 17thth^ century,century,

 though important reforms over thethough important reforms over the

last 30 years last 30 years

• (^) Parliament enactsParliament enacts statute giving power to…..statute giving power to…..
• ……..public body (e.g...public body (e.g. government minister) whogovernment minister) who exercises power wronglyexercises power wrongly and ….and ….
• …….is then open to.is then open to challenge through judicialchallenge through judicial reviewreview

 Parliamentary sovereigntyParliamentary sovereignty

 Rule of lawRule of law

 Separation of powersSeparation of powers

““Whereas constitutional law isWhereas constitutional law is concerned with the public domain in concerned with the public domain in general, administrative law focuses on general, administrative law focuses on the day-to-day handling of public the day-to-day handling of public affairs particularly, but by no means affairs particularly, but by no means exclusively, by what we call ‘the exclusively, by what we call ‘the executive branch of government’ – i.e. executive branch of government’ – i.e. Ministers, government departments, Ministers, government departments, executive agencies, local government, executive agencies, local government, and so on.” (Cane, 4th edn, pp.1-2). and so on.” (Cane, 4th edn, pp.1-2).

1. 'Red light' theory1. 'Red light' theory

 (^) the ‘control’ modelthe ‘control’ model

 (^) thethe ultra viresultra vires doctrinedoctrine

2. ‘Green light’ theory2. ‘Green light’ theory

 (^) To enable, facilitate and improveTo enable, facilitate and improve

the processes of government the processes of government

 (^) Political, rather than legal,Political, rather than legal,

process: process:

 This view critical of role of theThis view critical of role of the

judges, who, it is argued, are: judges, who, it is argued, are:

 Ill-equipped to make decisions inIll-equipped to make decisions in

complex and often specialist areas complex and often specialist areas

of public administration; and of public administration; and

 Are often unsympathetic to certainAre often unsympathetic to certain

groups because of their socio- groups because of their socio-

economic and constitutional economic and constitutional

position (Griffith) position (Griffith)

3. ‘Amber light’ theory3. ‘Amber light’ theory

 (^) Mixture of red and greenMixture of red and green

 (^) recognises need for controls, butrecognises need for controls, but also need for sound rules and also need for sound rules and policies to improve public policies to improve public administration administration

 fairnessfairness

 proportionalityproportionality

 legitimate expectationlegitimate expectation

 provision of remedies:provision of remedies:

 depending on the case,depending on the case,

remedies may be private-law remedies may be private-law

(e.g. compensation) or public- (e.g. compensation) or public-

law law (e.g. quashing order)(e.g. quashing order)