The courts

The heart of the administrative justice system is found in the Administrative Court (formerly known as the Divisional Court of the Queen's Bench). This is where the fundamental principles of judicial review have been developed, particularly since the mid-1960. The essence of judicial review is straightforward. Public officials must act within the constraints of the law. If they do not the courts will declare a decision to be unlawful. The primary tasks of the judges in a judicial review case are:

• To interpret statutory provisions. There are many situations, particularly when a new piece of legislation has been passed, when the law may need clarification. Deciding the limits of the law, and whether or not a person acted within the law or outside it, is one of the tasks of the judges.

• To control discretion. In some situations the legislation has been drafted in a deliberately vague fashion, in order to give officials some flexibility in the appli­cation of the law to the particular case. Where a statute states that the minister 'may' act in a certain way or reach a 'reasonable' decision, these are examples of the granting of discretionary power. In this context the judges have developed the principle that the exercise of discretion must not be 'unreasonable'.

• To determine the validity of secondary legislation. The courts have resisted the temptation to decide, as does the Supreme Court in the USA, that particular items of legislation are unlawful, though it has recently been decided that they should do so if an item of British legislation is contrary to the law of the EU. However, the courts have long asserted the power to declare secondary legislation unlawful, on the basis that the statutory instrument was beyond the powers of the minister as established by the primary Act of Parliament.

• To determine the fairness of procedures. The courts have also been determined to develop fundamental principles of fairness in the lower courts, in other tribunals and in a range of other contexts in which decisions affecting the citizen are made. Where these principles apply, the person must know the basis of the case against her, and have an opportunity to be heard.

• To prevent bias. In addition, the judges have insisted that adjudicators in the courts and other fora must not be 'biased', in the sense that they must not have a personal interest in the outcome of any particular case.

One of the outcomes of the developments of judicial review has been that there has been an increased use of the courts for testing the validity of legislation or its interpretation. 'Test cases', or as it is known in the USA 'cause lawyering', have become a part of contemporary legal practice. The coming into force of the Human Rights Act 1998 in October 2000 has provided a new focus for such work as challenges about the compliance of legislation and policy with the European Convention on Human Rights are made.

Questions:

1. Why is it necessary to interpret statutory provisions?

2. Where does discretion come from and why should they first grant discretion and then control it?

3. Why is it secondary but not primary legislation that English judges are ready to review and which validity to determine?

4. Why do you thinkthe fairness of procedures comes first out of all values of administrative law in the scope of courts’ focuses?

Exercise 2.Scan the text and say which Act of Parliament increased the tribunals’ caseload? f