This is a summary about everything in the course discription for Administrative law, about what it is till the 'In law / In fact'. Everything about due process. The book the slides and the workshops are all in it included, its a big summary about everything. We got an 8.5 learning this summary and ...
Administrative Law Week One Summary
Definition and scope of administrative law
Administrative law is a branch of public law which consists of those laws establishing and governing
public agencies and offices, rules which such agencies themselves make, the court rulings which keep
the agencies and their rules within limits, and the patterns of remedies to assist persons injured by
such agencies.
(The law concerning the powers and procedures of administrative agencies, including especially the
law governing judicial review of administrative action.)
Administrative law is a branch of ‘public law’. Public law is contrasted with ‘private law’.
The distinction between private and public sectors of society has at least two dimensions:
- Institutional dimension
public agencies and officials (government) on the one hand and the private citizens on the other
hand
- Functional dimension (Public functions and private activities)
- control of administration (Keeps administrative agencies and their functionaries in line)
- laws governing administration
- legal rules from administrative
- court decisions pertinent to all parts
- procedures to remedy legal injury
- Affords remedies of various sorts for the individual citizen injured by government
- Enables government to enforce its legally rightful claims and goals, according to law
In these terms, public law is concerned with public institutions and their relations with private citizens
and with the performance of public functions, while private law is concerned with private activities
and relations between private citizens.
It is public because public administrators must do certain things that private citizens cannot;
- Special duties should apply to public officials and agencies due to the power they have over citizens;
- Public officials and agencies should be subject to public accountability;
- Different role of courts in reviewing the programs/actions of public agencies.
French Law embodies a sharp distinction between public and private, because it has two sets of
courts
English law it’s a less sharp distinction because the ordinary courts have the jurisdiction to deal with
disputes of all types (a sharper distinction has been made now)
Why we might want to draw distinction between public and private law is because we want a
different legal regime to apply performance of public functions than to private activities.
Explaining:
- The public (state) have some certain powers to take actions the private (citizens) can not take
- The power public officials and agencies can wield over citizens (because the government enjoys a
monopoly of legitimate coercion) we may want to impose them on special duties that do not apply to
private citizens and special rules what they may do and how they may do it
- Public agencies may have a monopoly over certain activities and the provision of certain goods and
services
- Courts are themselves public institutions, the view they take of their proper tole when dealing with
the exercise of public power is different from the way they understand their role in relation to purely
,private matters
- the fact that although governments have certain distinctive tasks many of the things they do are
also done by private citizens
Some public law rules of liability in contract and tort that apply to claims arising out of the
performance of public functions.
AV Dicey -> major strength of English law that public officials were subject to basically the same laws
as private citizens to the extent that those laws were relevant to the performance of their public
functions.
When public agencies make a contract it is by doing so as an agent at large and must bear in mind
the interests of the community as a whole.
Distinction between public and private can therefore be used either to accord public agencies special
privileges or to impose them special responsibilities and duties and subject them to special
constraints.
Examples: Government contracting, Police, Case Swain vs Law Society (page 7/8)
Whether a function is classified as public or private depends on a judgement about whether its
performance ought to be subject to control in accordance with public-law principles. (in parts)
The various activities of modern state are extraordinarily diverse, and this diversity is recognized
under the broad heading of administrative law by the existence of categories such as immigration
law, public housing law and so on.
Some of the general principles are found in the legislation. Many have been developed by courts in
the process of reviewing public decisions and adjudicating disputes between citizens and public
agencies.
The general approach may information about activities that the specific approach might not.
One important consequence of adopting the general approach is that this book will not tell you much
about the substance of what public administrators do or the public programmes they implement.
Law can facilitate by defining objectives and by creating institutions, conferring powers, and
establishing processes for realizing those objectives.
Administrative law as constraint is not entirely negative because it also serves the positive objective
of legitimizing public administration to the extent that it adopts the means on which administrative
law insists.
Three main aspects of public administration.
Institutional framework, include misisters of state and their departments: non-departmental
executive agencies, such as Jobcentre Plus: independent regulatory agencies, such as the office of fair
trading, the health and safety executive, the various utilities regulators and so on.
Normative framework of public administrations,
- functions, powers, and duties of public administrators and the (policy) objectives of public
administrations. Most of them are statutory, but central government has a certain non-statutory
functions and powers, which are sometimes called prerogrative.
Normative constrains on public administration.
(legislation and common law may be called ‘hard law’)
,Administrative law is concerned with all the norms that regulate public administrations.
➢ Actors in administrative law
-National Level, Agencies of central government/Local Authorities/Various Administrative Organs
- EU Level, European Commission/EU Agencies/Administrative Organs of member states
- Global Level, Public International orgi’s/International courts and tribunals/Trans Governmental
Networks/Regional IGO’s and supranational
➢ Administrative powers
- Powers derived because of the character of activity (inherent power) – certain powers ought to
belong inherently to government, even in the absence of specific authorization.
- Specific powers attributed to the administration by legislature
➢ The concept of non-arbitrariness
Arbitrary is:
- Government contrary to the rule of law;
- power of a public institution or official is arbitrary if a technique for control of the power by another
institution or person is needed but is lacking.
- A decision-making arrangement does not count as arbitrary government if there is a good reason
for leaving the decision maker free to act as he or she sees fit.
- Core task of administrative law is to impose the rule of law on public authorities.
➢ Accountability of administrative actors
Accountability is a fundamental requirement for responsible government, because public officials
cannot be trusted to act responsibly if they don’t have to face up to anyone.
There are diverse forms of accountability:
- Parliament imposes political accountability on government
- Courts imposing legal accountability
- Auditors keeping public agencies accountable for their financial conduct
Legal accountability is imposed by laws that give one institution or public official legal power to call
another to account.
Accountability of public administrators for the performance of their functions, the executive of their
powers and the discharge of their duties, it is concerned with enforcement of the norms that
regulate public administration. Bureaucratic bodies may also be subject to various types of auditing
and inspection, and to scrutiny by a parliamentary committee. Such accountability mechanisms not
only provide means for dealing with citizens grievances and for resolving disputes with the
administration but also incidentally generate norms that regulate public administrations. Some are
hard law, and some are considered soft law.
Accountability involves enforcing norms that regulate public administration, it is possible to view
those norms as principles of accountability.
Soft law, ubiquitous feature of public administration that extensively regulates the day to day
activities of bureaucrats.
Hard law, purport to be very general application and they embody the most fundamental (legal)
values that public administrators are expected to promote and respect.
look into the legal accountability and make a decision and decide if this is something that’s reviewed
by somebody else. Accountability is a fundamental requirement forest
Some Additional Information
, Administrative law is about manner and procedure of exercising power granted to administrative
agencies.
Arbitrary government:
- government contrary to the rule of law
Government must have accountability so that there is a responsible government. Meaning that it
acts for the citizens, society and outsiders (visitors etc). It’s for the people in the country or related to
the country.
Good government makes a good community. It is responsible and serves based on the principles of
justice, efficiency and compassion.
Effective government is indeed important but responsible is more important, It’s about which serves
best on the government.
Accountability, you have Political (like the European Union), financial (management of public
resources), Administrative, Legal (courts), Social (accountability to the outside world)
Habeas corpus: first it was a tool for judges when they were looking at judicial decisions.
now: General right to question your detention and if it is lawful or not.
UK: Official since 1640
US: ?
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