LA3B5-15 Judicial review and administrative justice

Introductory description

This module follows on from ‘Law State and Individual’ first year module to provide a more advanced freestanding module examining judicial review and administrative justice. It combines rigorous study of judicial review doctrine with contextual analysis of the politics involved in the role of the judiciary in controlling public power, and practice of administrative justice beyond judicial review case doctrine.

Module aims

Outline syllabus

This is an indicative module outline only to give an indication of the sort of topics that may be covered. Actual sessions held may differ.

Judicial review law - topics might include (1) historical perspective on changing judicial attitudes over time (2) the nature of public power (getting into judicial review) and the exclusivity of JR processes (getting out of judicial review) (3) ouster clauses (4) error of law (5) control of discretion (6) development of new grounds of review including legitimate expectations and proportionality (7) natural justice (8) the function of litigation in public law: standing, public interest litigation and rights approaches vs wrongs approaches.
Judicial review political context topics might include the constitutional basis of judicial review and the role of the judiciary and recent judicial review reforms - excluding JR by stealth?
Broader administrative justice topics might include administrative rulemaking, internal review ombudsman review tribunal justice and possibly also pubic inquiries.

Learning outcomes

By the end of the module, students should be able to:

• knowledge and understanding 1 - students have knowledge of the main grounds of judicial review
• knowledge and understanding 2 - students have knowledge of the constitutional and political context in which judicial review operates including separation of powers, rule of law, and issues raised by recent attempts to reform judicial review
• knowledge and understanding 3 - students have knowledge of the wider context of administrative justice exemplified by selected topics such as for example administrative review, ombudsman complaints, tribunals
• skills - students are able to research and critically analyse the above topics, drawing on suitable academic and caselaw resources and examples
• students are able to develop and present coherent well argued and evidenced answers to selected topics for discussion, both orally in class and (for summative assessment) in writing an essay

Indicative reading list

Texts: Law and Administration (Harlow and Rawlings 4th edition) supplemented by Craig Administrative law or other administrative law textbook such as Endicott.

Other academic materials: there is a vast range in mainstream legal academic journals all accessible through the library already in electronic format or sometimes in e-books. As an indication some of the resources students might be offered a (non-exhaustive) list might include:

On historical development of Judicial review ‘Administrative Law’ J. Jowell in The British Constitution in the Twentieth Century V. Bogdanor (ed), (OUP 2003)
On the conceptual basis of Judicial Review and competing models: Craig competing models of Judicial Review (Public Law 1999 p 428) Allan, The constitutional foundations of judicial review: conceptual conundrum or interpretative inquiry? Cambridge Law Journal C.L.J. 2002, 61(1), 87-125
On Legitimate Expectations STUCK AT A CROSSROAD? SUBSTANTIVE LEGITIMATE EXPECTATIONS IN ENGLISH LAW ALISON L. YOUNG Cambridge Law Journal 2021
On fettering discretion and rulemaking Administrative Discretion, Administrative Rule-making, and Judicial Review Aileen McHarg Current legal Problems 2017, Yoav Dotan Why Administrators should be Bound by their Policies (1997 OJLS).
On standing John McGarry (2014) The Importance of an Expansive Test of Standing, Judicial Review, 19:1, 60-64, Farrah Ahmed Adam Perry Standing and civic virtue Journal Article Law Quarterly Review L.Q.R. 2018, 134(Apr), 239-256
On contextualising other forms of administrative justice Ombudsmen, Tribunals, Inquiries: Re-fashioning Accountability Beyond the Courts Mark Elliott

Cases - again indicative but very much not exhaustive list could include Miller/Cherry (Miller 2) [2019] UKSC 41, Anisminic [1969] 2 AC 147, Privacy International [2019] UKSC 22, R (Evans) v AG [2015 UKSC 21, Osborn v Parole Board [2013] UKSC 61, Ex parte Daly [2001] UKHL 26.

Government materials etc
Independent Review of Administrative law Independent Review of Administrative Law - GOV.UK (www.gov.uk) then subsequent government Consultation Judicial Review Reform - GOV.UK (www.gov.uk) which culminated in the Judicial Review and Courts Act 2022.

Research element

Assessment is by essay which involves an element of independent research

Subject specific skills

Students gain skills of case and doctrinal analysis in this specific administrative justice context.

Transferable skills

Transferrable skills of library research, class discussion, and written presentation skills