Contents

PROCEDURAL EXCLUSIVITY:................................................................................................................1
Substantive Intervention................................................................................................................................7
OMBUDSMAN:..........................................................................................................................................15
NATURAL JUSTICE:.................................................................................................................................21
SUBSTANTIVE LEGITIMATE EXPECTATION....................................................................................24
LOCUS STANDI.........................................................................................................................................31
OUSTER CLAUSES:..................................................................................................................................33

PROCEDURAL EXCLUSIVITY:

1. “The judgment of the House of Lords in O’Reilly v Mackman (1983) was a very unfortunate
decision and is now so hedged around with exceptions that it ought simply to be overruled.”
Discuss. (2016B)

It is crucial to note that in order to regulate the government’s exercise of power, the concept of Judicial
Review was created where it is primarily concerned to conduct the check and balance on the
government’s actions. The procedure had the relatively different process than the old procedure of writ. In
a view of this, the separate administrative courts were made other than the ordinary courts, as to make the
administrative court more effective the case of O’Reilly created the concept of exclusivity i.e., the
application of JR can only be brought in the administrative court. But the decision was not more used and
considered as an unfortunate decision due to the approach introduced in the case of Mercury v DG
communication. In the answered below, we shall be retreating the above statement that the case of
O’Reilly needs to be overruled as the case does not had application in practical sense.

By the way of Background, English courts does not possess separate court for private and public law
matter, eventually, both issues were dealt in single court where an individual can file an application,
However, to bring the claim against the public body the citizen are required to file a writ which was very
complicated. Along with, the citizen also needs to get consent of Attorney Gornal in order to proceed with
the application against the public body. It is also important to note that there is also the concept of the
frivolous litigation against the public bodies i.e., unnecessary claims put by the citizen which result in the
waste of time of government and court. In order to overcomes these difficulties, the concept of JR was
introduced under Order 53 which was later codified under section 31 of Senior Courts Act 1998. JR is
mainly conducting the check and balance on the government actions i.e., that the government is not an
ultra-varies. Previously, the JR was limited but later it was extended to errors of law, fettering decision,
breach of legitimate expectation, imposing erroneous condition, and anything which is against human
rights (HR). Afterwards, the JR is conducted on the three grounds that are illegality, I irrationality, and
procedural impropriety. However, JR is conducted in two stage that first stage is known as leave stage
which is permission stage granted by the court if the citizen satisfied these four conditions: that the matter
had the public law issue, citizen must be a locus standi, all other alternative remedies are satisfied and the
time limit (3-6 month). In the fisrt stage there is claimant is only called by the court that is ex prate.
Afterwards, second stage is called the principal hearing where the both parties are called and the court
proceed with further proceedings.

Initially, JR was introduced in order to provide the protection to public bodies against the frivolous
litigation as the JR procedure is saving time and resources of the public authority as JR procedure
provides filtration against unnecessary and unwanted claims file by the citizens. Along with the procedure
is now easier for citizen to put forwards their claims than old procedures which was very complex to file
writ against the public body, Additionally, the procedures also remove the requirement of the prior
consent of AG i.e., AG is the lawyer of the crown. Hence, it can be said that the new procedure is
favorable for both citizen and the public body.

Despite of these facts, there are some problems arises in the procedure, that the section 31 provides
protection to a public body due to which the claimant thinks that their claims will fail, thereby they prefer
to put their claim in the ordinary courts. Additionally, the Section 31 does not provide exclusivity because
the statue does not clearly state that the administrative courts can only deals with public related issues.
Meaning that there is choice left whether the citizen want to put claim in administrative courts or ordinary
courts. Thereby, the citizen due to ease of procedure put claim in ordinary courts and the administrative
courts will become redundant. Hence, there is no exclusivity is provided by the statue.

In order to create an exclusivity, in the case of O’Reilly v Mackman, the Lord Diplock established the
exclusivity principle that for public law matters the claim can only bring under the admin law courts in
order to make the system more effective and smoother in working. He stated that; “it would, in my view,
as a general rule, be contrary to public policy and as much an abuse of the process of the court permit a
person seeking to establish that a decision of a public authority infringed rights to which he is entitled to
protection under public law to proceed by way of an ordinary action and by this means to evade the
provisions of Order 53.However, there are two exceptions were created that if both parties mutually
consented to bring the claim under ordinary courts or there is a collateral issues where the matter contains
the issues of both public law and private law. As it is seen from the case of (Cock’1983) where case was
filled in the ordinary court by the claimant as his right was breached by the defendant council under
Housing (homeless Persons) Act 1997. It was held by the court that there are no elements of private law
in this case thereby, it shall be filed in the administrative court. Whereas, in the case of (Davy) as the
issues was related to the contract where due to negligence of council, the claimant suffered losses which
was claimed in the case, thereby the court allowed that it can be proceed in the ordinary court as there was
elements of private law in the case concerned. However, in the case of winder it was established that the
public law can be used as defense in private law as the defendant raised against the council for his ultra
vary used of power. Therefore, it can be seen that the O’Reilly Mackman provide the exclusivity in the
procedure which was later relaxed due to exceptions.

Afterwards, there are more cases which relaxed the O’R as seen in the case of Roy v Kensington where
the Roy filled an application against NHS in ordinary court as the NHS had deducted his sum which was
NHS bound to provide according to the contract. Here, NHS raised that the claim shall be bring in
administrative court, the courts held that the claim can also be made in private law courts as there are the
element of private rights in the case concerning. Additionally, in the case of Mercury v DGT
communication where it was held that the public law issues can also be claim in private law unless the
claimant result in the abuse of court procedure. It can see that Mercury has relaxed the approach of O’R
that all public law matters can also be dealt in ordinary courts, this shows that now O’R principle of
exclusivity is no more existed and can be overruled by the courts simply as in practical terms the O’R
does not have any type of application.

Moreover, the reason for this relaxed approach is that now the ordinary court has also extended the
protection against the public bodies which was provided by the civil procedure Rule 1999. The CPR 1999
and HRA 1998 made the system of ordinary courts similar to the administrative courts. As now the
government is also getting the shorter time limit and summary judgments in an ordinary court, Thereby,
there would be no difference whether the claim put by the citizen is an ordinary court or an administrative
court.

In the light of the above discussion, we can determine that O’R decision is an unfortunate can be
overruled by the courts in order to create more clarity and certainty in the law. Because, in law there is no
clarity that the claim against the public body will only be brought under the ambit of the administrative
courts. With reforms, the system of ordinary court is become identical to the administrative court. Along
with that it would be easier in order to provide justice to the citizen against the public bodies ultra-varies
actions.

2. Discuss the extent to which the strict distinction between public law and private law procedure
was imposed by the decision of the House of Lords in O’Reilly v Mackman (1983). (Resit
2018)

English legal system is comprising of separate court system for private law and public law matters.
The distinction between the public and private law was not initially founded in English legal history.
As both public and private law matter were heard in single court and the judges resolved the matters.
However, ordinary procedure to file application against the public authorities was very difficult and
also creating the numerous problems. In view, of these problems, government of UK through the
secondary legislation by the order 53 created the separate administrative courts i.e., the public law
issues will be heard in this court. The purpose was to solve the problems and create balance between
individual and public authorities’ rights. However, the system of separate admin court was not
effective because the citizen mostly goes to the ordinary courts to resolve public matter. Therefore, in
order to create strict distinction between private law and public law procedure the landmark decision
was given in the case of O’Reilly v Mackman (1893) to make the system exclusive. In the answer,
below we shall be evaluating that at what extent the strict distinction between public law and private
law was imposed by the decision of O’Reilly v Mackman.
Before going to the discussion of the case of O’Reilly v Mackman, we need to mention the brief
history of English legal system in the perspective of the admin law courts. As we had mentioned
above that the separate courts for the public law matters was not initially available in UK like the
other jurisdictions for example France who possess the separate court system for public law and
private law matters. After 1979 the need for separate courts for public matters arise which was
created by the order 53 but now it is codified under Section 31 of the Senior Courts Act 1981.
In admin courts, the judicial review (JR) application is filed by the citizen against the public
authorities. However, JR is defined as the check and balance on the government’s powers given by
the statue or common law. The introduction of JR can be said the breach of separation of power
(SOP) which is a significant tool to upheld the rule of law (ROL). It can be argued that to have the
effective accountability of the government ultra varies actions it is important to conduct the JR, more,
JR is not diminishing the ROL rather it is helping to have strong accountability in the state. While,
JR was limited initially but latter it extended and the JR application can be filed on the grounds of
errors of law, fettering decision, breach of legitimate expectation, imposing erroneous conditions,
compliance of decisions with HRA 1998. However, JR can be conducted on the three grounds i.e.,
irrationality, illegality and natural justice. The procedure of JR is different from ordinary court
procedure because in the ordinary courts there is no two stage hearings whereas JR procedure is
primarily based on two stages i.e., leave stage and principal stage. Firstly, leave stage is also called
the permission stage where the courts grant permission to proceed further with JR application by
analyzing that the appellant is meeting the requirements that before filling the JR application, he/she
had sought alternative remedies which can settle the dispute without JR and the matter was
concerned the public law issue. the court will also see that whether the applicant filled does not reach
the time limit of three months along that the appellant had the sufficient interest in the case. In this
stage only, claimant is called by the court i.e., ex parte. While in the principal stage the courts decide
the matter according to the merits of the law where both parties are called by the court.
Moreover, the JR was introduced in order to protect the public bodies from unusual litigation which
was brought by the citizens. Due to the frivolous litigation the time and resources of the court and
governments was waiting. Thereby, to protect the government from frivolous litigation the filter of
leave stage was very useful. The new procedure was also helpful for the citizens because the citizens
can directly put forward JR application. Before JR the citizens are required to fill the writ which was
very complicated along that the citizens also need the permission of the Attorney general (AG) to put
forward the case against the public authority. AG was itself the lawyer of the crown which was
raisings the concerns of biasness that AG due to his own cause cannot give consent to application.
However, the new procedure removes the consent of AG, thereby, new procedure was helpful for
both individuals and public authority.
Despite of this, the citizens mainly put forward their claims in ordinary courts because they think that
if they file the case in the administrative courts will always fail due to the protection provided to the
public authorities in the form of shorter time limits, damages and cross examinations. If the situation
does not change the introduction of the admin courts became futile as the cases would not come in
the admin courts. This was due to the fact that statue does not clearly state that the public law matters
must be deal in administrative courts because the Parliament used the word can which provides
choice to the citizens whether file their cases in an ordinary or admin courts regarding public law
issues. If it is continued the admin court became redundant so in order to make the admin courts
effective the Lord Diplock in the case of O’Reilly v Mackman create exclusivity which states that
public law matters will only be decided in the admin law, the application was filed in private court by
the prisoner against the breach of prison board. as stated, “it would, in my view as a general rule, be
contrary to public policy and such as an abuse of the processes the court permit a person seeking to
establish that a decision of a public authority infringed rights to which he is entitled to protection
under public law to proceed by way of an ordinary action and by this means to evade the portions of
Order 53”. This shows the strict distinction between private and public law matters that Lord
Diplock stating that it would be abuse if the public law matter related matter is decided in an ordinary
court because the admin courts protect the rights of the individuals against the public body. However,
there was also two exceptions provided by Lord Diplock that the case can be heard in an ordinary
court where both parties mutually agree that they can fight case in an ordinary court. The case can
also be brought in ordinary courts if there is collateral issue that the matter is related to public law
and private law both. This can be seen from the initial approach of the judges in the case of (Cock)
[1983] where the claimant filed the case in an ordinary court against the defendant council under
Housing (Homeless Persons Act’1977). Here, House of Lord (HOL) held that the claim needs to be
brought under admin courts because there were not private law issues in this case. But in the case of
(Davy) [1984) where the contract was formed between the Davy and the Borough Council but Davy
suffered loss due to negligent advice given by the council. For that purpose, he filed the case in
private courts where HOL held that the case is related to the private law because Davy is claiming for
the damages due to the loss which is not related to any public order. Whilst in the case of (Winder)
[1985] and (Boddington) it was held that the public law can be used as a defense in the private law
matter as stated by Lord Steyn that “the denying a person to challenge the very under which he
suffers the loss would undermine the ROL. Hence, we can say that the public law matters can only be
dealt in admin courts unless that fall under any exceptions given by the Lord Diplock. It shows
O’Reilly make the clear distinction between public law and private law matters.
After the passage of the time, the courts approach was changed as seen from the case of (Roy v
Kensington) [1992] that Roy and the NHS had the contract where NHS had to pay some amount to
NHS if he provides services in NHS, But NHS deducted his pay by stating that he is not compying
with rules. So, Roy filed the case against the NHS where NHS raised the argument that the matter
should be brought under the admin law courts. In this regard, Lord Bridge and Lord Lowery held that
there are no public law issues in the case because the claim was related to the breach of the contract
by NHS not paying the Roy. The decision of O’Reilly was eroded due to the decision of the
(Mercury v DGT Communication) that the pure public law matter can also be resolved in an ordinary
court unless the claimant abuse the court procedure. In this case, there is no abuse of the court
procedure, so the court allowed the case can be decided by an ordinary court. Lord Lynn stated that
“the exclusivity is only presumptive and not conclusive”. The decision of Mercury shows that there is
no exclusive approach is left created by O’Reilly v Mackman and also demised the distinction
between public and private law matters.
However, the decisions of Mercury show the flexibility to the citizens to brought their claims. The
relaxed approach of Mercury does not create any sought of the problem because one can argue that
the protection given to public authority is affected due to these decisions. This argument can be
rejected because the current system prevailed in the ordinary courts is similar to the administrative
courts by virtue of Civil Procedure Rules 1999 which reformed the procedure of JR. Furthermore,
matters related to HR and public law issue will also be resolved in an ordinary court
In the light of the above discussion, we can say that the strict distinction created by the decision of
O’Reilly was denied due to the decisions of the Mercury case which state that the pure public matter
case can be dealt in ordinary court unless in abuse the power of the courts. However, O’Reilly
importance is decreased due to the different cases which relax the approach of exclusivity. This is
due to the similar type of system introduced in ordinary courts by the CPR rules 1999.

Substantive Intervention
1. “Irrationality is a ground of review that is far too indulgent of executive autonomy. The interests of
good governance would be much better served if the courts were to accept proportionality as a
ground of judicial review that could be applied to all government decisions, irrespective of whether
such decisions raise issues under EU law or the Human Rights Act.” Discuss. (2016B)- supportive
of proportionality-criticizing the irrationality-

In the view of the abovementioned statement, we clearly understand the argument that it is inclined
towards the adoption of the concept of the proportionality in the UK to replace with irrationality ground.
It is seen that in order to have strong check and balance on the exercise of the executive powers, the
concept of Judicial Review was recognized in the UK in 1979.As, JR is conducted by the courts on the
actions of the executive, there must be grounds for that, however, in UK there are three grounds on which
the courts conduct JR i.e., illegality, irrationally and procedural importer. Along, these grounds there is
debate in UK from a long period of time to recognized proportionality as a ground for JR. But However,
JR is ground recognized in other European states other than UK along with that the cases which are in
relation to human rights, proportionality is also used by the court. In the light of the following arguments,
we shall be establishing our opinion that the UK should not adopt the proportionality and used the
irrationality as the ground for the JR.
In earlier times, UK courts were very skeptical in order to conduct an review on the executive action
within intra varies. It means that UK courts were not to conduct substantive intervention on the executive
actions. Previously, courts were inclined to the supremacy of the crown, as crown power is now reformed
through different developments in UK and now its power exercised by the executive, thereby the courts
does not want to disrupt hearty of the system. Additionally, if court starts to take the deeper review on the
governments action it will breach the doctrine of separation of power (SOP). Because the power exercised
by the executive is their duty which they got from the parliament (P). Moreover, if court start more
interference in executive matters, it would also undermine the concept of democracy as the court are not
the elective individuals to perform such tasks. Thereby, due to all of these reasons the courts were
skeptical in order to used SI.

Afterwards, in 1945 the (Eynesbury) test was established by Lord Greene in order to conduct SI. Test
state that “SI can only be conducted where the government’s action is so unreasonable that no reasonable
person would have taken such a decision”. Meaning that the review can only be conducted if the
executive action is so unreasonable that the no reasonably body can ever reach at such decision. Further,
Lord Greene state that “it is true to say, that if a decision on a competent matter is so unreasonable that no
reasonable body could ever have come to it, then the courts czn interfere. That, I think, is quite right, but
to prove such case of that kind would require something overwhelming”. It is seen in the case of
Warrington L.J is Sort v Poole Corporation [1926] that the teacher was demised due to red hair she had.
Afterwards, the Eynesbury test was also accepted in the case of (GCCHQ) [1985) that by “irrationality”. I
mean what can by now be succinctly referred to as “wednesbury unreasonableness” (Associated
Provincial Picture House Ltd v Wednesbury Corporation). It applies to a decision which is so outrageous
in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at it”. While in the case of Longhorn the decision of
divisional court was quashed on the grounds that the courts are not allowed to invalidated the home
Secretary decisions who was charged with the duty to perform these tasks by the P. Whereas in the case
of (Roger) where the government has fund to treat all the party was considered wrong, similar in the case
of (Cambridge Health Authority) that decision of refusal to provide treatment was justified as the
government does not had the enough resources to treat all the parties.
However, the test of Eynesbury was criticized by the Lord Cock in the case of International Trader Ferry
case and Daly that “I think that the day will come when it will be more widely recognized that
Associated Provincial Picture House Ltd v Eynesbury Corporation) was an unfortunate retrogressive
decision in English administrative law, insofar as it suggested that there are degree of unreasonableness
and that only a very extreme degree can bring an administrative decision within the legitimate scope of
judicial invalidation” As lord cock was that law needs to modified and the review should be conducted
on all the types of unreasonable rather than on extreme unreasonableness shall be ground for it. The
purpose of this was that it would uphold the rule of law (ROL) that all the legal actions of the government
were be made accountable and the deeper revoicing can be conducted on their actions to prevail justice in
the system. But the test was not used in UK as it was mere an obiter statement which is not binding on the
courts to apply.
As in UK the grounds for SI are irrationality, but in apart from UK other Europe follow the concept of
proportionality which hold greater scrutiny on the executive actions. Whereas proportionality is viewed
on the points that decision made is necessary and suitable to achieve the particular objective and was not
putting unnecessary burden on individuals. As prime example of disproportionate decision by the
government that the person was penalized (1.67 million) for four-hour late submission of the
documentations. Similar, MEQR in the case of (Cassis de Dejon) was held disproportionate to achieve
consumer protection. Hence, the proportionality is only used in EU states other than UK but as UK had
also become the part of European Union (EU) in 1979 so the UK in the case of EU was required to use
proportionally.
Now, we shall be seeing the influence of proportionality in UK due to EU membership. UK courts at
initial stage were very reluctant to recognized the concept of proportionality in UK. The prime example of
non-recognition of proportionality can be seen in the case of (GCHQ) (1985) the courts held that
“proportionality, may in the future be recognized as a ground for JR, but not in the current case” . While
in the case of Brind (1999) Lord Bridge said that “Proportionality at sometimes later will be
incorporated in UK law, however, this case is not an appropriate are for such a development”. Like in
the case of international stock exchange (1992) Popplewell J. Proportionality is not a free ‘standing
principle in domestic law”. Whilst in the case of key (2016) that “supreme court neither rejected, but
neither accepted the grounds of proportionality”. Thereby, it can be seen that the UK courts dose not
recognized the ground of proportionality in these cases.
However, there are also some case where the courts accepted the proportionally ground by virtue of the
obiter statement as seen in the case if Walker that “Nowadays, courts are inclined to frame questions of
substantive review by means of proportionality despite of irrationality. Similarly in the case of Alconbury
it was stated that “it is now time to recognize the proportionally grounds as the courts need to deal
community act and acts subjected to the domestic law on this ground. As to put Eynesbury and
proportionality in separate heads is creating complication in the system”. Therefore, proportionality is
recognized but it was not become precedent that these were mere obiter statement and the main ground
for SI is irrationality. Afterwards, there are some other cases where courts recognized the proportionality
indirectly that can be seen in the case of Brind that “In human rights, violation cases the courts need to
use the ground of proportionality. More, in the case of Nadarajah It was held that it the government will
breach his legitimate expectation if it doses not fulfil his promise, unless the government had
proportionate reason to breach legitimate expectation of individuals”. Similarly, in the Human Rights Act
1998 (HRA’1998) had codified the requirement of proportionality for the HR related cases. Thereby, it is
seemed that proportionality is recognized in UK indirectly. However, the proportionality is not a
preferable ground to conduct review on its basis.
In UK, if proportionality is recognized there are certain benefits that there would be single ground for all
cases means that proportionality will be used in EU and HR along the case of common law. However, it
provides the deeper scrutiny to upheld the rule of law and accountability would become stronger. And
there are various degrees of proportionality on which the courts had option to apply any of it. On the other
side, there are some disadvantages if UK recognized the proportionality that it violates the doctrine of
SOP that the courts get more powers to encroach the territory of executive. However, the courts had not
such skills to balance the rights of individual and state. Along with this it would lead uncertainly in legal
system that most of decisions will be left with the desecration of court that also make the law
unpredictable. Additionally, the claimant will also suffer the high cost of litigation in order to put claim in
the courts. In this regard, Otto Kahn Freund state that proportionally in not a UK principle and it should
be used in care that it would not lead to undermined the basic principles of the system. In addition to this
Wade and Forsyth, the courts are not had such understanding and skills to take polycentric decisions
which are manly taken by the executive after considering all the factor. Therefore, the UK should not
move forward to proportionally ground as it doses not paly role to make JR strong but it will result in
many state level problems that create chaos in administration of the state.
In the conclusion, we can say that irrationality is not only ground to have strong executive autonomy in
place, as it is noted that the main purpose for the established of JR is to had strong check and balance on
the executive action. So, to achieve, this objective there are other grounds that can result in strong check
and balance on check and balance on executive that is illegality and procedural proprietary. In addition to
this, the scope of JR is also extended to the further grounds for strong accountability. Along JR, UK also
possesses an strong accountability mechanism in the form of the collective ministerial responsibility
(CMR) and Individual ministerial responsibility (IMR). Since, the UK does no need to recognized the
foreign concept which can led to uncertainty in the system.
2. “The replacement of the Wednesbury test with a proportionality test would bring about profound
improvements in the substantive review of administrative decisions.” Discuss. (Resit 2017)

We can understand from the above statement that it was in relation to the adoption of the ground of
proportionality of Judicial Review. In UK, there are the three grounds to conduct JR i.e., illegality,
irrationality and procedural imprinter but the ground of the JR is used in the other Member states (MS) of
European Union (EU). However, the adoption of proportionality as a ground is a long debatable concept
which was supported and coitized by the different academic author is in UK. The above statement is also
saying that the Eynesbury test needs to be replaced with a proportionality test in order to improve the
substantive review of the administrative courts. We shall be arguing in the answer that the UK does not
need to replace the proportionality test along the discussion of the successive case laws in relation to the
concept of substantive intervention in UK (SI)
In UK, there are two different types of legal system i.e., private law and public law legal system. The
cases related to the private law are resolved in an ordinary court but the cases in relation to the public law
are dealt in administrative courts. However, the public law can be referred as the admin law which is a
crucial study of JR. Whereas, JR is a newly introduced concept in UK to have strong check and balance
on the government actions. Previously, the courts were very reluctant to conduct the JR of government
actions due to the crown supremacy in the state. Now, the crown role in UK is so limited due to the
introduction of different sought of the reforms that result in the abolishment of the crown powers.
Afterwards, the crown different roles are now performed by the executive so to have strong check and
balance on the executives actions the concept of JR was coming into being. However, the court was only
allowed to conduct the JR on the ultra-varies actions of the government that is beyond the powers of the
government but the government used his powers. Whereas, intra varies actions are those which are
conducted within the powers conferred to the government. Moreover, if the action is intra varies the court
is not allowed to conduct the JR even if the government action is so unreasonable and analogical but the
courts were not allowed to conduct the deeper scrutiny by the virtue of using the proportionality test. If
the court increase the interference in the government action it will result in the breach of separation of
power (SOP), because the government was the only authority was charge to perform the executive action.
The interference of the court will result in the overlap of the powers between judiciary and executive.
Along this, the doctrine of democracy is disregarded if the court review every government action because
the P had given powers to the executive to take such decisions because the members of the government
are the elected person come by the vote of the people and the judges are unelected personnel thereby the
increase of JR will result in democratic deficit. Hence, we can see that the courts were initially not using
the ground of SI at larger scale.
We shall now be highlighting the SI test and the used of the SI in different cases, in 1945 the Eynesbury
test was introduced in order to conduct review on the government actions. The test was introduced by the
lord Greene that “it is true to say, that if a decision on a competent matter is so unreasonable that no
reasonable body could ever have come to it, then the courts czn interfere. That, I think, is quite right, but
to prove such case of that kind would require something overwhelming”. He stated that the government
action review can only be conducted that when it is so unreasonable. It directed towards those actions of
the government which are extremely unreasonable and the no authority could ever tak such type of
decisions. It can be seen from the case example of Warrington L.J is Sort v Poole Corporation [1926] that
the teacher was demised due to red hair she had. Moreover, Lord Diplock in the case of (GCHQ) [1985]
also supported the Eynesbury test that “by “irrationality”. I mean what can by now be succinctly referred
to as “Eynesbury unreasonableness” (Associated Provincial Picture House Ltd v Eynesbury Corporation).
It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that
no sensible person who had applied his mind to the question to be decided could have arrived at it”. In the
case of Lonrho, the decisions of the divisional court were quashed because the divisional court stop the
Home Secretary to public a report. The House of Lord (HOL) held that the judges are not supposed to be
disregard the executive actions because what they are doing is their duty which they are charged by the
parliament. Whereas, there are some case example where the court conduct the JR on the basis of
irrationality like in the case of (Roy coo Homes and Hall &Co) here it was concerned about the
burdensome conditions on grant for permission, (Balchin) it was in relation to the errors of illogical
reasoning, (Rogers) was concerned with the use of the resources to treat the parties was refused, however,
the facts of Rogers are separate from the (Cambridge Health Authority) because in this case the institution
does not have funds to treat all the people. Hence, it can be seen the courts are using the Eynesbury in the
limited cases.
The Eynesbury test was criticized by the Lord Cooke in the case of (International Traders Ferry Case)
[1998) where he refers the Eynesbury as a tautologous and unnecessarily complicated. Whilst in the case
of (Daly) he stated that” I think that the day will come when it will be more widely recognized that
Associated Provincial Picture House Ltd v Eynesbury Corporation) was an unfortunate retrogressive
decision in English administrative law, insofar as it suggested that there are degree of unreasonableness
and that only a very extreme degree can bring an administrative decision within the legitimate scope of
judicial invalidation”. The lord cook wants to overrule the Eynesbury test and want that the court should
to conduct the review on all the unreasonable actions of the government. The purpose behind was that it
will uphold the rule of law (ROL) and the provide the stronger scrutiny of the government’s actions
which was impossible if the court conduct the scrutiny on the basis of the Eynesbury test. However, the
suggestions of Lord Cook were not still adopted because these were mere obiter statement which does not
considered as binding precedent on the UK courts.
The UK in order to remove the trade barriers joined the EU where EU signed the European Communities
Act (ECA’1972). Due to this, the UK became the part of the EU which comprises of the Further 27 MS
where the concept of proportionality was used to conduct the deeper scrutiny of the government actions.
While proportionality is different from the ground of the irrationality. Irrationality is ground where court
would see that the action is extremely unreasonable but for proportionality the courts will see whether the
action is necessary to achieve the desire objection, suitable to achieve the desire objective and was not
imposing the burden on the individual. Here, we will highlight the cases where the proportionality was
used in the EU, in the case of (Cassis de Dijon), it was held that MEQR was disproportionate for
achieving the consumer protection. Similarly, in the case of Man (Sugar) [1985] that government imposed
the 1.67 million penalties for the late submission of document for 4 hours which was held dipropionate. It
seems that proportionality is very important ground for EU related cases.
Now, we shall be highlighting the cases where the UK disregard the ground of the proportionality. At the
initial stage the UK was very reluctant to use the ground of proportionality in the common law cases
which can be seen from the following case law examples (GCHQ) (1985) the courts held that
“proportionality, may in the future be recognized as a ground for JR, but not in the current case” . While
in the case of Brind (1999) Lord Bridge said that “Proportionality at sometimes later will be
incorporated in UK law, however, this case is not an appropriate are for such a development”. Like in
the case of international stock exchange (1992) Popplewell J. Proportionality is not a free ‘standing
principle in domestic law”. Whilst in the case of key (2016) that “supreme court neither rejected, but
neither accepted the grounds of proportionality”. Thereby, it can be seen that the UK courts dose not
recognized the ground of proportionality in these cases.
However, there are also some case where the courts accepted the proportionally ground by virtue of the
obiter statement as seen in the case if Walker that “Nowadays, courts are inclined to frame questions of
substantive review by means of proportionality despite of irrationality. Similarly in the case of Alconbury
it was stated that “it is now time to recognize the proportionally grounds as the courts need to deal
community act and acts subjected to the domestic law on this ground. As to put Eynesbury and
proportionality in separate heads is creating complication in the system”. Therefore, proportionality is
recognized but it was not become precedent that these were mere obiter statement and the main ground
for SI is irrationality. Afterwards, there are some other cases where courts recognized the proportionality
indirectly that can be seen in the case of Brind that “In human rights, violation cases the courts need to
use the ground of proportionality. More, in the case of Nadarajah It was held that it the government will
breach his legitimate expectation if it does not fulfil his promise, unless the government had proportionate
reason to breach legitimate expectation of individuals”. Similarly, in the Human Rights Act 1998
(HRA’1998) had codified the requirement of proportionality for the HR related cases. Thereby, it is
seemed that proportionality is recognized in UK indirectly. However, the proportionality is not a
preferable ground to conduct review on its basis.
There are certain types of the advantages if the UK adopt the proportionality as the ground of the JR. If
the UK adopt the proportionality the test for, EU, HR and common law cases will become same that
create the certainty in the legal system. Along that it will result in the stronger scrutiny of the government
actions because the court can review the government action at any type of the degree that result in the
deeper scrutiny of the government actions. Moreover, the doctrine of the ROL will also be upheld
because the scrutiny of the government actions will result that the no personnel or institution is above the
law and law will be equally apply on the government actions. On the other side, it had certain
disadvantages that the doctrine of SOP will be undermined because the proportionality will result the
interference of the judiciary in the executive. Moreover, the courts are not well -equipped to exercise the
balance between the individuals and the government. This will also result in the legal uncertainty because
the judges had the discretionary powers to decide the cases that will also increase the cost of litigations.
Moreover, Otto Kahn argued that proportionality is the foreign concept and should be treated as such
care. Similarly, Wade & Forsyth argued that government decision is generally polycentric so the courts
are unable to undertake such decisions.
In the light of the above arguments, we can affirm that the Ku does not replace the Eynesbury test to
proportionality test, the UK can do that use proportionality for HR cases because now the UK is no more
the member of the EU after the Brexit and apply the Lord Cook recommendations while deciding the
common law cases as modified the Eynesbury test despite of overruling the case. Moreover, to have
strong accountability of the government actions there are father grounds of the JR is also present like now
the review is also confided if the government breach the legitimate expectation of individuals. Moreover,
the ombudsman and the convention of CMR and IMR will also help to have strong accountability of the
government action. Thereby, UK in my view should not adopt the proportionality as the ground of the
JR,.

OMBUDSMAN:
‘Critics of the Parliamentary Commissioner for Administration are misguided. The current
regime under the Parliamentary Commissioner Act 1967 is an effective method for the
resolution of grievances.’

Discuss.

In UK there was no presence of the codified constitution which make the public authority
accountable and regulates their power, thereby in UK the all-state laws formed by the
Parliament (P) and the common law also developed some laws. There is the different function of
both institutes P and the courts as they had so much things to done, in these situations they are
not able to have effective scrutiny of the government maladministration. As the parliament is
involved in the accountability of government for their exercise of the power and which also
revived by the court through the Judicial review (JR) but the check and balance on
maladministration is not done strongly so in accordance to the recommendation of (Wyatt
report) the office of ombudsman has been established in the UK to have check and balance on
maladministration independently and they are called as the Parliamentary commissioner for
Administration (PCA). In the essay below, we shall be highlighting the effectiveness of the PCA
in UK along the discussion of the system of ombudsman working in UK.
As stated earlier, the developments of the ombudsman were recommended in Wyatt report
where in accordance to implementing this the PCA was introduced the UK. In 1967, the act of
Parliamentary Commissioners Ac (PC Act) t was enacted which formed the office of PCA.
However, the concept of ombudsman does not come from the English system but it was
influenced by Scandinavian Idea. Here, we will highlight the general feature of PCA in UK, first
of all PCA is appointed by the crown for the 7-year period terms and was not influence by the
crown in any way and perform his duty as the assistant of P. More, PC is required to took
investigation against the public authorities who are mentioned under the schedule 7 of the
article. The investigation can also be initiated against the private firms who are contracted to
perform the task of the public body. Whilst PCA is only entitled to take investigation to against
the functions and duties of governments. It means the PCA is not required to investigate the
actions of the legislative functions of the government and also not supposed to investigate the
judicial function. Meanwhile, the PCA cannot start the direct investigation and can only done
investigation on the complaints put forward by the member of parliament (MPA) which is
referred as MP filter i.e. the citizen is not directed to file the complaint PCA at first place as
they are supposed to file complaint to MP who forward their application to the PCA is it deems
fit. This filter was held necessary as it does not put a lot burden on the office of the PCA.
However, the definition of maladministration was not previously defined by the act but it was
defined in the 1998 report of PCA that maladministration as “poor administration or wrong
application of rules. This includes avoidable delay, faulty procedure, failure to follow correct
procedure, not disclosing appeal rights to individuals, unfairness, biasness, prejudice, giving
misleading advice, refusing to answer reasonable queries, discourtesy, making un handling
claims and not offering a remedy where it is due”.

It is relevant to mention here the complaint procedure and investigation procedure of PCA, it is
nectary the complaint must be UK resident or individual who must be present in UK at the
alleged maladministration. However, there is certain time limit of 12 months to filled the
complained for maladministration to MP it the time limit is reached then it is PCA’ discretion to
entertain complaint or not. As we mentioned in earlier paragraph, the complaint was initially
submitted to relevant MP who put forward to PCA. AS there was no direct access given to the
citizen to the office of the PCA because the PCA is not the lawyer of the citizen but was the
assistant of the P to overcome their burden in regarding the maladministration of the public
authority. However, there are certain recommendations under Public Select Committee (PASC)
2010 to remove MP filter which was rejected and the similarly it was again proposed in “Public
service Ombudsman Bill 2016” to remove the MP filter but this was still draft and not a bill
presented in the P.
Now, we shall be discussing investigation process of PCA. There are three limbs in which
investigation is done, first is screening where it was seen that the complaint is filed is our
jurisdiction or not to investigate and if the screening is passing then the formal investigation was
put forward by PCA where investigation was initiated and all relevant authorizes was
summoned and the information is collected. Lastly, there was report formed by the PCA at each
of investigation which was submitted to the relevant department and if the maladministration is
so serious the report is also submit to the P for action. And there is also annual report is
published by PCA office. After the investigation is done there are certain remedies which PCA
provide. However, the decisions of PCA are not binding on authority but according to the report
of PCA in 2010/2011 it was claimed that the 90% of the PCA recommendation is followed by
the administration which shows the effectiveness of PCA in UK. There are some reasons due to
which these recommendations are followed because the recommendation was not strict as in
most of the cases PCA give recommendation of formal apology, remedial measure and financial
compensation for loss and distress. However, if PCA recommendation is rejected the JR can be
conducted on those grounds as seen in the case of (Bradley) where the ministers rejected the
PCA findings on winding up an occupational fund. The COA held that the ministers are not bind
to the decisions but they are not subjected to reject the findings on the basis that they had
different preferred view.
Moreover, there are some examples of the notable cases where PCA’s recommendation was
followed as seen in the case of (Barlow Clowes Affairs) where Department of Trade and
Industry (DTI) was at fault due to which the many investors suffer the substantial loss. This was
also affirmed by the PCA report that DTI has done maladministration. However, PCA finding
was not accepted bur the loss suffered by the investors was compensated 90%. Similarly, in the
case of (Sachsenhausen) that Germany had provided money for the compensation to UK for the
victims of Sachsenhausen but UK failed to provide compensation to 12 people due to
maladministration which was determined by PCA.in this case, the government gave the
compensation to 12 people through their own funds as the money given by Germany is already
distributed. Hence, it can be seen PCA investigations made the government bound to provide the
compensation in the cases where they had done maladministration.
Due to success of PCA, there was also introduction of the ombudsmen in the department of
Health and Local authority. We first shall disc the health commissioner that it was first
introduced Ny the National Health Service Reorganization Act 1973 and now regulated under
health Service Commission Act.1993 (HSCA) on the points that there is failure of authority to a
provide a service which it was meant to provide, alleged failure in service provides by Authority
and maladministration connected with any action taken by the authority. However, there is no
MP filter for HSC and the investigation procedure is same as to PCA investigation procedure.
Now we shall be discussing, the Local commissioners which was enacted by Local government
Act 1967, where the individuals given direct access to file the complaint where the complaint
should be filed due to loss of maladministration. The local authority is required to respond the
report of commissioner. Hence, it can be seen that office of PCA is also extended to the other
 offices which shows ifs effectiveness in UK.
However, to have more effective the system the PSAC also reviews the action of PCA and
examines its reports which made the pressure ti follow the recommendations of the PCA.
Moreover, JR is not conducted on the findings of PCA as court not interfere in this matter.
In the light of the above discussion, we can said that the system of PCA is effective in UK
because it provide the strong scrutiny of the maladministration. However, the reform can be
bring for more effective system to remove the MP filter. However, the separate office of PCA
for department is reasonable as the individual are supposed to filled their complaints in
respective departments for their alleged maladministration.
1. ‘The Parliamentary Commissioner for Administration delivers important functions in terms of
grievance redress and improvement of future administrative action.’

Discuss.

It is crucial to note the important factor that UK does no posses codified constitution due to which
number of the problems arises. As the constitution is the supreme document which assure ROL, SOP,
protect HR, and Accountability. Without codified constitution the UK P tried his best to achieve all this
feature. Thereby, to have strong accountability of the executive the UK introduced the doctrine of CMR
and IMR which are enforceable by the virtue of convention I.e., the rules follow due to political pressure.
Further, to have strong accountability the concept of JR was introduced where the court have check and
balance on the government’s actions on the grounds of irrationality, illegality and procedural impropriety.
But it was not enough this accountability is at higher but at the lower scale there are many administrative
flaws which was not resolved by the Parliament and the court because they had more important issues to
redress. In view of this, the Parliamentary Commissioner for Administration was introduced by Wyatt
Report to redress grievance and improvement of future action. In the answer below, we shall by arguing
in the favor of the above statement along the overview of the PCA system in UK.

By the way of background in 1950s the issues regarding the public administration were increased. To
resolve these issues the Wyatt Report was published which proposed to suggestion to resolve this problem
that includes establishment of a general tribunal to deal with administrative flaws and the establishment of
the office of PCA in UK which is also called ombudsman. As ombudsman is a separate institution which
investigate the maladministration of public authority. By implementing the recommendation of Wyatt
report the office of PCA was established in UK by the enactment of Parliamentary Commissioner Act,
1967 (PC Act 1967). Moreover, the idea of PCA does not find in the English legal system because it was
influenced by Scandinavian idea. PC Act 1967 state that “PCA shall be appointed by the Crown who shall
hold the office for no more than 7 years”. It shows that the PCA is the separate institution which was
appointed by the crown but in reality, there is no interference of the crown in the work of PCA. The act
also listed the public authorities against whom the PCA got the power to investigate in (Schedule 7 of PC
Act). The PCA cannot investigate private firms unless they are contracted to perform the project of public
importance. Whilst the PCA can only investigate the administrative functions of the government only and
sare not allowed to investigate the legislative function of the P and the Judicial faction of the courts.
Further, PCA is not allowed to carry the direct investigation because he was supposed to investigate the
those matters whose complaint is put forward by the Member of Parliament. This shows that the citizens
are not provide a direct access to the office of the PCA as they first sent application to relevant MP after
MP forward to PCA (which is referred as MP filter. MP filter is very important because it does no create a
lost burden on the office of the PCA which can make the working of PCA office inefficient. This was also
due to the fact that PCA is not the lawyer of the citizen but PCA is the assistant of P who investigate the
administrative issues.
Whereas the definition of maladministration was not given under PC Act 1967 but in 1998
reports provides the definition of maladministration that poor administration or wrong
application of rules. This includes avoidable delay, faulty procedure, failure to follow correct
procedure, not disclosing appeal rights to individuals, unfairness, biasness, prejudice, giving
misleading advice, refusing to answer reasonable queries, discourtesy, making un handling
claims and not offering a remedy where it is due”.
Now, we shall be highlighting the complaint procedure of PCA, the complaint can only be put forward by
the citizens of the UK or the individual who is resident in UK at the time of the maladministration.
However, the application cannot be put forward by the department against the other department. Whereas
the application was first transferred to MP then MP decides whether complaint is fit to put forward to
PCA office. This MP requirement work as filtration against unmercenary claims of the citizens towards
the administration.
Afterwards, we shall be discussing the investigation procedure of PCA, the investigation was done in
three different stages which is screening, investigation and report. At screening state, it was seen that
application which is put forward is come other their jurisdiction or not. If screening pass then PCA collect
the information from different sources which can be in the form of the document or summoning the
relevant people. After investigation PCA form the report at the different stages of investigation and
provide the report to parliament if the maladministration is very serious. Although at the last of every year
PCA publish annual report containing the details of the investigations.
Moreover, there are some remedies are also provided by PCA to resolve the matter, however, the
remedies are not enforceable on the public administration but the PCA report of 2010/2011 shows that
99% recommendations of PCA are accepted. This was due to the fact that PCA recommendations are very
easy to fulfill like it usually can be formal apology, remedial measure, and financial compensation for
loss. If the public administration does not full the recommendation the JR can also be conducted or some
other action can be conducted against them. As seen in the case of (Bradley) where PCA finding was
disregarded then JR was conducted on the grounds of irrationality. Similarly, in the case of Bradley where
the PCA findings regarding the winding up of the occupational fund was not accepted. The COA held that
PCA findings are not subject to reject by minister due to his preferred views.
However, there are some notable cases where the findings of PCA accepted and the public administration
had to compensate the losses. As seen in the case of (Barlow Clowes Affairs) [1991] where the investors
suffer substantial loss due to the negligence of department of Trade and Industry (DTT) because DTT
performing a supervisory role on the business. The PCA found the maladministration of DTT but it was
not accepted, however, they compensate 90 % of the loses which shows the importance of the PCA.
Similarly, in the case of (Sachsenhausen Affair) [1967) where the Germany had provided funds for the
people who affected to the victims of Sachsenhausen to UK government. But due to UK’s
maladministration the money was not equally distributed and fund was not received the funds. It was
found by PCA the maladministration which was compensate by UK government from their own funds.
These two cases shows that how much the findings of PCA.
Due to the strong system of PCA, the introduction of PCA was also done for other departments of the
government i.e., Health Service Commissioners and Local Service Commissioners. Firstly, the demand
for local commissioner was started in 1973 which was adopted by the enactment of Ny the National
Health Service Reorganization Act 1973 and now regulated under health Service Commission Act.1993
(HSCA) on the points that there is failure of authority to a provide a service which it was meant to
provide, alleged failure in service provides by Authority and maladministration connected with any action
taken by the authority. However, there is no MP filter for HSC and the investigation procedure is same as
to PCA investigation procedure. Now we shall be discussing, the Local commissioners which was
enacted by Local government Act 1967, where the individuals given direct access to file the complaint
where the complaint should be filed due to loss of maladministration. The local authority is required to
respond the report of commissioner. Hence, it can be seen that office of PCA is also extended to the other
offices which shows ifs effectiveness in UK.
Moreover, to have the better working of PCA the Public Service Administration Select Committee
(PASC) also review and examine the report PCA which exert pressures on te authorities to comply with
PCA findings. However, the courts do not interfere the findings of PCA but if the PCA finding is rejected
have the powers to conduct the JR in relation to the matters. These two bodies help to make the PCA
more effective.
Here, it is important to mention the future reforms which can be brought by UK P to improve the system
of PCA. It was demanded the MP filter at no of time but it was rejected as the MP filter help to reduce the
burden of PCA office. It was said inn Regulatory Reform Order, 2007 and Public Service Bill, 2016
demands the removal of MP filter and the consolidation between the 3 offices of PCA. But each
recommendation was rejected because the removal of MP filter and single system of PCA can lead to
uncertainty and inefficiency in the working of PCA office.
Conclusively, we can say that the PCA is playing important role to redress the administrative functions
and provided the remedy to the aggrieved citizens. The PCA is a very strong system to investigate the
maladministration actions because it is free from the biasness and the working of the office is very
efficient as it is not overcrowded by citizen complaints. As we can say that the role of PCA is like the
firefighter and firewatcher because PCA prevent possible maladministration and investigate possible
administration (referred by Harlow and Rawlings, Law and Administration Act) [2009]

NATURAL JUSTICE:
‘The objectives underlying the audi alteram partem principle and the duty to give reasons are
vitally important. The decided case law has not always been successful in meeting these
objectives.’

Discuss.
Audi Alteram partem principle come from rules of natural justice to uphold the rule of law
(ROL). The principle of AAP ensures a right to fair hearing in judicial proceedings but later the
APP is also recognized in executive proceedings in the case if (Ridge v Baldwin). However, the
requirements of fair trail are mainly recognized under the common law but the requirement to
give reasons of the decisions does not inherited by the common law, it was influenced by the EU
law. However, the UK courts does not always provide the reasons for their decisions which can
be seen from the examples of the different cases which we shall be highlighting in the answer
below.
In order to prevail the justice, the concept of procedural justice was carried out. The courts were
allowed to conduct the review on the actions of the government if they fail to meet procedural
requirement set out in the statue or the common law. Here, we briefly discuss, the procedural
requirement set out in the statue which can be in the form of mandatory or discretionary
requirement. However, the government fail to follow the mandatory requirement the decision
will be void as seen from the case of (Bradbury)) where it was set before the opening or closing
 the school in locality the notice ghoul be given but the council fail to give notice and the Lord
Denning held the decision void. While if government fail to follow the discretionary
requirement, the decision will become voidable as seen from the case example of (burley) where
the law required the government ministers to consider the environmental impact and issues the
environmental statement, the minister carried out the environmental impact but failed to give
statement. In this scenario, the court does not invalidate the decisions.
Now, we shall be discussing the rules of natural justice under the common law. The rules of
natural justice are also reflected under Article 6 of ECHR which is now incorporated in local
law through HRA 1998. Previously, the rules of natural justice were only limited to the judicial
proceedings but now it is extended to the executive proceedings. Rule of Natural justice
required that right to a fair hearing (Audi Alterum Partem) and Freedom from bias (Nemo judex
Causa Sua). Meanwhile, the right to fair hearing required that the both parties should be heard
in the court of law. This gives chance accused to know about the allegations made against him
and also response them (install Valley) (Ridge v Baldwin). For example, in the case of (Cooper
v Wandsworth Board) that the statue requires to demolish a building. The court held jay even
though they have the statutory power, they should have given a hearing at the plaintiff. In 1994
Doody provided the principles of fairness that are “where a stature gives an administrative
power, it is presumed and it will be exercised in a fair manner, the standard of fairness is not
immutable, it may change with the passage of time, principles of fairness may apply differently
in different situations, when determining what is fair regard must be given to a statutory
discretion, fairness may also require the aggrieved to make representation on his behalf and it
also require the aggrieved to be informed of the case he has to answer”
Here are the requirements of natural justice in administrative decisions i.e., notice, consultation,
hearing, representation, and duty to give reasons. Firstly, the common law requires that the notice
should be given to the accused about the action which is brought against him as Lord Denning
stated that “the right to be heard… must carry with it a right for the accused to know the case
being made against him”. However, in some situations the notice requirement is not effective as
arrest warrant and search warrant. In Auriea Lord Steyn said the notice requirement can be
excluded but that has to be done by the Parliament. Secondly, to consult the Invidia before the
change of policy is not required in common law unless the claimant show the evidence of the
legitimate expectation. As seen in the case of (Green Peace) [2007] that government stated that
there will be full consultation before the change of policy but the government change the policy
without the consultation which was considered breach of Natural justice by the court.
Accordingly, caring JR to be conducted on “adequacy of the consultation exercise”. Thirdly,
hearing will be conducted if the individual’s liberty is at stake, If the statue limits the right of
hearing orally the individual has right to represent in writing. While in the case of (Robert 2005)
that “The parole Borad had decided to conduct a hearing but stated that certain evidence would
not be disclose to the accused. Due to such being have highly sensitive. The House of Lord held
that reserving the evidence was not a violation of the Natural Justice”. Fourthly, the initials also
had the right to represent his case and the representation can be by a lawyer another person who
present the case on his behalf. However, the representation by a lawyer is not a mandatory
requirement but the court see the certain factors to allow the representation in the case or not
“Seriousness of charge, Possibility of legal issues, Ability of person to present their own case.,
any procedural difficulties to represent the case there is reasonable speed in making the
adjudication, and the need of fairness between the individuals and the officers”
Lastly, In English common law there is no duty to give reasons unless there is a statutory
requirement to give reasons. But in EU law there is a duty to give reason due to which there is
long lasting debate to impose a duty to give reasons in the UK law.
Moreover, there are some advantages to provide the reasons that are, reasons can increase the
public confidence that they aware of the fact that the decision is transparent and was deciding
according the facts of law. Although it would be convent for the judges if they provide reason
which help in appeals. However, the reasons will stiffen the exercise of discretion and overburden
the administration. However, it was countered that there is no evidence in EU laws that reasons
overburden the administration.

Now, we will discuss, the freedom from bias that can be in the form of financial an person
bias. Firstly, any financial interest in the outcome of the case if considered as financial bias
and will lead to breach of Natural justice (Dimes v Grand Junction Canal) the judge had a
share of a very nominal amount in one of the litigant parties. The House of Lord held that the
case had to be retried before other judges as the original judge had the financial bias (or a
possibility of a financial bias). While in the case of (Bromley LBC v GLC) The case was
revolving around the ticket charges charged by TransportForLondon (TFL) for the public
transport. During the case it was argued that a particular judge could not decide the case
because he was himself a user of the public transport. It was held that the financial interest of
the judge did not go beyond the financial interest of any other ordinary citizen. Secondly, A
judge must not express his personal opinion on race, gender, ethnicity, age, political
background or any other personal opinion. In Porter v Magill (2002) Lord hope stated that
test of biasness would require a consideration that whether a fair minded and informed
observer having considered the facts would conclude that there was a real possibility or danger
 of biasness. Biasness would be seen objectively. (Church of Scientology) Lord Denning
excused him from deciding this case as he had strong religious beliefs against the church of
scientology. (Pinochet Ugarte) In this case evidence was being given by amnesty
international or an organization where the Lord Hoffman was a director. Although it was
concluded that Lord Hoffman had no biasness yet still in order to avoid an iota of biasness the
case was reheard. (EL Froggy v El Froggy) The judge had made the racial comments before
the case hence creating a real possibility and danger of biasness.

In the light of above arguments, we can say that the principle of APP is very important for the
concept of the natural justice, but the duty to give reasons is debatable requirement because if
the co

SUBSTANTIVE LEGITIMATE EXPECTATION:

IT would be an entirely sensible development for English administrative law wholly to
abandon the concept of estople and instead to develop more fully the doctrine of
substantive legitimate expectations”. To what extent do you agree with this proposition.
In English admin the doctrine of substantive legitimate expectations (SLE) was introduced to protect
the individual’s legitimate expectation against the government. However, the doctrine of SLE
is totally different from the doctrine of estoppel which was used to protect the individuals
promises against the individuals. It shows that the estoppel was only used for the private law
matters and the use of estoppel in the public matters will result in the breach of the
governments legitimate expectation. So, to protect the expectations of individuals which arise
due to government promises will be protected under SLE. So, IT would be an entirely sensible
development for English administrative law wholly to abandon the concept of estople and
instead to develop more fully the doctrine of substantive legitimate expectations. In the answer
below we shall be giving the arguments in the favor that the doctrine of SLE needs to be
developed strongly along the examples of the cases.
Initially, the courts were very reluctant to review the intra varies actions due to the breach of
separation of power (SOP). As SOP will be breached if the court start to challenge the
government’s law full discretion. The court got the power to review the government action by
the virtue of Judicial Review (JR). The concept of JR is very important in the admin law study
because the admin law wholly surrounds around JR conducted by the court on the actions of
the public authority. The courts were only required to conduct the review on the governments
ultra varies actions i.e., the power exercised by the government which was not their domain.
 But the court are not supposed to conduct the review on the intra varies actions of the
governments i.e., the exercise of the power within the limits they are conferred. However, the
concept of SLE arises from the intra varies actions of the government, so the court were not
protecting the individual’s legitimate expectation.
Further, it was argued by the different authors that the government should be bound by their
promises due to number of the reasons. In the case of (Hamble Fisheries) [1995] Sedley J
argued that SLE is important for the fairness in the public administration. SLE will also help
to increase the trust on the government because the governments are bound to follow their
promises which ultimately creates the relationship of trust between the citizens and the
government. It helps to run the government matters efficiently as stated by (Reynolds) [2011]
if the government always go back on their promises will create the chaos in the society and the
citizens will start protest against the government which ultimately affect the economy of the
state. Along that SLE also upholds rule of law (ROL) because ROL requires that the law
should equally apply on the every one and if the government discriminately apply the polices
on the individuals will result in inequality. Thereby, to uphold ROL the SLE is also very
important because it ensures the predictability and certainty in the law. In the view of Prof
Raz, to fulfill the promises if the moral duty of every individual thereby this duty should also
be placed on the government to full fill their promises. Moreover, if the government go back
from their promises, it will also result in the wastage of the sources because it is possible that
individual has invested but due to change of policy loss suffer in investment. Hence, it is very
much required that the individual’s legitimate expectation needs to be protect. This will not
disregard the government lawful discretion because the government was itself responsible for
his actions.
Due to these reasons, the need to protect individual promises arises in English admin law, the
English legal system had a concept of estoppel which was used to protect the promises without
the consideration if breach by the promisor. However, the concept of estoppel cannot be used
in the public law related matters because it is solely used in private law matters. The use of
estoppel will lead to undermining the governments lawful discretion. Therefore, the concept of
SLE was established in English admin law which at some extent protect the legitimate
expectations of the individuals.
However, there are certain requirements which needs to be met to claim SLE successfully, SLE will
only be arise from the clear statements or representations of the government. It means SLE
cannot be arise from the unclear statement as seen in the case of (Bankrupt) where
representation was unclear which does not arise SLE. However, SLE will only arises from the
 intra varies actions of the government and it would not be arisen from the ultra-varies actions
of government. The representation can be made by the virtue of contract, notice, policy,
circular, statement and conduct as seen from the case of (Unilever case). The SLE claim will
only be successful if it’s directed towards the individual specifically. Moreover, the
requirement of detrimental reliance is not mandatory for SLE claims to be successful but it
overall made the argument strong.
Moreover, there also certain conditions where SLE will be breached which can be by virtue of
change in policy, discriminatory departure of policy and departure from individual
representations. Firstly, the change in policy will only be breached if the government give
specific assurance to the individuals like in the case of (Humble v Fisheries) where the
government made the assurance regarding the transfer of fishing license will be issued to a
particular vessel to another but later the government imposed the policy which ban on the
transfer if all licenses. Similarly, in the case of (Niazi0[2008] Laws LJ stated that the
“claimant will have to show a specific underthinking directed towards a particular individuals
or group by which the policy continuance was assured. As seen in the case of
(Unilever0[1996] that IRC stated that they would accept the late payments but later changed
this practice which breach the legitimate expectations of the individuals. Secondly, the
discriminatory departure from the policy will result in the inequality and discrimination
among the individuals which ultimately undermined the ROL. The prime example of
discriminatory departure can be seen from the case of (Ruddock] [1987] that the government
is allowed to depart from its policy in one condition if they justify the departure. Similarly,
(Khan0[1984] that “Authority can only go back from its policy after granting a hearing and
that only if the overriding public interest demands”. Thirdly, departure from the individualized
representation that seen from the case of (MFK) [1990] where claimant seek advice from IRC
that certain investment will be termed as tax or capital, IRC convincedly stated that it will be
term as capital but latter IRC withdraw from his representation. The court held that IRC is not
allowed to withdraw from his earlier representation because it would lead to substantive
unfairness. From the discussion, we can see the requirement of notice for change in policy is
easily to meet but the requirement to provide the justify reasons from departure of policy is
very strong to protect individuals’ expectation.
Here, it would be relevant to mention the ways in which the court protect individuals from SLE
breach. It can be evident that prior to 2001 the court was protecting SLE in procedural manner
I.e., the promise will not be binding on the government if it takes certain underthinking’s
before breaching SLE which includes that the government took the consideration before the
 change in policy that SLE will be breach then there will be no JR on the government’s action.
The JR can also be avoided by the virtue of consultation or hearing with aggrieved before
undertaking the decisions (Khan). Moreover, if the government send notice to the parties
whose expectations are breached, the JR will also not conduct by the government. Thereby,
the government promise was not binding which shows its difference from the estoppel which
makes the promise binding on the individuals always.
Afterwards, the case of (Coughlan) [20010 set out that promise will be binding upon the
government, if the breach of promise amount to the abuse of the powers. The decisions of
Coughlan provide the court to option to protect SLE through procedural protection
(notice/consultation/consideration) and substantive protection (promise only binding if the
government abuse his powers). This case blurs the distinction between estoppel and SLE.
However, SLE became very similar to estoppel after the introduction of Nadarajah {2005)
where it was held that the government can only go from policy if it shows the proportionate
reasons to breach SLE. As seen from the (Bibi) [2006] where the government was saucerful to
give proportionate reason that they provide the house to another deserving person. Whereas in
the case of (Bigbie) where COA held that court will protect SLE in exceptional cases if
determinately reliance is absent in the case. However, the (Finucane) case changed the
requirement for breach of SLE that the promise will only be binding if the government back
from their promise die to bad faith reasons. The requirement was similar to Coughlan that it
was some extent difficult to prove the bad faith of the government, however, the faineance
resolved most of the issues under the doctrine of SLE.
There are certain distilleries between the doctrine of SLE and estoppel, SLE will only use from the
public law matters and makes the promise binding only there is no justify reason to breach
SLE. Although, the court take different public factors to make the promise binding, however
DR is not compulsory for SLE. Whereas SLE provides protection in many ways like by virtue
of notice, consultation and consideration. IT will only arise from the intra varies actions of the
government. On the other hand, estoppel is only used for the private law matters only which
can be only binding if claim net shows the DR. estoppel can be raised from the both intra or
ultra varies actions of the individuals, however, estoppel only makes the promise binding.
Hence, SLE and estoppel are two different concepts which makes the promise binding in
public and private law matter respectively.
However, the issues that SLE cannot arise by ultra vary representation was still unresolved, whilst in
the case of (Robertson) the SLE was arise from the ultra-varies action but it was criticized at
larger extent. But in the case of (Hudgson) (Lever (Finance Ltd. Westminster Corporation)
 and (Western Fish) affirm the principle that SLE cannot be raised from the ultra-varies
representation. However, the non-protection of people prom ultra varies representation is
creating problems for people. It was argued by the (Wade &Forsyth) ultra varies should be
protected through compensation but it was counter argued by Carig that if court start to
provide compensation for the UVSLE then the money of tax payer would not be used for the
other areas where it is need to developed.
In the light of the above discussion, we can affirm that SLE is well developed doctrine after the
introduction of fun cane case which resolved the most of issues in the doctrine of SLE.
However, the protection of UVSLE can be done through different ways so it is not relevant to
recognize UVSLE here because it will create number of problems and the money of the
taxpayer is not used for the useful purposes if government compensate for UVSLE. AS stated
by Fazal that “SLE had been developed, but its boundaries are uncertain” and Reproject Lord
Hoffman stated that “It seems to me that in this area, public law had already absorbed
whatever is useful from the moral values which underlie the private law concept of estoppel
and the time has come for it stand upon its too feet”
‘A number of ambiguities about the doctrine of legitimate expectations remain
unresolved.’ (Joanna Bell.)

Discuss.
In English Legal system there was numerous changes in the system in order to uphold the Rule
of law (ROL), To make ROL the absolute principle, every one state needs to be under in the
law, if anyone is above the law ultimately undermined ROL. Since, the government and public
futurities have the crucial role in order to run the affairs of the state. For that purpose, there must
be strong mechanism prevailed in the state where the citizens show the confidence towards the
government. However, when the government does not full fill the expectation of the citizens, the
confidence and trust on government is undermined that would also result in underservant in the
system, So, to provide protection to the citizens against the representation and promises of the
government the concept of substantive legitimate expectation (SLE) is introduced in the UK,
where the citizen get the projection for expectations that was exploited by the government. In
view, of the above statement it can be derived that the SLE is still uncertain concept, we shall be
providing arguments in the favor of the above statement along the explain the background and
present rules of SLE in UK.
It is important to mention here the need of SLE, SLE was introduced in order to provide
protection to the citizens against the expectations that are not fulfilled by the government.
According to Sedley J in the case of (Hamble fisheries) [1995] which states that SLE is
important for the fairness in the public administration system as it led to fairness all among the
individual in relation to the public matter. As if government always take actions against what the
state to the public or refrain from their actual words it would result in lack of confidence of the
government that can lead to the inefficiency in the working of the government. Because if the
government is not reliable, the citizen will protest against the actions of the government that
would result in different problems and also effect the economy of the country. This was
reaffirmed in the case of (Reynolds) [2011]. If the government does not enforce his actions
equally on every citizen will lead to the discriminatory departure of policy in relation to the
specific individuals. However, SLE are result in the predictability and certainty and if it is not
happened the ROL also would be undermined as predictability and certainty are the core
principles of the ROL. In view of Raz that it is moral duty to full fill the promise, since it is also
necessary that the government also full fill his promises. Due to these reasons, the concept of
SLE is very much of valued in order to run the state effectively.
In private legal matters, there is concept of estoppel in order to full fill the promises which are
relied by the individual and face detriment due to reliance on the premise which was taken back
by the promisor. However, the concept of estoppel is not useful in the area of public law
because it is undermining the lawful discretion of the government, thereby the estoppel is not
used in administrative law. However, the concept of SLE was introduced in relation to the
admin law matters. Whereas there are some requirements that needs to be met in order to arise
SLE that include: SLE will only arise if the government state is clear means that SLE cannot be
arrived on unambiguous representations of the government as seen in the case of (Bankrupt,
representation can be raised by virtue of oral and written statement and also through conduct of
the government (Unilever case) However, representation shall be intra varies as within the
powers of the government because ultra-varies representation cannot give rise to SLE.
Moreover, if there is more specific representation to the individual there is greater chance of
successful claim, however, the argument of detriment made the case of SLE strong as in the
cases of brisement the courts always proof the SLE (Ruddock case). Thereby, in order to meet
SLE there are certain needs that needs to be met.
Furthermore, there are certain situations where SLE is breached that include the change in
policy i.e., the government made the specific assurance to individual but later change the policy
without notice and consultation as seen in the case of (humble Fisheries) where the government
allowed the lisena of certain transfer of fishing but later put completely ban on transfer of
fishing silence which breached the legitimate expectation of the individuals involved in the
fishing business. Similarly, in the case of (Niazi) where Laws LJ states that “claimant will have
to show a specific undertaking directed towards a particular individual or group by which the
policy’s continuous was assured. Second is discriminatory departure from the policy that the
policy applies equally among all the individual but government in the case of specific individual
departs from its policy as seen in the case of (Ruddock) that the government can depart from its
policy if there is justified reason behind the departure from the policy. It was also reaffirmed in
the case of (khan) that discriminatory departure is justified if it is in the favor of public interest.
Lastly, the individualized representation where the government go back from his promise as
seen in the case of (MFK) where the claimant seeks advice of IRC that their investment will be
termed as capital or tax, however IRC state it will be capital but later said it is termed as tax that
result in the substantial loss to IRC. In this regard, court held IRC cannot go back from his
previous representation. Therefore, SLE will be breached if there is change in policy,
discriminatory departure from policy and departure from individualized representation.
In the area of SLE, there is significant development is made by the court as there are multiple
cases were the courts derived the different principle in order to protect the individual from
breech of SLE. Prior to Coughlan there was only procedural protection given to individual i.e.,
the law was in favor of the government that the SLE will not be breached if the government had
given prior notice to the affected party from the change in policy or consulted the party before
the discriminatory departure from SLE and take into account the consideration that change in
policy will result in SLE, in these situations there shall be no JR will be conducted on the
government on the grounds of SLE. But it was changed in the (Coughlan case) where the two
options were left with the government whether provide procedural protection (as discussed
above) and substantive protection I.e., the promise will be binding, if there was abuse of the
power by the government. However, there was significant changed was brought by the court in
the case of (Nadarajah) that all promises will be binding unless the government show the
proportionate reasons from the departure of the policy, the case made the SLE nearer to the
concept of estoppel that all the promises are binding. As seen in the case of (Bibi) where
government withdraw his promise but it was held justified as the house was given to more
deserving person in that case. Moreover, the law of SLE which is now followed in the courts is
come from the case of (Finucane case) that all promises will be binding if there is bad faith in
taking back the premise by the government which again made the law similar to the (Coughlin)
that it is difficult to prove the bad faith by the government. Hence, it can be seemed that law is
still uncertain and does not providing protection to the individuals as required.
Here it ii necessary to highlight the certain dissimilarities between SLE and estoppel. SLE is
 only applicable in the public law matters where the court take different factors for decisions. It
can be protected in various manners as notice, consultation, and consideration but the detriment
is not necessary to prove SLE and is only arise only when the government action is intra varies
only. On the contrary, estoppel used in public law matter when detriment is important ingredient
to pass the estoppel which can arise from intra or ultra-varies representation by the individuals.
And it is binding and there is no way for protection. Hence, there is significant difference in
both concepts.
Additionally, there are certain statements of the critics which states that the concept of SLE is
still uncertain as stated by Fazal that “SLE has been developed but its boundaries are uncertain.
Also (Jonna Bell) states that “a number of ambiguities about the doctrine of legitimate
expectation remain unresolved” It can be seen from the above statements that the concept of SR
is not fully well developed which help in the protection of the individuals against the breach of
SLE that at certain instant is correct as the SLE is narrowed by the decision in the case of
(Finucane).
In the view of the above-mentioned discussions, we can say that there is still need to developed
the laws regarding the SLE because in the present scenario the citizens legitimate expectation is
not protection at that level which was main reasoned to introduced this concept of SLE in admin
law. The principle of bad faith in majority of cases is very difficult to prove, if this would
happen the individuals will not bring their claims where the legitimately breached by the
government through their promises. Thereby, it should need the balance between the protection
of the initials and the government discretions.

LOCUS STANDI
‘The law on locus standi, the approach to the courts on delay and the burden of costs all
impose an unfair burden on those bringing claims for judicial review.’

Discuss.

We can demonstrate from the above statement that the locus standii cause delay and high cost
impose an unfair burdern to bring the claim for JR. We will agree with the above statement
because the locus standi delay the cases and also creating the burden on the claimetns. In the
answer below we shall be arguing that the locus standi requirement is very essential for the JR
but it is also delaying the justice and putting the high cost for JR applications.
As we know that admin law is the study of JR because the main purpose of the establishment of the
administrative court is to resolve the cases related to the public authorities. Because, ordinary courts were
unable to resolve the public authority’s case efficiently. The citizens were also suffering difficulties in the
courts due to consent of AG and the application of writ is also very complicated. Moreover, the public
authorities also face the unnecessary litigation by the citizens. Due to this, order 53 created a separate
admin court which was later codified under section 31 of the Senior Courts Act 1981. The Act created a
concept of JR which allows the court to conduct a check and balance on the government actions which
are ultra varies. The courts were not allowed to conduct the review of the intra varies actions of the
government. JR is usually conducted on the three grounds that is irrationality, illegality and natural
justice. Now we shall be discussing the procedure of JR JR is conducted in two stage that first stage is
known as leave stage which is permission stage granted by the court if the citizen satisfied these four
conditions: that the matter had the public law issue, citizen must be a locus standi, all other alternative
remedies are satisfied and the time limit (3-6 month). In the fisrt stage there is claimant is only called by
the court that is ex prate. Afterwards, second stage is called the principal hearing where the both parties
are called and the court proceed with further proceedings.
The requirement of the locus standi is very necessary because it provides the filtration against the
unnecessary claims of the citizens. It is very important to access that the citizen had the interest in the
case However, to access the sufficient interest is required at leave stage but the court access the standing
also at the principal stage. At leave stage the court only access the person is connected to the case
remotely or not. If the case passed the leave stage, then at the principal stage the court will see the merits
of the law. Due to all these requirements the application of JR face undue delay and also the it also
increase the cost which hinder the access to justice
Group standing in the UK: -
Generally, the UK law does not recognize the concept of action popular is (popular action/group litigation
i.e., a litigation forwarded by a group against govern). However, the IRC case opened the doors for group
standing. Now, JR applications can be filed by groups and they also can have standing in the following
situations;
Associational standing: -
This is where an association of persons is bringing forward a claim on behalf of its members. Such cases
are allowed as it avoids duplication of cases. In the IRC case, the federation who brought forward the
action was the association of tax payers. They were allowed standing as in that case the IRC’s actions
affected all tax payers.
{IRC=inland revenue collection}
Surrogate standing: -
This is allowed where an association/group is bringing an action on behalf of such a class of persons who
themselves cannot bring an action, for example: in the CPAG case, the child poverty action group was
allowed standing to bring action on behalf of poor children.
{Child poverty association group= CPAG}
Public interest pressure groups: -
Generally, standing is not given to pressure groups if they are bringing an action on behalf of society at
large. This is because the government is already democratically responsible to parliament and through
parliament to the public.
For example: -
1. Rose Theatre Case: -

Standing was not given to the pressure group who sought to challenge the legality of the government’s
decision to demolish rose theatre.
2. Greenpeace Case: -

In this case, action was brought against development of a power plant in Sheffield (a city in UK). The
action was allowed because some of the members of the Greenpeace were residents of Sheffield and
hence, would be affected by this power plant.
3. World Development Movement Case (a pressure group): -

The organisation was bringing an action to challenge the UK government’s decision to fund the
construction of a dam in Malaysia.
The court granted leave in this case stating that this was such an issue which would have not been raised
by any other person/body and hence, standing was allowed to WDM (exceptional case).

OUSTER CLAUSES:
‘Any effort to oust the jurisdiction of the courts in judicial review is an illegitimate infringement of the
rule of law principle.’ Discuss.

It is imperative to note down that UK due to lack of codified constitution, the Parliament is sovereign
authority in UK along with that the laws implemented by the Parliament (P) is also sovereign. There is the
concept prevailed in UK that all other institutions come under the hierarchy of the P means P had
excessive power to enatic or repel any law. In light of this, the UK P has also power to restrict the concept
of Judicial Review (JR). However, such steps to restrict the JR in governmental matters will undermine
the ROL doctrine because ROL want every one equal in the light of the law but these provisions made the
government above the law, in this essay, we shall be highlighting, that any effort to oust the jurisdiction
of the courts in JR is an illegitimate infringement of the ROL principle.
As stated, above P had the sovereign powers to restrict JR, in relation to this the P had applied three ways
to restrict JR that include time ouster clauses, time limit close and allocation of power to another
jurisdiction to prevent JR on the actions of the government. First, we shall be highlighting ouster clause,
ouster clause is the complete prevention of JR on actions of the governmnet. There are multiple types of
ouster clause that we shall be discussing in this answer along with we shall be giving the court view on
each clause, first one is finality clause which states that if the government had decided some decision, it
will be considered final and there shall be no review conducted on that decision. IT implied that now the
decisions of the government are final and would not be challenged in the court of law. However, the court
interpreted the finality clause in a way that the government decision shall not be challenged on the facts
but it could be challenged on the application of law. More, it was restricted that the appeal cannot be
conducted on the government decision but court said JR is not appeal thereby, the JR can also be
conducted on that decision on the basis of law as stated by Lord Actin in Ras Biharilal case that “Finality
is a good thing but justice is better”. While in the case of (Plowright) it was held that “such clause only
protects the decision made on facts and not in law (legal applications can still be challenged. Similarly, in
the case of (Gilmore) it was stated by Lord Denning that “such provisions only meant that the decision
was final on facts and not in law” and also reaffirmed in the case of Sivasubramanian”. Therefore, it can
be said that finality clause enacted by the P is interpreted by the court in order to protect JR from
prevention imposed by the clause.
Second one, is no certiorari clause as it was entered because the finality clause does not became affected
in order to prevent JR, here P clearly states that there should be no JR can be conducted on the actions of
the governmet. However, the court interpreted that the JR can only be conducted on the intra varies action
of the government and not on the ultra-varies action of the government as stated by Lord Denning in the
case of (Gilmore) that “if the tribunal were at liberty to exceed their jurisdiction without any checks by
the court, the rule of law will be at an end”. Hence, no certiorari is also does not followed by the courts.
Third one, is as if enacted clause it was enacted in order to provide the protection to the secondary
legislation of the government, however, it was also not followed by the court. As stated in the case of
(Look wood) that “the lordship interpreted the effect of such clause on the secondary legislature as
immune from censure (control) as if it were part of the parent legislature and the clock of sovereigntist
protecting it”. Similarly, in the case of (Yaffe) Lord Denden held that” as if enacted formula applies only
to the orders which conform to the Act, it does not provide protection for the secondary legislation which
conflicts with the parent act (only if it is intra varies). Last one i shall not be questioned clause that the P
enacted the government decisions shall not be questioned in any legal proceedings whatso ever, however,
the court interpreted the intra varies actions of the government shall not be questioned but the ultra-varies
action of the government shall be challenged in the court of law. Therefore, we can understand from the
above discussion the P tried multiple ways to limit the JR by ouster clauses but the court does not make it
possible and interested in a way that ROL shall not be undermined at any cost.
Moreover, there is case in which it can be clearly seen that the most important principle for court if to
upheld ROL as seen in the case of Anamonic where the government had taken irrelevant consideration in
order to give decisions. However, the action of government was challenged but it was held that the
government action is intra varies so shall not be reviewed by the court. But the court applied the different
approach had make the irrelevant consideration the non-jurisdictional error of law which is an ultra-varies
action. Due to which the matter became justiciable to conduct the review. The precedent upholds the
concept of red-light theory that JR is introduced in order to protect the fundamental rights of the citizen.
However, the decision of courts makes the question mark on the sovereignty of the P. It was argued by
Professor wade that the court action is not disobedience to P because the government is one who started it
prevent the constitutional principle of JR which upheld ROL. Thereby, P is one who is infringing ROL
and if P does not take such decisions the courts cannot disobey the sovereignty of P. In this regard, Lord
Dyson in the case of R (on the application of cart) v the Upper Tribunal that “the importance of
Anishinini is that it showed that a material error of law renders a decision a “nullity” so that the decision
is to principle judicially reviewable. It is difficult to see any principled basis = for holding that only
jurisdictional error of law by the Upper Tribunal should be judicially reviewable. In practical terms, it is
immaterial to the victim of an error of law whether it is a jurisdictional error or should be differently
classified. On jurisdictional error may be egregious and obvious”. Hence. Anomies is landmark case in
regarding to upheld ROL in UK constitutional history.
Afterwards, we shall discuss, the time limit clause where the JR cannot be conducted if the application
filed beyond the time limit. In case of Ostler and Smith the courts upheld the time limit clause and does
not entertain the case. It seen that the court obey the time limit clase. However, the main purpose to enact
such clause to decrease the JR application but it creates negative impact and the number of applications of
JR is increased because the lawyers advised the citizen to first made the application because after time
reached the application cannot be filled. Lastly, the courts aloo follows the clause in the cases where the
case is related to other jurisdiction like tribunal as seen in the case of (R(A) v DSS) that the application
was brought in the court but court did not entertain the application because it does not fall in their
jurisdiction and forward the case to tribunal; hence the courts were fooling clause other than the ouster
clauses which does not make access to justice hard and not infringe ROL.
Moreover, it was stated in the Franks ‘committee 1958 and Committee on Minister’s powers 1932 that the
P should not insert the ouster clauses as they are impeding access to justice. However, Tribunal and
Enquiries Act, 1958 incorporated these recommendations and abolish the ouster clauses which exist
before 1st August 1958 which is now replaced by 1992 act Section 12. Moreover, ouster clauses enacted
by the P are also violate the Article 6 of European Convention of Human Rights (ECH) I.e., right its free
trail that the decision shall be unbiased.
In light of the above explanations, we can say tha ouster clauses were infringing ROL that is why the
court is not obeying the P and try to interpret the laws in a way that ROL upheld, But the P does not stop
their action and faced big blow in the case of Animi which shows clarity that most important principle for
UK court is to upheld ROL, thereby P does not need to restrict JR as it provides effective scrutiny against
the government actions.

3. “The decision of the House of Lords in Anisminic v. Foreign Compensation Commission

(1969) leaves no uncertainty over the issue of jurisdictional error.”

Discuss.

It is understood that the feature of Rule of law is very essential for any country because it is the
guiding principle for any constitution. In the case of UK, then scenario is changed because the
UK lacks the condifiied constitution which achieve this feature. Due to unavaliabiliy of the
codified in constitution, the Parliament (P) P of UK is soverign authority which makes the laws
of P i..e Acts of Parlaiment (AOP) soverign laws of the land. The UK had introduced the concept
of JR by order 51 which is codified under section 31 of 1981 to have check and balance on
the governmnet actions. However, P had also enacted such clauses that restrict the court
to counduct JR which are referred as ouster clauses. But the court does not ineterpret the clauses
as the intention of the P due to which P is unable to restrict the JR on government actions.
The deceion of House of Lord (HOL) in Anisminic v Foreign Commission (1969) came into
being which left no uncertainity over the issues of jurisdictional error. In the answer below we
shall be affirming the above statemnet that there is no jurisdictional errors left through the
decision of Anisminic along that we will alo higligting the different ouster clauses in the
discussion with the relevance in the current times.

As we know that P is a soverign authority so P enated different legislation whose main purpose
to restrict the application of JR on government actions. The P tried to restrict JR through
enacting the Ouster clauses (restrcit JR completely), time limit clause (limit the time period of
JR) and allocation of power clauses (transfer of the case to some other tribuanl). We first shall
be discusing ouster clauses which refer as thay stautue enacted by the P which completely
restrict the court to conduct JR. It can be done through enactemnet of multiple ouster clauses.
Initially, the P enacted the finalliy clause which refers that no appeal can be condcuted on
the governmnet action because once the government decided it will be considered as final
decision. This shows that fact that the government deceion cannot be challanged by the court.
The court interpreted that clauses that deceions of the government is final on the facts which
cannot be challanged, however, the application of law in the decision can be challanged because
the law is never rigid or fixed which could not be changed or challanged. Moreover, the statue
refers that appeal cannot be conducted on the governmnet action but JR can conducted because
JR is not an appeal it a separate process. It can be seen from the statement of Lord Actin in the
case of While in the case of (Plowright) it was held that “such clause only protects the decision
made on facts and not in law (legal applications can still be challenged. Similarly, in the case of
(Gilmore) it was stated by Lord Denning that “such provisions only meant that the decision was
final on facts and not in law” and also reaffirmed in the case of Sivasubramanian”. Therefore, it
can be said that finality clause enacted by the P is interpreted by the court in order to protect JR
from prevention imposed by the clause.
Second one, is no certiorari clause as it was entered because the finality clause does not became
affected in order to prevent JR, here P clearly states that there should be no JR can be conducted
on the actions of the governmet. However, the court interpreted that the JR can only be
conducted on the intra varies action of the government and not on the ultra-varies action of the
government as stated by Lord Denning in the case of (Gilmore) that “if the tribunal were at
liberty to exceed their jurisdiction without any checks by the court, the rule of law will be at an
end”. Hence, no certiorari is also does not followed by the courts. Third one, is as if enacted
clause it was enacted in order to provide the protection to the secondary legislation of the
government, however, it was also not followed by the court. As stated in the case of (Look
wood) that “the lordship interpreted the effect of such clause on the secondary legislature as
immune from censure (control) as if it were part of the parent legislature and the clock of
sovereigntist protecting it”. Similarly, in the case of (Yaffe) Lord Denden held that” as if enacted
formula applies only to the orders which conform to the Act, it does not provide protection for
the secondary legislation which conflicts with the parent act (only if it is intra varies). Last
one i shall not be questioned clause that the P enacted the government decisions shall not be
questioned in any legal proceedings whatso ever, however, the court interpreted the intra varies
actions of the government shall not be questioned but the ultra-varies action of the government
shall be challenged in the court of law. Therefore, we can understand from the above discussion
the P tried multiple ways to limit the JR by ouster clauses but the court does not make it possible
and interested in a way that ROL shall not be undermined at any cost.
However, there is a landmark cases where it left no uncertainity over the issues of the
jurisdictional errors. In the case of Animinis the FCA took an irrelevant consideration into
account which raised the question whether JR can be conducted or not in this case. It
was reffered the action was intra varies so there shall be no JR on this matter. But the court held
that the JR can be conducted because the matter is in relation to errors of law. This shows the
court can also conduct the JR on the matters where there is irrelevant consideration is take into
account by the government. This case shows that no ouster clause can limit the court to conduct
the reveice because for the courts most important factor to upheld is ROL . However, Professor
Wade consider the JR constitutional principle which can not be undermined by P at any extent. It
can be argued that the court is undermining the supremacy of P which is the heart of UK
constitution. It can be contradict by the fact that P is one who firstly disrespecting the
constitutional principle and the court are performing theirresponsibility which is to upheld the
ROL in the state. Thereby, P had to stop enacting such legislation which result in restricting the
JR.
In this regard, Lord Dyson in the case of R (on the application of cart) v the Upper Tribunal that
“the importance of Anishinini is that it showed that a material error of law renders a decision a
“nullity” so that the decision is to principle judicially reviewable. It is difficult to see any
principled basis = for holding that only jurisdictional error of law by the Upper Tribunal should
be judicially reviewable. In practical terms, it is immaterial to the victim of an error of law
whether it is a jurisdictional error or should be differently classified. On jurisdictional error may
be egregious and obvious”. Hence. Anomies is landmark case in regarding to upheld ROL in UK
constitutional history.
Now we shall be higlihting the other clauses which is time limit clause and allocation
of powe clause. The court showed the respect these clauses as they are not restricting the justice
but providing the further legal remedy. The court in the case of R(A) v DSS) the application was
brough for JR but SC reject the application on the grounds that the cases does not come under
their jurisdiction and refer the case to other tribunal which posses the jurisdiction. In respect of
time limit class, if the case reach the time limit the court does not entertain the case as seen
in the case of (Ostler v Smith) where the application put forward after the time limit reach, the
court does not entertin the application. The main purpose of time limit clause was to decrease
the number of JR application but it does not show the same results because due to this the
number of JR applications increased as the citizen does not adopt the other alternatives due to the
fear of time limit can be barred if they lately file an application of JR. Hence, the court
is linient towards these clauses unlike to ouster clauses.
Moreover, the ouster clauses was completely abonded because in Frank’s Committee 1958 it was
held that it is not right to insert ouster clauses. It was further seen in Committee on Minister’s
powers 1932 which also held that insertion of ouster clauses hindering the access to justice
which is against the principle of ROL. Later, these recommendations were codified under
Tribunal and Enquiries Act, 1958 and abolish the ouster clauses which exist before 1st August
1958 which is now replaced by 1992 act Section 12. The ouster clauses also violating the Article
6 of ECHR i..e a right to fair trail.
In the view of all arguments, we can say that the concept of incorporation of ouster clauses to
limit the JR was completely abolished by the virtue of the courts interpretation and the
codification of Act. Whilst the case of Anisminc does not left any sought of ambiguity with
regards that the JR cannot be conducted on the intra varies actions of the government. The case
set out the precedent the JR can be conducted on intra varies action if the issue is in relation to
the errors of the law.