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Федеральное агентство по образованию

Государственное образовательное учреждение высшего


профессионального образования
«МОСКОВСКИЙ ГОСУДАРСТВЕННЫЙ ЛИНГВИСТИЧЕСКИЙ
УНИВЕРСИТЕТ»

РАЗРЕШАЮ
НА ДЕПОНИРОВАНИЕ
Ректор ГОУ ВПО МГЛУ
_________________________

И.А.Смольянникова
«Правовое регулирование административной деятельности»
(английский язык)
части 1 и 2.

Автор:_________ Смольянникова И.А.

Москва 2010
2

Модуль имеет своей целью развитие элементов профессиональной


иноязычной коммуникативной компетенции, соответствующих уровню С1 по
общеевропейской шкале, у студентов, обучающихся по специальности
Юриспруденция. Материал предназначен для изучения на пятом курсе в
рамках дисциплины Практический курс первого/второго иностранного языка.
Тексты и задания к ним подобраны таким образом, чтобы на основе
сопоставления с правовым регулированием аналогичной сферы, принятом в
Российской Федерации, у обучающихся формировались социокультурная,
социолингвистическая, социальная и др. компетенции, которые способствуют
успешной межкультурной коммуникации в профессиональной области.
Значительное количество заданий нацелено на развитие конструктивной и
технологической компетенций, умений автономной учебной деятельности. В
пособии широко применяются принципы сознательности и опоры на
имеющиеся умения и знания, включая знания о Российской правовой системе
и правовых обычаев, предпринята попытка реализовать проблемный подход к
обучению. Значительное место отводится автономной работе студентов (в
рамках пособия на 38 аудиторных часов приходится 56 часов внеаудиторной
работы). Структура пособия позволяет сделать этот процесс управляемым.
3

CONTENTS

PART 1.

UNIT 1. What is Administrative Law About?...........................…………….4


UNIT 2. The role of administrative law: authority and value..........……....12
UNIT 3. Administrative justice: the institutional framework……………...24
UNIT 4. Ombudsman and other complaint handling bodies…………...…36
UNIT 5. Overview of the administrative justice system...…………...……..47

PART 2.

REVISION……………………………………………………………………60

TEXTS for SELF STUDY


The Case for Judicial Review ………………………………………….….…64
Tragic choice and the role of administrative law…………………………….66
Marbury vs. Madison (1803) Case……………………………………………71

BIBLIOGRAPHY……………………………………………………………...82
EXTERNAL LINKS………………………...…………………………………82
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UNIT 1
What is Administrative Law About?
Exercise 1. Read the text and be ready to discuss the details.
After Peter Cane
There is no universally accepted definition of what is meant by
'administrative law'. If you look at the main textbooks on the subject you will find
that although quite a few topics are dealt with in all of them, there are some that
are covered in one but not in another, that the common topics are organized in
different ways from one book to another, and that they are discussed at different
lengths by the various authors. You may also notice amongst the authors different
approaches to what administrative law is about. Questions such as 'what should
administrative lawyers do?' have been the subject of sometimes-acrimonious
debates amongst scholars.
Along with constitutional law, many people think of administrative law as
part of 'public law'. This twofold division of public law (into constitutional and
administrative law) is of no great significance. It is really just a matter of focus.
Whereas constitutional law is concerned with the public domain in general,
administrative law focuses on the day-to-day handling of public affairs particularly,
but by no means exclusively, by what we call 'the executive branch of government'
— i.e. ministers, government departments, executive agencies, local government,
and so on. The qualification ('by no means exclusively') is very important, and it
needs explanation.
In Britain, administrative law emerged as a distinct subject of study in the
latter half of the twentieth century. The first edition of S.A. De Smith's Judicial
Review of Administrative Action was published in 1959 and the first edition of
H.W.R. Wade's Administrative Law was published in 1961. An important feature of
these books was that rather than being organized around the functions of
government—such as the provision of housing and social security, or the
regulation of immigration and occupational health and safety—they focused on
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'general principles' governing the exercise of governmental powers, such as the


rules of natural justice and doctrine of ultra vires. Studying government in what is
sometimes called a 'sectoral' way inevitably involves focusing on relevant
legislation and its day-to-day implementation by administrators. In contrast, the
'general principles' approach to administrative law is primarily court-focused. The
general principles in question were made by judges, and they are primarily
concerned not with the legislative framework and implementation of government
programmes, but rather with the legal accountability of the agencies that run such
programmes. In the 1980s, a new brand of non-sectoral scholarship emerged
dealing with 'regulation'. Regulation research is concerned at least as much with
legislative frameworks and implementation of regulation as with accountability of
regulators. One important topic that receives much attention in the regulatory
literature is rule-making. This emphasis on rule-making reflects concern with
legislative frameworks and implementation of regulation as opposed to the
accountability of regulators.
Within the space of about twenty years there was a fundamental change in
the way the province of administrative law and judicial review was defined. In that
time, the focus shifted from controlling the institutions of (central and local)
government to controlling the exercise of functions of governance (whatever they
may be) whether performed by government or non-government entities. The
boundaries of administrative law are set by a messy combination of functional and
institutional markers. This is partly because the common law develops slowly:
large paradigm shifts can be firmly cemented into the law only by the highest
courts—and sometimes only by the higher court. 'Accidents of litigation' play a
crucial role in this process.
But it may be that even if it had the opportunity, the House of Lords would
not opt for a 'purely functional' definition of the scope of administrative law. A
good way to explain this speculation is to look at the Human Rights Act 1998
(HRA). The HRA requires English courts, in various ways, to protect rights
conferred by the European Convention on Human Rights (ECHR)—called
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'Convention rights' in the HRA. Because the Convention is a treaty between


nation-states, the rights it recognizes and the remedies it provides protect citizens
against governments. Only states can be defendants to claims before the European
Court of Human Rights (ECtHR), and the ECtHR can award remedies only against
a State. In other words, only governments are bound by the ECHR. Individuals and
non-governmental entities are not bound. In drafting s. 6 of the HRA, the British
government tried to reproduce this feature of the ECHR. However, this task was
greatly complicated by constitutional changes (see ex.2). The result is a
compromise. Section 6 makes it unlawful for a 'public authority' to act
incompatibly with a Convention right. Although 'public authority' is not
comprehensively defined, s. 6 says two very important things about the term: first,
that it 'includes a court or tribunal'; and secondly, that it 'includes any person
certain of whose functions are functions of a public nature' but not 'in relation to' a
'private act'.
This rather opaque wording has been interpreted as creating two classes of
public authorities called 'core public authorities' and 'hybrid public authorities'
respectively. The basic idea is that core public authorities are governmental
entities, and hybrid public authorities are nongovernmental entities performing
'public functions'. Furthermore, s. 6 has been interpreted as meaning that core
public authorities are bound by the HRA in relation to both public and 'private'
acts, whereas hybrid public authorities are bound only in relation to performance of
public acts.
This leaves the question of how to distinguish between public and private
functions and acts. Under a purely functional approach, the answer to this question
would depend solely on the nature or substance of the function and act in question.
However, the courts seem inclined to take a less pure, 'contextual' approach
according to which it is relevant to consider not only what was done but also who
did it. This difference of approach goes to the very heart of the constitutional
changes referred to earlier. One interpretation of these changes is that they were
designed, at least in part, to free certain activities from control according to the
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rules and principles of 'public law' (including human-rights law) by transferring


them from the public to the private sector. To give effect to this objective, it would
be necessary for courts, in defining the scope of operation of public-law controls,
to take account not only of what was being done but also of who was doing it.
Questions:
1. Why is there no universally accepted definition of “administrative law” in
England and Wales?
2. Are the decisions of the central government reviewable by the courts? Is the
reviewability dependent on any principle?
3. What sets the boundaries of administrative law? What is the reason to it?
4. In which way does the European Convention on Human Rights effect
English administration?
5. What is a public authority?
6. What is the difference between core public authorities and hybrid public
authorities?
7. What is meant by the term “public functions”?

Exercise 2. Read the text below and speak on the constitutional changes that
took place in the UK in 1980s.
In the first English administrative law texts, the 'province' of administrative law
was understood institutionally in terms, primarily, of the organs and agencies of
central and local government. Administrative law was seen as concerned, above
all, with judicial control (or 'review') of government decision-making. In the 1980s
the Thatcher Conservative government initiated an ongoing process of
constitutional and institutional reform involving, for instance, privatization of
state-owned enterprises (such as the gas and electricity industries) and assets (such
as council houses), promotion (and increased regulation) of industry self-regulation
(in the financial services sector, for example), contracting-out (or 'out-sourcing') of
the provision of public services (such as garbage collection), and the subjection of
government agencies (such as the National Health Service and Whitehall
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departments) to competitive and financial forces analogous to market pressures


under which private businesses operate.
A common theme of many of these developments was the desirability of reducing
direct government participation in social and economic life. An obvious question
raised by this reform agenda concerned the role of administrative law and the
courts in the new world of what was compendiously called 'new public
management' (NPM). What part would (and should) law and the courts play in
controlling the performance of functions that had once been the province of central
and local 'government' but which were now to be performed by non-governmental
entities, subject only to a greater or lesser degree of supervision or regulation by
government?
Find more information on the New Public Management.
Can these changes be compared with the developments in the
administrative sphere in the Russian Federation?
Exercise 3. Read the text. Analyse the matter of the Takeover Panel case.
The functional approach to the scope of administrative law provided the
courts with legal resources for dealing with the constitutional developments
initiated by the Thatcher regime. In the ground-breaking Takeover Panel case the
issue was whether decisions of the City Panel on Takeovers and Mergers were
subject to judicial review for compliance with administrative law. The Panel had
no statutory or prerogative decision-making power; nor was the decision in
question supported by any contractual arrangement between the Panel and the
company affected by the decision (Datafin). The Panel's authority was accepted by
the financial community generally, but it lacked any formal legal foundation.
Equally important for present purposes, the Panel was not a government entity. It
was set up by and for, and exercised authority over, private financial institutions. In
essence, the Court held that the decisions of the Panel were subject to judicial
review because the Panel was performing regulatory functions of public
importance that significantly affected the interests of individuals, and because its
activities were embedded in a framework of statutory regulation of the financial
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services industry (even though the Panel itself was not operating under a statute). If
the Panel had not existed, it was likely that the government would have established
a statutory body to do its work.
Coincidentally, at much the same time as these issues were bubbling to the
surface, the House of Lords held that decisions of central government were
reviewable by the courts according to the principles of administrative law
regardless of whether the power to make the decision was given by a statute or, on
the contrary, was a 'prerogative' power—that is, a power inherited by central
government from the monarchy in its historical capacity as the executive branch of
government. The basic principle underlying this decision was that the reviewability
of decisions should depend not on the source of the power to make the decision—
that is, statute or common law—but on the substance or nature of the decision. The
question was whether the court was the constitutionally appropriate body to review
the decision, and whether it was competent, by reason of its procedures and the
qualifications of its members, to do so—in other words, whether the decision was
'justiciable'. The seeds of this definition of the scope of administrative law—in
what have come to be called 'functional' terms—are probably to be found in an
earlier decision of the Court of Appeal in which it was held that decisions of the
Criminal Injuries Compensation Board were amenable to judicial review even
though the Criminal Injuries Compensation Scheme, which the Board
administered, was not contained in either primary or secondary legislation.
Why is the Takeover Panel case considered a ground-breaking case?

Exercise 4. Find Russian equivalents of the following the phrases, learn them
and be ready to use in your speech
1. the subject of acrimonious debates
2. a matter of focus
3. public domain
4. a distinct subject of study
5. the exercise of governmental powers
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6. legal accountability
7. rule-making
8. legislative frameworks
9. judicial control of government decision-making
10.judicial review
11.contracting-out ('out-sourcing')
12.provision of public services
13.subjection of government agencies to competitive and financial forces
14.activities embedded in a framework of statutory regulation
15.to act incompatibly with a Convention right
Exercise 5. Look up the pronunciation of the following words, translate them
into Russian.
Privatization, accountability, primarily, electricity, analogous, compendiously,
subject n, v., coincidentally, procedures, justiciable, amenable, compliance, hybrid,
tribunal, allegedly, assumption
Exercise 6.Find the English equivalents in the texts above.
1. надзор за выполнением функций
2. компетенция правительства
3. неправительственные организации
4. право пересмотра решений
5. дело, положившее начало изменениям
6. не иметь формальных правовых оснований
7. осуществлять управление учреждением
8. выносить решение относительно предоставления средств правовой
защиты
9. обязанность действовать в соответствии с положениями Европейской
конвенции по правам человека распространяется только на
правительства
10.запутанная формулировка
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Exercise 7. Paraphrase, comment or bring out the meaning


1. The House of Lords held that decisions of central government were
reviewable by the courts according to the principles of administrative law
regardless of whether the power to make the decision was given by a statute
or, on the contrary, was a 'prerogative' power
2. The Panel's authority was accepted by the financial community generally,
but it lacked any formal legal foundation.
3. The focus shifted from controlling the institutions of (central and local)
government to controlling the exercise of functions of governance whether
performed by government or non-government entities.
4. The boundaries of administrative law are set by a messy combination of
functional and institutional markers. This is partly because the common law
develops slowly: large paradigm shifts can be firmly cemented into the law
only by the highest courts—and sometimes only by the higher court.
'Accidents of litigation' play a crucial role in this process.
5. Although 'public authority' is not comprehensively defined, s. 6 says two
very important things about the term: first, that it 'includes a court or
tribunal'; and secondly, that it 'includes any person certain of whose
functions are functions of a public nature' but not 'in relation to' a 'private
act'.
6. Core public authorities are bound by the HRA in relation to both public and
'private' acts, whereas hybrid public authorities are bound only in relation to
performance of public acts.
Exercise 8. Find information and report on:
1. the rules of natural justice
2. the doctrine of ultra vires
3. the Criminal Injuries Compensation Board
4. the Human Rights Act 1998 (HRA).
5. the European Convention on Human Rights (ECHR)
6. the European Court of Human Rights (ECtHR)
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UNIT 2
The role of administrative law: authority and values
Exercise 1. Read the text paying attention to the logic of the flow of paragraphs .
Оne of the features of the twentieth century — and one likely to continue
into the twenty-first — has been the significant role of government in developing
and implementing a vast range of social policies. Legitimacy for the activities of
public officials in implementing those social policies depends on law.
Administrative law:
 provides authority for public servants to deliver government policy, whose
legitimacy is enshrined in the laws (primary, secondary and tertiary) passed
through the Parliamentary system;
 authorizes the raising and expenditure of public funds;
 sets limits to the powers of public officials;
 creates the institutional mechanisms for calling public officials to account;
 provides means for the redress of individual grievances or resolution of
complaints by the citizen.
In addition to the functional attributes of administrative law, 'administrative
justice' embraces certain values or principles, which should underpin good
administration by state officials, and others who deliver services on behalf of the
state. These include: openness (or transparency); fairness; rationality (including the
reasons for decisions); impartiality (independence) of decision-takers;
accountability; the prevention of the exercise of arbitrary power and the control of
consistency; participation; efficiency; equity and equal treatment.
These underlying values of administrative justice are not wholly consistent
one with another. There may be circumstances in which openness may properly
yield to confidentiality; where fairness of process may conflict with the efficient
reaching of a decision. Each of these values is to an extent contingent upon the
context in which it is asserted. One of the challenges for those who govern, and for
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those who criticize the role of government, is to achieve an appropriate balance


between these conflicting objectives.
It is necessary to reflect on the tensions between the different values in
administrative justice in the context of particular administrative activities—for
example, the collection of taxes; or the granting of permissions; or the payment of
social security benefits. The focus is on the mechanisms of accountability which
exist to keep officials in check and provide means of resolving disputes when
things go (or are alleged to go) wrong.
1. What are the functional attributes and values or principles of
administrative law? Define the content of the principals enlisted above
according to the English understanding.
2. Are these principles wholly consistent one with another? Illustrate possible
conflicting situations.
3. What are the principals of Russian administrative law? Do Russian and
English understanding coincide always?
Exercise 2. Look through the text briefly. How many distinctions between
appeal and judicial review does the author single out?
The Nature of Judicial Review

Public functionaries, like citizens, are liable to be sued for torts, breaches
of contract, breaches of trust, and so on. Most public functions are also subject to
administrative law and judicial review. Both of these forms of judicial control
are basically retrospective — they are concerned primarily with cure (dispute
resolution), not prevention (dispute avoidance). This is not to say that judicial
enforcement of administrative law may not make a contribution to dispute
avoidance — i.e. to securing future compliance with administrative law.
However, it seems likely that if administrative law is to impose effective
constraints on the exercise of public powers, most public functionaries must be
prepared to comply with its demands most of the time regardless of the
possibility that enforcement action may be taken if they do not comply. From
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this perspective, the most significant contribution courts make to controlling the
performance of public functions is not enforcing rules and principles of
administrative law but making them. So far as administrative law is concerned,
courts are much more important as law-makers than as law- enforcers. Good
training of public functionaries, sound management techniques, and careful in-
house monitoring of performance are likely to be much more effective than
judicial review in ensuring that public functionaries act lawfully. Legal control of
the performance of public functions by the courts takes two main forms: the
formal and the informal.

Formal reviews are those which are required by law to be carried out. In
some cases, as with Child Benefit Appeals or Disability Benefit Appeals,
statutory review was a preliminary stage which all appeals had to go through
before the decision could reach a tribunal. In other cases, such as review of
decisions relating to the Social Fund, there is no tribunal process available at all
— all appeals go through the review process.
Informal reviews are those that are not required by law but which officials
nonetheless carry out as part of their routine administrative procedures. In the case
of social security appeals, for example, any appeal by a social security claimant
against a decision of the Benefits Agency triggers an internal official review to
check whether the decision appealed against is or is not correct. There is evidence
that more cases are revised in favour of claimants at this stage than at the appeal
stage.
In a general sense, ‘judicial review” refers to judicial control of public
decision-making in accordance with rules and principles of administrative law.
The mechanism for seeking judicial review in this sense is by making a ‘claim for
judicial review' (CJR). In Rule 54.1 of the Civil Procedure Rules (CPR) the claim
for judicial review is defined as 'a claim to review the lawfulness of
(i) an enactment; or
15

(ii) a decision, action or failure to act in relation to the exercise of a


public function'.
The reference to 'an enactment' establishes the CJR as the mechanism for
challenging primary legislation on the grounds of inconsistency with EC law or
incompatibility with a Convention right (under the HRA). CPR Part 54 contains
a (but not the only) procedure for making a CJR. It is called 'the judicial review
procedure' (JRP). Most judicial review claims are made by judicial review
procedure, and these claims are made to the Administrative Court, which is part
of the High Court.
The court's power of judicial review is sometimes referred to as its
'supervisory jurisdiction'. This jurisdiction is 'inherent'; that is to say, it was not
conferred on the courts by statute but was invented by the judges themselves.
Supervisory jurisdiction is to be contrasted with 'appellate jurisdiction'. The
common law (i.e. the courts) never developed mechanisms for appeals as we
understand them today, and all appellate powers are statutory in origin.
What are the main differences between appeal and review? The first relates
to the power of the court: in appeal proceedings the court may substitute its
decision on the matters in issue for that of the body appealed from. For example,
if an appeal court thinks that the victim of a motor accident has been awarded
too small a sum of damages for injuries inflicted by the defendant's negligence,
it can increase the award. In review proceedings, on the other hand, the court's
basic power is to 'quash' the challenged decision, that is, to hold it to be invalid.
If any of the matters in issue have to be decided again, this must be done by the
original deciding authority and not by the supervising court. If the authority
was under a duty to make a decision on the matters in issue between the
parties, this duty will revive when the decision is quashed, and it will then be for
the authority to make a fresh decision. It is also open to the court, in appropriate
cases, to issue an order requiring the authority to go through the decision-making
process again.
16

Another course open to the Administrative Court when it quashes the


decision of a governmental body is to remit the matter to the agency with a
direction to reconsider it in accordance with the findings of the Administrative
Court. The difference between this and the two previous outcomes is that under this
procedure, the agency does not have to go through the whole decision-making
process again. For example, it might be that all the relevant facts have already been
ascertained and the findings of the Administrative Court concern only their legal
significance. In that situation, a complete reconsideration of the case, including the
taking of evidence and the finding of facts, would be a waste of time and money,
and so the court can remit the case and direct the authority to reconsider the facts in
the light of the law as laid down by the Administrative Court. This procedure is
different from an appeal in only a very formal sense. On the other hand, remission
would not be appropriate where, for example, the authority is found to have been
biased. Then a complete rehearing before a differently constituted body would be
needed in order for justice to be seen to be done. The distinction between appeal and
review is even harder to discern in cases in which the Administrative Court (under
CPR Rule 54.19(3) can itself remake the quashed decision 'if it considers that there
is no purpose to be served by remission and the relevant statute allows it'. But it is
not clear under what circumstances this power could appropriately be exercised.
The second main distinction between appeal and review relates to the 'subject
matter' of the court's jurisdiction. This distinction can be put briefly by saying that
an appellate court has power to decide whether the decision under appeal was 'right
or wrong', while a court exercising supervisory jurisdiction only has power to
decide whether or not the decision under review was 'legal' (or 'lawful', as it is put
in CPR Rule 54.1). If the decision is illegal it can be quashed; otherwise the court
cannot intervene, even if it thinks the decision to be wrong in some respect.
Conversely, if a decision is illegal—for instance, because the decision-maker did not
follow proper procedures—it may be quashed even if the court thinks that the
decision was right as a matter of law and fact. Discussion of the notion of
illegality is made tricky by the fact that a number of different terms are used to
17

convey the idea of illegality. The question of whether a decision was 'legal or
not' is sometimes put in terms of whether it was made 'within or without
jurisdiction' or whether it is intra virei or ultra vires (i.e. literally, 'within or
beyond power'). intra vires' and ''ultra vires' are widely used as synonyms for 'legal'
and 'illegal' respectively. The concept of jurisdiction is much more difficult, and
its use is perhaps best avoided since acting without jurisdiction is just one
example of acting illegally.
Appeals to courts constitute an important alternative to judicial review as
a form of judicial control of public decision-making. Very many statutes make
provision for appeals from decisions of public functionaries. Commonly, such
appeals are limited to 'points of law', but they may extend further—to issues of
fact, for instance. Also, the concept of 'error of law' has been given a very wide
meaning that includes, for instance, making perverse or irrational findings of fact
and ignoring relevant considerations (both of which are 'grounds' of judicial
review). Indeed, it has been said that the powers of the county court under s. 204
of the Housing Act 1996 (creating a right of appeal on a point of law) are in
substance the same as those of the Administrative Court in judicial review
proceedings. It has also been said that there is normally little practical difference
between a 'full appeal' (in which the court can reconsider the whole case from
scratch) and an appeal on a point of law. These points, added to the fact that an
appeal court may (as under s. 204 of the Housing Act) have power to quash—as
well as to 'confirm or vary'—the decision under appeal, might lead us to the
conclusion that the most important difference between appeal and review lies not
in the power of the court or the subject matter of the jurisdiction, but more
prosaically in the court's identity: claims for judicial review are the business of the
Administrative Court whereas appeals will go to some other court such as the
county court. Because all rights of appeal are statutory, creation of a right of appeal
provides a means by which the legislature can restrict the availability of judicial
review: if there is a right of appeal, a claimant will normally be required to
exercise it rather than making a claim for judicial review. In this way, the
18

resources and expertise of the Administrative Court can be reserved for cases in
which they are most appropriate and needed.
Read the text once again and say how peculiarities of English culture are
disclosed in the functions of administrative law.
Questions
1. What forms does legal control of the performance of public functions by
the courts take? Bring out the difference between them.
2. What is the mechanism for seeking judicial review? How is the claim for
judicial review defined?
3. What are the main differences between appeal and review?
4. How is the doctrine of ultra (intra) varies applied in the context in
question? Is it equally applicable within Russian Administrative law?
Exercise 3. Revise the forms of English Statute law. Be ready to speak on the
classification of Russian legislation.
Statute law: the classification of legislative measures

The vast bulk of the new law that is brought into effect in England is statute
law, that is law which has been passed through Parliament following analysis and
debate in both the House of Commons and the House of Lords. Statute law comes
in a variety of forms:
* primary legislation
* secondary legislation
* tertiary legislation, and
* (not strictly statute law) 'quasi-legislation' or 'soft law'.
Primary legislation comprises the eighty or so Acts of Parliament that are
passed through Parliament each year. The process consumes a great deal of
Parliamentary time; indeed lack of time is a significant constraint on the law-
making process. Many legislative proposals—particularly if they are not high on
the government's political agenda—are brought forward only when 'time is
available'. This can be used as an excuse for a government delaying bringing a
19

new measure forward; but the non-availability of Parliamentary time is also a real
constraint on the opportunities for introducing and then amending legislation.
Most Acts of Parliament are 'Public General Acts', applying throughout the land;
some are 'Local or Personal Acts' applying only in particular localities or to
specific people.
Primary legislation is supplemented by a vast body of secondary legislation-
regulations and orders made under the authority of an Act of Parliament. There are
typically in excess of 3,000 such items, known generically as statutory instruments,
made each year. These run to many thousands of pages of text. They are not subject to
detailed Parliamentary scrutiny, though in many cases statutory instruments cannot be
made by the Government without a process of consultation with a specialist Advisory
Committee.
An interesting example of the use of a specialist committee to review
delegated legislation is the work of the Social Security Advisory Committee
which looks at draft regulations relating to social security policy. It not only
considers the proposals itself, but also consults on those proposals with a wide
range of bodies and pressure groups outside government. It reflects on these
comments before making its own report to the Government. The Government
then decides whether or not to accept the advice of its Committee.
When it brings forward the final version of the regulations, the
Government is required to publish a special report which not only reproduces
the report from the Advisory Committee, but also details why the Government
has (or more often has not) followed the advice of the Committee.
This represents a particular form of accountability which to some extent
replaces normal Parliamentary debate; arguably it is more relevant since most of
the commentators will have a specialist interest in and knowledge of the area. This
is a model which, it has been forcefully argued, should apply in other regulation-
making contexts.
20

Another example is the work of the Council on Tribunals which scrutinizes


draft statutory instruments relating to the practice and procedures of tribunals and
inquiries.
In addition to primary and secondary legislation, there is also a vast array of
tertiary legislation—legislative instruments which are made under the authority of an
Act of Parliament, but which are subject to no Parliamentary scrutiny at all. For
example, in Housing Law, numerous powers are given to ministers to issue 'directions'
or other instruments, which are drafted in the form of legislation and which effectively
have the force of law, but which are simply issued by the government department in
question. Similar examples are found in many other areas of government.
There is, finally, a fourth category of instrument, sometimes referred to as
quasi-legislation or soft law, which comprise statements of good practice or guidance.
These may be made under the authority of an Act of Parliament and may in some cases
be subject to Parliamentary approval. But, as with tertiary legislation, they are subject to
no detailed Parliamentary discussion. Examples include codes of practice such as the
Highway Code or the Codes of Practice relating to police behaviour made under the
Police and Criminal Evidence Act 1984. Many other examples could be given.
One practical problem with tertiary and 'quasi'-legislation is that it is not
published in the normal way by the Stationary Office—the official outlet for
government publications. For example ministerial directions will usually be made
available to those who need to know about them; the ordinary member of the public
who may wish to know about the existence of these documents may find them hard to
track down.
An important issue of principle flows from this. There is a simplistic
assumption that because legislation is published by a single authoritative source,
'everyone is deemed to know the law'. Such a claim is simply not sustainable in the
case of such instruments.
Questions:
1. What are the forms of Statute law?
21

2. What is primary legislation (secondary legislation, tertiary legislation, 'quasi-


legislation'? What is the difference between 'Public General Acts' and 'Local
or Personal Acts'?
3. What is the responsibility of the Stationary Office?
Exercise 4. Find Russian equivalents of the following phrases, learn them and
be ready to use in your speech. Think of Russian sentences containing the
phrases to translate into English.
1. a vast range of social policies
2. to be enshrined in the laws
3. to call public officials to account
4. redress of individual grievances
5. resolution of complaints
6. to underpin good administration
7. openness (transparency)
8. fairness
9. rationality
10.impartiality
11.to prevent the exercise of arbitrary power
12.control of consistency
13.efficiency
14.equity and equal treatment.
15.to keep officials in check
16.to impose constraints on smb
17.to quash
18.to revive the decision
19.to remit the matter to an agency
20.findings of the administrative court
21.to be subject to detailed parliamentary scrutiny
22.statements of good practice or guidance
23.codes of practice
22

24.liable to be sued
25.to sue for torts
Exercise 5. Look up the pronunciation and translate the words into Russian.
Tertiary, measures, expenditure, supervisory, jurisdiction, inherent, increase,
quasi-legislation, ministerial
Exercise 6. Find English equivalents in the text.
1. зависеть от обстоятельств дела
2. соответствовать чему-либо
3. инициировать внутреннее расследование
4. назначить слишком малую сумму в качестве выплаты ущерба
5. первичное законодательство
6. находиться в распоряжении суда (быть доступным суду)
7. надзорная/апелляционная юрисдикция
8. распоряжение о пересмотре дела
9. недостаточность времени у парламентариев
10.с этой точки зрения
11.вернуть дело в соответствующий орган
12.пристрастный
13.решение по которому подана апелляция
14.выразить в терминах, тж. говорить языком (напр., закона)
15.пересмотреть дело с самого начала
16.истец, податель жалобы
Exercise 7. Paraphrase, explain or comment.
1. One of the challenges for those who govern, and for those who criticize the
role of government, is to achieve an appropriate balance between these
conflicting objectives
2. Each of the values is to an extent contingent upon the context in which it is
asserted.
3. Appeals to courts constitute an important alternative to judicial review as
a form of judicial control of public decision-making.
23

4. Very many statutes make provision for appeals from decisions of public
functionaries.
5. Commonly, such appeals are limited to 'points of law', but they may extend
further—to issues of fact, for instance.
6. The concept of 'error of law' has been given a very wide meaning that
includes, for instance, making perverse or irrational findings of fact and
ignoring relevant considerations (both of which are 'grounds' of judicial
review).
7. These points, added to the fact that an appeal court may have power to
quash—as well as to 'confirm or vary'—the decision under appeal, might
lead us to the conclusion that the most important difference between
appeal and review lies not in the power of the court or the subject matter of
the jurisdiction, but more prosaically in the court's identity.
Exercise 8. Translate into Russian
1. Public functionaries, like citizens, are liable to be sued for torts, breaches
of contract, breaches of trust, and so on.
2. Both of these forms of judicial control are basically retrospective—they
are concerned primarily with cure (dispute resolution), not prevention
(dispute avoidance). This is not to say that judicial enforcement of
administrative law may not make a contribution to dispute avoidance—i.e.
to securing future compliance with administrative law.
3. Good training of public functionaries, sound management techniques, and
careful in-house monitoring of performance are likely to be much more
effective than judicial review in ensuring that public functionaries act
lawfully.
4. The claim for judicial review is defined as 'a claim to review the lawfulness
of (i) an enactment; or (ii) a decision, action or failure to act in relation to
the exercise of a public function'.
Exercise 9. Decipher:
CJR, CPR, EC, HRA, JRP, NPM, CICB, CICS, ECHR, ECtHR
24

Exercise 10. Chose a topic for the report (each topic should be handled by 2-3
people, all topics should be covered in the group):
1. The Scope of Judicial Review (defendants, reviewable decisions and acts)
2. Claimants (Standing for Judicial Review)
3. Remedies (Public / private law remedies, discretion to refuse a remedy)
4. Protecting private law rights by Judicial Review Procedure
5. Grounds of Judicial Review
6. Controlling discretion

UNIT 3
Administrative justice: the institutional framework

Exercise 1.Read and annotate the text below.


There is a great variety of bodies which make up the institutional framework for
administrative justice. They include:
• the courts;
• tribunals;
• inquiries;
• ombudsmen;
• complaints procedures.
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.
25

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 appli-
cation 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.
26

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 think the 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
Tribunals

The adjudicative fora in which the vast majority of disputes between the
citizen and the state get resolved are known collectively as tribunals. Some, such
as the General Commissioners of Income Tax, trace their history back to the late
eighteenth century. But the vast majority are the creation of the twentieth
century, reflecting the increasing involvement of the state in the lives of its
citizens.
For the first twenty to thirty years of that century, there was considerable
concern about the use of tribunals as a mechanism for the resolution of disputes. It
was argued that only courts had the constitutional authority to perform this
function. It was, perhaps, one of the advantages of the lack of a written
constitution that, despite this claim, there was no written constitutional principle
that required all dispute resolution bodies to have the status of 'court'. In fact, the
development of tribunals was a pragmatic response to the problems caused for
the court system when, at the end of the nineteenth century, jurisdiction to deal
with disputes arising under the Workmen's Compensation Acts was given to the
county court. This had the result of completely drowning those courts in work,
thereby preventing them from dealing efficiently with other business.
27

Criticism of the use of bodies other than the courts for resolving disputes
led to fierce criticism. It was in the 50-s of the 20th century, by which time a lot
of tribunal systems were in existence, that, tribunals were accepted as a part of
the adjudicative structure. Since that time, there has been no serious discussion
about the need for tribunals. Indeed, their number has continued to grow. The
position of tribunals is even more secure following the enactment of the Human
Rights Act 1998, since Article 6 of the European Convention on Human Rights
requires the existence of courts or tribunals to determine a person's civil rights.
There are currently at least eighty different tribunal systems in existence.
They come in a bewildering variety of forms. Tribunals currently deal with around
20,000 cases a year.
Structure
Some are 'two-tiered' tribunal systems. For example in social security,
appeals go first to the Appeals Service, which may consist of three, two or one
members depending on the type of case. From there a case may go, with leave and
on a point of law only, to the Social Security Commissioners. The Commissioners
usually sit on their own, but for the occasional difficult case they may sit in a
tribunal of three. There is a similar structure with employment tribunals, with a
second tier appeal to the Employment Appeal Tribunal consisting of three people:
a judge and two lay assessors. In immigration, cases are heard at the first tier by an
immigration adjudicator sitting on his/her own. There may then be an appeal to
the Immigration Appeal Tribunal which usually comprises three people (though
this practice is changing). In all these cases, there is the possibility of further
challenge on a point of law in the courts.
Other tribunal systems are 'one-tier': examples include the Mental Health
Review Tribunal, the Valuation Tribunal and the Rent Assessment Committee. In
other words, there is only one level of appeal or review within the statutory
framework. Any further challenge has to be direct to the courts.
28

Although the label 'tribunal' may imply a body of three people some are
made up of fewer than three people; one-person tribunals are becoming
increasingly common as government departments seek to cut the costs of
administrative justice. Other tribunals may have more than three persons involved,
particularly tribunals which deal with matters relating to the National Health
Service.
Qualifications
Most tribunal systems these days have legally qualified chairmen. But this
is not universal—for example General Commissioners for Income Tax who
determine tax cases and Valuation Tribunals, which determine property values,
operate with only lay persons on the tribunal. In such cases it is usual for the
clerk to the tribunal to be legally qualified (rather like the Justices' Clerks who
assist benches of lay magistrates). In other tribunal systems, there is more
professional expertise sitting around the table. Most commonly there is legal
expertise; but, where relevant, there may be a valuer or an accountant or a
doctor. In cases where the tribunals operate with professionally qualified
adjudicators, whether lawyers or other professionals, the clerk will perform more
of an administrative or clerical role, not giving advice to the tribunal.
Process
Tribunals operate under a bewildering variety of procedures. Some take
evidence only on oath or after affirmation, given by the witness or party to the
proceedings; others do not use the oath. Some sit in courtrooms—or rooms set
out like courtrooms. Others are established in much more informal contexts, such
as school rooms or hotel rooms. Some large tribunal systems manage their own
tribunal accommodation; others have to rent or borrow space as occasion
demands. (It is remarkable—given the extent of the administrative justice system,
and the numbers of tribunals it comprises—that towns do not have
'administrative justice centres' to match the criminal court centres and civil court
centres that are commonly found.)
29

Many tribunal systems make extensive efforts to deal with appellants who—
as the result of a lack of availability of legal aid—either have to represent
themselves or have to rely on lay advocates. The social security appeal system, for
example, prides itself on its 'enabling role'. Unlike the adversarial approach of the
courts, where the judges tend to take a back seat while the argument, for and
against, is presented by advocates for both sides, members of tribunals take a
more interventionist role, seeking to draw relevant information from the parties
by appropriate questioning. It is in this variety of forensic methods that much of
the potential innovation of the tribunal system is to be found, and from which the
courts—if they knew what went on in the best-run tribunals—might have much to
learn.
It is sometimes suggested that tribunals offer 'informal' as opposed to
'formal' justice. This gives the wrong impression, certainly if 'informal' implies a
lack of organization or discipline. The primary advantage of a tribunal as opposed
to a court is that there is a lack of rigidity of process, though the person running
the tribunal must have a very clear grasp of what the issue to be decided is. If
this is clear, the precise order in which people speak will not matter, so long as
everyone has their say. The relevant information can thereby be obtained which
should allow the tribunal to come to a fair and proper decision.
Management
Management of tribunals also varies enormously. Many systems have
presidents who operate at national level, often through a regional structure—for
example social security, employment and the Special Educational Needs and
Disability Tribunal. These tribunal systems tend to be well organized, with
comprehensive programmes of training for members and chairmen, monitoring
and evaluation of performance and the use of other modern management
techniques.
In other cases, such as Education Appeal Committees, the tribunals are
organized at the local authority level, with very little central direction. Others
30

operate on a regional basis; they include mental health, rent assessment and
valuation. These tribunal systems tend to be less advanced in the development of
training programmes and the use of other management techniques, and seem less
well resourced for the tasks they are required to perform.
A final respect in which tribunal systems differ relates to the ways in which
important decisions get reported. Many of the two-tier systems have the means of
publishing significant decisions from the upper tier. Some of these reports are
published commercially—as in the case of employment cases; other are published
regularly by the government department in question—such as immigration
reports, or tax cases. Others appear on a more hand-to-mouth basis, such as the
reported decisions of the Social Security Commissioners. Other tribunal systems
have no formal reporting mechanisms.
Questions:
1. Why was there considerable concern about the use of tribunals as a
mechanism for the resolution of disputes?
2. Describe the structure of the tribunal.
3. What are the personnel of the tribunal and their qualifications?
4. Is the process of a tribunal hearing unified?
5. What is considered the primary advantage of a tribunal as opposed to
a court?
6. Describe the system of the tribunals’ management and reporting their
decisions.
Exercise 3. Read the text and be ready to compare the work of tribunals and
inquiries.
Inquiries
The historically conceptual distinction between a tribunal and an inquiry
was that, whereas a tribunal usually had statutory authority to reach a final
decision which, subject to any right of appeal, determined the dispute before it, an
31

inquiry gathered information, in the light of which a government minister would


decide the issue.
In practice, this distinction has become somewhat blurred. Mental Health
Review Tribunals, for example, when dealing with mental patients who have been
detained in a mental hospital as a result of a court order, can only make a
recommendation to the Home Secretary that a patient should be released from
hospital; it is the Secretary of State (or his officials) who takes the final decision.
So too in the sphere of the inquiry, many inquiries now result in a decision being
reached, rather than a report to a minister which would form the basis for a
decision.
The principal use of the inquiry as an institution in the administrative
justice system is now found in the context of the planning process. In a
geographically small country with a substantial population, it has long been
accepted that the state has an interest in determining how land should be used. The
planning process seeks to balance the competing interests relating to land use of
urban dwellers, rural dwellers, industrialists, scientists, the pursuers of leisure
interests, the providers of transport systems and other utility providers (gas,
electricity, water), to give just some examples.
The bulk of planning decisions are taken by local authorities, acting as local
planning authorities. Strategically key decisions—for example over the siting of a
new airport—may be 'called in' for determination by the Secretary of State
within central government.
Once a planning decision has been reached, rights of appeal are provided.
Whereas in other contexts a tribunal has been established to deal with appeals, in
the planning context appeals are dealt with by way of inquiry, supplemented by
two additional procedures: written representations and hearings. All these
procedures are dealt with by a special team of decision-takers, known
collectively as the Planning Inspectorate. Originally, planning inspectors did not
reach decisions in planning appeals; they held inquiries and in the light of their
32

findings made recommendations to the Secretary of State in the central


government. These procedures were 'inquiries' in their original sense. As a result
of changes in the law, planning inspectors now have the authority to make the final
determination in all save the most complex or important cases, where they still
make recommendations to the Secretary of State. In the majority of cases, the
functions of the planning inspectorate are indistinguishable from the functions of
a tribunal.
As noted, planning inspectors have three mechanisms for reaching
determinations:

 written representations;

 hearings;

 inquiries.

Statistically, the inquiry is the least frequently used mode for determining
planning appeals.

• Written representations are, as the name implies, a means of dealing with an


appeal purely through written representations. This is the speediest and
cheapest of the procedures and is particularly suitable for the determination of
relatively small matters, e.g. an extension to a dwelling.
• Hearings involve the appellants and the local planning authority in a hearing
before a planning inspector, but the process is consciously 'low-key'.
Planning inspectors are trained to run hearings proactively to try to avoid the
need for the use of expensive legal representation. The inspector shapes the
hearing by assisting the parties to identify the issues that need to be
addressed. Typically, the hearing is used in cases slightly more significant than
those dealt with by written representation, but not as large scale as those going
to inquiry.
• Inquiries are much more formal. They are used primarily for major planning
issues. (Inquiries are also used to determine the shape of local planning
33

authorities' local plans—which provide the background against which


individual planning applications are decided.) Inquiries involve hearing a
wider range of persons with an interest in the decision—for example,
environmental groups or trade associations—than written representations or
hearings. Procedurally they are more formal, with the parties usually using
barristers or solicitors to represent their interests. Inquiries can take a very
long time; the public inquiry into the Fifth Terminal at London Heathrow
Airport took over five years to complete.

Particular and ad hoc inquiries

In addition to planning inquiries, which are held on a regular basis, many


other particular forms of inquiry are put in place as the need arises, for example,
inquiries into serious rail accidents or other disasters.
The government may also use an ad hoc inquiry to deal with the aftermath of a
particular incident. Examples include the inquiry into events at the Bristol
Children's Hospital, or the Scott inquiry into the Arms for Iraq affair. The Council
on Tribunals has issued advice on matters that government should take into
account when establishing such ad hoc inquiries. Local authorities and other
public bodies may also establish inquiries into a range of issues, as they arise.
Questions
1. Bring out the distinction between a tribunal and an inquiry.
2. What is the principal domain where the inquiry is used as an institution in
the administrative justice system? In which way is it relevant to the
planning process?
3. What kind of mechanisms are available to planning inspectors for reaching
determinations?
4. Find and present cases of recent ad hoc inquiries. Are ad hoc inquiries
carried out in this country? What is their purpose?
34

Exercise 4. Find Russian equivalents of the following phrases, learn them and
be ready to use in your speech. Think of sentences in Russian containing the
phrases.
1. to act within the constraints of the law
2. to declare a decision to be unlawful
3. to interpret statutory provisions
4. to have a personal interest in
5. to resolve disputes
6. to go to (of a case)
7. with leave
8. to sit on one’s own
9. lay (assessors, persons on the tribunal, magistrates, advocates)
10.adversarial approach
11.to challenge on a point of law
12.to take a back seat
13.to have one’s say
14.to appear on a hand-to-mouth basis
15.an inquiry
16. written representations and hearings
17.ad hoc inquiry
18.the aftermath of a particular incident
19.the pursuers of leisure interests
Exercise 5. Find English equivalents in the texts:
1. осуществлять контроль за дискреционными полномочиями
администрации, предоставить дискреционные полномочия
2. принимать показания, данные под присягой
3. сторона в процессе
4. судебная трибуна
5. история восходит к
35

6. секретарь суда
7. лица, получившие профессиональную юридическую подготовку
8. принять доказательство после подтверждения, предоставленного
свидетельскими показаниями или одной из сторон, участвующих в
процессе
9. принимать на себя более активную роль
10.разнообразные судебные методы
11.программа подготовки
12.контроль и оценка выполнения
13.современные методы управления
14.действовать на региональной основе
15.сельские жители
16.промышленники
17.поставщики транспортных и иных коммунальных услуг
18.пристройка к дому
Exercise 6. Look up the pronunciation and translate the following words into
Russian:
Flexibility, dispute, appellant, validity, adjudicators, valuer, accountant, to
vary, blurred, urban
Exercise 7. Look up all the meanings of the term ‘jurisdiction’ and find
examples to illustrate them all by means of an online concordancer.
Exercise 8.Translate into Russian
1. Once a planning decision has been reached, rights of appeal are provided.
Whereas in other contexts a tribunal has been established to deal with
appeals, in the planning context appeals are dealt with by way of inquiry,
supplemented by two additional procedures: written representations and
hearings. All these procedures are dealt with by a special team of
decision-takers, known collectively as the Planning Inspectorate.
2. Inquiries involve hearing a wider range of persons with an interest in the
36

decision—for example, environmental groups or trade associations—than


written representations or hearings. Procedurally they are more formal,
with the parties usually using barristers or solicitors to represent their
interests. Inquiries can take a very long time; the public inquiry into the
Fifth Terminal at London Heathrow Airport took over five years to complete.
Exercise 9 Paraphrase or comment
1. 'Test cases', or as it is known in the USA 'cause lawyering', have become a
part of contemporary legal practice.
2. Management of tribunals also varies enormously. Many systems have
presidents who operate at national level … In other cases, … the tribunals
are organized at the local authority level … Others operate on a regional
basis.
3. Some of these reports are published commercially—as in the case of
employment cases; other are published regularly by the government
department in question
4. The planning process seeks to balance the competing interests relating to
land use of urban dwellers, rural dwellers, industrialists, scientists, the
pursuers of leisure interests, the providers of transport systems and other
utility providers (gas, electricity, water), to give just some examples.
5. Planning inspectors are trained to run hearings proactively to try to avoid
the need for the use of expensive legal representation.

UNIT 4
Ombudsman and other complaint handling bodies
Exercise 1. Read the text and get ready to present its précis.
The Parliamentary Ombudsman
The Ombudsman concept was introduced into the UK from Scandinavia in 1967.
The first Ombudsman was and still is formally known as the 'Parliamentary
Commissioner for Administration' (PCA), though she now describes herself as the
37

Parliamentary Ombudsman. Following devolution, she also holds the posts of


Scottish Parliamentary Commissioner for Administration (the Scottish
Commissioner) and Welsh Administration Ombudsman.
The Ombudsman's function is to investigate complaints and allegations of
maladminstration in central government departments which may result in injustice.
She also has important functions to deal with complaints about failures by
government departments to provide information about their work, contrary to the
Code of Practice on Access to Official Information.
Two particular features of the Parliamentary Ombudsman's jurisdiction should be
noted. First, members of the public are not entitled to complain directly to the
PCA; they must get their complaint referred to the Ombudsman by a Member of
Parliament (in Scotland, a Member of the Scottish Parliament). MPs are not
actually obliged to refer cases on, if they think they can deal with the matter
themselves. The reason for the existence of this filter is that, when the Ombudsman
concept was introduced, there were those who argued that it might undermine the
primary responsibility of Parliament and its members to call ministers (and their
officials) to account. The 'MP filter', as it is known, was not part of the original
Scandinavian Ombudsman concept, where direct access by the public was
permitted.
Secondly, the Parliamentary Ombudsman cannot order that any particular con-
sequence should follow a finding of maladminstration. She can only 'persuade' a
government department, for example, to pay compensation to an aggrieved citizen.
Again, in other countries, the Ombudsman has power to enforce his decisions.
The Health Service Ombudsman
Since first established, the jurisdiction of the Ombudsman has broadened consider-
ably. The same person also holds the three separate posts of Health Service
Ombudsman for England, for Scotland, and for Wales. As Health Service
Ombudsman she investigates complaints about failures in National Health Service
(NHS) hospitals or community health services, about care and treatment, and about
local NHS family doctor, dental, pharmacy or optical services. Any member of the
38

public may refer a complaint direct—i.e. not necessarily through a Member of


Parliament—to one of her offices, though normally only if a full investigation
within the NHS complaints system has been carried out first.
Besides investigating and, where appropriate, redressing grievances, the Ombuds-
man sees her function as also to improve the quality of administration. She thus
endeavours to ensure that her reports contain general guidance on good practice
from which government departments may learn. Summaries of her investigations
are published regularly and are also now available on the internet. She also
produces an Annual Report which is submitted to the Select Committee of the
House of Commons, to the Scottish Parliament or to the National Assembly for
Wales, as appropriate. The Select Committee regularly sees the Parliamentary
Ombudsman, as well as senior civil servants from departments that have been
criticized by her. Thus Parliament is kept informed about the Ombudsman's work
and the impact it has had on government departments.
Local government ombudsmen
The ombudsman concept has been extended to local government. There are now
three local government ombudsmen covering all local authorities in England, plus
one each for Wales and Scotland. They investigate complaints against principal
councils (not town, parish or community councils) and certain other bodies in
England, Scotland and Wales. By law, some kinds of complaint cannot be
considered. Examples are personnel complaints and complaints about the internal
running of schools.
As with other ombudsmen, the objective of the local government ombudsmen is to
secure, where appropriate, satisfactory redress for complainants and better
administration by local authorities. Indeed, since 1989, they have had power to
issue advice on good administrative practice, drawing lessons from the cases they
have handled. To date, several guidance notes have been published, e.g. on setting
up complaints procedures; good administrative practice; council housing repairs;
local authority members' interests; the disposal of land; remedies when things have
gone wrong.
39

Others
A more recent development is that, increasingly, Ombudsman or Ombudsman-type
offices are being created which are much more specialist in nature. For example,
there is now a Legal Services Ombudsman with powers to investigate complaints
about services provides by lawyers; the Police Complaints Authority, which—as
the name implies—deals with complaints against the police; a Prisons and
Probation Ombudsman, who deals with complaints about the prison and probation
service; and the Independent Housing Ombudsman, who deals with complaints
against (primarily) registered social landlords (formerly called Housing
Associations).
The rise of private sector ombudsmen
Over the last fifteen years or so, a peculiarly British phenomenon has emerged. A
considerable number of private sector industries have set up their own sector-wide
ombudsman schemes to deal with those customer complaints that cannot be
resolved within a particular company. These schemes include the Estates Agents
Ombudsman, the Banking Ombudsman, the Insurance Ombudsman, and the
Building Societies Ombudsman. By contrast with the PСA and the other public
sector ombudsmen, where the levels of complaints has been relatively low, many
of these private sector ombudsmen have had large caseloads to deal with. They
offer a 'mass-market' dispute resolution procedure, as opposed to the more 'Rolls-
Royce' work of the PCA.
As a result of the Financial Services and Markets Act 2000 a Financial Services
Ombudsman scheme has brought together many of these private schemes, and now
operates under statutory rather than industry-determined powers.
Process
A common feature of all ombudsmen's procedures is that they operate on what
might be described as an 'inquisitorial' or 'investigative' basis. The complaint is
made; the relevant ombudsman's staff investigates the complaint, taking further
evidence both from the government department or other agency concerned and the
complainant. In the light of the investigation a conclusion is reached on whether or
40

not there was in fact maladministration. Many investigations result in a finding that
the department or agency in question behaved perfectly responsibly, and the
complainant was being unreasonable. Where there was a finding of
maladministration, there is comment on whether the response of the department
was appropriate. Many findings of maladministration lead to no more that the
writing of a letter of apology, which is often all that the complainant wanted in the
first place. Usually there is no possibility of an oral hearing (though the Pensions
Ombudsman is required to offer this).
Questions
1. Define the concept of Ombudsman. Where did it originate?
2. What are the functions of the Parliamentary Ombudsman in the UK?
3. What is the difference between the British concept of Ombudsman and the
original Ombudsman concept?
4. What gave rise of private sector ombudsmen?
5. Describe the Ombudsman process?
Exercise 2. Read the text, find extra information and make a PowerPoint
presentation to contrast the work of the European Ombudsman and PO.
The European Ombudsman
In addition to developments in England and Wales, the Ombudsman concept now
also extends to the work of the European Union. The creation of a European
Ombudsman was approved in the Maastricht Treaty; the statute giving him his
authority was agreed in 1994. He took up office 1995 and has been issuing annual
reports on his work since 1996.
He operates on the basis of The European Ombudsman Implementing Provisions;
January 2003. These not only set out in general terms the principles on which the
Ombudsman will carry out his work, but also list the various powers he has when
determining cases: these include the possibility of making 'critical remarks', where
no more general conclusions can be drawn from the case under investigation, and
the making of a 'report with draft recommendations', where it appears that some
more general lessons may be learned.
41

In addition, and unlike the national ombudsmen in England and Wales, the Euro-
pean Ombudsman has a very broad power to instigate his 'own-initiative inquiries'.
One fruit of this, to date, has been the preparation of a set of draft
recommendations, which have been put both to the European Commission and to
the European Parliament and Council of Ministers, relating to the adoption of a
Code of Good Administrative Behaviour. His reason for doing this was the result of
reflecting on many of the individual complaints he had received, which indicated
that maladministration might have been avoided had clearer information been
available about the administrative duties of Community staff towards its citizens.
The code has now been approved by the European Parliament and published.
Questions
1. In which way the concept of the British PO differs from a European
Ombudsman?
2. Which arrangement do you find more reasonable. Give your arguments for
and against.
3. Do you believe that it is necessary to publish the results of the investigations
carried out by the ombudsman?
Exercise 3. Read the text paying attention to its structuring (the beginning,
introducing the theme, logical sequence, summing up, conclusions) What are
the language means by which this is achieved?
The Citizens' Charter/Service First
Another development in the field of administrative justice, and one that has not
attracted the attention it deserves, was the introduction of the concept of the
Citizens' Charter, now 'rebadged' as Service First. In contrast with the
Ombudsman, where the concept has moved from the public sector to the private,
the Citizens' Charter concept has gone the other way. Private sector ideas about
standards of customer care and service delivery, and modes of responding to
failures in those standards, have been brought into the public sector.
Though the initial introduction of the Charter, in 1991 by the government of
Mr. Major, was seen as rather gimmicky, it has provided another impetus to
42

promoting service standards in the public sector and for dealing with customer
complaints. In May 1999, the British Standards Institute published a British
Standard (BS 8600:99) dealing with the effective management and handling of
complaints.
As part of the New Charter Programme, nine principles for public service delivery
have been promulgated. They include:
• setting standards of service;
• being open and providing full information;
• encouraging access and promoting choice;
• treating all fairly;
• putting things right when they go wrong;
• innovating and improving.
These principles provoke two immediate reflections. First, it seems surprising that
those engaged in the delivery of public services should need to be provided with
such a set of principles at all. They seem to be obvious and rather common sense in
content. However, if it is the case that those who deliver public services do not
already satisfy these principles, then no harm can be done by issuing them, and
indeed as they develop some considerable good may flow from them. Secondly,
and more specifically, although most public sector activity is bounded by rules of
law which empower officials to take action, there is no mention of the need for
officials to obey the law in performing their administrative tasks.
Questions:
1. What is the essence of the Citizens' Charter concept?
2. Why was it introduced into the public sphere?
3. Would it be reasonable to introduce this concept in this country? Give your
arguments.
Exercise 4. Read the text and express different emotional reactions (surprise,
doubt, mistrust, concession, think which others) as to the points stated in it.
Other complaints-handling bodies
43

It might be thought that, with the creation of ombudsmen to deal with issues at a
high level and with the more recent development of a wide variety of complaints
resolutions procedures in individual government departments, there were now
adequate means for the redress of citizens' complaints. In fact, other bodies and
procedures have been created with more specific remits than the ombudsmen's but
more general authority than an internal complaints procedure:
• The Adjudicator investigates complaints from people and businesses about how
the Inland Revenue (including the Valuation Office Agency), Customs and Excise
and the Contributions Agency of the Department of Social Security have handled
their affairs. The Adjudicator does not look at issues of law or of tax liability,
because there are tribunals which resolve these problems. But she does look into
excessive delay, mistakes, discourtesy of staff and the use of discretion.
• The Independent Case Examiner for the Child Support Agency investigates
complaints about maladministration by the Child Support Agency, when clients are
dissatisfied with the outcome of the Agency's internal complaints service.
• Similarly the Independent Complaints Reviewer to HM Land Registry
investigates complaints about the Land Registry. Her role is to establish whether
there has been maladministration on the part of the agency in the conduct of
matters giving rise to complaints. These include failure to meet standards of
service, quality, speed and performance. Where appropriate she makes
recommendations aimed at putting matters right for an individual complainant and
improving Land Registry services in the future.
Other bodies include the Subsidence Adviser who considers the ways in which the
Coal Authority and private mining companies handle claims for mining subsidence
damage, and the Waterways Ombudsman which deals with complaints against
British Waterways, where internal complaints have failed.
'Collective' administrative justice—regulators of privatized utility providers
Another context for the resolution of disputes arises from the privatization of the
main utility providers—water, gas, telecommunications, for example. Following
privatization, the provision of services by state monopolies was, in the main,
44

replaced by private monopolies. New regulatory offices—including OFWAT,


OFGEM and OFTEL—were established to regulate these new industries to prevent
abuse of market power in the setting of prices, and to create the conditions in
which other suppliers might come into the market to provide the competition
essential for consumer protection. These regulatory offices have also had some
responsibility for the development of procedures for dealing with individual
customer complaints and complaints from others wishing to enter particular market
sectors.
'Private' administrative justice—regulation of the professions
A final area in which the presence of institutions of administrative justice may be
said to exist is in the regulation of the professions. Here private bodies, such as the
Law Society (for solicitors) or the General Medical Council (for doctors) exercise
statutory powers relating to the regulation of their professions, designed to enhance
the quality of service provision and the protection of the public. In carrying out
these functions, they and other professional regulators tend to operate through
varying forms of tribunal, before which the doctor or lawyer is required to appear
to answer the case against him or her.
Exercise 5. Review the texts of the unit and be ready the give a synopsis.
Exercise 6. Find Russian equivalents of the following phrases, learn them and
be ready to use in your speech. Think of Russian sentences containing the
phrases.
1. to hold the post
2. to investigate complaints
3. allegations of maladministration
4. to be entitled to complain to
5. to refer cases on
6. to call ministers to account
7. personnel complaints
8. complainant
9. to take up office
45

10.to instigate inquiries


11.to set standards of service
12.discourtesy of staff
13.subsidence damage
14.privatized utility
15.to answer the case against oneself
Exercise 7. Look up the pronunciation and the Russian equivalents of the
following words:
ombudsman, devolution, an aggrieved citizen, failure, to endeavour, inquisitorial,
investigative, fruit, promulgate
Exercise 8. Find English equivalents
1. руководство, содержащее правила осуществления какой-либо
деятельности
2. держать кого-либо в курсе событий
3. приходской совет
4. муниципальный совет
5. обеспечить удовлетворение жалоб
6. извлекать урок из
7. к настоящему моменту
8. отчуждение земель
9. в случае каких-либо нарушений
10.непредоставление информации
11.здравый смысл
12.аптека
13.оптика
14.государственный служащий (варианты)
Exercise 9. Look up all the meanings of the term ‘administration’ and find
examples to illustrate them all by means of an online concordancer.
Exercise 10. Paraphrase, comment or bring out the meaning
46

1. Since first established, the jurisdiction of the Ombudsman has broadened


considerably.
2. They offer a 'mass-market' dispute resolution procedure, as opposed to the
more 'RollsRoyce' work of the PCA.
3. In contrast with the Ombudsman, where the concept has moved from the
public sector to the private, the Citizens' Charter concept has gone the other
way.
4. New regulatory offices—including OFWAT, OFGEM and OFTEL—were
established to regulate these new industries to prevent abuse of market
power in the setting of prices, and to create the conditions in which other
suppliers might come into the market to provide the competition essential
for consumer protection.
Exercise 11. Translate into Russian
Over the last fifteen years or so, a peculiarly British phenomenon has emerged. A
considerable number of private sector industries have set up their own sector-wide
ombudsman schemes to deal with those customer complaints that cannot be
resolved within a particular company. These schemes include the Estates Agents
Ombudsman, the Banking Ombudsman, the Insurance Ombudsman, and the
Building Societies Ombudsman. By contrast with the PСA and the other public
sector ombudsmen, where the level of complaints has been relatively low, many of
these private sector ombudsmen have had large caseloads to deal with. They offer a
'mass-market' dispute resolution procedure, as opposed to the more 'RollsRoyce'
work of the PCA.
Exercise 12. Find information on:
1. the Maastricht Treaty
2. the Inland Revenue
3. the Valuation Office Agency
4. Customs and Excise
5. the Contributions Agency of the Department of Social Security
6. the Child Support Agency
47

7. the Land Registry


8. British Waterways

UNIT 5
Overview of the administrative justice system
Exercise 1. Read and annotate the text.
The Council on Tribunals
The best established of the bodies which keep the administrative justice system
under review is the Council on Tribunals. Created in 1959 under the authority of
the Tribunals and Inquiries Act 1958, the Council has the statutory responsibility to
advise and report to the Lord Chancellor. Its primary function is to consider and
keep under review the work of the tribunals and inquiry systems under its
jurisdiction; to comment on drafts of procedural regulations, on which the Council
must be consulted; and to deal with such other matters as may be referred to it.
It has over the years interpreted its remit broadly, and indeed government depart-
ments have used it more broadly than this. For example, the Council is regularly
consulted on proposals to establish new tribunals or to introduce changes to
existing tribunals, for example by changing their procedural rules or by expanding
the range of cases which may go before the tribunal.
In addition the Council has prepared a number of reports relating to general issues
about the operation of tribunals and inquiries: for example, in 1991 it produced a
major analysis of the procedural rules that might be adopted by tribunal systems. In
1997 it produced a report on the independence of tribunals, reasserting the
importance of this fundamental principle in the operation of tribunals. In 2002 it
produced the first Framework of Standards for Tribunals.
A particular feature of the modus operandi of the Council is that it has, in the vast
majority of the tribunal systems under its authority, a statutory right to attend hear-
ings. Members of the Council make around 120 visits a year to different tribunals
and inquiries in all parts of the country. Members produce reports for consideration
48

by the Council on what they have seen, which provide a powerful source of
information about both good and bad practice in the system.
As a result of these visits many items of concern to the Council have emerged,
which have been translated into proposals for change, for example:
• the need for training of tribunal chairmen and members;
• the importance of the role of the clerk and administrative support generally in
ensuring the smooth running of tribunals;
• the need for an adequate level of resource to enable the work of the tribunals to
be done effectively.
The Annual Reports of the Council provided a rich repository not just of informa-
tion about developments in the administrative justice system, but also of the prin-
ciples and practices which should be adopted in that system. The obvious
limitation of the work of the Council is implicit in its name; its focus is limited to
the tribunals and inquiry system over which it has been given a supervisory
function. Nevertheless, the Leggatt review of tribunals saw the Council as a key
part of the administrative justice system and recommended that its role should be
enhanced.
The British and Irish Ombudsmen's Association (BIOA)
Ombudsmen are another very important part of the administrative justice system.
As this mechanism for dispute resolution has developed, BIOA was founded in
1995. Its principal purpose is to ensure that only those bodies that subscribe to
certain procedural standards use the label 'ombudsman'. In particular, ensuring that
ombudsmen in the private sector of the economy, who were privately financed, are
truly independent of their paymasters, is an important function for BIOA. It has
also undertaken other activity, such as developing principles for the training and
procedures to be adopted by individual ombudsman systems. One feature
particularly worthy of note—and which it is surprising does not exist in other parts
of the English legal system—is the link with our neighbouring common law
jurisdiction, Ireland.
Need for a new overview body?
49

There remain other areas of the administrative justice system which fall outside the
remit either of the Council on Tribunals or the BIOA. For this reason there have
been calls for some more wide-ranging body or institute which might keep the
administrative justice system, taken as a whole, under review. For example in
Australia there is an Australian Institute of Administrative Law, with a wide
membership drawn from throughout that great continent.
In the British context, there have been similar calls for the creation of a body
which might take on the role of looking at the administrative justice system in the
holistic sense indicated above; to explore the extent to which there may be gaps in
provision or over-provision; to argue for the provision of sound statistical
information to provide proper management information about the development of
administrative justice and so on.
More specifically a number of developments are occurring which, in the context of
individual tribunals or other dispute resolving fora, may seem justifiable but which
need to be seen in the round. For example, there is considerable pressure in a
number of tribunal systems to move from three-person to one-person tribunals;
there is pressure to do as much decision-taking as possible on the papers only
without hearings; there are very considerable resource pressures which have led to
the reduction or even withdrawal of essential administrative services, such as the
provision of clerks; provision of training is still very patchy; the use of
accommodation for tribunals and other fora is often less efficient than it should be.
The Human Rights Act 1998 and the Freedom of Information Act 2000 have
considerable potential for making an impact across the administrative justice
system.
These are the sorts of structural issue that should be kept under general review,
which under present arrangements does not happen. The fact that the Lord
Chancellor's Department is now asserting much greater leadership in this area is a
very important new development. But, as with the Select Committee on the
Parliamentary Commissioner for Administration, it would also help if a Select
50

Committee of the House of Commons were to take a more specific interest in the
structure and workings of the administrative justice system as a whole.
Audit and quality control
The discussion of administrative justice so far has focused on the wide variety of
fora, ranging from the courts to informal complaints-handling procedures,
available to the individual citizen, dissatisfied with some aspect of public
administration. There are now many avenues for challenging the legality of a
decision, or the use of a discretionary power, or the process by which a decision
was made.
Other mechanisms have also been introduced to try to ensure quality of perform-
ance and the provision of good public services which provide value for money. As
Ison has argued, if officials get the initial decision right, then the consumers of
public services should be better satisfied and have less need to use the myriad
appeal and complaints mechanisms outlined above. (Indeed, one of the criticisms
that can be made of many of these processes—the ombudsmen are perhaps an
exception—is that there is rather little institutional commitment to the idea of
considering what general lessons might be drawn from the resolution of the
individual appeal or complaint. Indeed, the very process of encouraging disputes to
be resolved on an individual basis may disguise structural questions which, if
addressed by the government department or other agency, might have prevented
the problem arising in the first place.)
Among the alternative techniques now used to try to achieve these more general
objectives are:
• the use of audit to ensure that value for money in the provision of public
services is achieved;
• the use of inspectorates to ensure the quality of service provision;
• the provision of benchmarking statistics to provide baseline data against which
performance by public sector agencies may be measured; and
51

• the conclusion of public service agreements, designed to encourage the


modernization of service delivery, support proposals for reform and increase
accountability by the setting of clear aims and objectives.
The time has come to consider the importance of the application of these
techniques to the administrative justice system.
Questions for discussion
1. Can tribunals ever be truly 'user-friendly'? How can those who cannot afford
representation before a tribunal be best assisted to make their case?
2. What are the arguments for and against keeping tribunals as three-person
bodies?
3. Should there be a direct right of access by members of the public to the
Parliamentary Ombudsman?
4. Should all ombudsmen be able to award compensation for proven
maladministration?
5. Are there too many avenues for complaint when things go wrong?
6. Is there a need for a new body to review the whole of the administrative justice
system?
7. What other mechanisms are there to review administrative action and control
the power of state officials?
Exercise 2. Try sketching a brief outline of the text. Summarise each point to
demonstrate your understanding.
Exercise 3. Read and analyse the following text.
Principles of Good Administration
Parliamentary and Health Service Ombudsman
http://www.ombudsman.org.uk/improving_services/good_administration/principles
.html
Introduction
As the Parliamentary and Health Service Ombudsman, I provide a service to the
public by undertaking independent investigations into complaints that government
52

departments, a range of other public bodies in the UK, and the NHS in England
have not acted properly or fairly or have provided a poor service.
The Ombudsman is responsible for deciding whether maladministration, service
failure or both have occurred. The Ombudsman’s view is final, subject only to
judicial review by the courts. We apply a test of fairness and reasonableness, taking
into account the circumstances of each particular case; not a test of perfection. We
draw attention to any failures and suggest how things may be put right. We also
aim to share the lessons learned from complaints to help improve the way public
services are provided.
This document gives our views on the key Principles of Good Administration. We
want to be open and clear with both complainants and public bodies within the
Ombudsman’s jurisdiction about the sorts of behaviour we expect when public
bodies deliver public service, and the tests we apply in deciding whether
maladministration and service failure have occurred. In particular, we want public
bodies to understand how we will approach complaints, and complainants to
understand how we will consider their cases. In common with similar bodies in the
European Union and other countries, we have approached this positively by
looking at what constitutes good public administration.
Central to our assessment of the seriousness of any complaint is the impact of a
public body’s actions on the individuals or organizations concerned. The Principles
of Good Administration are based on this, and on our 40 years’ experience of
handling large numbers of complaints.
We appreciate that the public bodies within jurisdiction are many and varied, have
a wide range of remits and statutory duties, and often have their own demanding
standards. Public bodies have to take reasonable decisions bearing in mind all the
circumstances; delivering good service often means taking a broad and balanced
view of all of the individuals or organizations that may be affected by decisions.
We hope the Principles will provide a framework for all public bodies within
jurisdiction – despite their differences – to follow in fulfilling their duties.
53

The Principles are not a checklist, nor are they the final or only means by which we
will assess and decide individual cases. They are broad statements of what we
believe public bodies within jurisdiction should be doing to deliver good
administration and customer service. If we conclude that a public body has not
followed the Principles, we will not automatically find maladministration or
service failure. We will apply the Principles fairly and sensitively to individual
complaints, which we will, as ever, decide on their merits and in all the
circumstances of the case.
We understand there is often a balance between being sensitive to the needs of a
customer and yet acting proportionately to maximise the effective use of public
resources. The actions of public bodies are of course limited by their resources, and
they have to weigh the highest standards of customer service against what
Government, Parliament or both have decided is affordable. All public bodies
must, and should, spend public money with care. However, finite resources should
not be used as an excuse for poor service or administration.
We believe that the Principles are compatible with the Seven Principles of Public
Life as set out by the Committee on Standards in Public Life1, the British and Irish
Ombudsman Association’s Guide to principles of good complaint handling2 and
the values and behaviours in the Civil Service Code3. They will help us to do our
core work – to investigate and resolve complaints as effectively and efficiently as
possible and to provide a first-class public service to complainants and public
bodies within jurisdiction.
Ann Abraham
Parliamentary and Health Service Ombudsman March 2007
Principles of Good Administration
Good administration by a public body means:
1 Getting it right
 Acting in accordance with the law and with due regard for the rights of those
concerned.
54

 Acting in accordance with the public body’s policy and guidance (published
or internal).
 Taking proper account of established good practice.
 Providing effective services, using appropriately trained and competent staff.
 Taking reasonable decisions, based on all relevant considerations.
2 Being customer focused
 Ensuring people can access services easily.
 Informing customers what they can expect and what the public body expects
of them.
 Keeping to its commitments, including any published service standards.
 Dealing with people helpfully, promptly and sensitively, bearing in mind
their individual circumstances.
 Responding to customers’ needs flexibly, including, where appropriate,
coordinating a response with other service providers.
3 Being open and accountable
 Being open and clear about policies and procedures and ensuring that
information, and any advice provided, is clear, accurate and complete.
 Stating its criteria for decision making and giving reasons for decisions.
 Handling information properly and appropriately.
 Keeping proper and appropriate records.
 Taking responsibility for its actions.
4 Acting fairly and proportionately
 Treating people impartially, with respect and courtesy.
 Treating people without unlawful discrimination or prejudice, and ensuring
no conflict of interests.
 Dealing with people and issues objectively and consistently.
 Ensuring that decisions and actions are proportionate, appropriate and fair.
5. Putting things right
 Acknowledging mistakes and apologising where appropriate.
 Putting mistakes right quickly and effectively.
55

 Providing clear and timely information on how and when to appeal or


complain.
 Operating an effective complaints procedure, which includes offering a fair
and appropriate remedy when a complaint is upheld.
6. Seeking continuous improvement
 Reviewing policies and procedures regularly to ensure they are effective.
 Asking for feedback and using it to improve services and performance.
 Ensuring that the public body learns lessons from complaints and uses these
to improve services and performance.
These Principles are not a checklist to be applied mechanically. Public bodies
should use their judgment in applying the Principles to produce reasonable, fair
and proportionate results in the circumstances. The Ombudsman will adopt a
similar approach in deciding whether maladministration or service failure has
occurred.
The supporting text for each Principle follows.
1. Getting it right
All public bodies must comply with the law and have due regard for the rights of
those concerned. They should act according to their statutory powers and duties
and any other rules governing the service they provide. They should follow their
own policy and procedural guidance, whether published or internal.
Public bodies should act in accordance with recognised quality standards,
established good practice or both, for example about clinical care.
In some cases a novel approach will bring a better result or service, and public
bodies should be alert to this possibility. When they decide to depart from their
own guidance, recognised quality standards or established good practice, they
should record why.
Public bodies should provide effective services with appropriately trained and
competent staff. They should plan carefully when introducing new policies and
procedures. Where public bodies are subject to statutory duties, published service
standards or both, they should plan and prioritise their resources to meet them.
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In their decision making, public bodies should have proper regard to the relevant
legislation. Proper decision making should give due weight to all relevant
considerations, ignore irrelevant ones and balance the evidence appropriately.
Public bodies necessarily assess risks as part of taking decisions. They should, of
course, spend public money with care and propriety. At the same time, when
assessing risk, public bodies should ensure that they operate fairly and reasonably.
2. Being customer focused
Public bodies should provide services that are easily accessible to their customers.
Policies and procedures should be clear and there must be accurate, complete and
understandable information about the service.
Public bodies should aim to ensure that customers are clear about their
entitlements; about what they can and cannot expect from the public body; and
about their own responsibilities.
Public bodies should do what they say they are going to do. If they make a
commitment to do something, they should keep to it, or explain why they cannot.
They should meet their published service standards, or let customers know if they
cannot.
Public bodies should behave helpfully, dealing with people promptly, within
reasonable timescales and within any published time limits. They should tell
people if things take longer than the public body has stated, or than people can
reasonably expect them to take.
Public bodies should communicate effectively, using clear language that people
can understand and that is appropriate to them and their circumstances.
Public bodies should treat people with sensitivity, bearing in mind their individual
needs, and respond flexibly to the circumstances of the case. Where appropriate,
they should deal with customers in a co-ordinated way with other providers to
ensure their needs are met; and, if they are unable to help, refer them to any other
sources of help.
3. Being open and accountable
57

Public administration should be transparent and information should be handled as


openly as the law allows. Public bodies should give people information, and, if
appropriate, advice that is clear, accurate, complete, relevant and timely.
Public bodies should be open and truthful when accounting for their decisions and
actions. They should state their criteria for decision making and give reasons for
their decisions.
Public bodies should handle and process information properly and appropriately in
line with the law. So while their policies and procedures should be transparent,
public bodies should, as the law requires, also respect the privacy of personal and
confidential information.
Public bodies should create and maintain reliable and usable records as evidence of
their activities. They should manage records in line with recognised standards to
ensure that they can be retrieved and that they are kept for as long as there is a
statutory duty or business need.
Public bodies should take responsibility for the actions of their staff.
4. Acting fairly and proportionately
Public bodies should always deal with people fairly and with respect. They should
be prepared to listen to their customers and avoid being defensive when things go
wrong.
Public bodies should treat people equally and impartially. They should understand
and respect the diversity of their customers and ensure fair access to services and
treatment regardless of background or circumstance.
The actions and decisions of a public body should be free from any personal bias
or interests that could prejudice those actions and decisions, and any conflict of
interests should be declared. Public bodies should not act in a way that unlawfully
discriminates against or unjustifiably favours particular individuals or interests.
People should be treated fairly and consistently, so that those in similar
circumstances are dealt with in a similar way. Any difference in treatment should
be justified by the objective features or the individual circumstances of the case.
58

When taking decisions, and particularly when imposing penalties, public bodies
should behave reasonably and ensure that the measures taken are proportionate to
the objectives pursued, appropriate in the circumstances and fair to the individuals
concerned.
If applying the law, regulations or procedures strictly would lead to an unfair result
for an individual, the public body should seek to address the unfairness. In doing
so public bodies must, of course, bear in mind the proper protection of public funds
and ensure they do not exceed their legal powers.
5. Putting things right
When mistakes happen, public bodies should acknowledge them, apologise,
explain what went wrong and put things right quickly and effectively.
Putting things right may include reviewing any decisions found to be incorrect; and
reviewing and amending any policies and procedures found to be ineffective,
unworkable or unfair, giving adequate notice before changing the rules.
The actions of a well-run public body can sometimes bear more heavily on an
individual because of their particular circumstances, even though statutory duties,
service standards or both have been met. Public bodies should be alert to this and
respond flexibly to avoid or, where appropriate, put right any such undue effect.
Public bodies should provide clear and timely information about methods by which
people can appeal or complain. They should provide information about appropriate
organisational or independent ways of resolving complaints. They should also
consider providing information about possible sources of help for the customer,
particularly for people who may find the complaints process daunting.
Public bodies should operate effective complaints procedures which investigate
complaints thoroughly, quickly and impartially; and which can provide an
appropriate range of remedies to the complainant and any others similarly affected
when a complaint is upheld. As a minimum, an appropriate range of remedies
should include an explanation and apology from the public body to the
complainant, remedial action by the public body, financial compensation for the
complainant or a combination of these. The remedy offered should seek to put the
59

complainant back in the position they would have been in if nothing had gone
wrong. Where this is not possible - as will often be the case - the remedy offered
should fairly reflect the harm the complainant has suffered.
6. Seeking continuous improvement
Public bodies should review their policies and procedures regularly to ensure they
are effective; actively seek and welcome all feedback, both compliments and
complaints; use feedback to improve their public service delivery and
performance; and capture and review lessons learned from complaints so that they
contribute to developing services.
60

PART 2
REVISION
1. Read the text on cultural norms, values, behaviour and attitudes and think
whether these phenomena are reflected in English administration and the
way it is regulated by the judiciary.
"Culture [is] those deep, common, unstated experiences which members of a
given culture share, which they communicate without knowing, and which form
the backdrop against which all other events are judged."
Edward T. Hall (1966)
What Is Culture?
Culture is defined as the total way of life of a people, composed of their learned
and shared behavior patterns, values, norms, and material objects. Culture is a very
general concept. Nevertheless, culture has very powerful effects on individual
behavior, including communication behavior.
IBM Corporation had a distinctive organizational culture in which male
employees were expected to wear dark blue suits, white button-down shirts, and
conservative neckties. The gay community in the United States has a somewhat
distinct culture. So do certain professions.
Each different group or population creates its own way of life, with the values,
norms, behaviors, and material objects that they feel best fit their situation. The
material objects produced by a culture, together with its musical and artistic
productions, are referred to as cultural artifacts. The elements of a culture, like its
values, are so completely accepted by individuals sharing that culture that these
elements are seldom questioned or defended. As the anthropologist Ralph Linton
stated: "The last person in the world to understand water is someone living at the
bottom of the sea."
Beliefs, Attitudes, and Values
Culture is stored in individual human beings, in the form of their beliefs,
attitudes, and values. There are strong similarities in the belief systems among the
members of a given culture.
61

Beliefs are an individual's representations of the outside world. Some beliefs are
seen as very likely to be true, such as "2 + 2 = 4." Others are seen as less probable,
such as "All old people sit at home in rocking chairs." Beliefs serve as the storage
system for the content of our past experiences, including thoughts, memories, and
interpretations of events. Beliefs are shaped by the individual's culture.
Attitudes, like beliefs, are internal events and not directly observable by other
people. Attitudes are emotional responses to objects, ideas, and people. Attitudes
store these emotional responses in the same way that beliefs store the content of
past events. People express opinions, outwardly observable verbal behavior, and
engage in other behaviors, partially on the basis of their attitudes and beliefs.
Attitudes and beliefs form a storage system for culture within the individual.
Attitudes and beliefs are internal and are not publicly observable. I cannot know
your attitudes or your beliefs directly, but I can observe what you say (your
expressed opinions) and what you do (your behavior) and infer your attitudes and
beliefs from these overt expressions.
Attitudes and beliefs indicate behavioral intentions, tendencies for a person to
respond to events, ideas, and people in particular ways. If I know (belief) what
Thai food is and like (attitude/emotion) Thai food, then I may intend to eat
(behavioral intention) Thai food. The relationship of attitudes and beliefs to
behaviors is not a one-to-one equation. Numerous attitudes and beliefs are stored
in a person's belief system. Just because a person likes Thai food does not mean
that the person will act on that attitude. Other likes and dislikes compete for the
person's time, money, and energy. Attitudes and beliefs about losing weight,
spending money, and use of time may be stronger than a desire to go to a restaurant
for Thai food.
Values are what people who share a culture regard strongly as good or bad.
Values have an evaluative component. They often concern desired goals, such as
the Christian value of salvation, or the values of mature love, world peace, or
preservation of the environment. Values also concern ways of behaving that lead to
62

these goals, such as valuing thrift, honesty, cleanliness, or speaking and acting
quietly so as not to make noise that disturbs other people.
Cultural Beliefs
When a belief is held by most members of a culture we call it a cultural belief.
Culture influences the perceptions and behaviors of the individuals sharing the
culture through beliefs, values, and norms. They are important building blocks of
culture.
Not everyone in a society holds exactly the same cultural beliefs. In other words,
an individual's culture does not totally determine his/her beliefs. But the members
of a society who share a common culture have relatively more similar beliefs than
do individuals of different cultures. For instance, most Japanese believe that gift
giving is much more important than do people in the United States.
Cultural Values and Cultural Attitudes
Cultural values involve judgments (that is, they specify what is good or bad) and
are normative (that is, they state or imply what should be). Most people in the
United States feel that bullfighting is disgusting and cruel. But to many Mexicans
and Spaniards, bullfighting is an important and exciting sport. Similarly, most
people in the United States place a negative value on nepotism (hiring or favoring
a relative) and on bribery. In other nations, these activities are valued positively
and are widely practiced. In some cultures, the chief financial officer of a company
is often the brother or at least a close relative of the company president, who thinks
that this relative can be trusted with the company's money.
Many attitudes are based on cultural values. In the United States, freedom is a
dominant value. In others, it is just one value among others. The meaning of any
value, including freedom, differs across cultures. An old woman in Saigon told one
of the authors that she felt that she could not tolerate the lack of freedom in the
United States. In Vietnam she was free to sell her vegetables on the sidewalk
without being hassled by police or city authorities. She did not have to get a permit
to fix the roof on her house. She had the freedom to vote for a communist
candidate if she wanted to. She believed that in the United States, where her
63

children lived, people were expected to tell others what they thought. In Vietnam
she had the freedom to remain silent. Her perceptions determined her behavior; she
refused to immigrate to the United States to join her children.
When one of the authors was teaching at Stanford University, a professor friend
told him about selling his daughter's horse. She loved this horse very much, rode it
often, and regarded it as her special pet. When she left for college, her father
decided that the horse should be sold. He placed an ad in a local newspaper and
promptly received a telephone call from an interested party. They agreed on a
price, and the buyers arrived shortly in a pick-up truck. They paid the $200 and
then shot the horse with a rifle at pointblank range, threw the carcass in the back of
their vehicle, and drove off. The professor was horrified and worried about telling
his daughter about her pet's death. The buyers were Tongans (a community of
people from Tonga), who relish barbecued horse meat. The values attached to a
horse are obviously quite different if it is regarded as a pet versus food.
Norms
Norms are the established behavior patterns for members of a social system. If a
cultural norm is violated, the individual is socially punished for not fulfilling the
expectations of his/her system. An example of violating a cultural norm occurred
when a French woman visiting Saudi Arabia used her left hand to eat out of a
communal bowl of rice and lamb. Her Saudi friends suddenly lost their appetites.
The left hand is considered unclean in the Middle East and Asia, and cultural
norms prohibit handing an object to someone with the left hand. There is a
historical reason for the left-handed taboo in these cultures, related to cleaning the
body with the left hand after defecation.
Thai people revere their king, so much so that they seldom talk about him and
are culturally forbidden to touch him. A U.S. professor, during the first months that
he taught at Bangkok University, accidentally dropped a Thai coin on the floor. In
order to keep the coin from rolling under a door, he quickly stepped on it. His Thai
students were shocked. Why? The king's profile is on every coin.
64

A recent university graduate from the United States was interning in a Japanese
company in Nagoya. He related his experiences in violating a Japanese cultural
norm about proper office behavior: "During the first week in the company, I asked
a fellow employee, a young woman, for a date. She became very embarrassed and
told me that she could not go out with me because we worked in the same unit. By
that evening, everyone in my office knew what had happened. Several of my
colleagues made jokes of rather poor taste about my mistake. For the next several
months, references were made about my asking Yuki for a date, especially after my
colleagues had had too much to drink. Eventually, a year later, I learned that I was
referred to, behind my back, with a nickname in Japanese that connoted something
like 'skirt-chaser'.
This example shows the various ways in which an individual violating a cultural
norm was punished: through gossip, joking, and by use of a humorous nickname.

2. Make a report and a PowerPoint presentation on any of the topic studied.


3. Draw distinctions between the arrangement and functioning of
Administrative Law in England and Wales and in the Russian Federation.
4. Draw parallels between the arrangement and functioning of
Administrative Law in England and Wales and in the Russian Federation.
5. Prepare a round table discussion on the following topic: “Can we see
traces of national culture in Administrative Law?”

TEXTS for SELF STUDY

The Case for Judicial Review


The Washington Post
Walter Dellinger and Christopher H. Schroeder
December 06, 2001

In spite of understandable concerns of civil libertarians, military commissions


clearly have a constitutional role in trying those accused of acts of war against the
United States. It is possible, however, to mitigate the threat to the rule of law posed
by the use of military courts.
65

At least three significant changes should be made by the president -- or by


Congress -- in the president's recent military order establishing plans for military
trials. First, such trials should be possible only for a narrow set of cases; second,
procedures should be designed to determine fairly whether the persons accused are
in fact guilty terrorists; third -- and most important -- some form of judicial review
must be provided. The president's power as commander in chief is extensive.
Lincoln, in a breathtaking exercise of military power, unilaterally freed all the
slaves in states in rebellion. Military trials commissioned by the president have
occurred since the beginning of the republic. In time of war, they represent an
effective means of dealing with hostile combatants -- especially those captured on
foreign soil -- free of evidentiary rules designed to serve the social goals of
ordinary times. Military commissions can function partially or entirely in secret,
avoiding disclosure of information that would compromise intelligence sources or
reveal vulnerabilities in our defenses. And they can be expeditious.

The threat to civil liberties in their use is always present, but it can be reduced by
careful changes in the president's plan. Congress has clear authority to make such
alterations. As Justice Robert Jackson once noted, the president is at the apogee of
his power when acting pursuant to congressional authorization, and at his least
powerful when he claims authority to act in contravention of the will of Congress.
In this instance the president did initially act with congressional authorization: The
provisions of the Uniform Code of Military Justice cited by the order are the same
ones that authorized creation of military commissions in the Nazi sabotage case. It
remains open to Congress to revise those provisions in ways that limit and refine
the president's plan.

The jurisdiction of such secret military tribunals should be clearly and narrowly
circumscribed. One reason such tribunals have been accommodated within our
constitutional system is that their legitimate use is limited to extraordinary cases.
The current order fails to observe those limits. It extends, for instance, to any
individuals who harbored a member of the al Qaeda organization, even if the
persons they harbored have not been involved in any violation of the laws of war.
The order exempts U.S. citizens from its coverage, but the Supreme Court has
made it plain that the full range of constitutional protections afforded citizens
applies also to resident aliens, and a strong argument can be made that the
safeguards of a trial in criminal court normally extend to anyone in this country
lawfully.

Except for members of al Qaeda actively planning or participating in a terrorist


assault, military commissions ought to have no application within the United States
itself so long as the regular criminal courts continue functioning. More careful
limits on the scope of such procedures must be adopted and enforced by some
independent party outside the executive branch.
66

Congress should also address the disturbing notion that procedures for determining
guilt or innocence can be truncated because terrorists attacking the United States
deserve no better. That sentiment may well be true: The problem is that we can't
know in advance whether the person brought before the tribunal is indeed such a
person. In addition, the order itself calls for full and fair trials but leaves the
procedures for ensuring that these occur entirely up to the Department of Defense.
That is why Congress should carefully review the procedures to be used in these
trials.

By far the most important change needed in the president's military order is to
reverse its sweeping and unjustified ban on any judicial review of the military
proceedings. As it stands, the only review provided for is by either the secretary of
defense or the president.

Even if the president were validly exercising his power to suspend the privilege of
habeas corpus, it cannot be constitutional to exclude the courts altogether. The
attempt to do so might in fact come back to haunt the government, because any
federal judge might assert the inherent constitutional power of the courts.

The president and Congress would be well advised to provide for judicial review
by a single designated federal appeals court, a special panel of judges established
for the purpose or by the Supreme Court itself. Secret evidence alleged to be
material to a conviction could be reviewed in camera by the judges or the justices.

Independent review outside the executive branch is essential if the nation is to be


assured that such military commissions are fairly designed to ascertain guilt and
are limited to the extraordinary circumstances that alone can justify their use.

Walter Dellinger, a Washington lawyer, and Christopher H. Schroeder are law


professors at Duke University and former Justice Department officials.
Copyright 2001 The Washington Post

Tragic choice and the role of administrative law


Cameron Stewart http://www.findarticles.com/

Chris Ham's article on tragic choices in health care highlights the increasing need
for transparency and fairness in medical decision making.[1] Although Ham argued
on ethical grounds for greater accountability in resource allocation, there is a
growing body of law that is beginning to regulate this area. Administrative law is a
branch of public law that deals with judicial review of decisions made by
government bodies. Traditionally, this area of law has had little impact on medical
decision making. However, as the healthcare system becomes increasingly
bureaucratised, greater levels of dissatisfaction may force some patients to seek
67

redress for their complaints through the avenue of administrative law. The case of
Child B was an example of such a complaint.[1] Even though the Child B case was
a failure, these types of claims are beginning to increase in frequency. The United
Kingdom leads the way in this area, and it is the only country in the
Commonwealth where administrative law is having a major impact on medical
decision making. The basic principles of administrative law are, however, shared
by all common law jurisdictions, and other countries (particularly Australia and
New Zealand) are now seeing similar claims arise.[2 3] There is a pressing need
for medical decision makers to familiarise themselves with the basic principles of
administrative law.

Methods

This article is the result of legal research into administrative law. Judgments were
retrieved by using traditional techniques for legal research and electronic retrieval
of relevant documents from the casetrack system (www.casetrack.com).

Administrative law

Administrative law is the body of rules under which the courts examine the legality
of bureaucratic decision making. When courts are asked to review a decision made
by government bodies they are limited to reviewing the legality of the process of
decision making and are not allowed to examine the actual merits of the case. To
do this the courts examine the powers of the decision maker and the requirements
of statute and regulation to see if the decision maker acted unfairly or outside his or
her bounds. In that sense administrative law is concerned with the decision making
process rather than the outcome of that process. Courts are also forbidden to
examine the worthiness of the policies behind particular decisions unless a policy
is itself beyond power or in contravention of law.

As a result of the strict concentration on legality rather than merits, there are many
administrative decisions that cannot be reviewed. Decisions that cannot be
reviewed by the courts are said to be "non-justiciable."

Administrative law and the existing medicolegal framework

Traditionally, medical law is focused on providing remedies for tortious conduct.


Medical law has not directly interfered with medical decision making, apart from
judging whether a decision fell below the proper standard of care. There has been a
judicial reluctance to get involved, especially when a decision is made purely for
clinical reasons. For example, one of the reasons that the appeal against the
decision not to treat Child B ultimately failed was because the judges refused to
express opinions on the effectiveness of medical treatments for her condition. In
another case, which concerned the withholding of treatment from a minor, the
court found that no doctor could be required to treat a child against his or her
68

professional opinion.[4] To do so would wrongfully interfere with the professional


judgment of the clinician.

The courts are similarly reluctant to become involved in decisions that are solely
related to finance. Judges are unable to resolve resource dilemmas and have no
constitutional right to consider them. The case of Child B largely failed because of
this reason. In two other cases concerning the refusal of health authorities to
perform heart operations on newborn infants,[5] the courts refused to intervene
because the decisions were made for resource reasons. The courts had no power to
examine whether health authorities had resources available to treat these patients
and were not equipped to properly deal with such evidence even if it were
available.

Despite these judicial reservations, administrative law is having an increasingly


important impact on medical decision making. There are two reasons for this:
firstly, the process of medical decision making is now indistinguishable from other
types of bureaucratic administration. Treatments are dispensed according to
clinical guidelines and policies. Decision making is horizontally organised, from
macrodecisions made by government departments through to mesoallocation by
health authorities and ending with bedside decision making made collectively by
groups of doctors. Secondly, the question of whether particular patients should be
treated is no longer solely about clinical factors specific to individual patients. The
scarcity of resources means that treatment decisions concern questions of
allocative efficiency, which include characteristics more properly described as
"social." For example, medical decision makers might take into account the sexual
preference of a patient to determine whether infertility treatment should be
provided. In such cases administrative law is able to examine the considerations of
the decision maker to see if they have strayed into unlawful areas. Both factors
mean that any disputes about treatment decisions are perfectly suited to
administrative law and its focus on the legality of the decision making process.

Grounds on which courts review a decision

The courts will review decisions on various grounds (box). In addition to these
grounds, it seems that the Human Rights Act 1998 will create further opportunities
for review. The Human Rights Act has the purpose of incorporating the European
Convention of Human Rights into English law. At present the convention rights
have not yet been fully implemented but must be considered by judges in their
decisions. One immediate effect of the act has been to expand the grounds of
review by allowing claimants to argue that derisions should be overturned because
they infringe convention rights.

If any of the above grounds are proved, the courts have the power to quash the
decision and to order it to be remade. Several types of medical decisions are
subject to these grounds of review.
69

Decisions that discriminate against certain types of patients

A decision will be struck down by the court if it unreasonably discriminates against


a patient for reasons unrelated to a clinical assessment of the patient's condition.
For example, in one case a woman appealed her rejection by an in vitro fertilisation
unit, which had decided not to treat her because of her criminal record. The
decision of the unit was eventually upheld but not before the court stated that the
unit did not have the power to formulate a policy on discriminatory grounds.[6]
However, if the discriminating factor is related to clinical success it will not impact
on the lawfulness of the decision. In a similar case, where a woman was refused in
vitro fertilisation treatment because of her age, the court found that discrimination
on the grounds of age was reasonable given the effect of age on the treatment's
success.[7]

Blanket policies to not treat particular conditions

Different considerations come in to play when the policy is not itself


discriminatory but is drafted in a blanket fashion to prevent types of treatment
altogether. Such a policy might conflict with general statutory duties to provide
medical services or be found to be unreasonable or procedurally unfair. Recently, a
decision by a health authority not to provide funds for treating transsexualism was
found to be illegal for this reason.[8] The authority had decided against providing
funds for gender reassignment because it was "medically ineffective." The court
found that the authority had not considered transsexualism as an illness when it
made its decision and therefore the decision was unreasonable and illegal.

A policy not to provide interferon beta treatment for patients with multiple
sclerosis was also found to be unreasonable.[9] The authority had created a policy
whereby the treatment would be available only as part of a drugs trial. The
authority knew that there was no drugs trial and that there were no plans to begin
one. As such its policy was effectively a blanket ban on the treatment. This was in
contravention of a departmental directive and was thus found to be irrational.

Broken promises to provide particular services

Normally, when promises are made regarding treatment or the creation of new
services, a decision to break such promises will be non-justiciable as it will have
been made in the context of a policy change or because of tight resources. There
are many examples of this, such as the promises to build or maintain an
orthopaedic services unit,[10] an obstetrics unit,[11] and a vitamin B-12 unit.[12]
All these cases failed to get around the test of justiciability. They were all policy
decisions based on tight resources.

However, a recent case had suggested that there may be a part for the court to play
even in these types of decisions. A decision to close a home for severely disabled
70

people was overturned on the grounds that a promise had been made to the
residents that they could reside there for life.[13] The decision makers had not
properly accounted for the promise as they did not treat it as a binding obligation.
The Court of Appeal found that the patients had a legitimate expectation of a
substantive benefit and that the decision to close was so unfair that it was an abuse
of power.

Additionally, the European Convention of Human Rights was used by the patients
to widen the grounds of judicial intervention. The court found that the decision
offended the patients' right to respect for their home, which is protected under
section 8 of the convention. The court said that the more a decision impacted on
convention rights, the greater would be the judicial scrutiny.

This case is extremely problematic and it certainly crosses the divide between the
legality and the merits of a decision. The court's decision to review the substantive
merits of the case rather than the procedural dimension means that the authority of
the case is questionable. If the decision survives any appeal, it will widen the scope
for review by allowing judges to weigh up the substantive issues considered by the
decision maker.

Conclusion

The trend towards greater bureacratisation and the need to find ways of
discriminating between patients means that administrative law is now of central
importance to medical decision makers. The courts have drawn a line around
decisions that are solely motivated by financial concerns and those that are based
solely on medical opinions. But where the decision making process has been
affected by unfair or unreasonable behaviour the courts are willing to step in and
require the decision to be remade. Ham has set out the need to "structure the debate
to enable different points of view to be articulated; to promote transparency and
consistency in decision making; and to build trust, confidence, and legitimacy in
the process." Ham's ethical argument is also backed up by the requirements of the
legal system. The future impact of administrative law will hopefully be to realise
the promise of transparency, improve the process of decision making, and to
further the public's understanding of tragic choices and why they need to be made.
Of course the additional challenge will be to carefully control the judiciary's own
power from widening so much that it prevents the proper exercise of discretion and
policy creation.
71

Marbury vs. Madison (1803) Case

In 1800 the Federalists and their candidate, President John Adams, lost the election
to Thomas Jefferson. Early in 1801 the lame-duck Federalist Congress enacted a
controversial Judiciary Act that created 58 new judgeships, including 42
justiceships of the peace, for Adams to appoint. Jefferson complained that the
Federalists "have retired into the judiciary as a stronghold." On the night March 3,
1801, John Marshall, acting as secretary of state, affixed the official seal to the
commissions for the justices of the peace. He did not, however, deliver the
commissions. The next day, after Thomas Jefferson was inaugurated, he directed
the new secretary of state, James Madison, to withhold delivery of 17 of the 42
commissions, including that of William Marbury. William Marbury sued for a writ
of mandamus to require Madison to hand over his commission.

The decision in Marbury's case, written by Chief Justice John Marshall (the very
same John Marshall who affixed the seal to Marbury's commission--talk about a
conflict of interest!) established and justified the power of judicial review. It is the
first case read by virtually every first-year law student and is generally considered
the greatest of all landmark cases. Marshall strained to reach his result. The plain
words of Section 13 of the Judiciary Act indicate that Marbury went to the wrong
court or invoked the wrong statute (or both), but Marshall proceeded as if the suit
were authorized by Section 13 and then declared the statute unconstitutional on the
grounds that it purported to expand the Court's original jurisdiction in violation of
Article III. Marbury's suit was dismissed for lack of jurisdiction. Marshall's
decision--brilliant in its conception--allowed the Court to brand Jefferson a violator
of civil rights without issuing an order that the President could have ignored.

Fragment from John Marshall's Handwritten Decision

"The prime and most necessary function of the Court has been that of validation,
not that of invalidation. What a government of limited powers needs, at the
beginning and forever, is some means of satisfying the people that it has taken all
steps humanly possible to stay within its powers." -Professor Charles L. Black

Chief Justice Marshall delivered the opinion of the court.

In the order in which the court has viewed this subject, the following questions
have been considered and decided:

1st. Has the applicant a right to the commission he demands?

2dly. If he has a right, and that right has been violated, do the laws of his country
afford him a remedy?
72

3dly. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of enquiry is: Has the applicant a right to the commission he
demands?

His right originates in an act of congress passed in February, 1801, concerning the
district of Columbia. This law enacts, "that there shall be appointed in and for each
of the said counties, such number of discreet persons to be justices of the peace as
the president of the United States shall, from time to time, think expedient, to
continue in office for five years."

It appears, from the affidavits, that in compliance with this law, a commission for
William Marbury as a justice of peace for the county of Washington, was signed by
John Adams, then president of the United States; after which the seal of the United
States was affixed to it; but the commission has never reached the person for
whom it was made out.

In order to determine whether he is entitled to this commission, it becomes


necessary to enquire whether he has been appointed to the office. For if he has
been appointed, the law continues him in office for five years, and he is entitled to
the possession of those evidences of office, which, being completed, became his
property.

The 2d section of the 2d article of the constitution, declares, that "the president
shall nominate, and, by and with the advice and consent of the senate, shall appoint
ambassadors, other public ministers and consuls, and all other officers of the
United States, whose appointments are not otherwise provided for." The third
section declares, that "he shall commission all the officers of the United States."
An act of congress directs the secretary of state to keep the seal of the United
States, "to make out and record, and affix the said seal to all civil commissions to
officers of the United States, to be appointed by the President, by and with the
consent of the senate, or by the President alone; provided that the said seal shall
not be affixed to any commission before the same shall have been signed by the
President of the United States."

These are the clauses of the constitution and laws of the United States, which affect
this part of the case. They seem to contemplate three distinct operations:

1st, The nomination. This is the sole act of the President, and is completely
voluntary.
2d. The appointment. This is also the act of the President, and is also a voluntary
act, though it can only be performed by and with the advice and consent of the
senate.
3d. The commission. To grant a commission to a person appointed, might perhaps
73

be deemed a duty enjoined by the constitution. "He shall," says that instrument,
"commission all the officers of the United States."

This is an appointment by the President, by and with the advice and consent of the
senate, and is evidenced by no act but the commission itself.... The last act to be
done by the President, is the signature of the commission. He has then acted on the
advice and consent of the senate to his own nomination. The time for deliberations
has then passed. He has decided. His judgment, on the advice and consent of the
senate concurring with his nomination, has been made, and the officer is appointed.
This appointment is evidenced by an open, unequivocal act; and being the last act
required from the person making it, necessarily excludes the idea of its being, so
far as respects the appointment, an inchoate and incomplete transaction.

The signature is a warrant for affixing the great seal to the commission; and the
great seal is only to be affixed to an instrument which is complete. It asserts, by an
act supposed to be of public notoriety, the verity of the Presidential signature.

It is never to be affixed till the commission is signed, because the signature, which
gives force and effect to the commission, is conclusive evidence that the
appointment is made.

The commission being signed, the subsequent duty of the secretary of state is
prescribed by law, and not to be guided by the will of the President. He is to affix
the seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied, if the judgment of the executive
shall suggest one more eligible; but is a precise course accurately marked out by
law, and is to be strictly pursued. It is the duty of the secretary of state to conform
to the law, and in this he is an officer of the United States, bound to obey the laws.
He acts, in this regard, as has been very properly stated at the bar, under the
authority of law, and not by the instructions of the President. It is a ministerial act
which the law enjoins on a particular officer for a particular purpose....

The discretion of the executive is to be exercised until the appointment has been
made. But having once made the appointment, his power over the office is
terminated in all cases, where, by law, the officer is not removable by him. The
right to the office is then in the person appointed, and he has the absolute,
unconditional, power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the President, and sealed
by the secretary of state, was appointed; and as the law creating the office, gave the
officer a right to hold for five years, independent of the executive, the appointment
was not revocable; but vested in the officer legal rights, which are protected by the
laws of his country.
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To withhold his commission, therefore, is an act deemed by the court not warranted
by law, but violative of a vested legal right.

This brings us to the second enquiry; which is, 2dly. If he has a right, and that right
has been violated, do the laws of his country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual
to claim the protection of the laws, whenever he receives an injury. One of the first
duties of government is to afford that protection. The government of the United
States has been emphatically termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the laws furnish no remedy for
the violation of a vested legal right.

By the constitution of the United States, the President is invested with certain
important political powers, in the exercise of which he is to use his own discretion,
and is accountable only to his country in his political character, and to his own
conscience. To aid him in the performance of these duties, he is authorized to
appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of
the manner in which executive discretion may be used, still there exists, and can
exist, no power to control that discretion. The subjects are political. They respect
the nation, not individual rights, and being entrusted to the executive, the decision
of the executive is conclusive. The application of this remark will be perceived by
adverting to the act of congress for establishing the department of foreign affairs.
This office, as his duties were prescribed by that act, is to conform precisely to the
will of the President. He is the mere organ by whom that will is communicated.
The acts of such an officer, as an officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is
directed peremptorily to perform certain acts; when the rights of individuals are
dependent on the performance of those acts; he is so far the officer of the law; is
amenable to the laws for his conduct; and cannot at his discretion sport away the
vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the
political or confidential agents of the executive, merely to execute the will of the
President, or rather to act in cases in which the executive possesses a constitutional
or legal discretion, nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law, and individual
rights depend upon the performance of that duty, it seems equally clear that the
individual who considers himself injured, has a right to resort to the laws of his
country for a remedy.
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If this be the rule, let us enquire how it applies to the case under the consideration
of the court.

The power of nominating to the senate, and the power of appointing the person
nominated, are political powers, to be exercised by the President according to his
own discretion. When he has made an appointment, he has exercised his whole
power, and his discretion has been completely applied to the case.

The question whether a right has vested or not, is, in its nature, judicial, and must
be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths
of a magistrate, and proceeded to act as one; in consequence of which a suit had
been instituted against him, in which his defence had depended on his being a
magistrate; the validity of his appointment must have been determined by judicial
authority.

So, if he conceives that, by virtue of his appointment, he has a legal right, either to
the commission which has been made out for him, or to a copy of that commission,
it is equally a question examinable in a court, and the decision of the court upon it
must depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is, that the latest point of time
which can be taken as that at which the appointment was complete, and evidenced,
was when, after the signature of the president, the seal of the United States was
affixed to the commission.

It is then the opinion of the court: 1st. That by signing the commission of Mr.
Marbury, the president of the United States appointed him a justice of peace, for
the county of Washington in the district of Columbia; and that the seal of the
United States, affixed thereto by the secretary of state, is conclusive testimony of
the verity of the signature, and of the completion of the appointment; and that the
appointment conferred on him a legal right to the office for the space of five years.
2dly. That, having this legal title to the office, he has a consequent right to the
commission; a refusal to deliver which, is a plain violation of that right, for which
the laws of his country afford him a remedy.

It remains to be enquired whether, 3dly. He is entitled to the remedy for which he


applies. This depends on, 1st. The nature of the writ applied for, and, 2dly. The
power of this court.

1st. The nature of the writ.

If one of the heads of departments commits any illegal act, under the color of his
office, by which an individual sustains an injury, it cannot be pretended that his
office alone exempts him from being sued in the ordinary mode of proceeding, and
being compelled to obey the judgment of the law. How then can his office exempt
76

him from this particular mode of deciding on the legality of his conduct, if the case
be such a case as would, were any other individual the party complained of,
authorize the process?

It is not by the office of the person to whom the writ is directed, but the nature of
the thing to be done that the propriety or impropriety of issuing a mandamus, is to
be determined. Where the head of a department acts in a case, in which executive
discretion is to be exercised; in which he is the mere organ of executive will; it is
again repeated, that any application to a court to control, in any respect, his
conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of
individuals, in the performance of which he is not placed under the particular
direction of the President, and the performance of which, the President cannot
lawfully forbid, and therefore is never presumed to have forbidden; as for example,
to record a commission which has received all the legal solemnities, it is not
perceived on what ground the courts of the country are further excused from the
duty of giving judgment, that right be done to an injured individual, than if the
same services were to be performed by a person not the head of a department....

It was at first doubted whether the action of detinue was not a specified legal
remedy for the commission which has been withheld from Mr. Marbury; in which
case a mandamus would be improper. But this doubt has yielded to the
consideration that the judgment in detinue is for the thing itself, or its value. The
value of a public office not to be sold, is incapable of being ascertained; and the
applicant has a right to the office itself, or to nothing. He will obtain the office by
obtaining the commission, or a copy of it from the record.

This, then, is a plain case for a mandamus, either to deliver the commission, or a
copy of it from the record; and it only remains to be enquired, Whether it can issue
from this court.

The act to establish the judicial courts of the United States authorizes the supreme
court "to issue writs of mandamus, in cases warranted by the principles and usages
of law, to any courts appointed, or persons holding office, under the authority of
the United States."

The secretary of state, being a person holding an office under the authority of the
United States, is precisely within the letter of the description; and if this court is
not authorized to issue a writ of mandamus to such an officer, it must be because
the law is unconstitutional, and therefore absolutely incapable of conferring the
authority, and assigning the duties which its words purport to confer and assign.

The constitution vests the whole judicial power of the United States in one
supreme court, and such inferior courts as congress shall, from time to time, ordain
77

and establish. This power is expressly extended to all cases arising under the laws
of the United States; and consequently, in some form, may be exercised over the
present case; because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that "the supreme court shall have
original jurisdiction in all cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be a party. In all other cases, the supreme
court shall have appellate jurisdiction."

It has been insisted, at the bar, that as the original grant of jurisdiction, to the
supreme and inferior courts, is general, and the clause, assigning original
jurisdiction to the supreme court, contains no negative or restrictive words; the
power remains to the legislature, to assign original jurisdiction to that court in
other cases than those specified in the article which has been recited; provided
those cases belong to the judicial power of the United States.

If it had been intended to leave it to the discretion of the legislature to apportion


the judicial power between the supreme and inferior courts according to the will of
that body, it would certainly have been useless to have proceeded further than to
have defined the judicial powers, and the tribunals in which it should be vested.
The subsequent part of the section is mere surplusage, is entirely without meaning,
if such is to be the construction. If congress remains at liberty to give this court
appellate jurisdiction, where the constitution has declared their jurisdiction shall be
original; and original jurisdiction where the constitution has declared it shall be
appellate; the distribution of jurisdiction, made in the constitution, is form without
substance.

Affirmative words are often, in their operation, negative of other objects than those
affirmed; and in this case, a negative or exclusive sense must be given to them or
they have no operation at all.

It cannot be presumed that any clause in the constitution is intended to be without


effect; and therefore such a construction is inadmissible, unless the words require
it.

When an instrument organizing fundamentally a judicial system, divides it into one


supreme, and so many inferior courts as the legislature may ordain and establish;
then enumerates its powers, and proceeds so far to distribute them, as to define the
jurisdiction of the supreme court by declaring the cases in which it shall take
original jurisdiction, and that in others it shall take appellate jurisdiction; the plain
import of the words seems to be, that in one class of cases its jurisdiction is
original, and not appellate; in the other it is appellate, and not original. If any other
construction would render the clause inoperative, that is an additional reason for
rejecting such other construction, and for adhering to their obvious meaning.
78

To enable this court then to issue a mandamus, it must be shown to be an exercise


of appellate jurisdiction, or to be necessary to enable them to exercise appellate
jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a
variety of forms, and that if it be the will of the legislature that a mandamus should
be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction
must be appellate, not original.

It is the essential criterion of appellate jurisdiction, that it revises and corrects the
proceedings in a cause already instituted, and does not create that cause. Although,
therefore, a mandamus may be directed to courts, yet to issue such a writ to an
officer for the delivery of a paper, is in effect the same as to sustain an original
action for that paper, and therefore seems not to belong to appellate, but to original
jurisdiction. Neither is it necessary in such a case as this, to enable the court to
exercise its appellate jurisdiction.

The authority, therefore, given to the supreme court, by the act establishing the
judicial courts of the United States, to issue writs of mandamus to public officers,
appears not to be warranted by the constitution; and it becomes necessary to
enquire whether a jurisdiction, so conferred, can be exercised.

The question, whether an act, repugnant to the constitution, can become the law of
the land, is a question deeply interesting to the United States; but, happily, not of
an intricacy proportioned to its interest. It seems only necessary to recognize
certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government,
such principles as, in their opinion, shall most conduce to their own happiness, is
the basis, on which the whole American fabric has been erected. The exercise of
this original right is a very great exertion; nor can it, nor ought it to be frequently
repeated. The principles, therefore, so established, are deemed fundamental. And as
the authority, from which they proceed, is supreme, and can seldom act, they are
designed to be permanent.

This original and supreme will organizes the government, and assigns, to different
departments, their respective powers. It may either stop here; or establish certain
limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the
legislature are defined, and limited; and that those limits may not be mistaken, or
forgotten, the constitution is written. To what purpose are powers limited, and to
what purpose is that limitation committed to writing, if these limits may, at any
time, be passed by those intended to be restrained? The distinction, between a
government with limited and unlimited powers, is abolished, if those limits do not
79

confine the persons on whom they are imposed, and if acts prohibited and acts
allowed, are of equal obligation. It is a proposition too plain to be contested, that
the constitution controls any legislative act repugnant to it; or, that the legislature
may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a


superior, paramount law, unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and like other acts, is alterable when the legislature shall
please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the
constitution is not law: if the latter part be true, then written constitutions are
absurd attempts, on the part of the people, to limit a power, in its own nature
illimitable.

Certainly all those who have framed written constitutions contemplate them as
forming the fundamental and paramount law of the nation, and consequently the
theory of every such government must be, that an act of the legislature, repugnant
to the constitution, is void.

If an act of the legislature, repugnant to the constitution, is void, does it,


notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or,
in other words, though it be not law, does it constitute a rule as operative as if it
was a law? This would be to overthrow in fact what was established in theory; and
would seem, at first view, an absurdity too gross to be insisted on. It shall,
however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the
law is. Those who apply the rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the courts must decide on
the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution
apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to
any ordinary act of the legislature; the constitution, and not such ordinary act, must
govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in
court, as a paramount law, are reduced to the necessity of maintaining that courts
must close their eyes on the constitution, and see only the law.
80

This doctrine would subvert the very foundation of all written constitutions. It
would declare that an act, which, according to the principles and theory of our
government, is entirely void; is yet, in practice, completely obligatory. It would
declare, that if the legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual. It would be giving
to the legislature a practical and real omnipotence, with the same breath which
professes to restrict their powers within narrow limits. It is prescribing limits, and
declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on
political institutions -- a written constitution -- would of itself be sufficient, in
America, where written constitutions have been viewed with so much reverence,
for rejecting the construction. But the peculiar expressions of the constitution of
the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the
constitution. Could it be the intention of those who gave this power, to say that, in
using it, the constitution should not be looked into? That a case arising under the
constitution should be decided without examining the instrument under which it
arises? This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they
can open it at all, what part of it are they forbidden to read, or to obey? There are
many other parts of the constitution which serve to illustrate this subject. It is
declared that "no tax or duty shall be laid on articles exported from any state."
Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted
to recover it. Ought judgment to be rendered in such a case? ought the judges to
close their eyes on the constitution, and only see the law. The constitution declares
that "no bill of attainder or ex post facto law shall be passed."

If, however, such a bill should be passed and a person should be prosecuted under
it; must the court condemn to death those victims whom the constitution endeavors
to preserve?

Why otherwise does it direct the judges to take an oath to support it? This oath
certainly applies, in an especial manner, to their conduct in their official character.
How immoral to impose it on them, if they were to be used as the instruments, and
the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of


the legislative opinion on the subject. It is in these words, "I do solemnly swear
that I will administer justice without respect to persons, and do equal right to the
poor and to the rich; and that I will faithfully and impartially discharge all the
duties incumbent on me as according to the best of my abilities and understanding,
agreeably to the constitution, and laws of the United States."
81

Why does a judge swear to discharge his duties agreeably to the constitution of the
United States, if that constitution forms no rule for his government? if it is closed
upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe,
or to take this oath, becomes equally a crime.
82

BIBLIOGRAPHY

1. Martin Partington “Introduction to The English Legal System


2. Peter Cane “Administrative Law” Fourth edition

3. Internet resources

EXTERNAL LINKS

The European Convention on Human Rights


http://www.hri.org/docs/ECHR50.html

The Universal Declaration of Human Rights


http://www.un.org/en/documents/udhr/index.shtml

The Human Rights Act 1998


http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1

Civil Procedure Rules


http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part54.htm

The Supreme Court of the UK


http://www.supremecourt.gov.uk/

The European Ombudsman


http://www.ombudsman.europa.eu/home/en/default.htm