15. Contracts

Contracts are used to structure the legal relationship between government and private service providers. Besides this, contract also forms a new model both for relationships between public agencies, and for the relationship between the government and the people it serves. The challenge for the government is to deliver services with integrity, with equity, and with efficiency. The challenge for administrative law is to provide forms of accountability that do what the law can do to promote those goals. This chapter discusses government by contract and proportionate administration, accountability and efficiency, capacity to contract, and how the law controls government contracts.

5. Impartiality and independence

This chapter examines impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful), and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process, and also as a flaw in the substance of a decision maker’s reasoning.

3. Human rights law

The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.

14. Torts

A claim for damages for loss caused by a public authority gives a court the opportunity to do justice for the claimant, and also to impose the rule of law on the administration. The challenge is to do both without interfering in the administrative pursuit of public goods, and without creating public compensation funds that only a legislature can legitimately create. It is an important constitutional principle that liabilities in the law of tort apply to public authorities, just as to private parties. But there is no general liability to compensate for public action that was unlawful; the impugned conduct must meet the standard requirements of the tort liability of private parties, with the exception of the one public tort: misfeasance in a public office. This chapter discusses trespass to property, statutory liabilities, negligence, misfeasance in public office, and damages under the Human Rights Act 1998 and under European Union law.

13. Ombudsmen

This chapter examines ombudsmen and other forms of investigation of the working of government, and the ways in which they can resolve disputes and improve administration. The ombudsmen’s role has four key features: (1) it is independent; (2) it investigates a complaint; (3) it looks for injustice caused by maladministration; and (4) it makes a report. The chapter explains the ombudsman process, the Parliamentary Ombudsman, local government ombudsmen, the effects of ombudsmen’s reports, judicial review of ombudsmen, the European Ombudsman, the Equality and Human Rights Commission, and the Inquiries Act 2005. The chapter also explains the law on judicial review of ombudsman decisions and judicial review of the way in which public authorities respond to ombudsman reports, and argues that the judicial process has very little to offer in improving the operation of ombudsman schemes.

7. Discretion and deference

This chapter discusses how judges can defer in appropriate ways to administrative authorities on some issues, while still opposing abuses of power. The chapter explains why the courts defer massively to administrative authorities on some issues involving foreign affairs and national security, public expenditure, planning, and legal and political processes. The mere fact that the law has allocated the power to an administrative body gives rise to a presumption that a court should not interfere unless there is a ground for review other than that the court would have reached a decision; the extent to which a court ought to defer is determined by the three reasons for allocating power to an administrative body: the body’s expertise, its political responsibility, and/or its decision-making processes.

1. Administration and the principles of the constitution

Administrative law includes a complex variety of processes and doctrines that confer and control public power. This chapter outlines the underlying principles of administrative law. Topics discussed include arbitrary government and the core of administrative law, administration, the principle of relativity, the principles of the constitution, system principles, accountability, and Europe and the principles of the constitution.

12. Tribunals

Panels, committees, tribunals, referees, adjudicators, commissioners, and other public authorities decide many thousands of disputes each year over (for example) entitlement to benefits, or tax liability, or political asylum, or the detention of a patient in a secure hospital. The massive array of agencies reflects the great variety of benefits and burdens that twenty-first-century government assigns to people. The array had no overall organization until 2007, when Parliament transformed it into a complex system. This chapter explains the benefits of integrating these decision-making agencies in the new system. The law needs to tailor their structure, processes, and decision-making techniques to the variety of purposes they serve. And the law needs to achieve proportionate process, by reconciling competing interests in legalism and informality in tribunal processes.

10. How to sue the government: judicial processes and judicial remedies

This chapter addresses the extraordinary process of judicial review and the remedies available to the court. The process and remedies are compared to the process and remedies in ordinary claims (which can also be used to control administrative action). In their self-regulation in developing these complex processes, the challenge for judges is to keep things in proportion: the attempt to achieve due process in judicial control of administrative action is essential to the administration of justice. The chapter explains the irony of process, which was introduced in Chapter 4: the courts may need to provide forms of process that are excessive and wasteful in some cases, in order to protect the administration of justice.

11. Standing: litigation and the public interest

This chapter examines standing—the entitlement to be heard by a court. No judicial process of any kind may proceed without it. In an ordinary claim, the claimant’s standing is based on his assertion of grounds for his claim to a remedy. In a claim for judicial review, the claimant does not assert a right to a remedy, but must have a ‘sufficient interest’ in the matter. The discussion covers campaign litigation, costs in campaign litigation, standing in an ordinary claim for a declaration, standing in Human Rights Act proceedings, standing before the European Court of Justice, standing for public authorities, and standing to intervene.