LA2008 Administrative Law Pre-exam Update

2021
The current edition of the module guide was published in 2019.

The following developments should be noted:

CHAPTER 5: THE NATURE OF JUDICIAL REVIEW

In July 2020, the government launched an independent review of judicial review. This review
aims to consider four questions that are asked in the terms of reference for the review. The core
questions are:
1. Whether the question of amenability to review should be codified in statute (see Section
7.3 of the Guide for more detail on the current approach).
2. Whether the legal principle of non-justiciability requires further consideration (see
Section 7.4 of the Guide for more information on the current approach).
3. Whether, where an act is found to be justiciable, there should be limits on the grounds of
review, whether the context should make a difference as to the grounds of review
available and whether there should be limits on remedies (see Chapter 9 of the Guide for
a consideration of the current law).
4. Whether there should be reform of various procedural requirements (see Chapter 6 of the
Guide for details of the current approach).
The review has started to gather evidence but has not yet made any comment as to likely
outcomes. One possibility is that England and Wales could see a codified system of judicial
review similar to the federal approach in Australia (see Section 5.5 of the Guide for more on this).
Inevitably, the review has drawn considerable controversy, as some see it as an effort on the part
of the government to interfere with and limit the powers of the courts in judicial review, which
are generally deemed to be the province of the courts.
You can find more information at:
Government press release – ‘Government launches independent panel to look at judicial review’
Terms of reference for the independent review of administrative law (31 July 2020)
www.gov.uk/government/news/ government-launches-independent-panel-to-look-at-judicial-
review

The UK Administrative Justice Institute has produced an excellent compilation of the responses
to the consultation, some of which are very illuminating.

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CHAPTER 6: ACCESS TO JUDICIAL REVIEW AND REMEDIES

The decision of the Court of Appeal in R (on the application of Elan-Cane) v Secretary of State for
the Home Department [2020] EWCA Civ 363 concerned a claim for judicial review brought by the
claimant in response to the Secretary of State’s refusal to issue a passport that did not state a
gender – i.e. was gender neutral. On the substance of the case, the High Court and Court of
Appeal both found that the Secretary of State had not acted unlawfully. The parties had agreed a
cost cap of £3000 in relation to the proceedings, so the unsuccessful party would only be liable
to pay £3000 of the successful party’s costs. The judge in the case applied a 33 per cent
reduction in the costs awarded to the Secretary of State and made this deduction from the
capped, rather than the uncapped costs, with the net effect that the Secretary of State was
unable to recover £3000 as agreed, but only £2000. The Court of Appeal held that the judge’s
approach was appropriate, given that the claimant was partially successful. In so doing, the
Court of Appeal noted in para. [148] that
…the underlying public policy which underpins the costs capping regime in the 2015 Act
of promoting access to justice in judicial review proceedings which satisfy the test of
being ’public interest proceedings‘ within the meaning of section 88. If that test is
satisfied, both sides will know from an early stage what their maximum exposure to costs
will be, but they will also know that the costs which they actually incur in pursuing or
defending the litigation are likely, to a greater or lesser extent, to prove irrecoverable.
That is the price which has to be paid, in the wider public interest, so that justice can be
obtained in important cases of this character.

CHAPTER 11: PROCEDURAL FAIRNESS

The decision of the Supreme Court in R (on the application of Pathan) v Secretary of State for the
Home Department [2020] UKSC 41 considered the scope of procedural and substantive fairness
in a decision concerning the grant of a work visa. In the case, the claimant had submitted an
application for a work visa, sponsored by the company offering employment to him. While his
application was under consideration, the Secretary of State revoked the company’s sponsor’s
licence and, as a result, the claimant’s application for a visa was rejected. The Home Office did
not notify the claimant that his company’s sponsor’s licence had been revoked, so he did not get
the opportunity to seek an alternative sponsor. As such, the claimant argued that the Secretary
of State for the Home department had acted unlawfully by not notifying him promptly in
relation to the revocation of the sponsor’s licence and should also have offered the claimant a
60-day period to find an alternative sponsor. The Supreme Court was unanimous in holding that
the failure to notify the claimant promptly of the revocation of the sponsor’s licence was
unlawful. However, a majority held that there was no need for the Secretary of State to confer a
substantive benefit on the claimant, such as offering a 60-day period of ‘grace’. In the case, Lady
Arden JSC offers an interesting reconsideration of the rationales for the rules on procedural
fairness at [48]–[52].

CHAPTER 12: OMBUDSMEN

In a recent article (Kirkham, R. and E.A. O’Loughlin ‘Judicial review and ombuds: a systematic
analysis’ (2020) Public Law 680) Richard Kirkham and Elizabeth O’Loughlin offer an interesting
analysis of judicial review cases reviewing decisions of ombudsmen.

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CHAPTER 14: LIABILITY IN PRIVATE LAW

The decision of the Supreme Court in GN v Poole BC [2019] UKSC 25; [2020] AC 780 is an
important recent case that holds that public authorities cannot owe a duty of care simply
because they have a statutory duty towards an individual or because they exercise statutory
powers in relation to an individual. Public authorities will owe a duty of care in circumstances
where a private individual would owe a duty of care, unless the statutory context precluded that.
Furthermore, the Supreme Court cast doubt on X v Bedfordshire County Council [1995] 2 AC 633
insofar as this case is authority for the fact that public authorities can be immune from liability in
the exercise of certain functions.

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