How the law and judicial review which ensure that public bodies act lawfully, fairly, reasonably, and within their powers.
Administrative law is a body of law that has developed principles to try to ensure that public bodies act legally, reasonably and fairly. It is sometimes referred to as “public law”. It provides a way to challenge maladministration or the misuse or abuse of power by a public body.
Administrative law is part of the common law of England and Wales. It has been developed over many years by the judiciary through case law. It provides the means for the judiciary to control and prevent the misuse of power by the executive.
Under administrative law, the UK Parliament occupies a unique constitutional position. This is characterised by sovereignty and, generally, immunity from the courts’ supervision. Public bodies, however, are subordinate to the law. In other words, UK Government Ministers, the Welsh Ministers, local authorities and other public bodies must act within the law when performing their functions.
Similarly, when legislating, Senedd Cymru must not go beyond the limits of its competence, as set out in the Government of Wales Act 2006. There are two aspects to checking whether a public body has acted within the law.
Firstly, public bodies must not act outside their powers. This involves ensuring that the person or body performing a function is the person or body with the power to perform it. It also involves ensuring that the person or body does not exceed the scope of the powers given to them.
Secondly, public bodies must exercise their powers in a lawful way. Different considerations arise depending on the circumstances. Broadly, this can involve ensuring that something a public body has done is reasonable, has been done for a proper purpose, and is proportionate and procedurally fair. It can also involve ensuring that the public body discharged its functions impartially, and in a way that took all relevant considerations into account.
Administrative law is not concerned with the merits of a decision. For example, it does not look at whether a decision was a good one, or whether it was based on a correct interpretation of the law. Rather, administrative law looks at the process by which a decision was reached.
There is a specific court procedure for challenging the lawfulness of something done by a public body. The procedure is known as judicial review and it enables a person to bring a court case to claim a specific legal remedy. The remedies available in judicial review include:
- a quashing order (to nullify a decision taken by a public body)
- a prohibiting order or injunction (to prevent a public body from doing something)
- a mandatory order (requiring a public body to do something)
- a declaration (to declare what the legal position is)
“The Judge Over Your Shoulder”, a UK Government publication, gives an overview of administrative law and judicial review.