University of Oxford

BCL and MJur

Advanced Administrative Law

Reading List 2024-25

Course description: Advanced Administrative Law will address particularly challenging, often very
current, problems in the law relating to executive decision-makers and other public authorities
(other than Parliament), and to institutions and processes for empowering them, regulating and
investigating their conduct, and providing redress. The course is divided into four ‘blocks,’ each
containing three or four seminars connected with a broader theme.

1. Bringing claims against public authorities I

2. Judicial review and the constitution
3. Bringing claims against public authorities II
4. Taking public administration seriously

The focus of the course is on the law applicable in England and Wales. There is no need for students
to have studied UK public law previously. That said, students should only choose the course if they
have already studied administrative law (whether in a separate course or as part of a course in public
law, or constitutional and administrative law) at the level of a first degree in law. Students unfamiliar
with administrative law in the legal system of England and Wales may like to do some pre-reading,
with a particular focus on understanding the basic legal grounds on which judicial review is available
(see below).

The course will allow students to develop advanced understanding and expertise in administrative
law. The course is delivered by a range of 12 tutors, who will draw on doctrinal, comparative,
theoretical, empirical and historical perspectives. Seminars are designed to be highly participatory.

Assessment will be by three-hour examination during the BCL/MJur examination period at the end
of the course.

Seminars:

1
Michaelmas Term, 1st to 7th week, Wednesday 9-11 am:

1. Introduction to administrative law in England and Wales

Block 1: Bringing claims against public authorities I: judicial review

2. Judicial review procedure

3. Judicial review remedies
4. Judicial review in practice

Block 2: Judicial review and the constitution

5. Prerogative power and judicial review

6. The principle of legality
7. Unincorporated treaties in judicial review reasoning

Hilary Term, 1st to 7th week, Wednesday 9-11 am:

Block 3: Bringing claims against public authorities II: beyond judicial review

8. Tribunals
9. Ombuds
10. Compensation claims against public authorities

Block 4: Taking public administration seriously

11. Public administration and the ‘tailoring’ of judicial review doctrine

12. Policy, guidance and judicial review
13. Contracts
14. Digitisation

Trinity Term: revision seminar in 4th week, Wednesday 9-11 am

Tutorials: Students will be offered four tutorials across the year (1 in Michaelmas, 1 in Hilary and 2 in
Trinity Term). Students will be asked to request tutorials on seminar topics they found particularly
interesting, and all efforts will be made to accommodate student requests. Students will be invited
to make their requests by email around the midpoint of Michaelmas and Hilary Terms and, for
Trinity Term, over the Easter break. The course convenor will then ask individual tutors to make
arrangements directly with the students.

Tutorials will be delivered by the entire teaching team. Tutorials will ordinarily be delivered by one
of the tutors who delivered the corresponding seminar. Students should therefore ordinarily expect
to have tutorials with a range of different tutors across the year.

2
Students will be required to submit an essay prior to each tutorial, addressing one of the questions
at the bottom of the reading list for the relevant topic. Essays should be no more than 2,000 words
(and could be considerably less).

Note on the readings: There is a reading list for each seminar. Seminar leaders have made an effort
to indicate a clear order of priority, to help you to navigate the readings as you build your
understanding across the academic year. Please note in particular:

- Readings marked with ** should ordinarily be read before the seminar as, having read them,
will enable you to participate more effectively in discussion.
- Readings marked with * should ideally be read before a tutorial and before answering an
examination question on the topic. (They would obviously be helpful to the seminar too, but
this is not necessarily expected). If you are time pressed, * indicates that the material is
thought to be particularly important by the seminar leaders, and so you might choose to
prioritise these.

You should, however, be aware that all of the materials on the list (whether starred or not) may be
helpful to addressing an exam question. There is, for instance, no rule that exam questions will only
be set on materials marked in a particular way.

You should also feel entirely free, if you would like to, to explore beyond the materials on the list,
especially if you find a topic particularly interesting. If you rely on any further materials in a tutorial
essay or an exam, please take additional care to make clear to the marker what these materials are,
so that the marker can look at them directly if necessary.

Seminar leaders may also sometimes recommend additional readings in the seminars or by email,
especially if a new development occurs throughout the year.

Note on the ‘Questions’: At the bottom of each seminar’s reading list (with the exception of the
introductory seminar) is a list of ‘questions.’ These questions serve two purposes. First, they give you
an indication of some (though obviously not all) of the most interesting questions raised by the
material. Secondly, they provide a list of questions for you to respond to in a tutorial essay.

Please note that you may not be able to answer all of these questions if you read only the material
marked with ** or *, and therefore may not have a detailed answer to them prior to the seminar.
That is fine. If you choose to read on, such as in preparation for a tutorial or the exam, there will be
material on the list which will help you to address all questions.

Building familiarity with the law of judicial review in England and Wales:

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Administrative law encompasses more than judicial review. However, judicial review will be a
prominent focus of this course. Some students will have studied the law of judicial review in the
English and Welsh legal system in their undergraduate programme. Others will not.

If any students are looking for a (re)introduction to judicial review in England and Wales . The
following resources offer accessible and useful introductions. (The second two are, in any event, on
seminar reading lists):

Mark Elliott & Robert Thomas, Public Law (4TH edn, OUP 2020), chs 13-14)

Independent Review of Administrative Law (March 2021) (available here: The Independent
Review of Administrative Law ([Link]))

The Judge Over Your Shoulder (available here:

The_Judge_Over_Your_Shoulder_JOYS_6th_edition_2022.pdf ([Link]))

More generally, there may be occasions during your preparation for seminars where you would
benefit from looking up a point of law. The following are useful and recently updated resources,
commonly used by practitioners:

Ivan Hare, Catherine Donnelly, Joanna Bell & Lord Carnwath, De Smith’s Judicial Review (9th
ed, Sweet & Maxwell 2023) (available through Westlaw)

William Wade, Christopher Forsyth & Julian Ghosh, Wade & Forsyth’s Administrative Law
(12th edn, OUP 2022)

4
5

1. Introduction to administrative law in England and Wales

Joanna Bell & Hayley Hooper

This seminar has two aims. First, to introduce the administrative law legal ‘landscape’ in England and
Wales. Secondly, to discuss a short line of important, and controversial, cases concerning judicial
interpretation of ‘ouster’ clauses. An overarching aim of the seminar is to begin to probe challenging
and controversial questions about judicial review’s place in the broader system of administrative law.

Objectives:
 Introducing key features of the field of administrative law in England and Wales including the
different legal processes which can be used to challenge decision-making, the grounds of
review, the importance of legislation, the remedies available, etc.
 A close reading of two important cases concerned with judicial interpretation of ouster
clauses. Pay close attention in particular to the language of the ouster clauses involved, the
legislative and institutional context in which they were used, and the legal reasoning drawn
on by different judges to support their conclusions.

Law Commission, ‘Report on Remedies in Administrative Law’ (Law Comm No 73, 1976)
*The Independent Review of Administrative Law (March 2021), 5-111 (available here: The
Independent Review of Administrative Law ([Link]))

** Privacy International v Investigatory Powers Tribunal [2019] UKSC 22

R. (on the application of Oceana) v Upper Tribunal [2023] EWHC 791 (noted by Hooper in
[2023] PL 1)
**R. (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337
R. (on the application of Karim) v Upper Tribunal [2024] EWHC 1368 (Admin)
 2. Judicial review procedure

Block 1: bringing claims against public authorities I

Timothy Endicott & Adam Perry

Judicial review is often described as a ‘remedy of last resort’. If a party has any other available route
to pursue a complaint about a decision, they are required to take it instead of seeking judicial review.
Judicial review is available only for applicants who have no other recourse.

Most administrative law adjudication takes place outside of judicial review. Immigration challenges,
for instance, are primarily heard in the tribunals and housing disputes in the county courts. However,
judicial review’s role as the remedy of last resort arguably makes it more, and not less, important.
Judicial review can be seen as a safety net. It is therefore important that it is accessible and that its
procedures are robust and effective for its purposes.

There are, however, many obstacles to obtaining judicial review. Some – such as the financial
expense of litigating – are practical barriers (considered in seminar 4). Others - such as the
requirement to demonstrate a “sufficient interest” in the matter – are legal barriers going to the High
Court’s jurisdiction to hear the matter.

Objectives:
 Understand procedure in a claim for judicial review, including understanding the
improvements that the reforms set out in the Senior Courts Act 1981 were intended to make
 Understand the main features of the modern claim for judicial review process, including the
various restrictions (standing, time limits, arguability, etc) on access.
 Explore broader themes concerning the accessibility and effectiveness of judicial review.

The judicial review process: General

**Senior Courts Act 1981, s.31

*Civil Procedure Rules 1998, Part 54
Michalak v General Medical Council [2017] UKSC 71

William Wade, Procedure and Prerogative in Public Law (1985) 101 LQR 180
Sarah Nason & Maurice Sunkin, ‘The Regionalisation of Judicial Review: Constitutional
Authority, Access to Justice and Specialisation of Legal Services in Public Law’ (2013) 76 MLR
223

Standing

General

6
 Senior Courts Act 1981, s.31(3)
Human Rights Act 1998, s.7

AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46 at [159]-[175]

** Walton v Scottish Ministers [2012] UKSC 44, Lord Reed at [82]-[96] and Lord Hope at
[151]-[156]

Joanna Bell, ‘The Resurgence of Standing in Judicial Review’ (2024) 44(2) OJLS 212

Standing & the Parole Board

R. (on the application of DSD) v Parole Board [2018] EWHC 694 (Admin) at [105]-[115]
**R. (on the application of McCourt) v Parole Board [2020] EWHC 2320 (Admin)

Standing & the award of public contracts

*R. (on the application of the Good Law Project) v Secretary of State for Health and Social
Care [2021] EWHC 346 (Admin) (GLP, transparency)
R. (on the application of Good Law Project Ltd) v Prime Minister [2022] EWHC 298 (Admin)
*R. (on the application of Good Law Project) v Secretary of State for Health and Social Care
[2022] EWHC 2468 (TCC) (GLP, Abingdon Health)

(If you are interested in the work of the Good Law Project, you could look at their website or
the recent book of founder Jolyon Maugham, Bringing Down Goliath (2023))

Questions:

1. Are the courts in recent case law on standing to seek judicial review retreating from their
previously “liberal” approach?

2. Why must a claimant seek permission for judicial review? Why is there no trial in a claim for
judicial review?

3. The style of cause for a claim for judicial review has the form: R (on the application of Miller)
v Prime Minister. Why?

4. ‘It would, in my view, be a grave lacuna in our system of public law if a pressure group, like
the federation, or even a single public-spirited taxpayer, were prevented by outdated
technical rules of locus standi from bringing the matter to the attention of the court to
vindicate the rule of law and get the unlawful conduct stopped.’ (Lord Diplock in R v Inland
Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd
(‘Fleet Street Casuals’) [1982] AC 617, 644)

7
Was Lord Diplock right? If so, is the requirement of a sufficient interest an illegitimate
restriction on access to judicial review?

8
 3. Judicial review remedies

Block 1: bringing claims against public authorities I

Joanna Bell & Hasan Dindjer

When a court finds that a decision is unlawful in judicial review proceedings, the question will arise of
what, if any, remedies should be awarded. The answer may be of considerable importance, both for
the applicant whose interests may have been harmed, and for ensuring lawful conduct moving
forwards more broadly. Judicial remedies have also been the subject of legislative reforms twice in
the previous decade.

Despite this, remedies in judicial review remain significantly under-studied, especially in comparison
with other aspects of judicial review, such as the grounds on which it is unavailable. This seminar will
consider the range of remedies which are available in judicial review proceedings, the reasons for
and effects of recent legislative reforms and some broader, theoretical questions concerning the
status of an unlawful administrative decision.

Students should be aware that the topic of this seminar is closely connected with a number of other
seminar topics, including judicial review procedure and compensation.

Objectives:

 Understand the main remedies available in judicial review (including interim remedies) and
the ‘discretionary’ basis on which they are awarded.
 Critically evaluate recent reforms to remedies in judicial review.
 Explore the case law and academic literature dealing with the question of whether unlawful
public authority decisions are void ab initio.

Remedies: General

**Senior Courts Act 1981, s.31

**Joanna Bell, ‘Remedies in Judicial Review: Confronting an Intellectual Blindspot’ [2022] PL
200
Kent Roach, Remedies for Human Rights Violations (Cambridge University Press 2021)
Mark Elliott & Jason Varuhas, Administrative Law (5th edn, OUP 2016), ch 12

Remedies: interim relief

Hoffmann-La Roche v Trade and Industry Secretary [1975] AC 295

R. (on the application of Public and Commercial Services Union) v Secretary of State for the
Home Department [2022] EWCA Civ 840

9
Legislative reform: CJCA 2015 and JRCA 2022

**Criminal Justice & Courts Act 2015, ss.84-85

*R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [267]-[280]
Gathercole v Suffolk CC [2020] EWCA Civ 1179
Conor Crummey, ‘Why fair procedures always make a difference’ (2020) 83 MLR 1221

Independent Review of Administrative Law, March 2021, 70-75

**Judicial Review and Courts Act 2022, section 1

R. (ECPAT) v Secretary of State for the Home Department [2023] EWHC 2199 (Admin) (noted
by Bell in (2024) 83(1) CLJ 10)
*Alison Young, ‘To Quash or Not to Quash’ (2023) 28(3) JR 200

Mandatory orders

R. (Imam) v Croydon [2023] UKSC 45

The consequences of administrative unlawfulness: void/voidable?

Boddington v British Transport Police [1998] 2 WLR 639

**HM Treasury v Ahmed [2010] UKSC 5
*R. (on the application of Hurley and Moore) v Secretary of State for Business, Innovation and
Skills [2012] EWHC 201 (Admin)
R. (British Academy of Songwriters, Composers and Authors) v Secretary of State for Business,
Innovation and Skills [2015] EWHC 2041 (Admin)
R. (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, especially [118]-[119]
R. (on the application of Miller) v Prime Minister [2019] UKSC 41, especially [69]-[70]
R (TN (Vietnam)) v Secretary of State for the Home Department [2021] UKSC 41
R (Majera) v Secretary of State for the Home Department [2021] UKSC 46

*Christopher Forsyth, ‘The Rock and the Sand: Jurisdiction and Remedial Discretion’ (2013)
18 JR 360
*Thomas Adams, 'The Standard Theory of Administrative Law Unlawfulness’ (2017) 76 CLJ
289

Questions

1. Is the award of remedies in judicial review governed by coherent principles?

2. To what extent have s.84 of the Criminal Justice and Courts Act 2015, and s.1 of the Judicial
Review and Courts Act 2022 changed the award of remedies in judicial review for the better?

10
3. Is there any place in the modern law of judicial review for the idea that a decision of an
administrative decision-maker which is unlawful is void ab initio?

11
 4. Judicial review in practice

Block 1: bringing claims against public authorities I

Joanna Bell & Anne Davies

Having explored the legal principles which determine access to the judicial review procedure and its
remedies, this seminar considers a number of aspects of how judicial review operates in practice. The
focus is on three related issues in particular. First, empirical research on how judicial review operates
in practice and what can be learnt from these studies. Secondly, empirical research exploring how
judicial review impacts decision-making and litigants in practice. Thirdly, the rules on costs and
evidence in judicial review, and how these impact the accessibility and effectiveness of the
procedure.

Empirical studies of judicial review

Maurice Sunkin, ‘What is Happening to Applications for Judicial Review?’ (1987) 50 MLR 432
*Varda Bondy & Maurice Sunkin, The Dynamics of Judicial Review Litigation (Public Law
Project 2009)
Sarah Nason, Reconstructing Judicial Review (Hart 2017), esp chs 1 and 4
**Maurice Sunkin, ‘The Use of Empirically Based Information when Reforming and Evaluating
Judicial Review’ in Andrew Higgins (ed), The Civil Procedure Rules at 20 (OUP 2020)
*Joanna Bell & Elizabeth Fisher, ‘Exploring a year of administrative law adjudication in the
Administrative Court’ [2021] PL 505
Robert Thomas & Joe Tomlinson, Immigration Judicial Reviews: An Empirical Study (Palgrave
Macmillan 2021)

Impact of judicial review

Simon Halliday, ‘The influence of judicial review on bureaucratic decision-making’ [2000] PL

110
*Varda Bondy, Lucinda Platt & Maurice Sunkin, The Value and Effects of Judicial Review
(Public Law Project, University of Essex & LSE 2015)
**Maurice Sunkin, ‘Exploring the real world: researching the impact of judicial review’ in
Carol Harlow (ed), A Research Agenda for Administrative Law (Edward Elgar 2023)

*Government Legal Department, The Judge Over Your Shoulder: A Guide to the Legal
Environment in which Decisions in Public Bodies are Made (6th ed, July 2022)
*Government Legal Department, Legal_Risk_Guidance_-_Amended_July_2015.pdf
([Link])

12
 Ben Yong, ‘Risk Management: Government Lawyers and the Provision of Legal Advice within
Whitehall’ (The Constitution Society (2013): J1336_GovernmentLawyers_WEB.pdf
([Link]))

Costs

*Tom Hickman, ‘Public Law’s Disgrace’ (available here: Tom Hickman: Public Law’s Disgrace –
UK Constitutional Law Association)
Joe Tomlinson, ‘Crowdfunding Public Interest Judicial Reviews’ [2019] PL 166
**Joe Tomlinson & Alison Pickup, ‘Reforming Judicial Review Costs Rules in an Age of
Austerity’ in Andrew Higgins (ed), The Civil Procedure Rules at 20 (OUP 2020)
Sam Guy, ‘Mobilising the Market: An Empirical Analysis of Crowdfunding for Judicial Review
Litigation’ (2023) 86(2) MLR 331

Evidence

** R. (on the application of Police Superintendents’ Association) v Police Remuneration

Review Body [2023] EWHC 1838 (Admin)

*David Blundell, ‘Of Experts and Evidence: Recent Developments in Judicial Review’ (2019) 23
JR 243
Guidance on Discharging the Duty of Candour in and Disclosure in Judicial Review
Proceedings (Treasury Solicitor’s Department, Jan 2010) (available here: D R A F T
([Link]))
Elizabeth O’Loughlin, ‘Government's duty of candour: on the move?’ [2023] PL 567
Tom Hickman, ‘Candour Inside-Out: Disclosure in Judicial Review’ (available here: Tom
Hickman KC: Candour Inside-Out: Disclosure in Judicial Review – UK Constitutional Law
Association)

Questions

1. ‘It is true that statistics alone cannot provide an indication of the value of judicial review. But
equally it is true that the value of judicial review cannot be assessed without sound statistical
and empirical information.’ (SUNKIN).

Using this quotation as a starting point, discuss the importance and challenges of such
research.

2. ‘Three… assumptions have been particularly influential in the context of … reforms aimed at
curtailing the use of judicial review. First, that growth in the use of judicial review has been
largely driven by claimants abusing the system… second, that the effect of judicial review on
public administration is largely negative … and third, that judicial review tends to be an

13
 expensive and time consuming detour concerned with technical matters of procedure that
rarely alters decisions of public bodies.’ (BONDY & SUNKIN).

Discuss.

3. ‘What is the most important issue in public law? You might be forgiven for thinking it is the
gradation of principles of substantive review, or the proper limits of judicial interventionism,
or even the scope of residual prerogative powers. But you would be wrong. There is a much,
much graved and more urgent issue in public law and it is this: the majority of the
population cannot bring a judicial review claim. (HICKMAN)

Discuss.

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 5. Prerogative power and judicial review

Block 2: judicial review and the constitution

Timothy Endicott & Adam Perry

This seminar is about four topics: (1) the nature of prerogative powers, (2) the justiciability of
exercises of prerogative powers, (3) the specific grounds on which exercises of prerogative powers
may be properly reviewed (e.g., unreasonableness), and (4) the relationship between prerogative
powers and Parliament.

The nature of prerogative powers

*John Locke, Two Treatises of Government (chapter XII (‘Federative Power’ and chapter XIV
(‘Of Prerogative’))
*William Blackstone, Commentaries on the Laws of England, Vol.I (Clarendon, 1765), 239
*AV Dicey, Introduction to the Study of the Law of the Constitution (8th ed, Macmillan 1915)
281-285
**Adam Perry, ‘The Crown’s Administrative Powers’ (2015) 131 Law Quarterly Review 652
**Timothy Endicott, The Stubborn Stain Theory of Executive Power: From Magna Carta
to Miller (Policy Exchange, 2017)
Privacy International v FCO (‘third direction case’) [2021] EWCA Civ 330
Joint Committee on the Fixed Term Parliaments Act, Report (Session 2019-21) (available:
Fixed-Term Parliaments Act)
David Kershaw, ‘Revolutionary amnesia and the nature of prerogative power’ (2022) 20(3)
International Journal of Constitutional Law 1071

The justiciability of prerogative powers

*Council of Civil Service Unions v Minister for the Civil Service (aka GCHQ) [1984] 3 All ER 935
R v Home Secretary, ex parte Bentley [1993] EWHC Admin 2
R v Home Secretary ex parte Everett [1988] EWCA Civ 7
R (Gentle) v Prime Minister [2006] EWCA Civ 1689; [2007] QB 689
*R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61
Shergill v Khaira [2014] UKSC 33, [42]-[43]
*R (Miller) v Prime Minister [2019] UKSC 41
Mark Elliott and Amanda Perreau-Saussine, ‘Pyrrhic Public Law’ [2009] Public Law 697
Philip Sales, ‘Crown Powers, the Royal Prerogative and Fundamental Rights’ In Hanna
Wilberg and Mark Elliott eds, The Scope and Intensity of Substantive Review (Hart 2015)

Grounds of review and prerogative powers

15
 R (ABCIFER) v Secretary of State for Defence [2003] EWCA Civ 473, [39]
*Sandiford v Foreign Secretary [2014] UKSC 44
Cherry v Advocate General [2019] CSIH 49

Parliament and prerogative powers

*A-G v De Keyser’s Royal Hotel [1920] AC 508

Laker Airways v Department of Trade [1976] EWCA Civ 10
R v Home Secretary ex p Northumbria Police Authority [1988] 1 All ER 556
*R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513
*R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
XH v Home Secretary [2017] EWCA Civ 41
Robert Craig, ‘A simple application of the frustration principle: Prerogative, Statute and
Miller’ [2007] PL 25

Questions

1. Assess the view that the doctrine of proper purposes applies to the exercise of a statutory
power, but not to the exercise of a prerogative power.

2. In R (Miller) v Prime Minister [2019] UKSC 41 [36], Lady Hale and Lord Reed said that Mrs
Miller’s claim concerned the legal limits of prerogative, which are justiciable because they
are ‘by definition questions of law’. An issue of justiciability could only arise, they held, if the
proceedings concerned ‘the lawfulness of the exercise of a prerogative power within its
lawful limits’ (also at [36]).

Is that a sufficient answer to the conclusion of the Divisional Court at first instance that the
decision to prorogue Parliament ‘is not justiciable in Her Majesty’s courts’? (see R (Miller) v
Prime Minister [2019] EWHC 2381 (QB) at [68]).

3. Is there any principle or set of principles that explains why the government should hold the
various prerogative powers? Are there any that ought to be taken away from the
government?

4. Would it be better if all the powers of the executive were set out in statute?

16
 6. The principle of legality

Block 2: judicial review and the constitution

Timothy Endicott & Hayley Hooper

Action that is in accordance with law is legal, and ‘legality’ can be used as a term for accordance with
law (or more broadly, as a synonym for ‘the rule of law’). In English administrative law, ‘the principle
of legality’ is often used as a term for a common law doctrine that, if an administrative power is
conferred in general terms, it cannot be used in ways that detract from values that the common law
protects, such as personal liberty. However, its precise content and scope are both contested and
contestable. The purpose of this seminar is to explore the many issues surrounding the principle of
legality.

Objectives:

 Understanding the administrative law doctrine of the principle of legality

 Understanding the relationship between legality and other heads of judicial review
 Understanding the relationship between legality and foundational constitutional principles,
such as the rule of law, the sovereignty of Parliament, and democracy
 Critiquing judicial decisions giving effect to the principle of legality

Reading list

*Hayley J. Hooper, ‘The Tangled Roots of Legality’, forthcoming (will upload to canvas)
*Hayley J. Hooper, ‘The Reach and Roles of Legality’, forthcoming (will upload to canvas)

* R v Secretary of State for the Home Department, ex parte Pierson [1997] UKHL 37, Lord Goff,
Lord Steyn, and Lord Hope
**R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115
**Ahmed v Her Majesty’s Treasury No. 1 [2010] UKSC 2
*Privacy International v IPT [2019] UKSC 22, Lord Carnwath
*Privacy International and Reprieve v Foreign Secretary [2021] EWCA Civ 330
*R (UNISON) v Lord Chancellor [2017] UKSC 51, Lord Reed
* R (SPM) v Secretary of State for the Home Department [2023] EWCA Civ 764

**Philip Sales, ‘A Comparison of the Principle of Legality and section 3 of the Human Rights Act
1998’ (2009) 125 LQR 598-615

17
 *Alison L Young ‘Fundamental Common Law Rights and Legislation’ in M Elliott and K Hughes
(eds), Common Law Constitutional Rights (Hart: Oxford 2020) 223

R v Lord Chancellor ex p Lightfoot [2000] QB 597

Misick v Foreign Secretary [2009] EWCA Civ 1549
AXA General Insurance Ltd v HM Advocate [2011] UKSC 46; [2012] 1 AC 868, Lord Reed (contrast
w/different approach of Lord Hope)
Coughlan v Minister for the Cabinet Office [2022] UKSC 11
R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605; see [66]-[71]
R (Project for Registration of Children as British Citizens and O) v Secretary of State for the Home
Department [2022] UKSC 3

*Hayley J. Hooper, ‘Legality, Legitimacy, and Legislation: The Role of Exceptional Circumstances
Review in Common Law Judicial Review’ [2020] Oxford Journal of Legal Studies 1

A V Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis: Liberty Classics,
1982), Chapter XIII ‘The Relation Between Parliamentary Sovereignty and the Rule of Law’
Robert French, ‘The Principle of Legality and Legislative Intention’ (2019) 40 Statute Law Review
40-52
Alex Schymyck, ‘The Hardial Singh Principles and the Principle of Legality’ [2021] PL 489
Jason Varuhas, ‘The Principle of Legality’ (2020) 79 CLJ 578

Philip Sales, ‘Legislative intention, interpretation, and the principle of legality’ (2019) 40 Statute
Law Review 53-63

Questions

1. Is there a single principle of legality, or is the term a placeholder for multiple principles?

2. How can we characterise the substance of what the principle of legality protects?

3. Does the principle of legality add anything unique to the pre-existing common law grounds
of judicial review?

4. How does the form of the principle of legality compare to s 3 of the Human Rights Act 1998?
Can anything be learned about the principle from the use of s 3?

5. What is the relationship between the principle of legality and legislative intent?

6. What is the relationship between the principle of legality and parliamentary sovereignty?

7. Have the courts approached contextualising the principle of legality appropriately?

8. Is UNISON a case about the principle of legality?

18
 7. Unincorporated treaties in judicial review reasoning

Block 2: judicial review and the constitution

Joanna Bell & Hayley Hooper

In the Foreword to Shaheed Fatima’s Using International Law in Domestic Courts (2005), Lord
Bingham wrote:

There was… a time when international law was seen as the esoteric preserve of a handful of
very distinguished professors and Foreign Office mandarins, but not something which
impinged on the professional lives of ordinary practitioners and national courts.

Times have changed. To an extent almost unimaginable even thirty years ago, national courts
in this and other countries are called upon to consider and resolve issues turning on the
correct understanding and application of international law, not on an occasional basis, now
and then, but routinely, and often in cases of great importance. This calls for special, and in
many cases new, skills on the part of advocates who present cases and judges who decide
them.

This seminar considers the role international law standards play (or do not play) in legal argument in
judicial review. The focus is on legislatively ‘unincorporated’ international treaties (that is, treaties
which have not been ‘incorporated’ into domestic law by Parliament; as opposed to incorporated
treaties and customary international law). The courts’ traditional starting point is that the ratification
of a treaty does not, of itself, alter the content of domestic law. This is sometimes described as the
‘principle of dualism.’ This proposition, however, to use the language of Lord Oliver in International
Tin Council, does not entail ‘as a corollary that the courts must never look at or construe a treaty.’ It
is well recognised that domestic law sometimes recognises ‘footholds’ (Clement & Sales’ influential
language) for international law. It is common for litigants in judicial review proceedings to invite
courts to make use of these footholds, or even create new ones, in a way which makes a treaty
legally relevant to the dispute at hand.

Objectives:
 Understand and critique rationale(s) behind the legal proposition that treaty ratification does
not alter domestic law
 Identify and evaluate the main legal ‘footholds’ which can make unincorporated treaty
provisions relevant in judicial review
 Consider and critique case law in which courts have decline to create new ‘footholds’

19
  Reflect more broadly on the relationship between international law and domestic judicial
review, including by exploring whether the language of ‘dualism’ continues to be appropriate
to encapsulate it

General

JH Rayner Ltd v Department of Trade and Industry (International Tin Council) [1990 2 A.C. 418
(HL)
*R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (HL)
Campaign for Nuclear Disarmament v Prime Minister [2002] EWHC 2777 (Admin)
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, especially [55]-
[58]

**Phillip Sales & Joanne Clement, ‘International Law in Domestic Courts: The Developing
Framework’ (2008) 124 LQR 388
Lord Bingham, The Rule of Law (Penguin 2011), Ch. 10
Anthea Roberts, ‘Comparative International Law? The Role of National Courts in Creating and
Enforcing International Law’ (2011) 60 ICLQ 57
Eirik Bjorge, ‘Can unincorporated treaty obligations be part of English law?’ [2017] PL 571
Lord Lloyd-Jones, ‘International law before UK courts: a quiet revolution’ (2022) 71(3) ICLQ
503
Lewis Graham, ‘The Supreme Court’s recent approach to unincorporated rights treaties’
(2024) 1 EHRLR 49

Unincorporated treaties and the HRA

Interpretation of Convention rights

MS v Secretary of State for the Home Department [2020] UKSC 9 (noted by Grundler (2021)
84 MLR 1093)

Assessment of proportionality

R (DA) v Secretary of State for Work & Pensions [2019] UKSC 21

**R (SC, CB) v Secretary of State for Work and Pensions [2021] UKSC 26

Unincorporated treaties, relevancy and interpretation

R v Secretary of State for the Home Department, ex parte Launder [1997] UKHL 20
R. (on the application of Cornerhouse) v Director of Serious Fraud Office [2008] UKHL 60
R (Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52 (noted by Bell & Fisher (2023)
86(1) MLR 226)

20
 *R v (Friends of the Earth) v Secretary of State for International Trade [2022] EWCA 14 (see
Andrew Sanger and Alison Young, ‘Deference and Dualism are not Friends of the Earth (2023)
82(2) CLJ 195 for comment)

Unincorporated treaties and domestic policies

R. (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs
[2002] EWCA Civ 1598
**EOG/KTT v Secretary of State for the Home Department [2022] EWCA Civ 307
R. (on the application of FDA) v Minister for the Cabinet Office [2024] EWHC 1729 (Admin)

Questions:

1. ‘Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not
part of English law unless and until it has been incorporated into the law by legislation.’
(LORD OLIVER)

Is this a helpful way of describing the relationship between treaties and judicial review?

2. ‘Although international law comprises a distinct and recognisable body of law with its own
rules and institutions, it is a body of law complementary to the national laws of individual
states and in no way antagonistic to them; it is not a thing apart; it rests on similar principles
and pursues similar ends, and observance of the rule of law is quite as important on the
international plane as on the national, perhaps even more so.’ (LORD BINGHAM)

Ought reviewing courts to do more to ensure that public authorities comply with
unincorporated treaties?

21
 8. Tribunals

Block 3: bringing claims against public authorities II

Joanna Bell & Sir Ernest Ryder

This seminar is the first of a block exploring features of the broader administrative justice system in
England and Wales. We will use the phrase ‘administrative justice’ at its broadest, as a term for an
array of institutionalised processes for pursuing redress against conduct of administrative agencies
that the complainant claims to be unjust. ‘Administrative justice’ in this institutional sense excludes
various important ways of pursuing redress against administrative conduct, such as publicity
campaigns and party politics. It includes judicial review –but other seminars address judicial review
as a way of pursuing redress. The focus of this seminar is on tribunals.

Objectives:
 Understanding the structure and operation of administrative tribunals.
 Understanding the implications for judicial review of the availability of statutory appeals to
tribunals.
 Assessing access to administrative justice and the contributions tribunals make.

Administrative Justice

**What is administrative justice? A discussion paper UK Administrative Justice Institute, 3

March 2015
Harry Arthurs, ‘Rethinking Administrative Law: A Slightly Dicey Business’ (1979) 17 Osgoode
Hall Law Journal 1
Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth
Century England (University of Toronto Press 1985)

Tribunals

**Tribunals, Courts and Enforcement Act 2007, ss1-19 and 44-45

Peter Cane, Administrative Tribunals and Adjudication (Hart 2009), esp chs 2-3

22
 Stephen Sedley, ‘Law without courts: the tribunal system’, chapter 13 in Lions Under the
Throne (CUP 2015)
Elizabeth Fisher, ‘Administrative Tribunals: An Essay about the Legal Imagination of
Administrative Law Scholars’ in James Goudkamp, Mark Lunney & Leighton McDonald
(eds), Taking Law Seriously: Essays in Honour of Peter Cane (Hart 2022)
*Sir Andrew Leggatt, Report of the Review of Tribunals: Tribunals for Users – One System,
One Service, August 2001
Robert Carnwath, ‘The Senior President of Tribunals’ Annual Report: Tribunals Transformed’,
February 2010
Robert Carnwath, ‘Tribunal Justice: A New Start’ [2009] PL 48
**Sir Ernest Ryder, The Modernisation of Tribunals 2018: A Report by the Senior President of
Tribunals
Robert Thomas and Joe Tomlinson, ‘A Different Tale of Judicial Power: Administrative
Review as a Problematic Response to the Judicialisation of Tribunals’ [2019] PL 537,
Robert Thomas and Joe Tomlinson, ‘Immigration Judicial Reviews: An Empirical Study’ (2019
Nuffield Foundation)
Senior President of Tribunals’ Annual Reports

*R (Cart) v Upper Tribunal [2011] UKSC 28, [2011] 3 WLR 107

*Civil Procedure Rules, Part 54, rule 54.7A
Jones v First-tier Tribunal [2013] UKSC 19, [2013] 2 AC 48 (statutory appeals from the UT)
Independent Review of Administrative Law, March 2021, 66-70 (para.s 3.35-3.46)
*Judicial Review and Courts Act 2022, s.2

Questions

1. Did the Tribunals, Courts and Enforcement Act 2007 establish an administrative justice system in
England and Wales?

2. Is there a principled relationship between tribunal adjudication and judicial review?

3. To what extent has tribunal adjudication been “judicialised”?

23
 9. Ombuds

Block 3: bringing claims against public authorities II

Roderick Bagshaw & Anne Davies

This seminar is the second of two exploring the broader administrative justice system in England and
Wales. The focus of this seminar is on ombuds, particularly administrative ombuds, as opposed to
those ombuds which resolve complaints against private businesses (such as the Financial
Ombudsman Service). The most prominent administrative ombuds (probably) are the Parliamentary
and Health Service Ombudsman (which combines the statutory roles of Parliamentary Commissioner
for Administration (the Parliamentary Ombudsman) and Health Service Commissioner for England
(Health Service Ombudsman) and the Local Government & Social Care Ombudsman.
Objectives:
 Understanding the nature and operation of administrative ombuds.
 Understanding the significance of judicial review of decisions of, and relating to,
administrative ombuds.
 Assessing the contributions administrative ombuds make to administrative justice.

General

The Parliamentary and Health Service Ombudsman (formerly Parliamentary Commissioner

for Administration; about 80% of complaints made to the PHSO concern the health service):
[Link]
The Local Government and Social Care Ombudsman (formerly Local Government
Ombudsman) [Link]
(If you have time, browse a couple of recent reports concerning complaints against local
government, central government, and the NHS)

**Parliamentary Commissioner Act 1967 (as amended); Health Service Commissioners Act
1993
**Local Government Act 1974

Background

24
 **House of Commons Library, ‘The Parliamentary Ombudsman: role and proposals for
reform’ (21 June 2018)
[Link]

Problems and reform proposals

*Venice Commission, Principles on the Protection and Promotion of the Ombudsman

Institution (2019) (for critique see Glusac (2021) 21 HRLR 22 (further reading))
House of Commons Public Administration Committee, ‘More Complaints, Please! And Time
for a People’s Ombudsman Service’ (12th and 14th Reports of 2013-2014, HC 618)
Cabinet Office, A Public Service Ombudsman: Government Response to Consultation (2015)
And see also the (stalled) Public Service Ombudsman Bill (stalled since 2016)
*Developing complaints standards (without statutory authority):
[Link]
complaint-standards

*Chris Gill, ‘Right first time: the role of ombudsmen in influencing administrative decision-
making’ (2011) 33 Journal of Social Welfare and Family Law 181
*Chris Gill et al, ‘The managerial ombudsman’ (2020) 83 MLR 797
**Carol Harlow, ‘Ombudsmen: “Hunting Lions” or “Swatting Flies”?’ in Hertogh and Kirkham
eds, Research Handbook on the Ombudsman (Edward Elgar 2018)
Nick O’Brien, ‘Social Rights Adjudication and the Ombudsman’ [2009] PL 466
Robert Thomas, ‘The Northern Ireland Public Services Ombudsman’s Report into Personal
Independence Payment and Collective Administrative Justice (Part 1)’ (forthcoming in
Journal of Social Security Law. A pre publication version is available here: The Northern
Ireland Public Services Ombudsman's Report into Personal Independence Payment and
Collective Administrative Justice (Pt 1) by Robert Thomas :: SSRN)

Judicial review

**R v Parliamentary Commissioner for Administration, ex p Balchin [1997] JPL 917 (the
sequels to this decision are further reading, not essential: R v PCA, ex p Balchin (No 2) (2000)
79 P&CR 157; R v PCA, ex p Balchin (No 3) [2002] EWHC 1876)
R v LCA ex p Eastleigh [1988] QB 855
R v LCA ex p Croydon [1989] 1 All ER 1033
*R (Bradley) v Secretary of State for Works and Pensions [2008] EWCA Civ 36
R (Gallagher) v Basildon DC [2010] EWHC 2824
*JR55 for Judicial Review (Northern Ireland) [2016] UKSC 22 – watch out for different
statutory frameworks impacting on the strength of judicial control
Miller v The Health Services Commissioner for England [2018] EWCA Civ 144
R (Morris) v Parliamentary and Health Services Ombudsman [2019] EWHC 1603 (Admin)

**RM Kirkham and A Allt, ‘Making sense of the case law on Ombudsman schemes’ (2016) 38
Journal of Social Welfare and Family Law 211 (useful overview but note that it does not
cover more recent cases)

25
 *Richard Kirkham & Elizabeth O’Loughlin, ‘Judicial review of ombuds: a systemic analysis’
[2020] PL 680

Questions

1. The PHSO’s Annual report and accounts 2022 to 2023 (HC 1642), state that the institution’s
spending was just over £42 million. How much administrative justice does that purchase? Is
the price reasonable?

2. “[T]he UK is out-of-step with other modern Ombudsman services in terms of our statutory
framework. Without powers of own initiative, I am hamstrung from investigating many
systemic issues that no one is looking at. Legislative reform of the UK Ombudsman service
would mean fewer barriers to justice and more opportunities to prevent injustice happening
in the future.” (Rob Behrens, PHSO, 2022).
“[W]e feel that our system is effective in the context in which it operates, ensuring that
effective internal complaints processes address issues without the need to involve ombuds
and that complainants have recourse to the independent ombuds where necessary, while
balancing the need for the Government and ministers to make decisions relating to policy.
The Government is not therefore convinced that fundamental reform of the ombuds is a
priority at the current time, nor that legislation is generally the answer to any perceived
problems.” (Government response (26 May 2023) to the Joint Committee on Human Rights’
Report, Human Rights Ombudsperson (HC 222/HL Paper 175)).
Do you agree?
3. “The Ombudsman has a unique position in the patient safety landscape. We investigate
impartially and do not take sides or speak on behalf of patients or clinicians. Our role is to
objectively and independently understand what happened. Where we find failings, we make
recommendations for learning to improve services and protect patients.” (Broken trust:
making patient safety more than just a promise, HC 1444, June 2023).
Discuss.
4. Which is more important in the context of administrative justice – the contribution of
ombuds to resolution of individual complaints or the contribution of ombuds to the
development of complaints standards?

5. Do the cases where claimants have sought judicial review of a decision of an administrative
ombuds demonstrate the strengths or the weaknesses of such institutions as routes to
administrative justice? Do the cases where claimants have sought judicial review of a
governmental decision in relation to an administrative ombuds demonstrate the strengths or
the weaknesses of such institutions as routes to administrative justice?

26
 10. Compensation

Block 3: bringing claims against public authorities II

Roderick Bagshaw, Timothy Endicott & Leah Trueblood

The starting point for establishing liability of public bodies in negligence is the equality principle. This
principle holds that courts hold public agencies liable in the tort of negligence in the same way as
individuals. This week asks: is this legal principle defensible? We will discuss if there is anything that
could or should make public authorities different from other actors for purposes of liability in the tort
of negligence. It asks particularly whether the assumption of responsibility in the tort of negligence
should be expanded. This week also asks how the path to ‘just satisfaction’ offered by the Human
Rights Act 1998 relates to the remedies available in the tort of negligence.

Objectives

 Critically evaluate what, if anything, could or should make public agencies different from
private bodies for purposes of establishing liability in the tort of negligence.
 Explore the Human Rights Act 1998 as a path for claimants seeking ‘just satisfaction,’ and the
HRA’s relationship to the tort of negligence.

Textbooks for Context

Timothy Endicott, Administrative Law (6th edn, OUP 2020) Chapter 14

or
Mark Elliott & Jason Varuhas, Administrative Law (5th edn, OUP 2017) Chapter 15, Sections
15.1-15.4

Essential

N v Poole Borough Council [2019] UKSC 25, [2020] AC 780: you only need to read the
Supreme Court, p. 817 onwards in the Appeal Cases.
Jain v Trent Strategic Health Authority [2009] UKHL 4, [2009] AC 853, HL(E)
Watkins v Secretary of State for the Home Dept [2006] UKHL 17, [2006] 2 AC 395, HL(E)
Carol Harlow, ‘Administrative Compensation: Bypass or Dead End?’ in Goudkamp, Lunney
and McDonald eds, Taking Law Seriously: Essays in Honour of Peter Cane (Hart 2021) 259-280

27
 or Carol Harlow and Richard Rawlings, Law and Administration (4th edn CUP 2022) Chapter
12 ‘“Golden Handshakes”: Liability and Compensation’

Recommended

Human Rights Act 1998, s 8; European Convention on Human Rights, Art 41

R (Sturnham) v Parole Board (No 1) [2013] UKSC 23, [2013] 2 AC 254, essential to read only
headnote, esp (1) and (2) and paras [24]-[40] (Lord Reed JSC). Worthwhile also reading paras
[66]-[75], [87] and [106]-[114]. (NB – the paragraphs you ought to read are from the first
Supreme Court decision – on pp. 289-319 in the Appeal Cases.]
Peter Cane, ‘Tort Law and Public Functions’, ch 7 in J Oberdiek ed, Philosophical Foundations
of the Law of Torts (OUP 2014) or Peter Cane, Controlling Administrative Power: An Historical
Comparison (CUP 2016) pp. 368-398
Donal Nolan, 'Tort and Public Law: Overlapping Categories? ' (2019) 135 Law Quarterly
Review 272

Further (England and Wales)

Stovin v Wise [1996] AC 923, [1996] 3 All ER 801 (HL)

Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] AC 1732
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736
HXA v Surrey County Council [2023] UKSC 52; [2024] 1 WLR 335
Woodcock v Chief Constable of Northamptonshire Police [2023] EWHC 1062 (KB), especially
paras 99-114
FXJ v Secretary of State for the Home Department [2023] EWCA Civ 1357
Stephen Bailey, review of Tom Cornford, Towards a Public Law of Tort (2009) Public Law 869
Roderick Bagshaw, ‘Monetary Remedies in Public Law – Misdiagnosis and Misprescription’
(2006) 26 Legal Studies 4
Jonathan Morgan, ‘IRAL’s Missing Remedy: Compensation for Unlawfulness’, UK
Constitutional Law Association Blog, October 12, 2021

Further (Afield)

Paradis Honey Ltd v Canada (Attorney General) 2015 FCA 89, [2016] 1 F.C.R. 446 (Federal
Court of Appeal, Canada: liability for economic consequences of ban on importation of bees)
AK v Minister of Police [2022] ZACC 14 (Constitutional Court of South Africa: negligent
policing – compare Michael v Chief Constable of S Wales [2015], above)

Questions

1. ‘In the case of positive acts … the liability of a public authority in tort is in principle the same
as that of a private person but may be restricted by its statutory powers and duties’ Stovin v
Wise [1996] AC 923, 947 (Lord Hoffmann). Is this an appropriate foundational position?
Should courts ever further limit the liability of a public authority so as to better serve public
goals (e.g. to discourage 'overkill')?

28
2. ‘It is one thing to provide a service at the public expense. It is another to require the public
to pay compensation when a failure to provide the service has resulted in loss.’ Stovin v
Wise [1996] AC 923, 954 (Lord Hoffmann). Discuss.

3. Should compensation be available for all losses caused by unlawful administrative action? Is
the answer the same when: (i) the loss is purely economic, or (ii) the loss is purely emotional
distress, or (iii) the loss is caused by an unlawful failure to act?

4. Is deterrence a proper reason for subjecting public authorities to compensation for wrongs?
5. ‘On orthodox common law principles, I cannot see a legal basis for fashioning a duty of care
limited in scope to that of articles 2 and 3, or for gold plating the claimant’s Convention
rights by providing compensation on a different basis from the claim under the Human
Rights Act 1998.’ Michael v Chief Constable of South Wales [2015] UKSC 2 (Lord Toulson).
Discuss.
6. ‘Tort law should not be used as the law's Swiss Army knife to fix potential inadequacies in
public law. It has a structure of its own.’ (Beever) Discuss.

29
 11. Public administration & the ‘tailoring’ of judicial review

Block 4: Taking public administration seriously

Joanna Bell & Liz Fisher

Mark Aronson has written that every judicial review case has a horizontal and a vertical dimension.
‘Horizontal’ refers to the general grounds of review relied on. ‘Vertical’ refers to the statutory (or
other legal) framework which defines the powers and functions of the decision-maker under review.
He argues that the focus of much judicial review case law is on determining the relationship between
those dimensions.

This observation emphasises the importance, not only of understanding the general legal doctrines
(‘grounds’) which are applied in judicial review but also, of paying attention to the specific
administrative decision-making context which is subject to judicial review. The nature of the
decision-maker, its capacity and its functions all shape how courts do and should engage in legal
reasoning.

This seminar explores two main issues. First, it introduces the idea of public administration and the
importance, to administrative law scholars, of understanding its nature and variety. Secondly, it
explores three pockets of case law – concerning planning decision-making, parole and immigration
detention - as a way of better understanding how courts apply general legal principles to specific
legal contexts.

Objectives:
 Understanding why public administration, and its variety are important concepts for
administrative lawyers to grasp.
 Engaging critically with three pockets of case law in order to see how the general grounds of
review are being ‘tailored’ to different decision-making contexts.
 Reflecting on what the existence of tailored law might mean for administrative law and its
study.

Taking public administration seriously

Gillian E Metzger & Kevin M Stack, ‘Internal Administrative Law’ (2017) 115 Michigan LR 1239
**Elizabeth Fisher & Sidney Shapiro, Administrative Competence (CUP 2020), ch 1-2
Carol Harlow & Richard Rawlings, Law and Administration (4th edn, CUP 2021), ch 1

30
 *Robert Thomas, Administrative Law in Action (Hart 2022), ch 1

‘Tailoring’ judicial review: general reading

Mark Aronson, ‘Judicial Review of Administrative Action: Between Grand Theory and
Muddling Through’ (2021) 28 Australian Journal of Administrative Law 6
Richard Kirkham & Elizabeth O’Loughlin, ‘Judicial Review and Ombuds: A Systematic Analysis’
[2020] PL 680
**Joanna Bell, Anne Davies & Elizabeth Fisher, ‘Tailored Judicial Review, Tailoring Judicial
Review’ (forthcoming, pre-publication draft available on Canvas)

Judicial review & planning

*Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759
Dover DC v CPRE Kent [2017] UKSC 79
**R (Corbett) v Cornwall Council [2020] EWCA Civ 508

*Town and Country Planning Act 1990, ss.70, 72, 78 & 288
*Planning and Compulsory Purchase Act 2004, s.36

*Joanna Bell, ‘Embracing the Unwanted Guests at the Judicial Review Party’ in Carolyn Abbot
& Maria Lee (eds), Taking English Planning Law Scholarship Seriously (UCL Press 2022) (open
access from 24 October: Taking English Planning Law Scholarship Seriously – UCL Press)
Elizabeth Fisher, Bettina Lange & Eloise Scotford, Environmental Law: Text, Cases and
Materials (2nd edn, OUP 2019), ch 19
Alistair Mills, ‘The Interpretation of Planning Policy: The Role of the Court’ (2022) Journal of
Environmental Law, 10 September 2022

Judicial review & the parole board

Browne v Parole Board [2018] EWCA Civ 2024

**DSD & Others v Parole Board [2018] EWHC 694 (Admin)
*R. (on the application of Pearce) v Parole Board [2023] UKSC 13

Nicola Padfield, ‘The function of the Parole Board – avoiding failure or promoting success?’
[2020] PL 468
JUSTICE, A Parole System Fit for Purpose (available here: JUSTICE-A-Parole-System-fit-for-
[Link])

Judicial review & immigration detention

*R v Secretary of State for the Home Department, ex parte Hardial Singh [1984] 1 WLR 704
**Lumba v Secretary of State for the Home Department [2011] UKSC 12

31
 Alex Schymyck, ‘The Hardial Singh Principles and the Principle of Legality’ [2021] PL 489
John Finnis, ‘Two Too Many?’ (Judicial Power Project, 24 November 2016)
Robert Thomas, ‘Mapping Immigration Judicial Review Litigation: An Empirical Legal Analysis’
[2015] PL 652

Illegal Migration Act 2023, s.12

Detention Instructions (September 2023) (in outline, but see especially effect of Illegal
Migration Act)

Questions

1. ‘In law, context is everything.’ (LORD STEYN)

How is this idea reflected in the law governing judicial review of planning, parole and
immigration detention decisions?

2. ‘Judicial review is first and foremost about the law governing administrative decision-
making, and that has a number of components that are inevitably mixed – the general with
the specific.’ (ARONSON)

Discuss.

3. Evaluate how the courts have sought to accommodate the general and the specific in the
case law you have read for this seminar.

32
 12. Policy, guidance and judicial review

Block 4: Taking public administration seriously

Joanna Bell, Anne Davies & Hasan Dindjer

Non-statutory rules, policies and guidance are growing features of public administration. They have
many advantages. As the UK Supreme Court recently observed in A v Secretary of State for the Home
Department [2021] UKSC 37 [2]:

‘Where public authorities have wide discretionary powers, they may find it helpful to
promulgate policy documents to give guidance about how they may use those powers in
practice. Policies may promote a number of objectives. In particular, where a number of
officials all have to exercise the same discretionary powers in a stream of individual cases
which come before them, a policy may provide them with guidance so that they apply the
powers in similar ways and the risk of arbitrary or capricious differences of outcomes is
reduced. If placed in the public domain, policies can help individuals to understand how
discretionary powers are likely to be exercised in their situations and can provide standards
against which public authorities can be held to account. In all these ways, policies can be an
important tool in promoting good administration.’ (Lord Sales and Lord Burnett)

However, the growing use of non-statutory rules, policies and guidance (which are subject to
minimal, if any, Parliamentary scrutiny) also raises some concerns. The grounds of judicial review
have been developed primarily in cases involving challenges to individualised decisions, rather than
general policies. All of this gives rise to the question of whether judicial review has kept pace. It is
this question which is the focus of the seminar.

Objectives:
 Understanding the roles non-statutory rules, guidance and policies play in structuring
decision-making in public administration, including their advantages, potential dangers, and
the variations between them
 Understanding the controls that reviewing courts exercise over the use of policy, including
especially: (i) the no fetter principle, (ii) the interpretation of policy, (iii) review of the content
of policy and (iv) review of failures to act in accordance with policy
 Critiquing the case law

General

33
 Kenneth Culp Davies, Discretionary Justice: A Preliminary Inquiry (Louisiana State Press, 1969)
Greg Weeks, Soft Law and Public Authorities (Hart 2016)
Gillian E Metzger & Kevin M Stack, ‘Internal Administrative Law’ (2017) 115 Michigan LR 1239
Aileen McHarg, ‘Administrative Discretion, Administrative Rule-Making and Judicial Review’
(2017) 70 CLP 267
Robert Thomas, Administrative Law in Action (Hart 2022), ch 4
Elizabeth Fisher, ‘Why Doctrinal Administrative Lawyers Should Think More About Policy’
(2022)29 Australian Journal of Administrative Law 254

It will also be useful to get a sense of the role non-statutory rules, policy and guidance play in various
areas of public administration. For example, have a brief look at the UK Government’s National
Planning Policy Framework and the Oxford City Council Local Plan, the Immigration Rules and
Enforcement Instructions and Guidance. For housing, consider Oxford City Council’s Allocations
Scheme. Consider what role(s) these documents play, as well as the similarities and differences
between them (what, for example, is their legal nature? Do they have a statutory basis or not, and
what difference might that make?). You need only do this very quickly!

The ‘no fetter’ principle

*British Oxygen Co Ltd v Minister of Technology [1971] AC 610 (HL)

R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44

Review of policies creating ‘risks’ of unlawfulness

**R (A) v Home Secretary [2021] UKSC 37

R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38
Tom Hickman & Thomas Poole, ‘Judicial review and guidance’ (2024) 140 LQR 381

A duty to apply policy?

*Mandalia v Home Secretary [2015] UKSC 59

**R. (Good Law Project) v Prime Minister [2022] EWCA Civ 1580
R. (on the application of Riverside Park Ltd) v Secretary of State for Levelling Up, Housing and
Communities [2023] EWHC 2937 (Admin), especially [76]-[80]

Duties to promulgate and/or publish policy?

*R (Pretty) v DPP [2001] UKHL 61

Nzolameso v Westminster City Council [2015] UKSC 22, esp [38]-[42]
*R. (on the application of Northumbrian Water Ltd) v Water Services Regulation Authority
[2023] EWHC 2410 (ground 2)

Interpretation of policy

34
 Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, [18]-[22]
**R (Samuel Smith Old Brewery) v North Yorkshire County Council [2020] UKSC 3

Duties to consult prior to policy change?

BAPIO Action Ltd v Secretary of State for the Home Department [2007] EWCA Civ 1139
R (Moseley) v Haringey LBC [2014] UKSC 56

What is a ‘policy’?

R (Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52, especially [106] (noted by
Bell & Fisher (2023) 86(1) MLR 226)

Questions

1. Should courts review a public authority’s interpretation of its own policy in the way in which
they review a public authority’s interpretation of a statute?

2. Is the reasoning of the UK Supreme Court in A convincing?

3. Does the Court of Appeal decision in Good Law Project detract from the principle confirmed
by the UK Supreme Court in Mandalia?

4. Is the law of judicial review sufficient to ensure appropriate use of policy by public
authorities?

35
36

13. Contracts

Block 4: Taking public administration seriously

Anne Davies & Timothy Endicott

In this seminar, we will consider the role of contract as a tool for the delivery of public services. In
English law, there is an assumption that contracts – even those placed by the government – are
largely a matter of private law of no interest to public lawyers. However, as this week’s readings
show, there are lots of tricky public law issues which can arise in relation to contracts. For example,
can the government get out of a contract if it wants to change its policy on a particular issue? Who is
the correct defendant when a person’s rights have been infringed in the performance of a
contracted-out service? And what can the government legitimately do through contract?

Objectives:
 Understanding the capacity of public agencies to form contracts
 Understanding the implications of the principles of public law for the rights of parties (both
public agencies and private suppliers of goods and services) to a public contract
 Critiquing the use of contracting out as a tool for the implementation, and for the formation,
of public policy

**Harlow and Rawlings, Law and Administration (2021), chapters 10 and 11

TC Daintith, ‘The Techniques of Government’, ch 8 in Jowell and Oliver, The Changing Constitution
3rd ed (1994)

Capacity to contract

Attorney-General v Great Eastern Railway (1880) 5 App Cas 473

*Hazell v Hammersmith LBC [1992] 2 AC 1
Nicholas Bamforth, ‘Public Law’, in Birks and Rose eds, Lessons of the Swaps Litigation (2000)

Contracts that conflict with other policies

The Amphitrite (1921) 3 KB 500

Cory v London Corp [1951] 2 KB 476
Dowty Boulton Paul v Wolverhampton Corp [1971] 1 WLR 204
*R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7

Ultra vires contracts

*Crédit Suisse v Allerdale BC [1997] QB 306

Charles Terence Estates Ltd v Cornwall CC [2012] EWCA Civ 1439 [30]-[37]
School Facility Management Ltd v Governing Body of Christ the King College [2020] EWHC
1118 (Comm)
*Local Government (Contracts) Act 1997
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Seminar 9: Public contracts

*Localism Act 2011, s 1

ACL Davies, ‘Ultra Vires Problems in Government Contracts’ (2006) 122 LQR 98

Delegation of governmental powers:

*Carltona v Commrs of Works [1943] 2 All ER 560

*Deregulation and Contracting Out Act 1994, ss 69-73
*Mark Freedland [1995] PL 21

Contracting out and judicial review

Human Rights Act 1998 s 6

R v Servite Houses, ex p Goldsmith [2001] LGR 55
Poplar Housing v Donoghue [2002] QB 48, [2001] 4 All ER 604
R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936, [2002] HRLR 30
**YL v Birmingham City Council [2007] UKHL 27, [2007] 3 WLR 112
R (Weaver) v London and Quadrant Housing [2009] EWCA Civ 587

Murray Hunt, ‘Constitutionalism and the Contractualisation of Government’, ch 2 in Taggart

ed, The Province of Administrative Law (1997)
Eleanor Aspey, ‘The Search for the True Public Law Element: Judicial Review of Procurement
Decisions’ [2016] PL 35

Fiduciary duties in Administrative Law

Lionel Smith, The Law of Loyalty (OUP 2023), Chapter 9, Foundations of Public Law
Administration
Timothy Endicott, ‘The Public Trust’ in Evan J Criddle, Evan Fox-Decent, Andrew S Gold, Sung
Hui Kim, Paul B Miller, eds, Fiduciary Government, (Cambridge University Press 2018) 306-
30.

Questions

1. Under what conditions does a public body have capacity to enter into a contract? Should
public bodies generally have capacity to do so?

2. If a contract between a private person and a public body is ultra vires, what remedy, if any,
should be available to the private person where it has performed under the contract?

3. Is a private nursing home carrying out a public function when it houses a resident whose
accommodation is paid for by a public authority?

4. Is it unfair for a public body defendant to argue, in a claim for breach of contract, that its
contract was ultra vires and is therefore unenforceable?

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Seminar 9: Public contracts

5. How should the law control government decisions to deliver a public service by contracting
out, instead of delivering it directly?

6. Are administrative authorities fiduciaries? Are their legal duties fiduciary duties?

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14. Digitisation

Block 4: Taking public administration seriously

Anne Davies & Rebecca Williams

In this seminar we will consider the impact of digitisation on administrative decision-making. How
different is algorithmic decision-making from public law decision-making by human actors? What
implications does this have for the rules of administrative law which apply? And does public law have
the potential to contribute to the regulation of algorithmic decision-making even outside the
standard public law sphere, and indeed our understanding of where that sphere ends?

Objectives

- To understand how the grounds of review might be best used or adapted to review
algorithmic decision-making.
- To understand public law’s control of fairness in decision-making in this more algorithmic
and digital context.

Digitisation and public law

The Law of Artificial Intelligence (eds Hervey and Lavy) (2nd ed, Sweet and Maxwell), Ch 14 (if
you would like an introduction to some of the technological terms please also refer to Ch 2).
R Williams, ‘Rethinking Administrative Law for Algorithmic Decision Making’ (2022) OJLS 468
P Craig, Administrative Law (9th ed, Sweet and Maxwell) Ch 10
J Cobbe, ‘Administrative law and the machines of government: judicial review of automated
public-sector decision-making (2019) LS 636
J Zerilli, ‘Process rights and the automation of public services through AI: The case of the
liberal state’ [Link]
public-services-through-ai-the-case-of-the-liberal-state/
R Williams, ‘Accountable Algorithms: Adopting the Public Law Toolbox Outside the Realm of
Public Law’ (2022) CLP 237

The EU AI Act

EU AI Act [Link]
COR01_EN.pdf
Articles 5; 26, 27, 49(3); 71
Annex III. Note in particular Annex III(5)
(High Risk AI Systems as identified in Annex III are subject to a series of requirements
outlined in Chapter 3 Section 2, Article 9 onwards, if you’re interested).

Digitisation and procurement

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Seminar 12: Administrative law in practice

UK Government Guidelines for AI Procurement, available:

[Link]
ai-procurement
Albert Sanchez-Graells, ‘Responsibly Buying Artificial Intelligence: A ‘Regulatory
Hallucination’
(2024) Current Legal Problems

Questions

1. Which grounds of review are currently best adapted and which are least well adapted to
review of algorithmic decision-making?
2. How should we think about the process and purpose of judicial review given these new
challenges?
3. Can the common law be developed further in this area or are we in need of more legislative
reform?
4. What is and what should be our understanding of the sphere to which these rules do and
should apply? Can and should we expand our public law toolkit for use in the private sector?
5. Is the procurement of algorithmic decision-making systems the same as any other kind of
public procurement? Or do we need new strategies?

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